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Kulm v. Wilkening

United States District Court, D. Minnesota

December 22, 2016

Michala Kulm and Matthew Schipp, Plaintiffs,
v.
Kent Wilkening, Nobles County Sheriff, in his official and individual capacity; Kathleen A. Kusz, Nobles County Attorney, in her official and individual capacity; Dustin Roemeling, Nobles County Sheriff's Deputy; Deputies John/Jane Does of the Nobles County Sheriff, Defendants.

          Bradford W. Colbert, Esq., Legal Assistance to Minnesota Prisoners, and Jonathan Geffen, Esq., Arneson & Geffen, PLLC, counsel for Plaintiffs.

          Nathan Midolo, Esq., and Jon K. Iverson, Esq., Iverson Reuvers Condon, counsel for Defendants.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK United States District Judge.

         INTRODUCTION

         This matter is before the Court on a Motion for Summary Judgment brought by Defendants Kathleen Kusz, Nobles County Attorney (“Kusz”), Dustin Roemeling, Nobles County Sheriff's Deputy (“Roemeling”), and Kent Wilkening, Nobles County Sheriff (“Wilkening”) (together, “Defendants”) (Doc. No. 30) and a Motion for Summary Judgment brought by Plaintiff Michala Kulm (“Kulm” or “Plaintiff”) (Doc. No. 38). For the reasons set forth below, the Court grants in part and denies in part Defendants' motion and denies Plaintiff's motion.

         BACKGROUND

         I. Background[1]

         On November 25, 2011, Roemeling stopped a car for speeding. (Doc. No. 35 (“Roemeling Aff.”) ¶ 2, Ex. 1 (“Roemeling Police Report”); Doc. No. 36 (“Midolo Aff.”) ¶ 3, Ex. 2 (“Roemeling Dep.”) at 15-16.) James Carter was driving and Kulm was a passenger. (Roemeling Police Report; Roemeling Dep. at 17-18.) When Roemeling approached the vehicle, he smelled marijuana. (Roemeling Police Report; Roemeling Dep. at 16-17.) During the stop, Roemeling's K9 partner alerted to the presence of drugs in the vehicle, and Roemeling found 1.2 grams of marijuana in a bag in the back seat of the vehicle, as well as $465 in a purse that was on the floorboard in front of the passenger seat. (Roemeling Police Report; Roemeling Dep. at 16-20.) Both belonged to Kulm. (Roemeling Police Report; Roemeling Dep. at 16-24; Kulm Dep. at 19.) The car also belonged to Kulm. (Midolo Aff. ¶ 2, Ex. 1 (“Kulm Dep.”) at 16, 18.)

         Roemeling issued Kulm a citation for possession of marijuana. (Roemeling Dep. at 23; Roemeling Aff. ¶ 3, Ex. 2.) During his deposition, Roemeling stated that he seized the cash and gave Kulm a Notice of Seizure and Intent to Forfeit Property. (Roemeling Dep. at 27.) Roemeling also testified that he decided to take the money based on his understanding that the seizure was permitted because the money was found in close proximity to a controlled substance. (Id. at 28.)

         Deputy Roemeling returned to the Nobles County Sheriff's Office, placed the $465 in a currency envelope, and prepared his report. (Roemeling Dep. at 33; Roemeling Aff. ¶ 6, Ex. 5; Roemeling Aff. ¶ 2, Ex. 1 (“Report”).) The report, citation, and forfeiture notice were sent to the Nobles County Attorney's Office for review. (Midolo Aff. ¶ 4, Ex. 3 (“Kusz Dep.”) at 22-23.) Kulm paid the fine for the citation. (Id. at 25.) Kulm did not contact the Nobles County Attorney's Office or the Nobles County District Court regarding the seized funds and did not seek a judicial determination regarding forfeiture. (Id. at 25-26.) On March 9, 2012, the Nobles County Attorney's Office sent a memorandum to the Sheriff's Office indicating that the forfeiture had been reviewed, Kulm had not taken any action, and that the property could be disposed as provided by the law. (Doc. No. 33 (“Kusz Aff.”) ¶ 2, Ex. 1.) The funds were then administratively forfeited. Neither the Sherriff's Office nor the County Attorney produced a statement of probable cause before disposing of Kulm's money.[2]

         Kulm filed the present action asserting the following claims: (1) unreasonable seizure due to lack of probable cause under the Fourth Amendment of the United States Constitution (Count One); (2) lack of probable cause under Article I, Section 10 of the Minnesota Constitution (Count Two); (3) due process violation under the Fourteenth Amendment of the United States Constitution (Count Three); (4) due process violation under Article I, Section 7 of the Minnesota Constitution (Count Four); and (5) failure to perform the required probable cause determination under Minn. Stat. § 609.5315 (Count Five). (Doc. No. 56, Am. Compl. ¶¶ 26-52.)

         Kulm and Defendants filed cross-motions for summary judgment. (Doc. Nos. 30, 38.) The Court considers both motions below.

         DISCUSSION

         I. Legal Standard

         Summary judgment is appropriate if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Courts must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir. 2009). However, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).

         The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). A party opposing a properly supported motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see also Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

         II. Minnesota's Administrative Forfeiture Law

         The Minnesota Legislature created a scheme permitting forfeitures of property used in connection with drug crimes. Under Minnesota law:

All property, real and personal, that has been used, or is intended for use, or has in any way facilitated, in whole or in part, the manufacturing, compounding, processing, delivering, importing, cultivating, exporting, transporting, or exchanging of contraband or a controlled substance that has not been lawfully manufactured, distributed, dispensed, and acquired is subject to forfeiture under this section, except as provided in subdivision 3.

Minn. Stat. § 609.5311, sub. 2(a). The Legislature explained that the purposes of the forfeiture laws are:

(1) to enforce the law; (2) to deter crime; (3) to reduce the economic incentive to engage in criminal enterprise; (4) to increase the pecuniary loss resulting from the detection of criminal activity; and (5) to forfeit property unlawfully used or acquired and divert the property to law enforcement purposes.

Minn. Stat. § 609.531, subd. 1a. The Legislature also delineated two types of forfeiture procedures-judicial and administrative. See Minn. Stat. §§ 609.5313-609.5314. Both procedures may be initiated to confiscate certain properties found in proximity to controlled substances.

         “All money . . . found in proximity to . . . controlled substances” is presumed to be subject to administrative forfeiture. Minn. Stat. § 609.5314, subd. 1(a)(1)(i). In the case of an administrative forfeiture, the county seizes the property and gives notice to all persons known to have an ownership or possessory interest in the property of the intent to forfeit and informs them that they may demand judicial review of the forfeiture. Id. § 609.5314, subds. 2, 3. If a claimant chooses not to contest the forfeiture, the property is forfeited in 60 days. Id. § 609.5314, subd. 3(a). The presumption of administrative forfeiture assists the state in meeting “its initial burden to ...


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