IN THE MATTER OF PROPERTY SEIZED FROM JEAN CARLOS HERRERA AND FERNANDO RODRIGUEZ, JEAN CARLOS HERRERA and FERNANDO RODRIGUEZ, Appellants.
review from the Iowa Court of Appeals.
from the Iowa District Court for Pottawattamie County,
Gregory W. Steensland, Judge.
and owner of vehicle in civil forfeiture proceeding seek
further review of court of appeals decision affirming in part
district court ruling rejecting driver's challenges to
seizure of cash and denying owner's application for
Stowers of Stowers & Sarcone PLC, West Des Moines, for
J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Matt Wilber, County Attorney, and Shelly
Sudmann, Assistant County Attorney, for appellee.
appeal from civil forfeiture proceedings presents several
issues: (1) whether invoking the Fifth Amendment privilege
against self-incrimination excuses compliance with statutory
pleading requirements for establishing ownership in cash
seized by the State, including identifying the source of the
funds, (2) whether the district court must decide motions to
suppress evidence before adjudicating forfeiture claims, and
(3) whether a claimant is entitled to attorney fees as a
prevailing party under the forfeiture statute when the State
ultimately consented to the return of his or her property
without an adjudication on the merits.
claimants' property was seized after a drug interdiction
traffic stop on Interstate 80. No criminal charges were
filed, but the State sought forfeiture of the impounded
vehicle and $44, 990 discovered in a hidden compartment after
issuance of a search warrant. Claimants' pleadings
seeking return of the cash and vehicle omitted information
required by Iowa Code section 809A.13(4)(d) (2015)
but raised constitutional objections to the validity of the
search and the statute's disclosure requirements. The
district court dismissed the driver's claims for
noncompliance with the statute's pleading requirements,
and the State consented to return of the vehicle to the owner
after months of contested litigation. The district court
denied the owner's claim for attorney fees, and both
claimants appealed. We transferred the case to the court of
appeals, which affirmed the district court in part but
remanded for a determination on whether probable cause
supported the forfeiture. We granted the claimants'
application for further review.
reasons explained below, we hold that assertion of the Fifth
Amendment privilege against self-incrimination excuses
compliance with forfeiture threshold pleading requirements in
Iowa Code section 809A.13(4)(d), such as identifying
the source of cash. We conclude the district court erred by
failing to rule on the claimants' motions to suppress
evidence before adjudicating the forfeiture claims and erred
by overruling Fifth Amendment objections to the pleading
requirements. We further hold the vehicle owner was a
prevailing party entitled to recover his reasonable attorney
fees under the forfeiture statute notwithstanding the lack of
an adjudication on the merits. We remand the case with
Background Facts and Proceedings.
September 12, 2015, Sergeant Kevin Killpack, a motor vehicle
enforcement officer with the Iowa Department of
Transportation (IDOT), was driving east on Interstate 80 when
he noticed a westbound 1999 Ford Expedition with New York
license plates. He had been trained that this particular
year, make, and model was commonly used for transporting
narcotics and currency. Sergeant Killpack changed directions
and caught up with the Expedition, which he paced at
seventy-four miles per hour in a seventy mile-per-hour zone.
He pulled the vehicle over for speeding.
Sergeant Killpack walked up to the Expedition, he knelt by
the rear wheel well and looked underneath using his
flashlight. He found a fabricated compartment attached below
the rear cargo area. While the rest of the undercarriage was
rusty, this aftermarket alteration looked new. Sergeant
Killpack asked for registration, insurance, and the
driver's licenses of the driver, Jean Carlos Herrera, and
the passenger, Bryan Riccaldo. Sergeant Killpack asked
Herrera to accompany him to his patrol car, and Herrera
complied. Sergeant Killpack noted that neither Herrera nor
Riccaldo was the registered owner of the Expedition.
asked Herrera who owned it, Herrera said it was a friend of
his family but he only knew the owner's first name,
inquiries raised discrepancies in the stories offered by the
Expedition's driver and passenger. Herrera told Sergeant
Killpack that he and Riccaldo were traveling from New York to
Los Angeles to attend a trade show to promote their screen
printing business. Herrera said that he had been in business
with Riccaldo for two years, yet he was unable to name the
business. Herrera claimed that the trade show, called
"Agenda, " started in two weeks, but Sergeant
Killpack performed a Google search without finding that trade
show. He so informed Herrera, who began to search for the
event through his smartphone. Herrera then changed his story,
claiming that the trade show was called "The Venue"
and would take place a month later.
