State of Louisiana VS Property Seized From Davede Davillier $660.00 In U. S. Currency
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Not Desie nated For Publication COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 CA 1329 STATE OF LOUISIANA VERSUS PROPERTY SEIZED FROM DAVEDE DAVILLIER 660 00 IN U S CURRENCY Judgment On Appeal from the Parish of St rendered May 8 2009 22nd Judicial District Court Tammany State of Louisiana Number 2007 13010 Division The Honorable Patricia T C Hedges Judge Presiding Jessica J Brewster Counsel for Plaintiff Appellee Assistant District State of Louisiana Covington Attorney LA Kathryn Landry Baton Rouge LA Davede Davillier Claimant Basile LA In BEFORE n Y f CARTER C J Proper Appellant Person WHIPPLE KUHN DOWNING AND McCLENDON JJ J 1 WHIPPLE J appeals Davede Davillier seized from him of Louisiana we reasons during a parole in an Judgment check 660 00 in currency judgment against rem was entered in favor of the State For the currency be forfeited to the State ordering that the following affirm FACTS AND PROCEDURDAL HISTORY Davede Davillier Sheriff s Office Davillier s corporal home in conducted April the sheriff s officer found substance some a cash them on to take to a Tammany Parish St a routine residence check and drug screen at During the parole check the sheriff s officer 2007 found crack cocaine in Davillier a with together officer parole s While pocket s scale and After Davillier razor s bedroom both of which contained white a arrested he asked if he could retrieve was the jail with him chest of drawers in his bedroom a searching Davillier He then retrieved At that time 660 00 from a drawer in the sheriffs officer seized the money The State of Louisiana served a notice of pending 40 2601 et seq LSA R S through the forfeiture and a 220d Judicial District district attorney petition seeking forfeiture of the motion for release of the seized currency which proceeded to trial After for civil forfeiture pursuant was 660 00 Davillier filed denied The matter considering the testimony and evidence the trial from the sale of controlled found that the money constituted proceeds substances and entered in favor of the State and judgment The trial court then ordered that the against 660 00 be forfeited and to a then court dangerous the currency disposed of pursuant to law Davillier court erred in now appeals asserting in one assignment entering judgment against his property based 2 of on error its that the trial erroneous factual finding that the constituted proceeds of the sale of controlled dangerous currency substances DISCUSSION Applicable Law Dangerous Substances Property Forfeiture The Seizure and Controlled LSA R S 40 2601 furnished any person in by LSA R S 3 exchange for of conduct proceeds constitutes giving controlled a rise to district attorney has commenced forfeiture the circumstances of the claimant things of an owner setting forth claim a or interest among other of the interest in the acquisition s that Once the 40 2612 LSA R S a or LSA R S 40 2604 2 proceedings may file the claimant substance dangerous forfeiture 40 2611 LSA R S 40 2608 holder in the property for the forfeiture of property that is provides procedures et seq Act in asserting that the property and the specific provision of the Act relied upon property is not the forfeiture forfeiture subject to is proceeding preponderance 40 2612 G State v B 4 and the property Green 42 253 such giving to proving by 6 20 07 a forfeiture and LSA R S illegal activity App 2nd Cir La rise Where 5 contested the State has the burden of of the evidence the criminal conduct connection between the so LSA R S 40 2610 A 960 So 2d 1270 1272 All monies handled to forfeiture solely on by a suspected inquiry is whether the money was used facilitate Although 1 to a used in drug transactions supported by Prior to amendment establish was drug dealer some probable preponderance cause by more or was than control are over not subject the money exchange for controlled substances the proceeds connection between the money and the some be shown and convicted the basis that the dealer had The to or mere of a drug suspicion drug related State v transaction activity Cash must Totalling Acts 1997 No 1334 the State had the initial burden of proof to for the forfeiture ofthe evidence The amendment See State v So 2d 1270 1272 3 changed Green 42 253 La the State App 2nd s burden of proof Cir 6 20 07 960 the 1993 that fact instrumentality forfeiture to App found in giving rise to forfeiture used intended or ozopf r f aiding the State in its burden to was rise gives proceeds the be used contraband to proximity inference that the money or was writ denied 629 So 2d 401 1 Cir is money of conduct provided permissible rise La 00 623 So 2d 114 121 156 15 to to the La or an statutorily giving of conduct facilitate the conduct thus LSA R S 40 2611 G Legal Error At the outset the trial court we the trial So court court basically our review of the of proof regarding burden indicate that the trial reasons note that placed stated the transcript reveals legal the trial Specifically the burden of proof following to on court Davillier s error oral by reasons During its oral Davillier you had the burden of proving by a preponderance of the evidence that you had gone and you d cashed this check and the IRS refund money belonged to you from your wages and your The trial court further stated But you haven t carried your burden of judgment in your favor As stated above burden of rise to a contested forfeiture a preponderance and so I can proceeding t 40 2612 G that the trial State court v placed State the trial court committed When standard no legal error a of the evidence the criminal conduct Green 960 So 2d 1272 at giving illegal activity Accordingly the burden of proof on Davillier rather than legal to the on the error interdicts the fact longer applies and if