STATE OF LOUISIANA VERSUS $144,320.00 U.S. CURRENCY Tina M. Beers 132 Woody Lane, Siler City, NC 27344

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-954

STATE OF LOUISIANA

VERSUS

$144,320.00 U.S. CURRENCY
TINA M. BEERS
132 WOODY LAND, SILER CITY, NC 27344

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 74400
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
James T. Genovese, Judges.

REVERSED AND REMANDED.

J. Phil Haney
District Attorney - Sixteenth Judicial District
Walter J. Senette, Jr. - Assistant District Attorney
St. Mary Parish Courthouse, 5th Floor
Franklin, Louisiana 70538
(337) 828-4100
COUNSEL FOR APPELLANT:
State of Louisiana

Pride J. Doran
Quincy L. Cawthorne
The Doran Law Firm
2410 Jake Drive, Suite 1
Post Office Box 2119
Opelousas, Louisiana 70571
(337) 235-3989
COUNSEL FOR DEFENDANTS/APPELLEES:
Tina M. Beers and Brittany Beers

GENOVESE, Judge.

The State of Louisiana (the State) appeals the trial court’s finding that Tina

Beers was not properly served and/or given notice of forfeiture proceedings resulting

from the seizure of $144,320.00 from a vehicle operated by Tina Beers on January 10,

2009. Tina Beers and Brittany Beers, who also claim an ownership interest in the

money that was seized, answered the appeal. For the following reasons, we reverse

and remand.

FACTS

On January 10, 2009, Trooper Troy Dupuis of the Louisiana State Police

stopped a vehicle driven by Tina Beers for a traffic violation in St. Martin Parish,

Louisiana. Tina Beers consented to a search of the vehicle. As a result of the search,

the police located nine bundles of cash totaling $144,320.00 which was hidden in a

compartment in the floor of the vehicle. A police dog performed a “narcotics sniff”

on the money and was alerted by the scent of narcotics on the money.

Tina Beers, after being advised of her rights, waived her rights and proceeded

to answer questions posed by the police. She admitted that she was the owner of the

vehicle; however, she stated that the money was not hers, and she denied having

knowledge of the presence of the money in the vehicle. At that time, Tina Beers

signed a Disclaimer of Ownership of Currency of Property wherein she stated that she

was not the owner of the $144,320.00. The money was then seized by the state

police.

On January 13, 2009, the State filed an Application for Warrant of Seizure for

Forfeiture, a Letter of Designation which authorized the Louisiana State Police to

seize the money and hold it subject to the forfeiture proceedings, and a Notice of

Pending Forfeiture. On that same date, the trial court signed the accompanying

Warrant of Seizure for Forfeiture. The Notice of Pending Forfeiture contains the

service information reflecting personal service on Tina Beers on January 10, 2009.

This service information is derived from the Disclaimer of Ownership of Currency

of Property which was filed into the record of these proceedings and specifically

states that Tina Beers waived notice of seizure and forfeiture on January 10, 2009,

when she was stopped by Trooper Dupuis.

Tina Beers and Brittany Beers1 filed a Motion for Probable Cause Hearing

Regarding Pending Notice of Forfeiture and for Release of Seized Property on

January 22, 2009, asserting their ownership of the $144,320.00. The State filed a

Motion to Strike Claim on February 19, 2009. These two motions came before the

trial court on April 8, 2009, at which time the trial court took the matter under

advisement. The trial court rendered Reasons for Judgment on May 7, 2009, in favor

of Tina Beers. It is from this judgment that the State appeals. Tina Beers and

Brittany Beers have answered the appeal.

ISSUES

The issue as expressed by the State for our review is “[w]hether the personal

service made on Tina Beers by the Louisiana State Police before [it] had been

designated by the District Attorney to seize the property was valid.” Additionally, in

her answer to appeal, Tina Beers asserts that the trial court “erred in failing to find

that the alleged Notice of Forfeiture relied upon by the State was insufficient in that

it did not cite a specific violation of the Louisiana Controlled Dangerous Substances

Act[] as required by La.R.S. 40:2603, et seq.”

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Brittany Beers, along with Tina Beers, asserted an ownership interest in the $144,320.00.
However, the claim of Brittany Beers was not adjudicated in the trial court. Thus, despite the answer
to appeal filed on her behalf, the claim of Brittany Beers is not properly before this court, and we
make no ruling relative to same.

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LAW AND DISCUSSION

This matter came before the trial court on April 7, 2009, on a Motion for

Probable Cause Hearing Regarding Pending Notice of Forfeiture and for Release of

Seized Property filed on behalf of Tina Beers and a Motion to Strike Claim filed by

the State. After taking the matter under advisement, the trial court issued Reasons for

Judgment which state, in pertinent part, as follows:

Additionally, defendant submits that she was not given proper notice of
the forfeiture proceeding. The evidence shows that Trooper Troy
Dupuis served Tina Beers personally on January 10, 2009, although he
was not authorized to do so at that time. The District Attorney’s Office
did not designate the State Police as an agency authorized to seize the
money for forfeiture until January 13, 2009. Therefore, the service
which took place on January 10, 2009 was not authorized.

