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State v. Timbs

Supreme Court of Indiana

October 28, 2019

State of Indiana, Appellant (Plaintiff)
Tyson Timbs, Appellee (Defendant)

          Argued: June 28, 2019.

          Appeal from the Grant Superior Court, No. 27D01-1308-MI-92 The Honorable Jeffrey D. Todd, Judge

          On Remand from the Supreme Court of the United States, No. 17-1091

          ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General of Indiana Thomas M. Fisher Solicitor General Kian J. Hudson Deputy Solicitor General Aaron T. Craft Chandra K. Hein Julia C. Payne Justin F. Roebel Deputy Attorneys General.

          ATTORNEYS FOR APPELLEE Samuel B. Gedge Institute for Justice Arlington, Virginia Wesley Hottot Institute for Justice Seattle, Washington J. Lee McNeely Cynthia A. Bedrick Scott A. Milkey McNeely Stephenson Shelbyville, Indiana David W. Stone IV Stone Law Office & Legal Research Anderson, Indiana

          ATTORNEYS FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, CATO INSTITUTE, DRUG POLICY ALLIANCE, FINES AND FEES JUSTICE CENTER, LAW ENFORCEMENT ACTION PARTNERSHIP, & R STREET INSTITUTE Joshua S. Lipshutz Gibson, Dunn & Crutcher LLP Washington, D.C. Brian J. Paul Andrew D. Dettmer Faegre Baker Daniels LLP, Thomas Q. Swanson Daniel L. Chen Gibson, Dunn & Crutcher LLP San Francisco, California

          ATTORNEY FOR AMICUS CURIAE FOUNDATION FOR MORAL LAW Richard A. Greenwalt Greenfield, Indiana

          ATTORNEY FOR AMICI CURIAE STATES OF UTAH, ARKANSAS, HAWAII, LOUISIANA, OKLAHOMA, AND TEXAS Kevin S. Smith Special Assistant Utah Attorney General Fishers, Indiana

          David, Massa, and Goff Justices concur. Justice Slaughter dissents with separate opinion.


          Rush, Chief Justice.

         Civil forfeiture of property is a powerful law-enforcement tool. It can be punitive and profitable: punitive for those whose property is confiscated; and profitable for the government, which takes ownership of the property.

         When a civil forfeiture is even partly punitive, it implicates the Eighth Amendment's protection against excessive fines. And since that safeguard applies to the states through the Fourteenth Amendment, we now face two questions left open by the Supreme Court of the United States. First, how should courts determine whether a punitive, in rem forfeiture is an excessive fine? And second, would forfeiture of Tyson Timbs's vehicle be an excessive fine?

         We answer the first question with an analytical framework similar to those of almost all courts to have addressed the issue. For the second question, we remand for the trial court to determine, based on that framework, whether Timbs has cleared the hurdle of establishing gross disproportionality, entitling him to relief.

         Facts and Procedural History

         Tyson Timbs started taking prescription hydrocodone pills for foot pain in 2007. He soon became addicted and supplemented his prescription with pain pills he bought on the street. When those became unavailable, he turned to heroin.

         Despite addiction treatment, Timbs continued to use; and when he failed a drug screen, he lost his job. He got clean for a while but began using again after his father died in 2012.

         From his father's life insurance policy, Timbs received approximately $73, 000. With about $42, 000 of those proceeds, he purchased a Land Rover. He spent the rest on clothes, shoes, and heroin, with over $30, 000 going to the drugs.

         Timbs would obtain heroin by regularly driving his Land Rover sixty to ninety miles to meet his supplier. These trips accounted for most of the 16, 000 miles Timbs put on the vehicle over four months. Eventually, a confidential informant told police officers on a drug task force that Timbs would possibly sell heroin. Timbs had never sold before, but the officers devised a controlled-buy plan.

