Aravanis v. Somerset County

BELL, Judge. We granted certiorari to consider whether Maryland’s drug forfeiture statute, Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 297, is subject to an excessive fines analysis pursuant to the Eighth Amendment of the United States Constitution, 1 and/or its Maryland counterpart, Article 25 of the Maryland Declaration of Rights. 2 We are also invited, should we find the analysis appropriate, to formulate a test for determining when a particular forfeiture is unconstitutionally excessive. We shall hold that civil in rem forfeitures are subject to an excessive fines analysis. Therefore, we shall reverse the trial court’s judgment.

I. George Joseph Aravanis, the appellant, and his wife took title to a farm, including a house, located at 5341 Shelltown Road in Westover, Somerset County, Maryland, as tenants by the entireties, on December 31, 1971. They occupied the property while raising their children until they separated and Mrs. Aravanis moved out. Aravanis continued to occupy the property until they were divorced in 1988. Thereafter, in 1991, a part of the property was sold.

The appellant obtained sole title to that portion remaining after the sale. At the same time, he acquired approximately $16,000.00 as his share of the ⁶⁴⁷ proceeds of the sale. He used part of that amount to purchase marijuana for sale. A search of the appellant’s property was conducted pursuant to a search and seizure warrant 3 on July 2, 1991.

As a result of that search, approximately two pounds of marijuana were seized from a gas barbecue grill located outside the house. Paraphernalia, ie. items commonly used in the drug trade for weighing and packaging drugs, see Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 286(a)(4), consisting of sandwich baggies, found in a bedroom bureau drawer, and a set of triple beam scales were also seized. Forty-two marijuana plants, ranging in height from five to six feet, were discovered about 150-200 yards north of the residence, but adjacent thereto. The trial court did not consider these plants as evidence supporting forfeiture since the plants apparently were not located on the appellant’s property.

The appellant pled guilty to one count of possession of a controlled dangerous substance in sufficient quantity to indicate an intent to manufacture, distribute, or dispense pursuant to Article 27, § 286. 4 He was sentenced to five years impris ⁶⁴⁸ onment, three and one-half years of which were suspended. 5 Thereafter, the appellee filed a petition to forfeit Aravanis’s property. At the forfeiture trial, the appellee relied upon the application and affidavit for the search and seizure warrant, detailing two controlled buys from the appellant’s property, the return showing that 2lk pounds of marijuana and drug paraphernalia were discovered on the property, and the appellant’s guilty plea to possession of marijuana with intent to distribute. Appearing pro se, the appellant maintained that the appellee failed to establish, by clear and convincing evidence, that (1) he acquired the real property in question during the period he was violating § 286 and (2) there was no other source for the acquisition of the property, as required by § 297(l) . 6 On the ⁶⁴⁹ other hand, the appellee argued that the forfeiture was controlled by § 297(m). 7 It maintained that § 297(l) applies only when there are questions as to ownership, and legislative presumptions thereof. It is inapplicable in this case, the appellee asserts, because there is no doubt that the appellant owned the property in question.

The trial court agreed. Stating, “there is no doubt that Aravanis owns the real property in question,” it determined that subsection (1) was inapplicable as it is “directed towards establishing an ownership in property for which there is no tangible evidence of ownership, e.g., a deed, motor vehicle title or a bill of sale.” Memorandum Opinion and Order at 5. 8 ⁶⁵⁰ The appellant maintained that he had lived on his property for over twenty years, but had dealt drugs for only two months. Therefore, he argued that forfeiture of his property was excessive: the “penalty is far beyond the ... crime” and “for this state or this country to take a man’s home ... for a few months of illegal activity, is not right.” Maintaining that forfeiture was punishment, the appellee argued that it was intended to be harsh. Neither it nor the appellant presented any other evidence concerning the value of either the subject property or of the marijuana seized or as to any other factor bearing on the fairness of the forfeiture.

Concluding that “[t]here is no question that the real property at Shelltown Road was used in connection with the distributing and dispensing of marijuana,” the court believed that it had no discretion to do anything except order forfeiture. It reasoned that its “only responsibilities are to determine if any statutory exceptions apply ... and whether there has been an adherence to due process....” Opinion and Order of the Court at 9. The court found no exceptions applied and that due process had been met. In doing so, the court acknowledged the harshness of the forfeiture, particularly the subject one, as it relates to the appellant.

Nevertheless, it was satisfied that it was justified in light of the legislative intent of Maryland’s drug statutes, including § 297. The court pointed out that the latter statute was another “enforcement tool in [the State’s] arsenal against the spread of controlled dangerous substances,” Order and Opinion of the Court at 7, a “ ‘part of [the State’s] “full court press” against the illicit drug traffic.’ ” Id. (quoting Ewachiw v. Director of Finance of Baltimore City, 70 Md.App. 58, 60 , 519 A.2d 1327, 1328 (1987). The constitutional issue this appeal presents was not expressly addressed. ⁶⁵¹ The appellant appealed to the Court of Special Appeals.

We granted certiorari on our own motion prior to that court considering it.

