In re $15, 379 in U.S. Currency
from the Superior Court in Pinal County Nos. CV201301603 and
CV201301728 (Consolidated) The Honorable Jason R. Holmberg,
Kenneth S. Countryman, P.C., Tempe By Kenneth S. Countryman
Counsel for Appellant Corrina Macias
Lando Voyles, Pinal County Attorney By Alex Mahon, Deputy
County Attorney, Florence Counsel for Appellee the State of
Judge Eckerstrom authored the opinion of the Court, in which
Judge Staring and Judge Fink  concurred.
ECKERSTROM, Chief Judge
In this civil forfeiture proceeding, appellant Corrina Macias
challenges the trial court's refusal to award attorney
fees, costs, and prejudgment interest when the proceeding
terminated in her favor. She further contends the court erred
in not ordering the state either to immediately return the
currency seized from her or to issue payment. For the reasons
that follow, we reverse the court's order denying the
immediate return of the property or an equivalent payment,
the order denying costs, and the order denying sanctions
under Rule 11, Ariz. R. Civ. P. We otherwise affirm the
and Procedural Background
On May 28, 2013, a Pinal County Sheriff's deputy seized
over $15, 000 in cash from a vehicle driven by Macias's
husband, who was also transporting a sizeable load of
marijuana. Due to defects in the resulting forfeiture action,
the trial court determined it lacked jurisdiction over the
proceeding and ordered the currency returned to Macias, with
one qualification. The court specifically ordered that the
property be returned "to the extent that this $15,
379.00 is not being held as evidence in any criminal
matter." The court subsequently denied Macias's
request for attorney fees, costs, and expenses. It further
denied her request for immediate release of the property or
an equivalent payment, again citing the pending criminal
matter against her husband and the prosecutor's assertion
that the currency was being held as evidence.
Although the trial court's order initially lacked
certification pursuant to Rule 54(c), Ariz. R. Civ. P., we
stayed the appeal sua sponte and revested jurisdiction in the
trial court to obtain such certification. See Ariz.
R. Civ. App. P. 3(b); Madrid v. Avalon Care
Ctr.-Chandler, L.L.C., 236 Ariz. 221, ¶ 5, 338 P.3d
328, 330-31 (App. 2014). With a formal judgment now included
in the appellate record, we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
of Currency or Payment
On appeal, Macias contends the state's action is
"unlawful" and violates due process "because
the state has no legitimate basis for the refusal to issue
payment" or return the property. Regardless of whether
this argument was preserved below,  we address its merits
because doing so is necessary to avoid an erroneous decision
on appeal. See Nold v. Nold, 232 Ariz. 270, ¶
10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a
discretionary doctrine). "[W]hen interpretation and
application of statutes are involved, we are not necessarily
'limited to the arguments made by the parties if that
would cause us to reach an incorrect result.'"
Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530,
¶ 18, 169 P.3d 120, 125 (App. 2007), quoting
Yarbrough v. Montoya-Paez, 214 Ariz. 1, n.6, 147 P.3d
755, 762 n.6 (App. 2006).
Our forfeiture statutes generally provide that property not
subject to forfeiture must be returned. See
A.R.S. §§ 13-4310(B), 13-4314(E). However, those
statutes also implicitly recognize, as does our case law,
that the state may retain seized property as evidence for
criminal prosecutions. See A.R.S. §
13-4306(G)(2); State v. Fifteen Slot Machines, 45
Ariz. 118, 119, 40 P.2d 748, 749 (1935); cf. A.R.S.
§§ 13-3941(C) (stolen or embezzled property),
13-4429(A), (B) (crime victim's property, generally). The
power to seize evidence has long existed under the common
law, Smith v. Jerome, 93 N.Y.S. 202, 202-03 (N.Y.
Sup. Ct. 1905), but that power is limited by the
"fundamental principle that our Constitution protects .
. . against unreasonable . . . seizures."