         The first buy took place on May 6, 2013, at an apartment near Timbs's residence. Timbs drove his Land Rover to the apartment, bringing two grams of heroin with him for the sale. At the apartment, Timbs gave the drugs to the confidential informant, and an undercover police officer gave Timbs the agreed-upon $225. Before Timbs departed in the Land Rover, the officer mentioned contacting Timbs for another sale.

         About two weeks later, a second buy took place at a gas station close to Timbs's residence. Timbs arrived on foot with two grams of heroin, which he gave to an undercover officer for $160.

         Over the next week, officers set up a third buy, which was to take place at a hotel. But the sale did not occur. Before Timbs arrived at the meeting place on the scheduled day, police stopped him in his Land Rover for a traffic violation. Officers immediately seized the vehicle and took Timbs and his passenger into custody. Neither individual had heroin with him in the vehicle. Without drugs for the sale, they had planned to drive off with the purchase money once the buyer handed it over.

         The State charged Timbs with three offenses: two counts of Class B felony dealing in a controlled substance, Ind. Code § 35-48-4-2(a)(1) (2012); and one count of Class D felony conspiracy to commit theft, I.C. §§ 35-43-4-2(a), -41-5-2. The trial court found Timbs indigent and appointed a public defender for the criminal case.

         After entering into a plea agreement, Timbs pleaded guilty to one count of dealing and the conspiracy charge, and the State dismissed the other count of dealing. The court sentenced Timbs according to the plea agreement's terms: the sentence for dealing-six years' imprisonment with five years suspended to probation and one year executed on home detention-would run concurrent with a lesser sentence for the conspiracy conviction. Also, as part of his sentence, Timbs was required to participate in a drug-and-alcohol program; pay the $400 program fee; reimburse the drug task force $385 for the cost of its investigation; and pay $418 in court costs and other fees.

         In addition to prosecuting the criminal case against Timbs, the State filed a civil complaint for forfeiture of the Land Rover, bringing the action against the property, or in rem, with Timbs as a named party in interest. In its complaint, the State alleged:

1. On or about May 31, 2013, officers of the . . . Drug Task Force, seized from the Defendant, TYSON TIMBS, One (1) 2012 Land Rover LR2 . . . in Grant County, Indiana.
2. On said date and at said place, the Defendant, TYSON TIMBS, had in his possession, the above described vehicle, said vehicle had been furnished or intended to be furnished by Defendant, TYSON TIMBS, in exchange for an act that is in violation of a criminal statute, or used to facilitate any violation of a criminal statute or is traceable as proceeds of the violation of a criminal statute under Indiana law, as provided in I.C. 34-24-1-1.
3. The Defendant, TYSON TIMBS, is the owner of the vehicle.

         After a hearing, the court made factual findings and entered judgment in Timbs's favor. The court reasoned that forfeiture of the vehicle would be grossly disproportional to the gravity of Timbs's dealing offense- which carried a maximum statutory fine of $10, 000 (about one-fourth the Land Rover's market value at the time Timbs purchased it five months earlier)-so the forfeiture would violate the Eighth Amendment's Excessive Fines Clause.

         The State appealed, and our Court of Appeals affirmed. State v. Timbs, 62 N.E.3d 472, 473, 477 (Ind.Ct.App. 2016). We granted the State's petition to transfer and reversed. State v. Timbs, 84 N.E.3d 1179, 1180-81, 1185 (Ind. 2017). Without reaching the excessiveness question, we held that the Excessive Fines Clause of the Eighth Amendment had not been incorporated against the States.[1] Id. at 1180-81.

         Timbs petitioned the Supreme Court of the United States for certiorari. The Court granted his petition and held that the Excessive Fines Clause applies to the States through the Fourteenth Amendment. Timbs v. Indiana, 139 S.Ct. 682, 687 (2019). The Court accordingly vacated our prior decision and remanded the case back to us. Id. at 691.

         We ordered additional briefing and oral argument and now address the merits of the constitutional issue.[2]

         Standard of Review

         Timbs asserts that the statute under which the State sought forfeiture of the Land Rover is unconstitutional as applied to the facts of this case. His claim involves several layers of review.

