United States District Court, D. Minnesota
Bradford W. Colbert, Esq., Legal Assistance to Minnesota
Prisoners, and Jonathan Geffen, Esq., Arneson & Geffen,
PLLC, counsel for Plaintiffs.
Midolo, Esq., and Jon K. Iverson, Esq., Iverson Reuvers
Condon, counsel for Defendants.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge.
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
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.)
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
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
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.)
and Defendants filed cross-motions for summary judgment.
(Doc. Nos. 30, 38.) The Court considers both motions below.
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
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).
Minnesota's Administrative Forfeiture Law
Minnesota Legislature created a scheme permitting forfeitures
of property used in connection with drug crimes. Under
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
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
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 ...