STATE OF LOUISIANA v. SIXTY THOUSAND DOLLARS AND 00 100 60 000 00 IN CURRENCY PROPERTY SEIZED FROM DAMON ELLZEY (2025)

Defendant/Appellant, Damon Ellzey, appeals from a judgment of forfeiture in favor of the Plaintiff/Appellee, State of Louisiana, concerning $60,000.00 seized. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 8, 2023, Tangipahoa Parish Sheriff's Office (“TPSO”) arrested Michael Lacava. In connection with Michael's arrest, TPSO confiscated drugs, guns, and more than $108,000.00 in cash from Michael's house. While in jail, on December 11, 2023, Michael called his father, Buddy Lacava, and told him there was $50,000.00 hidden in the wall of Michael's house. Later that day, Buddy paid $60,000.00 to EZ Free Bail Bonds (“EZ Free”). Buddy made a second payment in the amount of $1,290.00 to EZ Free on December 12, 2023, and Michael was released from jail.¹

Thereafter, on December 13, 2023, TPSO reviewed Michael's jail calls and discovered the call from Michael to Buddy wherein Michael informed Buddy about the $50,000.00 hidden in the wall of Michael's house. TPSO then obtained a search warrant for Michael's residence. During the execution of the warrant, TPSO found a hole in the wall in the location where Michael told Buddy the money would be hidden. The next day, TPSO contacted Damon Ellzey, the owner of EZ Free, to request all documents related to Michael's bond, and Ellzey provided the documents. Upon review of the documents and speaking to Ellzey, TPSO learned that Buddy paid EZ Free $60,000.00 in cash on December 11, 2023, and $1,290.00 in cash on December 12, 2023.

On December 13, 2023, a search and seizure warrant was signed by the trial court, authorizing TPSO to search EZ Free and seize any and all records pertaining to Michael's bond. Subsequently, on December 15, 2023, TPSO executed an “Affidavit of Probable Cause that the Items Seized were used to Facilitate or were the Proceeds for Illegal Narcotics Activity.” The affidavit alleged the $60,000.00 paid by Buddy to EZ Free was obtained through the exchange of illegal controlled substances and stated that conclusion was reached because Buddy paid the money to EZ Free on the same day Michael instructed Buddy to retrieve the money from inside of the wall of Michael's house. The affidavit further stated that photos of the interior of Michael's house were taken during the execution of the warrants on December 8, 2023 and December 13, 2023. The photos taken on December 8th showed that the wall was unevenly painted, but there were no signs of damage. However, photos taken of the house on December 13th revealed clear signs of damage. After review of the affidavit, the trial court found that probable cause existed and signed the warrant of seizure on December 15, 2023, authorizing the seizure of the $60,000.00.

Thereafter, Ellzey, Michael, and Buddy were each served with a copy of the “Notice of Pending Forfeiture.”² Each notice stated that “$60,000.00 US Currency” was seized for forfeiture pursuant to La. R.S. 40:2601 et seq. Buddy and Ellzey then both executed affidavits. Both affidavits stated that Buddy used his personal money obtained from inheritance and a personal injury settlement to pay EZ Free. Buddy additionally stated that when he went to Michael's house to look for the $50,000.00, there was a hole in the wall and the money was gone.³ Further, Ellzey requested the $60,000.00 be returned to him.

On February 23, 2024, the State filed a “Motion and Order for Judgment and Strike Claim,” seeking the forfeiture of $60,000.00 from Ellzey.⁴ The State contended it was entitled to a judgment of forfeiture against the $60,000.00, and the State requested the money be distributed to the Tangipahoa Parish Clerk of Court's Office; the Drug Asset Recovery Team; TPSO; the Criminal Court Fund; and the Twenty-First District Attorney's General Fund. On May 24, 2024, Ellzey filed an opposition to the State's motion. He contended he held an interest in the money as a bondsman and he acquired it for payment of the bond. He further contended the State's seizure was unlawful and the State's motion should be denied. Ellzey requested the return of the money subject to forfeiture and for any matters pending against him to be dismissed.

A hearing was held on the State's motion on May 28, 2024, and the trial court signed a judgment the same day. The trial court rendered judgment in favor of the State and against the $60,000.00 seized from Ellzey; ordered that the claims received by the State from Ellzey and Buddy were stricken for non-compliance with La. R.S. 40:2610;⁵ and ordered that the seized money be distributed as follows: (1) $175.00 in costs to the Tangipahoa Parish Clerk of Court's Office; (2) $600.00 to the Drug Asset Recovery Team; (3) $35,535.00 to the Tangipahoa Parish Sheriff's Office; (4) $11,845.00 to the Criminal Court Fund; and (5) $11,845.00 to the Twenty-First District Attorney's General Fund.