         We accept the trial court's factual findings unless they are clearly erroneous. Ind. Trial Rule 52(A); Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016). But we review the court's excessiveness decision de novo, as it requires application of a constitutional standard. See United States v. Bajakajian, 524 U.S. 321, 336-37 & n.10 (1998); State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017). Finally, we presume the statute is constitutional and "resolve all reasonable doubts concerning [the] statute in favor of constitutionality." Thakar, 82 N.E.3d at 259 (quoting Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015)).

          Discussion and Decision

         The Eighth Amendment guarantees that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. These guarantees "place 'parallel limitations' on 'the power of those entrusted with the criminal-law function of government.'" Timbs, 139 S.Ct. at 687 (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 (1989)).

         At issue is the Excessive Fines Clause, which applies only to fines, or "payment[s] to a sovereign as punishment for some offense." Browning-Ferris, 492 U.S. at 265. Because the Clause has received little attention in Supreme Court precedent, courts in recent decades have been grappling with the question of what makes an in rem fine excessive. We address that question today-finding guidance in cases from the Supreme Court, especially Austin and Bajakajian, and in the history of both the Excessive Fines Clause and forfeitures.

         But first, we must determine whether forfeiture of Timbs's Land Rover is a fine, bringing it within the scope of the Excessive Fines Clause.

         I. Forfeiture of Timbs's vehicle is a fine.

         The parties agree that forfeiture of Timbs's Land Rover is at least partly punitive, making it a fine subject to the Excessive Fines Clause. We also agree.

         The State sought forfeiture of the Land Rover under Indiana Code section 34-24-1-1(a)(1)(A). This statute authorizes use-based forfeitures- forfeitures based on the property's use in a crime-of vehicles used in the commission of certain drug offenses. Specifically, the statute states that "[a]ll vehicles" may be seized for forfeiture "if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of . . . [a] controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of" the listed drug offenses. I.C. § 34-24-1-1(a)(1) (2012 & Supp. 2013).

          The question is whether a use-based forfeiture authorized by this statute is punitive and thus a fine. In Austin v. United States, the Supreme Court set out a way to answer that question. 509 U.S. 602 (1993). There, the Government sought forfeiture-under two statutory provisions-of a mobile home and auto shop, based on the property's use to commit or facilitate a federal drug offense. Id. at 604-05, 605 n.1, 620 (forfeiture under 21 U.S.C. §§ 881(a)(4), (7) (1988)). The Court concluded that such a forfeiture was at least partially punitive, bringing it within the ambit of the Excessive Fines Clause. Id. at 621-22.

         In reaching this conclusion, the Court took a categorical approach, asking whether the two statutory provisions, "as a whole," served a punitive purpose. Id. at 622 n.14; see United States v. Ursery, 518 U.S. 267, 287 (1996) (noting that Austin's approach is "wholly distinct from" a case-by-case analysis). The Court found that they did for two key reasons: first, the provisions focused on the owner's involvement in a crime (by linking the forfeiture to specific offenses and by including an "innocent owner" defense); and second, the value of the forfeitable property bore no relationship to reparative costs. Austin, 509 U.S. at 619-22. Thus, forfeitures under the two provisions were fines. Id. at 622. And it did not matter whether, in some cases, forfeitures under the provisions would be purely remedial. Id. at 622 n.14. The Court's categorical analysis would still identify those forfeitures as fines, though their entirely remedial character would make them not excessive. Id.

         Like the provisions in Austin, Indiana Code section 34-24-1-1(a)(1)(A) is punitive by design. The statute focuses on the owner's involvement in a crime-as it ties each forfeiture to the commission of a drug offense, and an accompanying "innocent owner" provision guards against forfeiting vehicles from owners who are uninvolved in the underlying offense. See I.C. § 34-24-1-4(a); cf. Austin, 509 U.S. at 619-20. Also, the value of the forfeiture is neither a fixed sum nor linked to the harm caused by the underlying crime; the vehicles' values "can vary so dramatically that any relationship between the Government's actual costs and the amount of the sanction is merely coincidental." Austin, 509 U.S. at 622 n.14. Unsurprisingly, then, the State acknowledged at oral argument that the statute has punitive as well as remedial functions.