Search Warrants C-419847 & C-419848 v. State,
136 Ariz. 175, 176, 665 P.2d 57, 58 (1983) (emphasis
added). Accordingly, even when a lawful arrest and seizure
have occurred, the retention of property as evidence for a
criminal prosecution must be reasonable under the Fourth and
Fourteenth Amendments to the United States Constitution.
Krimstock v. Kelly, 464 F.3d 246, 250-51 (2d Cir.
Whether items are seized for civil forfeiture or criminal
prosecution, a deprivation of property occurs whenever the
state retains someone's belongings, and the owner who is
affected may be an innocent party not involved in a criminal
case. See id. at 254; Greehling v. State,
135 Ariz. 498, 500, 662 P.2d 1005, 1007 (1982). People
therefore may seek the return of their seized property under
the Fourteenth Amendment's Due Process Clause or article
II, § 4 of the Arizona Constitution. See In re
Approximately $50, 000, 196 Ariz. 626, ¶¶ 8,
11, 2 P.3d 1271, 1274, 1275-76 (App. 2000).
Although we have found no Arizona authority addressing the
particular issue in this case, numerous federal appellate
courts recognize that "[a] prosecutor's right to
retain material evidence necessary for trial does not mean
that prosecutors can decide unilaterally that [the property]
is material and its retention necessary."
Krimstock, 464 F.3d at 255; accord Black Hills
Inst. of Geological Research v. U.S. Dep't of
Justice, 967 F.2d 1237, 1240-41 (8th Cir. 1992) (while
government "may take whatever steps necessary to
establish proof of the evidence, " government "may
not in all cases insist on holding the [property] itself as
evidence to be presented to the jury"); In re
Smith, 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam)
("bald assertion" that money has evidentiary value
is insufficient to justify withholding property). The
procedural due process framework set forth in Mathews v.
Eldridge, 424 U.S. 319, 335 (1976), applies to motions
to return seized property. See Krimstock, 464 F.3d
at 253-54. This means, at minimum, that a trial court must
subject the state's asserted need for property "to
scrutiny for reasonableness, " "weighing the
competing interests . . . in light of less drastic
means." Id. at 251. "If the [state]'s
sole interest in retaining . . . currency is for its use as
evidence, the court should consider whether this purpose
would be equally well served by the alternatives to holding
the money itself ..... United States v. 608
Taylor Ave., 584 F.2d 1297, 1304 (3d Cir. 1978).
Here, the trial court did not reach the question of
reasonableness presented by Macias's motions. She sought
either the immediate return of her currency or an equal
payment because "[m]oney is fungible." Ariz.
Dep't of Revenue v. M. Greenberg Constr., 182 Ariz.
397, 401, 897 P.2d 699, 703 (App. 1995), abrogated on
other grounds by Valencia Energy Co. v. Ariz. Dep't of
Revenue, 191 Ariz. 565, ¶¶ 10 & n.3, 34,
959 P.2d 1256, 1261 & n.3, 1267 (1998). She also argued
below, and the state did not dispute, that actual cash is
typically not presented as evidence in criminal cases. Such
evidence usually takes the form of photographs and
photocopies, which were in fact obtained by the state here in
the related criminal case.
The record does not disclose why the prosecutor insisted upon
retaining the actual currency. The state failed to file a
written response to Macias's request for the immediate
release of the money or repayment, and the state articulated
no specific evidentiary need for this property at the
subsequent hearing. Thus, in taking under advisement
Macias's request for immediate relief, the trial court
observed, "I don't think that you are making an
unreasonable request, I just want to make sure under the law
. . . I'm not messing up anything in the criminal
matter." To the extent the court believed that it was
not empowered to order the relief requested, or did not
consider the reasonableness of retaining the currency in
light of the available alternatives, this was an error of law
representing an abuse of the court's discretion. See
State v. Mangum,214 Ariz. 165, ¶ 6, 150 P.3d 252,
254 (App. 2007). Furthermore, given the state's failure
to allege any particular need to retain the currency as
evidence, the record is devoid of any ground to support the
order denying relief. See Little v. Little, 193
Ariz. 518, ¶ 5, 975 P.2d ...