Killpack spoke with Riccaldo separately. He asked Riccaldo if
the men were going to a trade show; Riccaldo said no.
Instead, Riccaldo said they were traveling to Los Angeles to
visit family and to deliver the ice cream machine to a man
Killpack issued Herrera a warning for speeding and explained
that he was free to leave once the citation was printed. But
as Herrera opened the door to get out of the police car,
Sergeant Killpack asked if he could ask Herrera more
questions. Herrera said yes. Sergeant Killpack explained that
the two men had given different stories about their trip and
that he was concerned that they were involved in transporting
narcotics. Sergeant Killpack asked Herrera to consent to a
search of the vehicle for narcotics and large sums of money;
Herrera refused. Sergeant Killpack explained that he felt he
had enough reasonable articulable suspicion to perform a
"K-9 free air sniff." The trained police dog was
already at the scene and alerted to the odor of narcotics.
Sergeant Killpack and two Pottawattamie County deputies
searched the Expedition. Before the search, Herrera claimed
$2000 in cash in the center console. The currency was held
together with multiple rubber bands. Riccaldo claimed $800
cash in his own front pants pocket. This cash was also held
together with rubber bands.
Killpack inspected the ice cream machine. He noted the
electrical cord had been cut off; the internal components of
the ice cream machine had been removed leaving an empty,
opaque storage area. The officers found a "boost
phone"-a mobile phone with only one number programmed
into it-as well as a vacuum pump, a rivet gun and rivets, and
a battery for a cordless drill. These tools could have been
used to install the hidden compartment mounted on the
undercarriage. And they found a "Pelican case" that
contained drug paraphernalia and remnants of marijuana.
Herrera admitted to smoking marijuana the day they left New
York. Sergeant Killpack pulled the carpet back in the cargo
area and found the access hole to the aftermarket compartment
he had seen earlier. This compartment was empty.
Expedition was towed to the IDOT maintenance garage in
Council Bluffs for further examination. The officers
transported Herrera and Riccaldo there. Captain Tom Bruun
assisted Sergeant Killpack in a further search of the
vehicle, but they did not find any narcotics or money.
Sergeant Killpack told Herrera that the police were going to
seize the vehicle and the items found therein. He gave
Herrera an evidence receipt and a notice of forfeiture.
Herrera and Riccaldo called a cab to take them to the Omaha
airport. They were allowed to depart with the cash they were
Rodriguez of New York is the registered owner of the
Expedition. After his vehicle was seized, Rodriguez obtained
counsel to reclaim the vehicle. On September 18,
Rodriguez's attorney emailed the county attorney to let
the State know that "the owner has an innocent owner
position and will be entitled to attorney fees should he
prevail in that position." The attorney noted that the
attorney fees are provided by statute and concluded that
"the fees are going to be greater than the vehicle
value, so this might be one to let go."
learning of this email, Sergeant Killpack applied for and
obtained a search warrant. In his application, Sergeant
Killpack stated that he "ran a Kelly Blue Book valuation
on th[e] vehicle and found that in its current condition [it]
would be worth $2, 132 for resale." The application
If a person looked at this situation in a cost benefit
analysis it does not make financial sense to spend a
significant amount of money, in attorney fees, in an attempt
to reclaim a vehicle worth $2, 132. The attorney fees would
well surpass the value of the vehicle very quickly. Through
my training an[d] experience a person willing to spend a
significant amount of money to get their low value vehicle
back knows that there is something much more valuable still
inside the vehicle that has not been found by law enforcement
in the initial search.
I spoke to Captain Bruun, researched additional concealment
locations in this type of vehicle, and we discussed all the
areas that we searched. After our conversation we came to the
conclusion that we missed three areas that are known
concealment areas within a motor vehicle of this year, make
and model. Those areas are the spare tire, the firewall and
the underneath side of the center consul [sic]. It is my
belief that these three areas contain either narcotics and or
a large sum of U.S. currency gained from narcotics
trafficking. The unfound, high value, commodities would
completely justify the significant cost and effort to get a
low value vehicle returned.
application for the search warrant failed to mention that
Rodriguez had argued he was entitled to attorney fees from
the State as an innocent owner. The district court issued the
search warrant. During the second search of the vehicle,
Sergeant Killpack found $44, 990 hidden in a false
compartment inside the center console.
