State ex rel. Macy v. Thirty Thousand Seven Hundred Eighty One Dollars & No/100 ($30,781.00)

memorandum; opinion

ADAMS, Judge:

On September 19, 1989, the State filed a forfeiture action against $30,781.00 seized by a highway patrol trooper on August 24,1989. Appellants Jimmy Bolling and Richard Hughes claimed the money, and now appeal the trial court’s order granting the State’s summary adjudication request and ordering forfeiture. Appellants claim the evidence is insufficient to support the trial court’s order.¹

When it filed its Motion for Summary Judgment, the State attached the affidavit of an Oklahoma Highway Patrol Trooper and two agents for the Oklahoma Bureau of Narcotics (OBN). The State also attached an affidavit of an investigator of the Meigs County, Ohio prosecutor’s office and a certified copy of a “Judgment in a Criminal Case” against Appellant Hughes. Although Appellants responded to the State’s motion, they did not attach any affidavits or other supporting documents to establish their claim that a material fact was still at issue.

The State contends that such documentation was required by Rule 13, Rules for District Courts of Oklahoma, 12 O.S.1991, Ch. 2, App. 1, and that Appellants’ failure to do so required the trial court to grant the motion. We disagree. Appellants’ inadequate response results only in an admission for purposes of summary adjudication of “[a]ll material facts set forth in the statement of the movant which are supported by admissible evidence.” Spirgis v. Circle K Stores, Inc., 743 P.2d 682 (Okla.App.1987).

Under such circumstances, the trial court, and this Court on appeal, has the duty to insure that the motion is meritorious. Therefore, like the trial court, we must examine the evidentiary materials supporting the motion and if the movant has not addressed all of the material facts or if one or more such facts is not supported by admissible evidence, we must determine that judgment for the movant was not proper. Spirgis, 743 P.2d at 685.

In order for summary adjudication to be appropriate, not only must there be no dispute as to material facts, but all reasonable inferences and conclusions to be drawn from those facts must be in the movant’s favor and show that the movant is entitled to judgment as a matter of law. Runyon v. Reid, 510 P.2d 943 (Okla.1973). The eviden-tiary materials must be viewed in the light most favorable to the party opposing summary adjudication. Hargrave v. Canadian Valley Elec. Co-op., 792 P.2d 50 (Okla.1990). Moreover, any ruling on a motion for summary adjudication must be made on the record the parties have actually made and not upon one which is theoretically possible. Daugherty v. Farmers Co-op. Ass’n, 689 P.2d 947 (Okla.1984).

According to the State’s evidentiary materials, on August 24, 1989, a trooper for the Oklahoma Highway Patrol stopped a car with Ohio license plates for making an illegal lane change. He advised the driver of the car, Jeffrey Whittington, that he had committed a traffic violation and later issued him a warning. There were two other passengers in the ear, later identified as Robin Slater and Rick Lunsford. While running a check on the car, the trooper discovered it was owned by Jim E. Bolling of Nitro, West Virginia. When asked why he was driving Bolling’s car, Whittington explained that they were friends and he had Bolling’s permission to use it. Upon searching the car with Whit-tington’s consent, the trooper found $14,-000.00 in a “zip bag” in the front seat and $16,781.00 in a black carry on bag in the car trunk, for a total of $30,781.00. The trooper requested further assistance based on his experience and training that drug dealers carry large amounts of cash.

The trooper transported the three men to OBN headquarters and had the car towed to the same location in order to allow a “drug detector dog” to determine whether narcotics were present or had been present in the car or with the money. The dog, Bogey, made a positive alert “on a black carry on bag and along the edge of the front seat along the floor of the vehicle by biting and scratching.” Thereafter, all three men executed affidavits indicating their consent to answer questions.

All three stated they were returning from California where they had gone to purchase a truck, but each gave different versions of the facts concerning the attempted truck purchase. Slater stated the purpose of the trip was to buy a truck for his uncle, Jimmy Bolling, and that Whittington had inspected a white 1983 Peterbilt truck. Whittington stated he could not remember the year or make of the truck, but that Slater had inspected it. Lunsford stated only that the truck was a blue 1980 Peterbilt. All three men refused to be re-interviewed. No narcotics were found in the car, and the three men were released. However, the money was seized, and the State filed forfeiture proceedings.

