challenge the pre forfeit sure depravation there be a call after the district court's judgment was entered the general assembly amended the statute and now provides for probable cause judicial determination must be made that the vehicle will be subject to search the innocent owner gets the added protection of being able to come in and ask for professional release of the vehicle so those are the two i think significant didn't reach these amendments because they didn't exist at the time that the court entered its judgment for that reason it's this case is moot because these statutes that were enjoying are no longer in effect the new  provisional they file a petition with the court once a probable cause hearing has been held and the probable cause has been found then the prosecutor must a notice to the owners of the vehicles and informing her there that they have the right to petition the court for provisional release of the vehicle and would need to show they need to show that they are the owner that their family or they will have some benefit to be now they've been given that opportunity whether they're successful or not remains to be seen on a case by case basis the facial challenge of the statute was that no owner had the opportunity to do that that no longer the case that provision that the district court specifically targeted the lack of that opportunity is no longer relevant because that opportunity does now exist which is what makes this case moot what the court ha provided for notice the weekend here in this court found because of that because the existing statute that had been found unconstitutional no longer existed the case was made and there's precedent out there that was not a startling ruling by any means i think what this case where we the real question is because this case is moot do we need to bake kate the injunction the state's position is new statute now a lot of those vehicle owners well there are opportunities for a hearing whether it's a probable cause or whether it's an innocent owner who can then actually come in and challenge it seeking to have the vehicle returned pending forfeit e so i think those are significant enough changes it changes as it was defined under the original which i think makes it very difficult to go back and have relief relief in this case is because the prosecutors at this point the state of indiana is treating the amendments as new statutes not covered by the injunction because they are providing the relief that the in the district had said needed to be provided so part of the reason why the state is asking for big peter here is because of remove that threat of prosecutors being held in contempt for now operating under the new stats statutes when there's an injunction that may or may not be applicable to the new statutes it was a very broadly worded injunction directed in joining the enforcement  indiana code thirty four dash twenty four x one dash one in conjunction with all of the provisions of the same chapter so because of that it's i think there is a threat on the record obviously because this has all happened afterwards but it's my understanding that they have started told provisional hearings for car owners and if they don't know it the owner prevails that a provisional hearing the car gets one layer of protection that this is not an iranian deprivation if they're not an innocent own are then they have the forfeiture of hearing within ninety days so they streaming between you and getting really if you want right now i want to we should speak to our here's why i think it's not a sticking point for us because they're not anonymous to an owner and the district court was specifically concerned about the innocent owner being able to challenge the the pretty forfeiture deprivation of their car the district court did not seem to be so concerned about anonymous an owner having to wait for the forfeiture proceedings one of the heavily on that case but again it was the owner i think that was driving the concern for some challenge to the state being able to keep the be a call until the forfeiture hearing for the innocent owner indiana has taken care of that concern the innocent owner can come next and say i should be able to keep my car until you've decided through the forfeiture proceeding itself whether alternately the state find probable cause determination probable cause determination the church parking its experts say although i'm not aware that there's any reason why someone could not ask for a probable cause hearing as they are allowed to do in criminal cases but that hasn't come up i don't believe anyone has said i'm going to be any procedure you say they can in the criminal they're going to ask for a probable cause hearing it it doesn't have to be granted i don't believe but they can ask for it but it's so similar to the criminal we now have a requirement for that probable cause determination to be made so that it's not the concern under the  was that more enforcement officers going about their business doing their job could arrest someone and subject to that arrest seize the vehicle without any determination that they're really that the vehicle or subject so that it's now been addressed judicial officer has to make a probable cause determination that the vehicle is subject to seizure if it's a non innocent owner because the owner of the vehicle was arrested during that situation then we do have more of a next in between the owner and the but it's his brother that would have the car returned to him and then presumably the brother could let him drive it again it's not being taken away from the non owner of the vehicle it's it's the owner of the vehicle but speaking directly activity i should be able to have my car back now i don't know that there's anything that would prevent the brother who owns the cars i said from and letting his brother drive  again at his peril he would not be an innocent owner the next time brother got into trouble with that but it's the owner or security interest sort lienholder the vehicle that has the interest that due process is in the purpose it's deterrence and it's to take them off the street the vehicles that are being used for the criminal purposes taking something away as an incentive for don't use the net in a bad way so it's not  someone's vehicle weight they have a big interest in their car just for the reasons you said but equally we were looking at the government interest taking vehicles out of criminal activity and being able eventually forfeit them which that's not really relevant you know why and how the forfeiture whether they ultimately get the car we're concerned with that period of time before that determination is made in this that there are people do have an interest and so we have to look at what procedures are in place to protect that that they're interested in their vehicles these not the interest the government has in seizing and holding onto the vehicles to preserve