STATE OF LOUISIANA v. CESAR ALEXIS MANILLA KARINA STEPHANIE ZUMAYA AND ONE HUNDRED SIXTY EIGHT THOUSAND THREE HUNDRED THIRTY DOLLARS AND NO CENTS 168 330 00 IN CURRENCY MIXED DENOMINATIONS (2026)

A claimant of money seized under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 appeals a judgment that granted a motion to strike and dismissed her claim because she invoked her Fifth Amendment right against self-incrimination rather than providing specific details about the source of the money as required by the Act. The claimant also appeals a subsequent judgment that granted the forfeiture in favor of the State. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 27, 2021, at approximately 10:40 p.m., Cesar Manilla was traveling westbound in a 2019 Infiniti Q50 on Interstate 10 in Iberville Parish when he crossed the center line and then overcorrected and crossed the solid yellow advisory line. His wife, Karina Stephanie Zumaya, was a passenger in the front seat, and their two-year-old infant was in a car seat in the back seat. Iberville Parish Sheriff's Officer Mark Cooper observed the incident, and indicated that he stopped the vehicle for safety reasons.

According to Officer Cooper,¹ he asked for Mr. Manilla's license, but Mr. Manilla stated that he only had an ID. Officer Cooper asked Mr. Manilla to exit the vehicle and walk to the front of Officer Cooper's patrol vehicle, and Mr. Manilla complied. When advised why he was being pulled over, Mr. Manilla admitted he was “messing with” the cruise control setting on the vehicle.

Officer Cooper then approached Ms. Zumaya and asked for her license. Officer Cooper attested that he casually engaged in conversation with Ms. Zumaya, but he avers she was difficult to hear because she was constantly looking away from him and was speaking in a low tone. Officer Cooper indicated that Ms. Zumaya told him that they were traveling home from a vacation in Mississippi and when asked how long they had been there, Ms. Zumaya replied about a week. When asked where they had been in Mississippi, Ms. Zumaya indicated “Biloxi or something[,]” and that they had stayed at the Jambalaya Inn. Ms. Zumaya told Officer Cooper she had no outstanding traffic tickets and had never been arrested. Officer Cooper found Ms. Zumaya “to be very deceptive and hesitant with her answers to the simple questions I was asking her.”

Officer Cooper then returned to Mr. Manilla, and when asked where they were coming from, Mr. Manilla indicated that they were coming from the Hard Rock Casino in Biloxi. Officer Cooper indicated that he asked Mr. Manilla if he had won any money to which Mr. Manilla replied that he had won about $5,000.00. Mr. Manilla stated that Ms. Zumaya watched their infant while he gambled. When asked if he had ever been arrested, Officer Cooper noted that Mr. Manilla “displayed nervousness by hesitating with his answer and again breaking eye contact and looking away from me and stated ‘no’ ” Officer Cooper also asked Mr. Manilla if anyone asked him to transport anything, and according to Officer Cooper, Mr. Manilla “stated in a low nervous tone ‘no,’ ” and Mr. Manilla was breaking eye contact with the officer when he answered. Thereafter, Officer Cooper asked Mr. Manilla for consent to search the vehicle, and Mr. Manilla gave verbal consent.

Officer Cooper then spoke to Ms. Zumaya and asked if there was any part of the vehicle she did not want him to search, but she stated he could search the vehicle. When asked how much money she was responsible for, Ms. Zumaya indicated about $800.00. When asked if anyone had asked her to transport anything illegal, Officer Cooper averred “she looked down at the floor and stated in a low nervous tone ‘no.’ ”

The consensual search of the vehicle yielded a black Fannie pack with one bundle of U.S. currency in mixed denominations discovered under the front driver's seat. A grey rolling suitcase was located in the trunk of the vehicle. A brown paper bag was located inside and contained (7) seven bundles of U.S currency in mixed denominations. A red soft case was also found and contained (5) five bundles of U.S. currency in mixed denominations. In total, (13) thirteen bundles of U.S. currency totaling $168,330.00 in mixed denominations were recovered from the vehicle.²

Upon return to the Iberville Parish Sheriff's Office, a certified K-9 gave a positive alert to the presence of an illegal narcotic odor coming from the currency. Both Mr. Manilla and Ms. Zumaya signed a disclaimer disavowing ownership of the currency. However, neither Mr. Manilla nor Ms. Zumaya were ever arrested, and according to the record, no charges have been brought against either Mr. Manilla or Ms. Zumaya arising from this traffic stop.

