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940.00 U.S. Currency v. State

Court of Appeals of Indiana

May 31, 2017

$47, 940.00 U.S. Currency and Dustin Sorhaindo, Appellant-Defendant,
v.
State of Indiana and Indiana State Police, Appellees-Plaintiffs.

         Appeal from the Marion Superior Court The Honorable Patrick J. Dietrick, Judge Trial Court Cause No. 49D12-1512-MI-42103

          ATTORNEYS FOR APPELLANT Bradley Keffer Brooke Smith Keffer Barnhart, LLP Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Defendant, Dustin Sorhaindo (Sorhaindo), appeals the trial court's order granting transfer of $47, 940.00 to the United States under Indiana Code section 35-33-5-5(j).[1]

         [¶2] We reverse and remand.

         ISSUE

         [¶3] Sorhaindo presents two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly granted the State's notice to transfer the seized funds when there was similar action pending in another court.

         FACTS AND PROCEDURAL HISTORY

         [¶4] On June 30, 2015, Detective Brian Thorla (Detective Thorla) and other officers from the Indianapolis Metropolitan Police Department were given verbal consent to enter and visually inspect suspicious parcels at a local shipping company in Indianapolis, Indiana. During the inspection, a parcel addressed to Sorhaindo was singled out for further investigation. Detective Thorla, a certified K9 handler, used a certified K9 to conduct a narcotic examination of Sorhaindo's suspicious parcel and a few others. The K9 gave a positive indication of a controlled substance in Sorhaindo's package. On the same day, the State opened a miscellaneous criminal case in Marion Superior Court, Criminal Division, Courtroom 6, under Cause number 49G06-1506-MC-022791 (MC-22791), and applied for a search warrant. Sorhaindo's name was not included in the caption of the search warrant application. In the probable cause affidavit supporting the search warrant application, Detective Thorla described the parcel as a "Brown Box with black duct tape . . . ADDRESSED TO: Dustin Sorhaindo, FedEx Office and Print Cent[er], 935 W Huntington Dr., Monrovia, CA 91016[, ] (404) 840-6835 and Dustin Sorhaindo 125 W. Olive Monrovin, CA 91016, " and with "TRACKING # 8077 8940 5551." (Appellant's App. Vol. II, p. 16). Detective Thorla further averred that the suspicious package was being shipped to California, "a State known by [the officers] to be a source state for the importation/exportation of controlled substances." (Appellant's App. Vol. II, p. 16). Detective Thorla added that he had probable cause to believe that the parcel contained controlled substances based on the narcotic search conducted by his certified K9. The trial court granted the warrant and limited the "search for controlled substances, records of drug trafficking, and proceeds of drug trafficking." (Appellant's App. Vol. II, p. 19). When the officers opened the package, they found socks stuffed around another heavily taped box. The search of the second box yielded several folders with various papers, and underneath the folder, there was United States currency in the amount of $47, 940.00. No controlled substances were found in the package.

         [¶5] On July 2, 2015, under cause number MC-22791, the State filed a Notice and Motion to Transfer Seized Property to the United States.[2] In the motion, the State referenced the search conducted on June 30, 2015, pursuant to the search warrant in which IMPD officers searched Sorhaindo's package and seized $47, 940 of United States currency. The motion to transfer further stated that the money was "confiscated as proceeds of narcotics trafficking . . . and money laundering." (Appellant's App. Vol. II, p. 74). In paragraph 8, the State indicated that a "copy of this Motion has been sent by certified mail, prior filing with the court, to both the sender and receipt at the addresses listed on the parcel in order to provide notice to the parties of the State's intention to transfer." (Appellant's App. Vol. II, p. 74). The record shows that the State's notice on the motion to transfer seized property could not be delivered to the different addresses listed on Sorhaindo's package and was subsequently returned on July 9, 2015.

         [¶6] On September 2, 2015, Sorhaindo's attorney wrote an email to the Marion County Prosecutor's Office stating, "[We] have been retained as local counsel to handle the Turnover re: [] Sorhaindo's seizure. We'll be getting our appearance and objection to the turnover on file shortly." (Appellant's App. Vol. II, p. 49). The Prosecutor's Office responded back stating, "Status update: After [] shuffling around from person to person, we have located the correct person willing to fix this issue as it involves JTAC, ISA and Odyssey. She is hopeful that this will be resolved by the end of the week. I will give you instructions on how to proceed when I get them." (Appellant's App. Vol. II, p. 49). In reply, Sorhaindo's counsel wrote, "Great! I want to get my objection on file, but should I continue to hold off until you give me the high sign?" (Appellant's App. Vol. II, p. 49). The Prosecutor's Office confirmed, "[T]hat is accurate because at this moment it will be rejected by the court no matter where you file it." (Appellant's App. Vol. II, p. 74). There was no further communication between the parties on this issue.

         [¶7] On December 22, 2015, the State filed a Complaint for Forfeiture against Sorhaindo in Marion Superior Court, Civil Division, Courtroom 12, under cause number 49D12-1512-MI-042103 (MI-42103). The complaint referenced the search conducted on June 30, 2015, where the IMPD officers seized $47, 940.00 in United States currency while conducting a criminal investigation. The following day, under MI-42103, the State filed a Notice and Motion to ...


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