State v. $29,940.00 in U.S. Currency

227 So. 3d 304, 17 La.App. 3 Cir. 648, 2017 La. App. LEXIS 1550, 2017 WL 3776013
CourtLouisiana Court of Appeal
DecidedAugust 31, 2017
Docket17-648
StatusPublished
Cited by1 cases

This text of 227 So. 3d 304 (State v. $29,940.00 in U.S. Currency) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. $29,940.00 in U.S. Currency, 227 So. 3d 304, 17 La.App. 3 Cir. 648, 2017 La. App. LEXIS 1550, 2017 WL 3776013 (La. Ct. App. 2017).

Opinion

CONERY, Judge.

^PETITION FOR SUPERVISORY WRITS

Plaintiff-Relator, the State of Louisiana, seeks supervisory writs from the judgment of the Fourteenth Judicial District. Court, Parish of Calcasieu, the Honorable G. Michael Canaday.presiding, which denied the State’s peremptory exception of no standing and/or motion to strike in this cash forfeiture proceeding. For the following reasons, we reverse the trial court’s ruling and grant the writ and make it peremptory. We hereby grant the State’s perempto: ry exception of no standing and for motion to'strike and dismiss defendant/respondent Lenard Leo’s claim to the $29,940.00 in U.S. currency with prejudice at respondent’s cost.

STATEMENT OF THE CASE

This forfeiture proceeding involves the seizure of $29,940 in cash from the glove box of a Mercedes Benz on or about March 13, 2016. On that date, an officer with the Combined Anti-Drug Task Force executed a traffic stop of the vehicle and identified Lenard Leo (Leo) as the driver. During the stop, the officer observed that Leo’s hands were shaking- and that he started sweating while being questioned. Leo also gave conflicting stories about his travel plans, but indicated that he was not in possession of anything illegal or any large amounts of U.S. currency. Based on his suspicions, the officer deployed his K-9 to examine the vehicle. After the K-9 gave a positive indication of the presence of narcotic odor on the vehicle, the officer executed a search,- which revealed an aftermarket compartment under the passenger seat and a locked glove box, the key for [306]*306which Leo claimed not to have. The vehicle was then transported to the Combined Anti-Drug Team Office, and a further search revealed that, while the aftermarket compartment was empty, the glove box contained eight large bundles of U.S, currency totaling $29,940.

12That same day, Leo was served with a notice of pending forfeiture for $27,940. A subsequent notice for the remaining $2,000 was later mailed to him. Thereafter, Leo filed two “Claim[s] of Seized Property” pursuant to La.R.S. 40:2610: one for the $27,940 and the other'for the $2,000. On' June 20, 2016, the State filed a peremptory exception of no standing and/or motion to strike based on Leo’s failure to adhere to the provisions of La.R.S. 40:2610. After hearing and taking the matter under advisement, the trial court denied the State’s exception and/or motion finding: “Defendant’s Notice of Filing Claim and Claim of Seized Property meet the minimum requirements set out in [La.R.S.] 40:2610.” The State now seeks review, of the trial court’s judgment. , ,

SUPERVISORY RELIEF

A court of appeal has plenary power to exercise supervisory jurisdiction over trial, courts and. may do so at any time, according to the discretion of the court. When the trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that, the merits of .the-application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). .

ON THE MERITS

To have 'standing, a plaintiff must assert an adequate interest in himself, which the law recognizes, against a defendant having a substantial adverse in-, terest. Howard v. Adm’rs of Tulane Educ. Fund, 07-2224 (La. 7/1/08), 986 So.2d 47. An action can only be brought by a person having a real and actual interest, which he asserts. La.Oode Civ.P. art. 681. A motion to strike is provided for in La.Code |sCiv.P. art. 964, which states, “[t]he court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or . any redundant, immaterial, impertinent, or scandalous matter.” “A court must deny a motion to strike if there is any question of fact or law.” Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, 98, writ denied, 01-2116 (La. 7/26/01), 794 So.2d 834.

In a forfeiture proceeding, an owner or interest holder, such as Mr. Leo, who wishes to file a claim on the property seized must submit an affidavit setting forth all of the following:

(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
. (3) The nature and extent of the claimant’s interest in the property.
(4) The date, identity of the transfer- or, and. the circumstances of the claimant’s acquisition of the interest in the property.
(6) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential - facts supporting each assertion.
[307]*307(7) The specific relief sought.

La.R.S. 40:2610(B); see also State v. $144,-320.00, 12-466 (La. 12/4/12), 106 So.3d 694 (Beers). “The failure to fulfill any of these requirements ... precludes the owner or interest holder from further participation in the forfeiture proceedings.” State v. 2003 Infiniti G35 VIN No. JNKCV51E93M024167, 09-1193, p. 14 (La. 1/20/10), 27 So.3d 824, 834. Moreover, this court has found that, while the answers to some of the questions may be self-incriminating, the statute does not violate any constitutional guarantees, reasoning:

If one does not wish to incriminate himself or subject himself to prosecution for perjury or false swearing, he simply does not file a claim under La.R.S. 40:2610, as the filing of such a claim is not | required. However, if a claim is filed under the statute, it must conform to the statute’s requirements.

State v. $80,000.00 U.S. Currency, 02-224, p. 7 (La.App. 3 Cir. 10/2/02), 827 So.2d 634, 639.

The State herein argues that the trial court erred in denying its exception/motion because Leo, in his affidavit, failed to provide, (1) the nature and extent of his interest in the property, citing La. R.S. 4Q;2610(B)(3); (2) the date, identity of the transferor, and the circumstances of his acquisition of the interest in the property, citing La.R.S. 40:2610(B)(4); and (3) the essential facts supporting each assertion that the property is not subject to forfeiture, citing La.R.S. 40:2610(B)(6). In support, the State cites this court’s decision in State v. $3,356,183,00 U.S. Currency, 04-357 (La.App. 3 Cir. 12/8/04), 894 So.2d 339 (on rehearing), writ denied, 05-1785 (La. 1/13/06), 920 So.2d 242, in which the court affirmed the trial court’s finding that a claim was deficient in that it similarly failed to provide information with regard to subsections (B)(3), (4), and (6).1 The State also cites the supreme court’s holding in Beers in which the court found two claims likewise failed to comply with subsections (B)(4) and (6) because the affidavits did not provide any details regarding how the claimants acquired the currency or | ¡¡specify all essential facts supporting each assertion, even though one of the claimants attached her tax returns and tax receipts.2

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227 So. 3d 304, 17 La.App. 3 Cir. 648, 2017 La. App. LEXIS 1550, 2017 WL 3776013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-2994000-in-us-currency-lactapp-2017.