Ellzey appeals, contending (1) to the extent Ellzey had to substantiate his ownership of the money taken by the State, the affidavit and attachments filed by Ellzey adequately preserved his procedural right to assert a claim for the return of the money; and (2) the State cannot show Ellzey received money connected with illegal activity.

DISCUSSION

Forfeiture proceedings under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (“the Act”), La. R.S. 40:2601 et seq., are civil proceedings, generally governed by the Louisiana Code of Civil Procedure. La. R.S. 40:2611(K); Lewis v. State, 2021-0437 (La. App. 1st Cir. 12/22/21), 340 So. 3d 1230, 1234. The Act allows law enforcement officials to seize illegal drugs and property constituting the proceeds of any drug-related conduct punishable by confinement for more than one year. State v. Property Seized from Eaglin, 2012-0219 (La. App. 1st Cir. 9/21/12), 2012 WL 4335450, *2 (unpublished), writ denied, 2012-2305 (La. 12/14/12), 104 So. 3d 444.

We review factual determinations in civil cases under the manifest error standard of review. State v. $144,320.00, 2012-0466 (La. 12/4/12), 105 So. 3d 694, 701. When considering whether probable cause for forfeiture exists, even though the issue of probable cause is ultimately a legal question, appellate courts apply the manifest error standard of review to the trial court's factual determinations.⁶ Lewis, 340 So. 3d 1230, 1234.

Ellzey first contends the trial court erred in striking his claim of ownership for non-compliance with La. R.S. 40:2610. According to La. C.C.P. art. 964, the court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand. If an owner or interest holder wishes to file a stipulation of exemption to forfeiture under La. R.S. 40:2609 or a claim against the property under La. R.S. 40:2610, the claimant must submit an affidavit that complies with the requirements of La. R.S. 40:2610. State v. $144,320.00, 2012-0466 (La. 12/4/12), 105 So. 3d 694, 702.

The mandatory, plain-language requirements for the filing of a timely, valid claim by an owner of or interest holder in property seized for forfeiture are clear and, if not met, carry significant consequences. State v. 2003 Infiniti G35 VIN No. JNKCV51E93M024167, 2009-1193 (La. 1/20/10), 27 So. 3d 824, 834. Louisiana Revised Statutes 40:2610 establishes a thirty-day filing deadline that cannot be extended under any circumstances, prescribes the necessary form of the claim, and sets forth the required content of the averments with unambiguous specificity. See La. R.S. 40:2610. Specifically, La. R.S. 40:2610 provides, in pertinent part:

A. Only an owner of or interest holder in property seized for forfeiture may file a claim and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after Notice of Pending Forfeiture.. . .

B. The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to administer the oath, under penalty of perjury or false swearing and shall set forth all of the following:

(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.

(2) The address where the claimant will accept mail.

(3) The nature and extent of the claimant's interest in the property.

(4) The date, identity of the transferor, and the circumstances of the claimant's acquisition of the interest in the property.

(5) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.

(6) All essential facts supporting each assertion.

(7) The specific relief sought.

The failure to fulfill any of these requirements - whether it be missing the deadline, filing a claim not in affidavit form, or not setting forth the necessary averments - precludes the owner or interest holder from further participation in the forfeiture proceeding. 2003 Infiniti G3 5 VIN No. JNKCV51E93M024167, 27 So. 3d at 834.

After review, we find the trial court erred in determining that Ellzey's claim was non-compliant with La. R.S. 40:2610 and in striking his claim. Ellzey was served with the “Notice of Pending Forfeiture” on December 15, 2023, and he mailed a claim to the district attorney by certified mail on December 28, 2023.⁷ The claim is in affidavit form, signed by Ellzey under oath, and sworn to by Ellzey before his attorney. Additionally, Ellzey's claim satisfies La. R.S. 40:2610(B)(1) and (2), as it includes the caption of the proceedings as set forth on the notice or petition and the name of the claimant, Ellzey, along with the address where Ellzey will accept mail. Ellzey's claim is also sufficient under La. R.S. 40:2610(B)(3) and (4), as it states the money was Buddy's personal money that Buddy received through inheritance and a personal injury settlement and it was not obtained through illegal means. Ellzey also references Buddy's affidavit, which states that Buddy used the money to bond Michael out of jail. While, Buddy's affidavit does not include any information regarding the nature and extent of Ellzey's interest in the seized money, the trial court's decision to strike Ellzey's claim turns on Ellzey's affidavit, not Buddy's. Ellzey's interest in the property is not in dispute. He received the money when he became commercial surety for the release of Michael on a bail undertaking. Ellzey's affidavit does not contain detailed information regarding La. R.S. 40:2610(B)(3) and (4), but TPSO was in possession of all of the bond paperwork and documentation, and it knew the nature and extent of Ellzey's interest in the money and the date, transferor, and circumstances of Ellzey's acquisition of the interest in the money. Simply put, Ellzey possessed the money because he was the bail bondsman.