the 2Subsection render the State has the forfeiture and the connection between the property and such LSA R S extent proving by in proof finding process record is otherwise the manifest error complete the appellate presumption that any property of the person is subject to forfeiture where certain specific circumstances are established Proof that the property sought to be forfeited was in close proximity to the contraband or instrumentality of conduct of forfeiture is not required under subsection H However the inference provided in subsection G arises strictly from the circumstance of the money being in close proximity to the contraband or instrumentality of conduct giving rise to H of LSA R S 40 2611 further forfeiture 4 provides a rebuttable conduct court must preponderance Thus correctness of the entire record and determine reVIew novo Pruitt of the evidence 2004 0152 Brinker Inc v 899 So 2d 46 49 writ denied 2005 1261 Cir 2 11 05 1084 de a we conduct a de novo La 12 review of the record before us App 1st La 917 So 2d 05 to a determine the of the judgment of forfeiture De Novo Review In the instant DaviHier s parole 4 2007 with officer testified to search of Davillier of Davillier s was marijuana someone at dresser in Davillier substance Corporal and on razor s them Beavers The Also was discovery his exchange to placed bedroom for fixing a under the search digital of crack cocaine blade with white residue At the time Davillier was positive Corporal scale and engaged residing was a planning When screen a drug to out give screen for both cocaine and abusing drugs Beavers blade both conducted having on a a the white by Davillier and then seized by bedroom in a chest of drawers s person and of the the dresser in his bedroom in 3 pat down Beavers discovered razor Davillier on on s was 4 car Corporal arrest the money retrieved was his the officers that he located in Davillier finding that Davillier 3 in During search of the residence drug performed Beavers Corporal the home Davillier tested was April on piece of paper containing crack cocaine rocks fell and he later admitted After Davillier home routine residence check and a when s Lousteau Tammany Parish Sheriffs Office At that time Davillier claimed that he pocket then conducted Agent Lindy trial that she visited Davillier to conduct wadded a the crack cocaine to was Lousteau Agent at Sean Beavers of the St Corporal The purpose of the visit According Louisiana Probation and Parole case illegal drug activity at his mother s house with his digital scale supports the Moreover girlfriend his son the and girlfriend 4At trial however Davillier denied that he had cocaine on his person on the day in question He also denied that he stated to the officers that he was going to give the drugs to his son s mechanic 5 located in the of the money proximity same bedroom instruments that facilitate the distribution of cocaine proceeds the money constituted the used of illegal conduct used or State v or was Davillier 719 admission that he s the State established his income tax at from him the money also coupled inference of the evidence that the money LSA R S 40 1201 trial that when was Corporal for the address was was evidence a attempted check contained in a white not copy of the income tax check to write to part of was support such a finding Beavers confiscated the money tax contained in a envelope Fontan Davillier did Moreover and he the Internal Revenue Service However envelope white Additionally Sergeant envelope was et seq contained in the brown income Beavers testified that the money plastic window with abusing illegal drugs supports the finding that preponderance to be App 2nd La present during the search similarly testified that his recollection money tax was permissible refund the evidence of record does Davillier contended clear a This 156 to Six Hundred while Davillier contended that the money seized Furthermore a by forfeiture pursuant subject to Corporal 2d 154 So intended 31 095 Seventy Six Dollars 676 U S Currency Seized from Branch Cir 9 23 98 razor rise to the inference that 40 2611 G LSA R S conduct illegal facilitate to gives the scale and as who was not with that the offer into acknowledged that he had to obtain a was not copy of his income 5 Considering the record herein including the inconsistencies in the testimony and the lack of credible evidence record before 5The us to support Davillier that the money seized constituted s claim proceeds of we find from the illegal conduct or a copy of an Internal Revenue Service document indicated that Davillier was to receive an income tax refund dated April 2 2007 The document i f you have not already received your refund check it of 706 58 and further provided that within 6 weeks However this form which was dated only two days before the should arrive record before events at issue herein in us no does contain way establishes that Davillier had in fact received the events at issue 6 a refund prior to intended to forfeiture pursuant to was to used or be used to facilitate LSA R S 40 1201 illegal et conduct and thus was subject seq DECREE F or the court foregoing Costs of this reasons appeal are we affirm the assessed May 1 2008 against appellant AFFIRMED 7 judgment of the trial Davede Davillier COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 CA 1329 STATE OF LOUISIANA VERSUS PROPERTY SEIZED FROM DAVEDE DAVILLIER 660 00 IN U S CURRENCY DOWNING J Here activity dissents and the is that assigns located in the were materials in Davillier permissible located in the was money to any giving La R S 40 2601 42 253 trial et on 3 4 pp No other connection Prior to the cause La not a at not find the money was argued trial than at best the State has established forfeiture I showing In subject to a connection exists between Contrary using drugs was jurisprudence in no timely filed 960 So 2d 1270 applying the former