The “Seizing Agent/Assistant D.A.” issued Notices of Pending Forfeiture to Mr. Manilla and Ms. Zumaya. Ms. Zumaya subsequently filed a claim and asserted ownership of the seized currency as provided by LSA-R.S. 40:2610. However, Ms. Zumaya invoked her Fifth Amendment privilege against self-incrimination rather than providing specific details about her acquisition of the funds as the statute requires.

On December 13, 2021, the State of Louisiana (the “State”) filed a “Petition for Forfeiture In Rem Action,” urging therein that $168,330.00 “was used to facilitate conduct giving rise to forfeiture” under LSA-R.S. 40:2601, et seq. Ms. Zumaya subsequently answered the petition, wherein she again invoked her Fifth Amendment privilege and did not provide any details about her acquisition of the funds.

On March 22, 2024, the State filed a peremptory exception raising the objection of no right of action and a motion to strike Ms. Zumaya's claim. Therein, the State alleged that Ms. Zumaya did not comply with the requirements of LSA-R.S. 40:2610 to establish her claim to the property, but rather invoked a constitutional privilege against self-incrimination.

Following a hearing, the trial court signed a judgment on June 18, 2024, that granted the State's motion to strike and struck Ms. Zumaya's claim. The matter was set for a second hearing on May 13, 2024, where all counsel were present.³ On June 27, 2024, the trial court signed a judgment granting the forfeiture in favor of the State. On July 15, 2024, Ms. Zumaya filed a motion for appeal to seek review of the foregoing judgments.

On appeal, Ms. Zumaya assigns the following as error:

1) The trial court erred in striking Ms. Zumaya's forfeiture claim solely because she invoked her Fifth Amendment right against self-incrimination in response to LSA-R.S. 40:2610(D), thereby imposing an unconstitutional penalty for exercising a fundamental right.

2) The trial court erred in ordering forfeiture of Ms. Zumaya's property without requiring the State to meet its burden under LSA-R.S. 40:2612(G) to prove, by a preponderance of the evidence, that the seized currency was connected to drug-related activity, in violation of her right to procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 2 of the Louisiana Constitution.

LAW

The Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, LSA-R.S. 40:2601 et seq., (the “Act”) allows law enforcement officials to seize illegal drugs and property constituting the proceeds of any drug-related conduct punishable by confinement of more than one year. Lewis v. State, 2021-0437 (La.App. 1 Cir. 12/22/21), 340 So.3d 1230, 1235, writ not considered, 2022-0225 (La. 4/12/22), 335 So.3d 839. There is no prerequisite that a crime be proved before property is subject to seizure. Id. In a civil forfeiture action, the State need not bring criminal charges, either before or after the forfeiture. The State can seize the assets without ever bringing a criminal charge against anyone. Id. The State must only prove that there was probable cause to believe the property was used in connection with a crime. Id. at 1235-36. Probable cause may be established by demonstrating the probability that the money was in fact drug related, and it can be established by circumstantial or hearsay evidence. Id. at 1236.

Louisiana Revised Statutes 40:2610 ⁴ prescribes the necessary form an owner or interest holder in property seized must file to set forth a claim, and the statute provides the content of the averments with unambiguous specificity. Lewis, 340 So.3d at 1235. 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. Id. The failure to fulfill any of these requirements, including not setting forth the necessary averments, precludes the owner or interest holder from further participation in the forfeiture proceeding. Id.