Further, his claim satisfies La. R.S. 40:2610(B)(5), (6), and (7), as it alleges that the money is not subject to forfeiture under La. R.S. 40:2603 or La. R.S. 40:2605, the essential facts supporting each assertion, and the specific relief sought, which was that $60,000.00 be returned to him. Thus, we find the trial court erred in finding that Ellzey did not file a valid claim pursuant to La. R.S. 40:2610.⁸ The question before the court is whether property taken from the bondsman, Ellzey, is subject to forfeiture. Accordingly, we remand this matter to the trial court to determine whether the State can prove, by a preponderance of the evidence, the connexity between the seized property giving rise to the forfeiture and illegal drug activity. See State v. Property Seized from Eric Hamilton 12,040.00 in U.S. Currency, 2015-1648 (La. App. 1st Cir. 6/15/16), 2016 WL 3344676, *2 (unpublished), writ denied, 2016-1312 (La. 5/26/17), 221 So. 3d 80.

CONCLUSION

For the assigned reasons, the May 28, 2024 judgment granting forfeiture of $60,000.00 in favor of the State of Louisiana is reversed and the matter is remanded for further proceedings. Costs of this appeal in the amount of $1,381.00 are assessed to the State of Louisiana.

REVERSED AND REMANDED.

FOOTNOTES

1.   Michael had two bonds. One of his bonds was set at $10,500.00, and his other bond was set at $500,000.00.

2.   Ellzey was served on December 15, 2023, and Michael and Buddy were each served on December 18, 2023.

3.   Further, on January 17, 2024, Buddy signed a “Claim of Ownership Pursuant to [La. R.S. 40:2609] and/or 40:2610,” contesting the forfeiture of the $60,000.00. His claim stated that he was an innocent third party with no knowledge of the allegations set forth in the “Notice of Pending Forfeiture,” that the money was not obtained through illegal activity, that he was entitled to return of the money, and that the money seized was exempt from seizure. It appears, though, that the $60,000.00 at issue was seized from Ellzey, not Buddy.

4.   The State attached the “Affidavit of Probable Cause that the Items Seized were used to Facilitate or were the Proceeds for Illegal Narcotics Activity”; the “Notice of Pending Forfeiture” served on Ellzey; the “Notice of Pending Forfeiture” served on Michael; the “Notice of Pending Forfeiture” served on Buddy; the affidavit of Ellzey; the affidavit of Buddy; and Buddy's “Claim of Ownership Pursuant to [La. R.S. 40:2609] and/or 40:2610.”

5.   We note that this appeal only relates to Ellzey and the money that was taken from him.

6.   The State has the burden of proving by a preponderance of the evidence the connexity between the seized property giving rise to the forfeiture and illegal drug activity when a claim is timely filed. See State v. Property Seized from Eric Hamilton 12,040.00 in U.S. Currency, 2015-1648 (La. App. 1st Cir. 6/15/16), 2016 WL 3344676, *2 (unpublished), writ denied, 2016-1312 (La. 5/26/17), 221 So. 3d 80. However, the burden of proof for forfeiture when no claim is timely filed is probable cause. See Lewis, 340 So. 3d at 1235.

7.   It is not clear whether Ellzey mailed his claim to TPSO as required by La. R.S. 40:2610(A). The letter attached to the affidavit mailed to the district attorney states Ellzey mailed his affidavit to TPSO, but the State's motion indicates the TPSO seizing agent stated Ellzey did not mail his claim to TPSO. However, during the hearing on the State's motion, the State indicated that it was undisputed that Ellzey filed a claim within thirty days as required under La. R.S. 40:2610(A).

8.   In light of this finding, we pretermit discussion of Ellzey's second assignment of error.

MILLER, J.