State filed an in rem forfeiture complaint on October 1,
seeking to forfeit the "1999 Ford Expedition, soft serve
ice cream machine, pelican case, cordless drill and battery,
vacuum pump and United States Currency." The State
alleged the property was forfeitable as "drug
proceeds" or property "used in the transport of
drugs." In their combined answer filed on November 5,
Herrera and Rodriguez stated,
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
the Matter of Property Seized from Sharon Kay Flowers,
474 N.W.2d 546 (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 . . .
7. We request that the vehicle and its contents be returned
to Jean Carlos Herrera and Fernando Rodriguez, since it
belongs to them.
the answer concluded, "We certify under penalty of
perjury and pursuant to the laws off the State of Iowa that
the preceding is true and correct, " only Herrera signed
the answer. Rodriguez did not.
weeks later, Herrera filed a motion to suppress the evidence
and return the property. He argued that the stop of the
vehicle and the subsequent detention, search, and seizure
were conducted in violation of the Fourth Amendment and
article I, section 8 of the Iowa Constitution. Herrera later
filed a supplemental motion to suppress, claiming that the
second search of the vehicle was unconstitutional because the
warrant application was defective and probable cause was
based solely on Rodriguez obtaining counsel to reclaim the
December 10, the court held a hearing on Herrera's motion
to suppress. The State began by arguing that the motion to
suppress should not proceed because the claimant had not
complied with the statutory requirements for filing an answer
to the forfeiture proceeding. Specifically, the State pointed
out that the claimant did not state "the nature and
extent of the claimant's interest in the property"
or "the date, the identity of the transferor, and the
circumstances of the claimant's acquisition of the
interest in the property."
attorney for Rodriguez and Herrera responded that the answer
was sufficient until the motion to suppress was decided. He
acknowledged that if the motion was denied, his clients
"could be required at that point to come back in and
amend their claim and their answer." But the attorney
reiterated his position that it was "not appropriate to
require detailed disclosures when there's a Fourth
Amendment issue that has to be taken up first." The
court took the matter under advisement and gave the parties
the opportunity to submit briefs. The court heard Sergeant
same day, Rodriguez filed a claim for return of the vehicle.
He argued that the vehicle did not meet the definition of
property subject to forfeiture under Iowa Code section 809A.4
and that the vehicle was exempt from forfeiture under section
and the State submitted briefs before the court issued its
order on February 9, 2016. The district court determined that
because Herrera had not met the procedural requirements of
section 809A.13(4), he was not entitled to a forfeiture
hearing. The court concluded that the property claimed to be
owned by Herrera was forfeited to the State. Additionally,
the court denied Herrera's motion to suppress, finding
the issue moot because Herrera had not filed a proper answer
and therefore had no standing to challenge the forfeiture.
Herrera timely appealed.
February 9 order, the district court did not decide
Rodriguez's claim for the return of his vehicle because
the matter had not been set for hearing. The order provided
that Rodriguez's claim should be scheduled for a hearing.
Shortly thereafter, Rodriguez filed a motion to suppress.
February 23, the court found "there is no objection by
the state to claimant Fernando Rodriguez's claim for
return of property, specifically his 1999 Ford
Expedition." The court granted Rodriguez's claim and
canceled the hearing on the matter. Rodriguez then moved for
attorney fees and expenses in the amount of $8956.96 under
Iowa Code section 809A.12(7), contending he was a prevailing
party within the meaning of the statute. Dean Stowers, the
attorney for both Rodriguez and Herrera, submitted an
attorney fee affidavit in which he clarified that the
attorney fees for representation of both clients totaled
$8232.30 and the expenses totaled $724.66. He concluded,
The work on this case would have been nearly the same had I
only represented Mr. Rodriguez because the suppression issues
were all part of the same overall factual scenario and legal
backdrop. I believe the total fees are reasonable given all
the issues at ...