Pertinent hereto, LSA-R.S. 40:2610(B) requires an owner or interest holder in property to set forth in subparagraphs 3, 4, and 6, respectively, the following: (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, and (6) all essential facts supporting each assertion.⁵ As noted above, rather than setting forth these items with specificity, Ms. Zumaya invoked her Fifth Amendment right against self-incrimination.⁶

6

DISCUSSION

On appeal, Ms. Zumaya contends that the trial court struck her claim and subsequently ordered forfeiture of her property because she invoked her constitutional right against self-incrimination. Ms. Zumaya argues that the Act authorizes one thing—the forfeiture of property connected to drug activity. See LSA-R.S. 40:2604. Ms. Zumaya asserts that the Act does not authorize forfeiture related to any other criminal activity, such as tax evasion, illegal gambling, or any other non-drug criminal activity. Ms. Zumaya notes that when property is seized under the Act, a claimant must comply with the requirements of LSA-R.S. 40:2610 to set forth a claim. Once those statutory requirements are met, the Act requires the State to establish by a preponderance of the evidence that the seized currency was either: (i) derived, directly or indirectly from, drug-related activity; (ii) maintained by drug activity; or (iii) realized through drug-related activity.

Ms. Zumaya asserts that this case presents a straightforward question: does submitting a claim that addresses the requirements of the Act but invokes a claimant's Fifth Amendment right against self-incrimination, rather than strictly complying with the statute, permit the State to forfeit the seized property without satisfying its burden to establish that such property is subject to forfeiture under the Act? Ms. Zumaya contends that neither the Louisiana Supreme Court nor this court has addressed this issue. However, she cites several decisions from other states that have considered this issue and have permitted claimants to plead the Fifth Amendment when setting forth a claim for funds seized under similar forfeiture statutory schemes with language nearly identical to that in Louisiana's statute. See Wohlstrom v. Buchanan, 180 Ariz. 389, 395, 884 P.2d 687, 693 (Ariz. 1994) and Matter of Herrera, 912 N.W.2d 454, 466-69 (Iowa 2018).

Ms. Zumaya does acknowledge that our colleagues on the Third Circuit Court of Appeal considered this issue in State v. $8,000.00 U.S. Currency, 2002-0224 (La.App. 3 Cir. 10/2/02), 827 So.2d 634, finding that strict compliance with the statute was required. Therein, the claimant did not set forth the information required by LSA-R.S. 40:2610(B)(3), (4), and (6) in his claim, but rather urged that he did not have to provide that information in light of the Fifth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution.⁷ In finding this argument lacked merit, the Third Circuit reasoned:

While it is true that the answers to such questions could be self-incriminating or lead to prosecution for perjury or false-swearing, the statute does not violate any constitutional guarantees. If one does not wish to incriminate himself or subject himself to prosecution for perjury or false swearing, he simply does not file a claim under La.R.S. 40:2610, as the filing of such a claim is not required. However, if a claim is filed under the statute, it must conform to the statute's requirements.

Id. at 639. The Third Circuit has since cited this proposition in at least two other cases— State v. $29,940.00 in U.S. Currency, 2017-648 (La.App. 3 Cir. 8/31/17), 227 So.3d 304, 307; and State v. $3,356,183.00 U.S. Currency, 2004-357 (La.App. 3 Cir. 12/8/04), 894 So.2d 339, 347 (on rehearing), writ denied, 2005-1785 (La. 1/13/06), 920 So.2d 242. However, Ms. Zumaya avers that these cases “failed to address the constitutional jurisprudence holding that a claimant cannot be penalized for invoking Fifth Amendment protections.” See also Loveless v. State, 337 Ga.App. 250, 253, 786 S.E.2d 899, 902 (2016). Ms. Zumaya urges this court to follow Wohlstrom and Matter of Herrara, and allow her claim to proceed despite her Fifth Amendment plea.

In response, the State contends Ms. Zumaya is raising a constitutional challenge to the requirements of LSA-R.S. 40:2610 for the first time on appeal. The State maintains that Ms. Zumaya did not adjudicate a constitutional challenge to the statute with the trial court and cannot argue it for the first time on appeal. See Arrington v. Galen-Med, Inc., 2006-2923 (La. 2/2/07), 947 So.2d 719, 720 (per curiam) (“It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized.”) Moreover, the State asserts that Ms. Zumaya failed to notify the Louisiana Attorney General in the trial court of a constitutional challenge. See LSA-C.C.P. art. 1880. The State maintains that Ms. Zumaya cannot now raise the constitutionality of the Act for the first time on appeal.

The State is correct. Constitutionality of LSA-R.S. 40:2610 is not before us in this appeal.⁸ Ms. Zumaya acknowledges that the issue before this court is whether “her detailed invocation of her Fifth Amendment rights as put forth in her verified claim and answer was sufficient to satisfy the substantive requirements of La. R.S. 40:2610.”

