State v. $6,618.00 U.S. Currency

128 P.3d 413, 35 Kan. App. 2d 54, 2006 Kan. App. LEXIS 126
CourtCourt of Appeals of Kansas
DecidedFebruary 17, 2006
DocketNo. 93,650
StatusPublished
Cited by3 cases

This text of 128 P.3d 413 (State v. $6,618.00 U.S. Currency) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. $6,618.00 U.S. Currency, 128 P.3d 413, 35 Kan. App. 2d 54, 2006 Kan. App. LEXIS 126 (kanctapp 2006).

Opinion

Knudson, J.:

This forfeiture action was commenced under the Kansas Standard Asset Seizure and Forfeiture Act (K.S.A. 60-4101 [55]*55et seq.). Ahmed Mohamed-Abdulla-Omar Al-Haj (hereafter “Al-Haj”) appeals the district court’s order forfeiting a 1998 Chevrolet Tahoe and $4,453. Two issues are presented: (1) Is compliance with K.S.A. 60-4111(b) directory or mandatory; and (2) must there be a probable cause finding to support forfeiture under K.S.A. GO-4116 regardless of whether a proper claim has been filed?

We conclude the provisions of K.S.A. 60-4111(b) are mandatory and Al-Haj failed to file a proper claim. We further conclude the district court properly struck Al-Haj’s claim but failed to enter findings of fact to support a forfeiture order. Consequently, we vacate the forfeiture order and remand for a determination of probable cause to support forfeiture. If there is a finding of no probable cause, disposition of the property shall be in compliance with the Uniform Unclaimed Property Act, K.S.A. 58-3934 et seq.

Underlying Circumstances

On May 20,2003, Russell County Sheriff Sergeant Kelly Schneider was informed by Kansas Highway Patrol Trooper Andy Dean that Dean had stopped a van in which 332 pounds of pseudoephedrine tablets were found. Dean told Schneider he believed a 1993 red Ford pickup with Ohio plates and a black vehicle were traveling with the van. Schneider, who was patrolling Interstate 70 in Russell County, Kansas, located a black Chevy Tahoe driving in front of a Ford pickup matching the description. Both vehicles were stopped. Al-Haj was the driver of the Tahoe.

The vehicles and their occupants were transported to the Russell County Sheriffs Office, where the vehicles were searched. Inside the Ford, officers found 198 pounds of “pseudoephed” tablets. A small bag of marijuana, two marijuana cigarettes, and ZigZag rolling papers were found in the Tahoe. A search of Al-Haj produced $4,453 cash. The driver of the Ford had $2,165 cash. The Ford driver’s wallet held a piece of paper on which Al-Haj’s first name and phone number were written.

Sometime around May 21, 2003, the State filed a notice of pending forfeiture of the vehicles and cash under K.S.A. 60-4109. The State alleged the vehicles and cash were used in furtherance of or were proceeds of transactions in violation of the Uniform Con[56]*56trolled Substance Act, K.S.A. 65-4101 et seq. On May 29,2003, Al-Haj filed a claim to $4,453 and the Tahoe pursuant to K.S.A. 60-4111. The State then filed an in rem forfeiture action under K.S.A. 60-4113 of the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq. The State’s complaint noted Al-Haj’s claim on the property but said it believed tire claim was invalid.

At the bench trial on the forfeiture, dre State argued Al-Haj’s claim should be denied because it did not meet all the requirements of K.S.A. 60-4111. Specifically, the State argued Al-Haj’s claim failed to include “the date, the identity of the transferor, and a detailed description of the circumstances of the claimant’s acquisition of the interest in the property” which K.S.A. 60-4111(b)(4) requires. The district court did not deny tire claim at trial but proceeded to hear the evidence. After trial, the district court issued a written decision denying the claim and forfeiting the property. Al-Haj timely appeals.

Sufficiency of the Claim

Al-Haj acknowledges his claim was not in compliance or even substantial compliance with the requirements of K.S.A. 60-4111(b). He contends the statute is directory, not mandatory. Interpretation of a statute is a question of law permitting unlimited review on appeal. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).

K.S.A. 60-4111(b) states in material part that a claim

“shall be in affidavit form . . . and shall set forth all of the following:
“(3) The nature and extent of the claimant’s interest in the property.
“(4) The date, the identity of the transferor, and a detailed description of the circumstances of the claimant’s acquisition of the interest in the property.”

Al-Haj’s affidavit in support of his claim states: “The date, the identity of the transferor, and a detailed description of the circumstances of the claimant’s acquisition of the interest in the motor vehicle is as set forth on title to same showing claimant as owner.” No title was attached to the affidavit; Al-Haj did not provide a copy of the title at trial. Al-Haj never attempted to explain his acquisition of or interest in the cash.

[57]*57In its decision to deny the claim for failing to meet K.S.A. 60-4111, the district court stated:

“Under the facts and circumstances of this case, the claimant, Mr. Ahmed Al-Haj, says he owns the vehicle and you can verify this from the title. He fails to provide a title to the plaintiff or for the court’s review. The statute requires the claimant to make that presentation and upon his failure to do so, he has not met the elements of the statute.
“Further, in regards to the cash, there is no mention at anytime, in the affidavit or claim, as to how this cash in Iris wallet came into the possession of the claimant. He has an affirmative duty under the statute to provide a detailed description of the circumstances of the claimant’s acquisition of the interest in the property. By failing to do so, he has failed to properly follow the statute, and therefore, his claim cannot be valid.”

Al-Haj does not challenge the district court’s findings, only its conclusions of law. He contends the district court erred because the requirements of K.S.A. 60-4111(b) are directory, not mandatory.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
128 P.3d 413, 35 Kan. App. 2d 54, 2006 Kan. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-661800-us-currency-kanctapp-2006.