COA orders new hearing on $32K civil forfeiture

A Hancock County trial court must revisit the forfeiture of more than $32,000 related to a marijuana bust after the Indiana Court of Appeals found errors in various evidentiary rulings.

The case of Emery Brown v. Brent Eaton, Hancock County Prosecutor, 19A-MI-1999, began in May 2017, when Fortville Police Office Derrick Archor stopped the vehicle that was later discovered to be driven by Emery Brown. Prior to the stop, Archor observed that Brown’s Dodge had an illegible license plate and was emitting the smell of marijuana. He also saw a lit cigarette fly from the driver’s window and later observed that Brown had bloodshot and glossy eyes.

Brown admitted that he had been smoking a blunt and that he had tossed it when Archor activated his police lights. A pat-down search revealed U.S. currency in Brown’s pocket that was tightly packed with rubber bands. Later, 2 grams of marijuana were found on Brown’s person.

Brown was charged with multiple felonies and misdemeanors, and the state began efforts to unlock his iPhone, which was ringing frequently during the traffic stop. Fortville police got permission to send it to the private digital data access company Cellebrite, though the phone was not sent to Cellebrite for nine days. Eventually, Cellebrite unlocked the phone and downloaded data including pictures of marijuana, text messages and a web search for “cuts in cocaine.”

In April 2018, Brown pleaded guilty to misdemeanor counts of operating while intoxicated and possession of marijuana. A separate civil forfeiture bench trial was held in March 2019, where Brown objected to the admission of bodycam footage and other police testimony that contained pre-Miranda statements. The Hancock Superior Court overruled the objections as to the police statements but declined to allow the admission of the cellphone data. It then entered judgment for the state, ordering forfeiture of the $32,284 seized from Brown during the traffic stop.

But the Indiana Court of Appeals reversed in a Wednesday opinion, with Judge Melissa May first addressing Brown’s argument that his pre-Miranda statements to police should not have been admitted. The COA agreed with Brown, with May writing that forfeiture actions, while civil, are punitive in nature. Also, when deputies began questioning Brown, he had already been subjected to a pat down search, so a reasonable person would have believed he was in custody.

“Thus,” May wrote, “the statements should not have been admitted.”

Further, as to Brown’s sufficiency of the evidence argument, “At the evidentiary hearing, the State did not put forth sufficient evidence to show that drug dealing activity occurred, much less activity sufficient to yield or require over $32,000,” May wrote.

“The State did not present evidence regarding the quantity of illegal drugs allegedly being trafficked, the number of drug transactions the money allegedly facilitated, the identity of any drug purchases or suppliers, or the location where any transaction occurred or was intended to occur,” May continued. “Therefore, we hold the State failed to put forth sufficient evidence to sustain the forfeiture order because it did not establish a nexus between the currency and illegal activity.”

On cross appeal, however, the COA held that the trial court erred in denying the state’s motion to admit the cellphone evidence based on the nine-day delay in executing the Cellebrite search warrant. The court determined that retroactive application of Indiana Code 35-33-5-7(f) (2020) served the purpose of efficiency, adding that officers “cannot always anticipate the difficulty involved in de-encrypting an electronic device until after the device is seized.”

Brown had also argued that the search of his phone was in violation of Article 1, Section 11 of the Indiana Constitution. However, under Litchfield, the COA held that “on balance, we hold the police did not unreasonably execute the search warrant.”

“Consequently, we remand this matter for a new evidentiary hearing because the trial court erred in excluding the cell phone data,” May concluded. “… During that new hearing, the trial court should exclude Brown’s pre-Miranda statements from evidence.”