The Court agrees with defendant’s argument that she was not
given proper notice in accordance with La.R.S. 40:2608(4).[2] The
language of La.R.S. 40:2608(4) is clear and unambiguous and must be
applied as written. State v. Ford, 652 So.2d 633 (La.App. 1 Cir. 1995).
La.R.S. 40:2608(4) provides that in order to initiate forfeiture
proceedings[,] the district attorney shall serve a notice of pending
forfeiture within one hundred and twenty days after the property has
been seized for forfeiture. The property in this case was seized on
January 10, 2009[,] and the record does not reflect that proper notice has
yet been given. The Court finds that the defendant was not properly
served. Because this Court has found improper service of the
defendants, it need not address the other issues.

Thus, given the trial court’s determination of improper service of notice on Tina

Beers, the trial court did not rule on the merits of the Motion for Probable Cause

Hearing Regarding Pending Notice of Forfeiture and for Release of Seized Property

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Louisiana Revised Statutes 40:2608(4) provides, relative to the commencement of forfeiture
proceedings, as follows:

Notice is effective upon personal service, publication, or the mailing of a
written notice, whichever is earlier, and shall include a description of the property,
the date and place of seizure, the conduct giving rise to forfeiture or the violation of
law alleged, and a summary of procedures and procedural rights applicable to the
forfeiture action.

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nor the Motion to Strike Claim.

The Disclaimer of Ownership of Currency of Property indicates that

“$144,320.00 in U.S. Currency” was seized by the Louisiana State Police. That

document which is signed by Tina Beers contains the statement: “I hereby state that

I am not the owner of this currency or property, I have no interest in it, and have no

claim for its return to me.” Said document also contains the words: “To the best of

my knowledge, the owner of the currency or property is:” which language is followed

by several blank lines for the insertion of the names and addresses of the owners. In

completing this portion of the form, and responding as to who owned the currency,

Tina Beers wrote on the blank line “I don’t [k]now[.]” Consistent therewith, Tina

Beers inserted “I don’t [k]now” on the blank line provided following the inquiry of

how the currency came to be in her vehicle. Finally, and most importantly, the final

sentence of the Disclaimer of Ownership of Currency of Property expressly states:

“I have been advised and understand that by signing this disclaimer of ownership, I

am waiving any right to notice of seizure or intention to seek forfeiture of this

currency or property.” (emphasis added). The signature of Tina Beers appears at the

bottom of the disclaimer.

In reaching our determination in this matter, we are guided by our earlier

opinion of this court on this issue. In State v. $3,356,183.00 U.S. Currency, 04-357,

pp. 4-5 (La.App. 3 Cir. 12/8/04), 894 So.2d 339, 347-48, writ denied, 05-1785 (La.

1/13/06), 920 So.2d 242, this court stated as follows:

In addition to the deficiency of the claim form, Mr. Bodendieck’s
purported claim lacks merit in an additional respect. Here, Mr.
Bodendieck immediately denied ownership of the currency. This denial
was testified to by the investigating State Trooper and is memorialized
in a “Disclaimer of Currency or Property,” signed by Mr. Bodendieck
and referenced in the opinion on the original hearing of this matter.

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Certainly this was evidence to be considered by the trial court in
determining the validity of Mr. Bodendieck’s claim. Furthermore,
within this document, Mr. Bodendieck also waived any right he may
have had to notice of seizure or forfeiture proceedings. Despite having
waived this right to notice, Mr. Bodendieck obviously had such notice,
whether through printed media per La.R.S. 40:2608(3)(c) or otherwise,
as is apparent from the filing of the purported claim currently under
review.

Analogous to the facts in State v. $3,356,183.00 U.S. Currency, Tina Beers

immediately denied ownership of the $144,320.00. Her denial was evidenced by the

affidavit of Trooper Walter Mire and the Disclaimer of Currency of Property that she

signed on January 10, 2009. Additionally, as in State v. $3,356,183.00 U.S.

Currency, Tina Beers expressly waived any right she may have had to notice of

seizure or forfeiture proceedings. Finally, again as in State v. $3,356,183.00 U.S.

Currency, Tina Beers had notice and knowledge of the seizure and forfeiture

proceedings as evidenced by the filing of her claim.

It is clear in this case that Tina Beers waived “any right to notice of seizure or

intention to seek forfeiture of this currency or property” when she signed the

Disclaimer of Currency of Property on January 10, 2009. Given the facts of this case,

as we determined in State v. $3,356,183.00 U.S. Currency, we find that the waiver of

notice signed by Tina Beers in the Disclaimer of Ownership of Currency of Property

satisfied the service of notice requirements of La.R.S. 40:2608(4).

Having found that proper notice of seizure and forfeiture was given to Tina

Beers, the issues presented by her in her answer to appeal have been rendered moot.

DECREE

The judgment of the trial court finding that Tina Beers was not given proper

notice of the forfeiture proceeding is reversed. The matter is hereby remanded for the

purpose of ruling on the merits of the Motion for Probable Cause Hearing Regarding

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Pending Notice of Forfeiture and for Release of Seized Property and consideration

of the State’s Motion to Strike. Costs of this appeal are assessed against Tina M.

Beers.

REVERSED AND REMANDED.

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