Docket Watch: Savely v. Utah Highway Patrol
|Topics:||State Courts • State Governments|
Suppose a police officer takes cash from you saying it is being forfeited but that you can go to the local state courthouse and ask for it back. What would you think when you got to court and the government insisted you had to go to federal court instead? Is it just for government to change the rules halfway through the game? Does it comply with due process?
Savely v. Utah Highway Patrol  grappled with that issue. In technical terms: when a state law enforcement officer seizes money for forfeiture under color of state law but the state fails to initiate forfeiture proceedings and a federal law enforcement agency initiates them instead, do state courts or federal court have in rem jurisdiction over the money? By unanimously deciding that the state court has jurisdiction, the Utah Supreme Court has provided important guidance on which procedures and protections – federal or state – apply in a given case.
In November, 2016, Utah Highway Patrol seized nearly $500,000 cash from Kyle Savely. A UHP trooper stopped Mr. Savely for a minor traffic violation. When Mr. Savely refused a consensual search of his car, the trooper brought a K9 to the scene. After the dog alerted to the presence of drugs, the car was searched. No illicit substances were found, but the trooper did find fifty-two bundles of cash. The trooper seized the money and provided Mr. Savely an asset seizure notification form as required by Utah state law. 
Although the government later alluded to potential interstate criminal activity by Mr. Savely, no such charges have been brought against him. In fact, Mr. Savely was eventually found not guilty of the traffic offense after a bench trial that he himself did not even attend. 
After the seizure, the money sat in a UHP bank account. State law gives officials seventy-five days to begin forfeiture proceedings, but no forfeiture proceedings were ever filed in state court. During this time, however, the DEA obtained a seizure warrant for the money from a federal magistrate judge so they could initiate federal forfeiture proceedings.
At the expiration of the seventy-five days Mr. Savely petitioned a state court for the return of his money. Although the state court originally agreed that the funds should be returned to Mr. Savely, the court reversed itself on a motion to reconsider and found that the seizure warrant issued by the federal magistrate had deprived state courts of in rem jurisdiction. Mr. Savely appealed.
All parties agreed that the first court to obtain in rem jurisdiction does so to the exclusion of all other courts. The question was whether the state district court or the federal district court did so first.
Mr. Savely contended that the state district court acquired in rem jurisdiction when UHP provided him with a notice of intent to seek forfeiture. Amicus for Mr. Savely, the Libertas Institute, argued that the relevant code provisions imbued state courts with in rem jurisdiction from the moment of seizure by a state agent. UHP and its amicus, the United States, argued that in rem jurisdiction does not begin until there is a court filing. Thus, they contended that the federal court obtained in rem jurisdiction when the federal seizure warrant was requested.
To begin with, the Utah Supreme Court reviewed relevant state and federal law and concluded that it is possible for a state court to exercise in rem jurisdiction of a res even without any court filing. (This section of the opinion is particularly relevant for practitioners facing that issue in other courts.) The question was whether Utah’s statutes actually gave state courts jurisdiction without a filing in this situation.
On that question, the Court noted that various provisions of state law could be used to defend any of the positions taken by the parties. Finding ambiguity in the law, the court called it “one of those rare circumstances” where it was appropriate to turn to legislative history, which in this case was a contentious citizens’ initiative. The history around the initiative “overwhelmingly” showed that “one of the main goals of the Act is to provide additional protections to property owners when the state holds their property for forfeiture.” Thus, the Court found the ambiguity should be resolved in favor of ensuring that forfeitures in Utah would be under the protections provided by state law and not the lesser protections provided under federal law.
The Court then made two important findings. First, state courts obtain in rem jurisdiction over property no later than when the state holds it for forfeiture even if no proceedings have been filed in court. And second, Mr. Savely was correct: one way that property becomes held for forfeiture is when a seizing agency serves a notice of intent to seek forfeiture.
This ruling brought much needed clarity to the effect of serving a seizure notice: such notices imbue state courts with in rem jurisdiction with no further action needed.
However, the ruling left numerous other questions unresolved:
When a state officer seizes property for forfeiture but fails to provide the required notice, when does in rem jurisdiction begin? Can a federal agency intervene between the seizure and the giving of notice and obtain federal jurisdiction?
When a state officer happens to be cross-deputized as a federal agent, can the officer choose to issue a federal seizure notice instead of state seizure notice as is seemingly required by the statute?
When state officers participate on a multi-jurisdiction taskforce with federal agents, how do state law requirements apply to their work?
Future cases and legislative battles will be fought over these issues. However, Savely represents an important step in ensuring state-level protections are honored in forfeiture cases.
 2018 UT 44.
 Utah Code Ann. 24-4-103(1).
 Utah v. Savely, No. 165204385 (Summit Co. Just. Ct. Feb. 21, 2018)
 Utah Code Ann 24-4-104(1)(a).
 The Utah Supreme Court declined to consider this argument because the seizure and notice occurred concurrently.
 2018 UT 44 at ¶¶19-24.