them and so what the district court enjoins were statues that didn't address those concerns the statute now does the injunction should be commuted because it's no longer relevant i please the court my name is just cut off i represent the appellate leroy washington in her in the district court order judge magnificence and said that at a minimum there must be a timely post seizure free forfeiture hearing adversarial hearing in a courtroom how many days will pass if that question cannot be answered and it cannot then the law is still defective the prosecutor has made the argument that the hearing must be held within ninety days if you look at the statute it's the complaint for forfeiture must be filed in ninety days so in other words the process must begin in ninety days not end in ninety days so when we look at that question then she ation is in the hands of the it could be six months it could be here the statute doesn't set any time limit for when that provisional release hearing happens but when can it be filed it can be filed pretty much immediately there's no there's nothing so for example if my car seized i could go file an later that day i don't think anything would prevent me from doing that now the issue is that traditionally snaring the way the statute is written it might not happen for six months it might not happen for a year every taken a step in the right direction but it is still fallen far short of what the constitution requires jurisdiction was specified in the statute was in how many days the hearing was take place yes yet there has to be some sort of adversarial hearing where the owner has the right to present evidence basically a probable cause it can be called a probable cause hearing it can be called provisional release can be called post seizure pre forfeiture during but there has to be sung sort of guaranteed hearing within a certain period of time and indiana is not afraid of that so they have said you can help this hearing but we're not going to put any time limits on when it happens and that's a major problem that was i would you would say mr goodell it's usually required courts looking at this have been very hesitant to put a specific number of days in place and i think that's probably a good idea i don't think it's a good idea for any court to come out and is how many days you have to do it and i think what the court should really do is look at the statute as it is written and you know if it says you have to do this within six months i think in a situation like that you can say hey that's too long we're going to we're going to find this on constant you should all legislature to your job to rewrite the law or in a situation like this where they say ok you can we'll give you this hearing but we want there's no time limit on when it happens it could be  hypothetically in five years i think it's the court's place just to say hey we are here to try to determine if the statute is constitutional or unconstitutional we're not going to tell you how to rewrite it now personally i think it should be as short as reasonably possible maybe seven business days ten business days i don't know for sure but we're not here to write a statute that says the indiana legislature it's just our job well it's your job to look at business days well even if the state work first i don't think there's any reason to believe they are doing them that quick even the probable cause affidavit doesn't have to be filed for seven days so i am very certain there the provisional release hearings are not happening that quickly  but the question is does the statue have have these due process requirements in place in other words does it give law enforcement at the discretion to abuse due process and i think that's what a lot of the courts you know crim stock and the other courts have looked at is what does the statute actually allow law enforcement to do because we don't want to create situations where longford enforcement in certain cases might drag their feet in order to force request continuance of things like that but there's a judicial officer have to determine whether the grant that are saying don't come out and here tell me why the man should have his carcass yes i think i have thought about that and i think to be honest it becomes very similar to a probable cause determination in a criminal case where you do have the executive branch and the judiciary both being required to do something within a certain amount of time i don't think there's any reason to believe  when there's just one statutorily there's no time limits put in place there's nothing for either the executive branch or the trial court judges to adhere to  e i've seen the coast east where the person was arrested for possession of marijuana possession of marijuana is not or for the ball once the car is ceased report the chair there's this long lengthy process to get it back so yes it is it is generally as a practical matter it decision being made by a police officer on the street and once those gears start turning it's very hard to actually get into a courtroom and say hey judge there's an issue  a certain extent but no it's not really arbitrary a lot of times it has to do with how much the vehicle is worth the u s supreme court just heard the patient tim's case yesterday that's a forty two thousand dollars ladder over if that by police officers now there's always some disarray you know police officers are humans just like anyone else yes the on one other point that i think seems to me the fear that you know that the owner can show me a pattern and practice of indiana sitting on these things since this is a new law i don't i cannot show a pattern of them sitting out here trying to make official attack on a statute that on on  face is perfectly fine it seems to me and you maybe as apply does not and you just don't have the goods on basically whether this case there are two ways this case from the looked at and that there are two statutes i asked you have the second statute and joined the judge and joined the first statue and this this case in a lot of ways illustrates why the difference between facial and as applied challenges is not always clear cut you can get to the same result either by finding the first statute unconstitutional facially or the second strike you unconstitutional as applied to be apples so you can really get there either way whether it's a facial challenge or and as applied challenge it just depends which statute you're in joining there so in related that it's very they can't be looked at in isolation  any other court ruled on this issue not that i'm aware of as of yet isn't going on now or anywhere not that i'm aware of there does lots of rest going on every day yet there so i wonder how many but they all got their vehicles but i mean after this decision was issued one other thing i do want to address the system in regards to the provisional release hearing first as i just mentioned earlier  there's