          Thus, forfeitures under Section 1(a)(1)(A) are fines to which the Excessive Fines Clause applies. Because forfeiture of Timbs's Land Rover is such a fine, we now turn to the contours of the protection against excessiveness.

         II. When is a use-based in rem fine excessive?

         The parties disagree about how to measure excessiveness.

         The State argues that the excessiveness of an in rem fine turns on a single determination: if the property was an instrument of crime, then its forfeiture is not excessive-full stop.[3] The State reasons that, given the history of in rem forfeitures, the Excessive Fines Clause "requires only that the property forfeited be a genuine criminal instrumentality." State's Opening Br. at 11.

         Timbs urges us to recognize that the Excessive Fines Clause includes both an instrumentality limitation and a proportionality limitation. He says analyzing excessiveness entails two main questions. Was the property instrumental in the underlying crime? And, if so, would the property's forfeiture be grossly disproportional to the gravity of the offense? Timbs asserts that these inquiries focus on several considerations-how closely the property and predicate offense are linked; the claimant's blameworthiness; and the harshness of the forfeiture's effects. He maintains, though, that an excessiveness determination is "factually intensive," making "a one-size-fits-all test or a weighting for the factors" inappropriate. Timbs's Opening Br. at 16 (quoting United States v. 829 Calle de Madero, 100 F.3d 734, 738 (10th Cir. 1996)).

         To understand and resolve the disagreement over the appropriate measure of excessiveness, we first review Supreme Court guidance in Austin and Bajakajian.

          A. Supreme Court precedent provides guideposts.

         In Austin, the Court recognized that the Excessive Fines Clause applies to some in rem forfeitures, given those forfeitures' punitive nature. 509 U.S. at 621-22. In doing so, Austin confirmed that, even if in rem forfeitures were not historically deemed fines (thus placing them beyond the Excessive Fines Clause), they were understood, at least in part, as punishments. Id. at 618. Likewise, in rem forfeitures today may be punitive. So, after Austin, historical legal fictions behind traditional in rem forfeitures do not prevent courts from recognizing when a modern in rem forfeiture is a fine. See id. at 621-22.

         But Austin did not prescribe how to determine the excessiveness of in rem fines. Id. at 622-23. It instead left that question to the lower courts, emphasizing that its decision "in no way limits" consideration of multiple factors in addition to whether the confiscated property has a close enough relationship to the offense. Id. at 623 n.15.

         Five years after Austin, the Court in Bajakajian supplied a method for determining the excessiveness of an in personam fine-a punitive forfeiture obtained through an action against a person rather than against the property itself. United States v. Bajakajian, 524 U.S. 321, 336-37 (1998). There, the Court recognized that the principle of proportionality between crime and punishment is central to whether a fine is unconstitutional under the Excessive Fines Clause. Id. at 334 (citing Austin, 509 U.S. at 622- 23 and Alexander v. United States, 509 U.S. 544, 559 (1993)). And to determine whether certain forfeitures are excessive fines, a gross-disproportionality standard, as opposed to a strict-proportionality one, is appropriate. Id. at 336. Though Bajakajian did not concern an in rem forfeiture, portions of its reasoning extend to modern in rem fines as well. Id. at 331 n.6, 334-37.

         In Bajakajian, the forfeiture was based on a defendant's conviction for failing to report that he was transporting over $10, 000 in currency out of the United States. Id. at 325. The Government sought forfeiture of the $357, 144 that the defendant failed to declare. Id.

          The Court observed that the forfeiture was a fine-it derived from the historical tradition of punitive, criminal forfeitures and was designed to punish the offender. Id. at 331-33. This punitive identity, the Court explained, made the forfeiture differ from traditional in rem forfeitures, which were considered nonpunitive and thus not fines. Id. But the Court noted, referencing ...

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