Arizona Court of Appeals Division Two holds that absent a forfeiture action, courts must weigh the due process rights of an owner before allowing a prosecutor to hold property as evidence.

Updated

The Court issued a new and slightly modified opinion on December 22, 2016 (available here) that no longer bases the award of sanctions on A.R.S. § 12-349(A)(3) for unreasonable delays.  Instead, the sanctions are exclusively based on Rule 25, Ariz. R. Civ. App. P. because the state’s motion to reopen the case was frivolous.

A sheriff’s deputy seized over $15,000 from a vehicle which was also transporting marijuana.  After finding defects in the untimely forfeiture action, the trial court ordered the money returned, but only to the extent that the money was not being used as evidence in a criminal matter.  It also denied a request for immediate release of the money or an equivalent payment.  The owner appealed and after an unreasonable delay, the state responded.

The Court of Appeals held that although the state may retain seized property as evidence for a criminal prosecution, doing so must be reasonable under the Fourth and Fourteenth Amendments to the Constitution.  The prosecutor’s decision to retain the property must be considered under the due process framework set forth in Mathews v. Eldridge, 424 U.S. 319 (1976).  At a minimum, the state’s asserted need must be reasonable after weighing the competing interests and in light of less drastic means.  Here, the state did not dispute that it typically presents images of seized money as evidence at trial rather than the actual cash.  Further, the court was not restricted to ordering the return of the actual currency seized and could have ordered an equivalent payment. 

The Court of Appeals also held that the state lacked an objective basis under Rule 11 to file this clearly untimely forfeiture proceeding despite the filing attorney’s subjective belief that it was timely.  The Court of Appeals remanded for an appropriate sanction, including possible attorneys’ fees. 

The Court further held that a separate appellate sanction of attorneys’ fees on appeal was appropriate.  The state unreasonably delayed the appeal on meritless grounds, initially failed to file an answering brief on appeal, and then filed another forfeiture action in an attempt to moot the admittedly proper relief of returning the money.

Chief Judge Eckerstrom authored the opinion; Judges Staring and Fink concurred.