The pleading requirements in LSA-R.S. 40:2610 are plain and unambiguous and are set forth with specificity in the statute. Further, the statute uses the word “shall,” which is mandatory. See LSA-R.S. 1:3. The word “shall” excludes the possibility of being “optional” or even subject to “discretion,” but instead means “imperative, of similar effect and import with the word ‘must.’ ” Auricchio v. Harriston, 2020-01167 (La. 12/10/21), 332 So.3d 660, 662 (quoting Louisiana Fed'n of Tchrs. v. State, 2013-0120 (La. 5/7/13), 118 So.3d 1033, 1051). When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision must be applied as written, with no further interpretation made in search of the legislature's intent. See Auricchio, 332 So.3d at 662-63. Ms. Zumaya, in failing to follow the specific dictates of the statute, has failed to set forth a claim as mandated by LSA-R.S. 40:2610. Accordingly, we find no error in the trial court striking her claim.⁹

Nonetheless, Ms. Zumaya, citing Wohlstrom, 180 Ariz. at 392, 884 P.2d at 690, asserts that the statute should not apply under the specific circumstances of this case because it violates her Fifth Amendment right against self-incrimination and impermissibly forces her to choose between surrendering her constitutional privilege and forfeiting property. In short, Ms. Zumaya is challenging the constitutionality of LSA-R.S. 40:2610 as applied to her situation, but she has not properly challenged constitutionality in the underlying trial court proceedings. Specifically, an attack on the constitutionality of a statute, including its application under the specific facts of a particular case, must be raised in the trial court, must be specifically pleaded, and the basis of unconstitutionality must be particularized. See Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-65, and Huber v. Midkiff, 2002-0664 (La. 2/7/03), 838 So.2d 771, 776. Further, the Attorney General must be served with a copy of the proceeding with an opportunity to be heard. See LSA-C.C.P. art. 1880. As such, Ms. Zumaya failed to properly raise her constitutional claims in pleadings in the trial court. The claims were never set for a contradictory hearing and the trial court did not rule on them. In fact, the trial court, in declining to decide the constitutional issue, appropriately recognized that the constitutional issue was not properly before it.

In her second assignment of error, Ms. Zumaya contends the trial court erred in ordering forfeiture of her property without requiring the State to meet its burden by a preponderance of the evidence that the seized currency was connected to drug-related activity. However, in a forfeiture case where no claim is timely filed pursuant to the provisions of the Act, the burden of proof shall be probable cause. See LSA-R.S. 40:2612(G)¹⁰ and Lewis, 340 So.3d at 1235. As noted above, Ms. Zumaya failed to comply with the pleading requirements necessary to set forth a claim such that her claim was properly stricken. Because Ms. Zumaya failed to timely file a valid claim as required by the provisions of the Act, the State's burden of proof herein was probable cause, not preponderance of the evidence.

Given the burden of proof, we find no error in the trial court's June 27, 2024 judgment that granted the forfeiture in favor of the State. As set forth earlier herein, Officer Cooper indicated in his affidavit he stopped Mr. Manilla's vehicle for safety reasons after he crossed the center line and then overcorrected and crossed the solid yellow advisory line. Both Mr. Manilla and Ms. Zumaya appeared nervous and provided inconsistent statements concerning where they had been and the amount of money they had. After consent was given to search the vehicle, (13) thirteen bundles of U.S. currency totaling $168,330.00 in mixed denominations were recovered from the vehicle. A certified K-9 later gave a positive alert to the presence of an illegal narcotic odor coming from the currency. Based upon the foregoing, a seizure warrant was issued for the currency. Considering these facts in toto, the State demonstrated credible evidence that the money was probably drug related. As such, the State met its burden of establishing probable cause for the forfeiture of the funds. See Lewis, 340 So.3d at 1236. Accordingly, Ms. Zumaya's second assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's June 18, 2024 judgment that granted the State's motion to strike and struck Ms. Zumaya's claim. We also affirm the trial court's June 27, 2024 judgment that granted the forfeiture in favor of the State. Costs of this appeal are assessed to appellant, Karina Stephanie Zumaya.

AFFIRMED.

