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In re Property Seized From Herrera

Court of Appeals of Iowa

October 11, 2017


         Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.

         Consolidated appeal from asset forfeiture proceeding filed pursuant to Iowa Code chapter 809A (2015). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Dean Stowers of Stowers & Sarcone PLC, West Des Moines, for appellants.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.

          Heard by Vogel, P.J., and Doyle and McDonald, JJ.

          MCDONALD, JUDGE.

         In this consolidated appeal, Jean Carlos Herrera and Fernando Rodriguez each appeal from separate orders issued in the same civil asset forfeiture proceeding initiated pursuant to Iowa Code chapter 809A (2015). Herrera appeals from an order forfeiting certain property to the State of Iowa. The property was forfeited on the ground Herrera failed to file a proper answer in response to the State's petition. In his appeal, Herrera contends he should be excused from compliance with the statutory pleading requirements because compliance would violate his right to be free from unreasonable search and seizure and his right against self-incrimination. Rodriguez was successful in obtaining the return of certain property, but he appeals from an order denying his request for statutory attorney fees. In his appeal, Rodriguez contends he was the prevailing party and thus entitled to statutory attorney fees.


         This case arises out of an Interstate traffic stop and roadside detention. The particular facts and circumstances surrounding the traffic stop and detention are largely immaterial to the resolution of the claims on appeal. In short, in September 2015, an Iowa Department of Transportation (IDOT) officer initiated a traffic stop of a Ford Expedition being driven by Herrera. The ground for the traffic stop was Herrera was exceeding the speed limit. Over the course of a forty-minute detention, the officer claimed to have developed reasonable suspicion Herrera and his passenger were engaged in drug trafficking. Herrera denied consent to search the vehicle, but the officer persisted. Without Herrera's consent, the officer used a canine unit to investigate further. The canine unit alerted to the Expedition. After additional officers arrived at the scene, the officers searched the vehicle. The officers found the following: an ice cream maker, which had been gutted; a cordless drill and battery, which could be used to open the ice cream maker; a "boost phone, " which is commonly used in drug trafficking; marijuana paraphernalia and a trace of marijuana inside a Pelican case; a rivet gun and rivets; a cellophane dispenser; a vacuum pump; $2600 in cash in the center console of the vehicle; and $887 in cash in the passenger's pocket. The officers also found a false compartment under the vehicle, but the false compartment was empty. The officers returned the cash to Herrera and the passenger but seized the other items, including the vehicle. The officers allowed the men to call for a taxi and leave the scene. The vehicle was towed to the IDOT maintenance garage. The vehicle was searched again at the garage, but the officers did not find anything else.

         Rodriguez became involved in this case after the officers seized the Expedition. Rodriguez is the registered owner of the vehicle, and he obtained counsel to reclaim the vehicle. The officer initiating the traffic stop learned Rodriguez was interested in reclaiming the vehicle. Rodriguez's efforts to reclaim the vehicle caused the officer to become suspicious; in the officer's view, the market value of the old vehicle did not justify any effort to recover the vehicle. The officer emailed the assistant county attorney responsible for Rodriguez's claim, and the assistant county attorney informed the officer Rodriguez would be able to recover attorney fees if he prevailed on his claim. This undoubtedly should have lessened any suspicion. Nonetheless, the officer obtained a search warrant for the vehicle. The application for the warrant relied on the officer's suspicion generated by the mere fact Rodriguez sought the return of his vehicle, but the application failed to mention Rodriguez would be entitled to fees if he prevailed on his claim. When the officers executed the search warrant, they found a secret compartment underneath the center console containing $44, 900 in cash.

         In October of 2015, the State filed an in rem forfeiture complaint, seeking forfeiture of the items seized during the traffic stop and during the subsequent search pursuant to the warrant. Herrera and Rodriguez filed a joint answer. Their answer contained the following statements:

1. I, Fernando Rodriguez, am the owner of the 1999 Ford Expedition identified in the complaint as being subject to forfeiture and an interest holder in the property seized therefrom, including the U.S. Currency in the vehicle.
2. I, Jean Carlos Herrera, was in lawful possession of the 1999 Ford Expedition, soft serve ice cream machine, pelican case, cordless drill and battery, vacuum pump and U.S. Currency identified in the complaint as being subject to forfeiture and have a legal ownership and possessory interest in those items.
3.We would ask that all mail in this matter be sent to our attorney . . . .
4.With this answer we are also filing a motion asserting that the vehicle stop, the subsequent detention and seizure, and the search of that vehicle, violated the prohibition against unreasonable searches and seizures found in the Fourth Amendment to the United States Constitution and the corresponding provision of the Iowa Constitution.
5.The exclusionary rule under the Fourth Amendment and Iowa Constitution applies in forfeiture proceedings. See In re Flowers, 474 N.W.2d 546, 548 (Iowa 1991).
6.By virtue of the application of the exclusionary rule, further statements concerning the vehicle and its contents would constitute derivative evidence also subject to the exclusionary rule. Consequently, until there is a determination on the motion to suppress, we object to providing further information for the reason that such further information would be the product of the original search and seizure that we believe violated by [sic] constitutional rights.
7. We request that the vehicle and its contents be returned to Jean Carlos Herrera and Fernando Rodriguez . . . .

         Herrera signed the answer, but Rodriguez did not. In addition to the answer, Herrera filed a motion to suppress evidence. Herrera claimed the traffic stop was unlawful at its inception and in its scope. Herrera also filed a supplemental motion to suppress, arguing the subsequent search was unconstitutional because it was granted pursuant to a defective application and because probable cause was based solely on Rodriguez obtaining counsel to reclaim his vehicle.

         Herrera's claims were resolved in February 2016. At that time, the district court granted the State's motion to dismiss Herrera's claim on the ground Herrera's answer failed to comply with statutory pleading requirements.[1] The district court denied Herrera's motion to suppress evidence, concluding the issue was moot because Herrera had not filed a proper answer and thus had no standing to challenge the forfeiture. Herrera timely filed his appeal.

         Rodriguez's claim was resolved shortly after Herrera's claim. The prosecutor notified the district court the State no longer had any objection to the return of the Expedition to Rodriguez. The claim was resolved without any hearing on Rodriguez's claim. Rodriguez's counsel sought attorney's fees pursuant to section 809A.12(7), contending he was a prevailing party within the meaning of the statute. See Iowa Code § 809A.12(7) ("The agency or political subdivision bringing the forfeiture action shall pay the reasonable attorney fees and costs, as determined by the court, incurred by a claimant who prevails on a claim for exemption in proceeding under this chapter."); see also Iowa Code § 809A.5(1) (defining exempt property to include property belonging to an innocent owner). The district court denied the fee claim. Rodriguez timely filed his appeal.


         Our review of forfeiture proceedings is for correction of errors at law. See In re Young, 780 N.W.2d 726, 727 (Iowa 2010). To the extent claimants raise ...

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