The affidavits of the two OBN agents detailed the two positive alerts made by Bogey and his certification and reliability as a drug detector dog. The investigator’s affidavit described a voluntary interview with Lunsford on April 3,1992, during which Lunsford stated that: 1) the purpose of a trip that he made with Slater and Whittington was to buy marijuana for Appellants and that Appellants had entrusted them with approximately $31,-000.00 for that purpose; and 2) they tried to make an arrangement to purchase the marijuana but the deal fell through. According to the certified copy of the “Judgment in a Criminal Case,” Appellant Hughes was found guilty in an Ohio federal court of one count of Conspiracy to Distribute Marijuana, and three counts of Possession with Intent to Distribute Marijuana, all offenses having occurred on June 14, 1990.

The State based its forfeiture claim on 63 O.S.1991 § 2-503(A)(6) and § 2-506(G), and contended the evidentiary materials established without dispute that the money was intended to be used to purchase marijuana. According to those sections, the material fact that State must prove at the forfeiture hearing is that “the money was used, or was intended to be used, to facilitate any violation of the Uniform Controlled Dangerous Substances Act by a preponderance of the evidence.”

We need look no further than the affidavit of one of the OBN agents to conclude that summary adjudication was not appropriate. The affidavit states, in relevant part, that “Robin Slater stated that the purpose of the trip was to buy a truck for his uncle....” This statement clearly contradicts State’s position that the money was intended to be used to purchase drugs. The State’s eviden-tiary materials did not establish the absence of any controversy as to a material fact, and summary adjudication was inappropriate.

Unlike the dissent, however, we do not conclude the trial court was required to grant summary adjudication in favor of Appellants. The dissent’s position rests on the conclusion that the State was required to show probable cause for the institution of the forfeiture. The federal authority upon which the dissent relies is inapplicable to a proceeding under Oklahoma’s forfeiture laws.

The dissent correctly notes that Oklahoma law authorizes seizure of forfeitable material only upon probable cause. However, as recognized in U.S. v. $191,910.00 in U.S. Currency, 788 F.Supp. 1090 (N.D.Cal.1992), a case cited by the dissent, lack of probable cause for the initial seizure violates the Fourth Amendment to the United States Constitution and requires exclusion of the seized material as evidence,² but improper seizure does not immunize that material from forfeiture. See also United States v. One 1977 Mercedes Benz 450 SEL, 708 F.2d 444 (9th Cir.1983). Nothing in Oklahoma’s forfeiture statutes suggests a different conclusion.

Nevertheless, the dissent, relying upon cases premised upon the federal statutes, concludes the State must show probable cause for the institution of the forfeiture and may not rely on evidence obtained after that forfeiture. This view overlooks a major distinction between the federal statutes and our own. As acknowledged in U.S. v. $191,910.00 in U.S. Currency, the government in federal forfeiture proceedings has the burden of demonstrating that probable cause existed for the institution of the forfeiture proceeding. If that burden is satisfied, the person claiming the material has the burden of proving the material is not subject to forfeiture.

However, Oklahoma has no similar statutory provision. The State always has the burden of proving the material is subject to forfeiture. 63 O.S.1991 § 2-506(G). Since the seized material is not immunized from forfeiture merely because probable cause did not exist to seize it initially and there is no statutory requirement for probable cause to initiate the forfeiture proceeding, there is no reason why the State should not be allowed to use evidence obtained after the filing of the action to support its position.

Finally, on this record, we cannot agree with the dissent that the dog-sniff evidence is without probative value. The dissent’s conclusions are primarily based on Jones v. United States Drug Enforcement Administration, 819 F.Supp. 698 (M.D.Tenn.1993). The opinion in Jones indicates evidence concerning the widespread nature of drug-contaminated currency was introduced. The Appellants offered no such evidence.

On this record, none of the parties was entitled to summary adjudication. The trial court’s order is reversed, and the case is remanded for further proceedings provided by law.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

JONES, P.J., concurs. HANSEN, C.J., dissents with separate opinion.

1 . Appellants requested summary reversal pursuant to Rule 1.21, Rules on Perfecting a Civil Appeal, 12 O.S.1991, Ch. 15, App. 2, because the State did not timely designate those portions of the transcript containing evidence supporting the trial court’s order. However, the rule contemplates evidence having been heard by the trial court which must be transcribed. In summary adjudications, no such evidence is presented or heard by the trial court, and the rule is inapplicable.

2 . Appellants make no argument on appeal for exclusion of the money as evidence because of an alleged Fourth Amendment violation,