I would vacate the June 18, 2024 judgment striking Ms. Zumaya's claim and vacate the June 27, 2024 judgment ordering forfeiture in favor of the State. I believe the matter should be remanded to allow Ms. Zumaya an opportunity to challenge the constitutionality of La. R.S. 40:2610 as it applies to her -- specifically, as it applies to her invocation of Fifth Amendment rights. The district court should not decide the validity of Ms. Zumaya's claim under La. R.S. 40:2610 until after the court determines whether La. R.S. 40:2610 is constitutional as it applies to her.

FOOTNOTES

1.   Officer Cooper's statements are taken solely from his affidavit filed in support of the seizure warrant.

2.   Agents also recovered an AR-15 rifle in the trunk of the vehicle. They also learned that both Mr. Manilla and Ms. Zumaya had criminal histories.

3.   To the extent Ms. Zumaya argues that the proceedings on May 13, 2024 did not meet the requirements set forth in LSA-R.S. 40:2612(G), no pasty objected to the manner in which the matter was handled by the trial court. Accordingly, any argument in this regard has been waived. See Jeansonne v. Bosworth, 601 So.2d 739, 743 (La.App. 1 Cir. 1992), writ not considered, 614 So.2d 75 (La. 1993)(Louisiana Code of Civil Procedure article 1635 “requires contemporaneous objection to procedural matters before the court and also requires the giving of grounds for the objection. It is noted from the record that no objection was urged to the ruling by the court ․, it is therefore deemed waived.”)

4.   Louisiana Revised Statutes 40:2610, prior to its amendment by 2022 La. Acts No. 698, § 1 and applicable herein, provided: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. No extension of time for the filing of a claim shall be granted.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.

5.   Further, the answer to the in rem proceeding requires much of the same information required by LSA-R.S. 40:2610(B). Specifically, LSA-R.S. 40:2612(D) provides:The answer shall be signed by the owner or interest holder under penalty of false swearing and shall be in accordance with C.C.P. Art. 1003 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 Section relied on in asserting that it is not subject to forfeiture.(6) All essential facts supporting each assertion.(7) The precise relief sought.

6.   In her claim, in paragraphs 3, 4, and 6, Ms. Zumaya alleged:3.) That the nature and extent of Claimant's interest in the property is as follows: Claimant is the sole owner of the above-identified property that is the subject of this proceeding. Claimant also had a valid possessory interest in the Property as it was seized from her.***4.) ․ In lieu of providing the date, identity of transferor, and the circumstances of the Claimant's acquisition of the property, Claimant respectfully asserts her Fifth Amendment right against self-incrimination.***6.) That the essential facts supporting each assertion:Claimant asserts that she responded sufficiently to comply with La. R.S. 40:2610 herein and that to require her to provide additional facts would violate her right against self-incrimination under the Fifth Amendment as described above. Accordingly, Claimant asserts her Fifth Amendment right and declines to provide any additional facts.

7.   Louisiana Constitution Article I, § 16, provides, in pertinent part: “No person shall be compelled to give evidence against himself.”

8.   In her answer, Ms. Zumaya only alleges that the statute under which the State has filed its “cause of action is unconstitutional on its face” because the Act deprives her from having a jury trial and because the court has “an indirect pecuniary interest in the outcome of the case.” See LSA-R.S. 40:2612(G) and LSA-R.S. 40:2616(B)(3)(b). However, Ms. Zumaya did not pursue these constitutional claims, and they are not at issue in this appeal.

9.   It is within the province of the legislature to amend the Act to allow a claimant to plead the Fifth Amendment in support of a claim. See e.q., K.S.A. 60-4111(d) and 60-4113(f), as amended by the Kansas legislature by Laws 2018, ch. 26, §§ 8, 10.

10.   Louisiana Revised Statutes 40:2612(G) states:The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty days after service of the petition unless continued for good cause. In a forfeiture case wherein no claim is timely filed pursuant to the provisions of this Chapter, the burden of proof to forfeit shall be probable cause. In a forfeiture case, wherein a claim is timely filed pursuant to the provisions of this Chapter, the burden of proof required to forfeit the defendant's property shall be a preponderance of the evidence.

McCLENDON, C.J.

GREENE, J. dissents and assigns reasons.