La K S 40 26 J 2G showing by a on to the majority s way connects the civil forfeiture under amended in 1997 to claim is a the existence of probable forfeiture little 2 Cir 6 20107 App the claimant has the burden of property is generated seq since the law 997 amendment initial burden of So same room rise to the state when of the amendment I drug related drug transaction The First Circuit has at In their search for police officers did the fact that Davillier admitted conjecture drug related inference under La R S 40 2611 G that the money and conduct proof same room bedroom trained s which Davillier himself retrieved a currency and the only connection between the seized they that the money reasons statute place the burden See State 1272 however for a v of Green discussion the First Circuit in pertinent part The district attorney shall have the for forfeiture of the property If the state shows probable preponderance of the evidence that the claimant s interest in the provided calise observed that the State drug related activity The show must some connection between the money and the follows as question does not allow the forfeiture of all monies handled by a suspected or convicted drug dealer solely on the basis that the dealer had some control over the money The inquiry is whether the money was used in exchange for controlled substances used to facilitate drug transactions or was the proceeds of a drug transaction Some connection between the money and the drug related activity must be shown and supported by more than a mere suspicion State Cash Cash v 15 156 00 623 So 2d 114 Totalling 15 156 00 Totalling trunk in in statute 623 So 2d at 115 App 1 Cir 1993 at issue was the cash In found in a different bedroom from where the cocaine seized a Louisiana Revised Statutes 40 2611H connection if the related La 122 establishes that money state 2 activity as provides was a rebuttable found in presumption proximity to of a drug follows There shall also be person is subject all of the rebuttable a presumption that property of any forfeiture under this Section if the state a establishes following 1 to That the person has engaged in conduct giving rise to forfeiture That the property was acquired by the person during the period of the conduct giving rise to forfeiture or within a reasonable time after 2 that 3 period That there conduct giving While the first was no rise two consistent unrebutted moment it was IRS showing provided time refund of test may provided 706 58 a the seizure dated two Davillier the check Davillier pertain source an provides of the currency income a From the tax refund check notice from the Internal Revenue Service paycheck stub showing assertedly cashed The State did not argue the forfeiture elements of this Davillier copy of his for the property other than the he asserted that he cashed period surrounding where he 2 a a source explanation for the likely seized During discovery to likely days before the seizure he worked and subpoenaed although applicability of the presumption 2 at the trial a was He also paid during witness from the the store the witness did not appear for nor does it argue the presumption here He claims he authorized the State to contact the IRS to court The State that Davillier failed argued The his burden to Accordingly since property other than the conduct giving rise See Cash the color of the explanation The burden to innocence or of the prove does not 2d So diminish the He cannot be anything case a no at 118 presumption of The consistency dispute over of Davillier but it did sheriffs not do But he had not prove for punished failing to s no prove his and present evidence to procure opportunity to prove so deputy found stepped out In the evidence before it bag a of his vehicle and person after he evaluating not of the currency source The State had the In Green was exists for the source forfeiture there is 15 156 00 623 Totalling envelope to likely a majority makes much of what Daviller did disprove its the IRS but that documentary evidence Davillier produced adequately negated the presumption of connection connection proof from obtain verify the refund a the of marijuana large amount court insufficient connection and that the State had failed on the claimant of cash in his vehicle concluded that this to meet s was its burden of proof an as follows Aside from the amount testimony of cash at the that the claimant held time relatively large possessed marijuana the state s he a witnesses failed to make any other connection between the money and illegal drug activity Thus the evidence presented by the state was inadequate that the seized currency was derived from or intended illegal narcotics transaction Additionally the to to show be used in an testimony and documentary evidence produced by the claimant adequately negated the statutory inference relied upon by the state and the trial court After the reviewing the record in its entirety we must conclude that state failed to satisfy its statutory burden of proving by a preponderance of the evidence that between property the Consequently the trial seized court a and erred in substantial connection existed the illegal drug ordering that the activity 12 780 in currency be forfeited to the state under the Forfeiture Act 1 Ihe Green court also conducted Green 42 253 a de novo review because the trial cOllrt pp 3 4 960 So 2d at 1272 3 imposed the wrong burden or proof Green 42 253 p 7 960 So 2d For similar reasons I statutory burden of proving by at 1274 also conclude that the State failed a preponderance of the evidence that connection existed between the property seized and the therefore further conclude that the trial currency be forfeited to the State court Therefore I 4 erred in to a satisfy substantial illegal drug activity ordering that the 660 respectfully dissent its I 00 in
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