no time requirement under the statute for when that happens it could arguably be at any point in time but second the state can always block provisional release by filing a motion to transfer and i want to talk about these motions transfer because this is something very common in indiana trial courts but that i don't i don't think the issue that's come before this court the state seems to be suggesting in its reply brief that the motions to transfer are mandatory in that the statute says the court quoting from the ne end of supreme court here the state argues that the language of the turnover statute is mandatory in that the court shall order the transfer of property to federal authorities the court thing goes on we agree with the trial court court of appeals that if the search for seizure of member a's property was unlawful the turnover order must be reversed the statute contemplates a lawful search so the idea that these motions transfer are automatic and shall always be granted is not true the indiana supreme court has not interpreted the statute that way it's not rare the property owners when these hearings i handled one earlier this year where the judge denied the state's turnover order not talk about four months to there is no requirement that that motion to transfer be dealt with in an expedited matter is transferred meaning transfer to the federal government yes you would have a transfer on location so we went a long way away from where that car's from the transfer back to their domicile i'm not sure if i understand what if somebody goes a long distance which sometimes they do and it's rude to say it's somebody from south bend  it is that is evansville going to be the form for whatever argument about the car is going to be transferred to sell them and it would generally if they're transferring to the fed their tow lot and stay there and then when it's released ok but it's going to be in evansville instead of self been that's all and more likely than not yes the owner is so for that yes yes i mean hypothetical their own stuff the second thing oh another thing i want to point out we keep talking about innocent owners it's very difficult to know who is an innocent  yes but to say some people don't get the right to a hearing because we have decided beforehand that they are not innocent owners is problematic it puts the cart before the horse and presume that certain people so for example  possessory interest in a vehicle maybe not holding title that they have a possessory interest if they feel they're in a sense they can't get that hearing because the law quickly prevents them from doing so so we're really putting the cart before the horse and saying we're going to allow innocent people to do something and obviously i know this quotes in my brief constitutional rights are not reserved for the innocent but to say we're going to decide that certain people innocent people get the right to a hearing and guilty people dong that how do we know who who without the actual hearing the all the second mean point i want to make involves three subtopics that first glance might appear to be unrelated but they all share a common thread and three subtopics are the court granting broader relief than was originally requested facial versus as applied in the use of the word vehicle rather than automobile i'll discuss these in more detail time permitting but what i want to point all three of these subtopics involve a condom threat that even if you agree with the state it does not get the state to where it wants to be it does not grow result in complete reversal so it would just require the injunction being reworded slightly so for example even if you found the court erred in granting brought to relieve them was requested this doesn't require complete reversal it merely requires narrowing that the injunction to what was originally requested similarily even if you found the court should have addressed the cases and out as applied challenge this doesn't require a complete reversal it merely requires rewording the injunction consistent with what was requested in the original complaint lastly obviously if you felt that it should be limited to automobiles rather than albeit cold you can remap with instructions to no i think in terms of the question i think if we're looking at is this case in the i think the question is was the trial judge correct in finding a classics and she was and a minimum provide a timely procedure p forfeiture hearing so the question is ok has the legislature done what the what the judge said which was at a minimum a timely hearing amended situation and revisit the injunction generally i don't think that's necessary because the question is just does the law still suffer from similar infirmities as it did at the outset and since she said there mu new amendment which might impact sleep or a possible job i understand your question on but i think the real question is what does the law allow or not how is it actually being practiced and if the law allows a vehicle to be held with basically a provisional hearing at some indeterminate date i don't i think i think the real question before their supporters does it i only have i think i've gone over my time but i don't want to cut your view if you leave us a fair amount of questions if you have some other comment you certainly can make the judge i would just leslie point out what the judge said was there has to be a time when hearing that has not been created we still have the question of if a person asked for a provisional release sharing how many days passed before they get to that question still cannot be answered thank you for your judge i just have a couple of points to make on rebuttal ryan so we're concerned now apparently about kindliness it wasn't enough to grant the ability an opportunity to have a hearing but it we must on it the amendments have done what the district court was concerned about whether in a particular case someone so this didn't amount to due process for me nikos delay was so great it was tantamount to not really cabinet hearing to protect my due process and that would be an as applied to that defendant challenge that they could bring i don't think it suitable to a class action facial challenge to the steps when you're right we don't have any idea at this point whether anyone has had to wait an unduly amount of time for their provisional hearing certainly but the class is not submitted it brought in any evidence to show that this has been a completely a loser and amendment to the statute and no one's getting these hearings timely or not so i think it's a little premature for the district court to opine and decide whether the amended is a mandatory thing with the petition being filed but what's important about the fact that you don't get a provisional release period if a turnover petition gets by or is that you then have the right to go to the court and have a hearing on whether your property will be