II

The appellant challenges the forfeiture in this case as an excessive fíne under both the Eighth Amendment of the United States Constitution and Article 25 of the Maryland Declaration of Rights. For the former proposition, he relies on Austin v. United States, _ U.S._, 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993), in which the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies to in rem civil forfeitures ordered pursuant to a punitive federal forfeiture statute. Because he maintains that it is binding on the several states, through the Fourteenth Amendment, necessarily, civil forfeitures imposed pursuant to punitive state forfeiture statutes, such as § 297, are also subject to that clause’s limitations. Moreover, he asserts, Article 25 of the Maryland Declaration of Rights, is in para materia with the Eighth Amendment and, thus, must be interpreted co-extensively with it.

As such, the appellant contends that, even if this Court were to determine that the Excessive Fines Clause of the Eighth Amendment is inapplicable, the Excessive Fines clause in Article 25 is applicable. A. At issue in Austin was “whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 USC §§ 881 (a)(4) and (a)(7).” _ U.S. at _, 113 S.Ct. at 2803 , 125 L.Ed.2d at 494 . To resolve that issue, the Court perceived the question to be “not, as the United States would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.” Id. at _, 113 S.Ct. at 2806 , 125 L.Ed.2d at 497 . This formulation of the issue was compelled by the purpose of the Eighth Amendment in general and the Excessive Fines Clause in particular.

Relying on Browning-Ferris ⁶⁵² Industries v. Kelco Disposal, Inc., 492 U.S. 257 , 109 S.Ct. 2909 , 106 L.Ed.2d 219 (1989), the Court observed: The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government’s power to punish.... The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the Government’s power to extract payments, whether in cash or in kind, “as punishment for some offense.” (Citation omitted) _ U.S. at _, 113 S.Ct. at 2805 , 125 L.Ed.2d at 497 (quoting Browning-Ferris, 492 U.S. at 265 , 109 S.Ct. at 2915 , 106 L.Ed.2d at 232 ). The Court held that §§ 881(a)(4) and (a)(7) are punitive.

It was led to that conclusion by four factors: (1) “forfeiture generally and statutory in rem forfeitures in particular, historically have been understood, at least in part, as punishment,” _ U.S. at _, 113 S.Ct. at 2810 , 125 L.Ed.2d at 503 ; (2) both § 881(a)(4) and § 881(a)(7) contain an “innocent owner” defense or exemption, which, because it “reveals a ... congressional intent to punish only those involved in drug trafficking,” id. at _, 113 S.Ct. at 2811 , 125 L.Ed.2d at 504 , “serve[s] to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less,” id. at _, 113 S.Ct. at 2810 , 125 L.Ed.2d at 503 ; (3) Congress chose to tie forfeiture under §§ 881(a)(4) and (a)(7) directly to the commission of drug offenses, by permitting forfeiture of a vehicle or real property on the basis of its use or intended use to facilitate either the transportation of drugs or the commission of a drug related crime punishable by more than one year’s imprisonment, id. at _, 113 S.Ct. at 2811 , 125 L.Ed.2d at 504 ; and (4) the forfeiture statute’s legislative history, which reveals Congress’ admission “that the traditional criminal sanctions of fine and imprisonment are inadequate to deter or punish the enormously profitable trade in dangerous drugs” and its belief that real property forfeiture is “a powerful deterrent,” raises the inference that those sections are punitive. Id. ⁶⁵³ The Austin court rejected the government’s argument that the subject forfeiture provisions were remedial in two respects. While acknowledging that the forfeiture of contraband is remedial because it removes dangerous or illegal items from society, _ U.S. at _, 113 S.Ct. at 2811 , 125 L.Ed.2d at 504-05 , citing United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 , 104 S.Ct. 1099, 1105 , 79 L.Ed.2d 361, 369-70 (1984), the Court refused to characterize a mobile home and auto body shop, the property seized in that case, as “instruments” of the drug trade. Id.

It noted, in that regard, that “there is nothing even remotely criminal in possessing, [them],” id. _ U.S. at _, 113 S.Ct. at 2811 , 125 L.Ed.2d at 505 (quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 , 85 S.Ct. 1246, 1250 , 14 L.Ed.2d 170, 174 (1965)). The Court similarly was unimpressed by the government’s argument that the forfeited items compensated the government for its expenditures for law enforcement activity and “on societal problems such as urban blight, drug addition, and other health concerns resulting from the drug trade.” Id. As to that, the Court was of the view that, given “the dramatic variations in the value of conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7),” id., “the ‘forfeiture of property ... [is] a penalty that has absolutely no correlation to any damages sustained by society or to the cost of enforcing the law.’ ” Id. _ U.S. at _, 113 S.Ct. at 2812 , 125 L.Ed.2d at 505 (quoting United States v. Ward, 448 U.S. 242, 254 , 100 S.Ct. 2636, 2644 , 65 L.Ed.2d 742, 753 (1980). Section 297 is, like § 881, a civil in rem forfeiture statute, see 1986 Mercedes Benz 560 CE v. State, 334 Md. 264, 273 , 638 A.2d 1164, 1168 (1994), of the type that “historically [has] been understood, at least in part, as punishment.” See Austin, _ U.S. at _, 113 S.Ct. at 2810 , 125 L.Ed.2d at 503 .

Moreover, the applicable provisions are similar to the provisions construed in Austin . Section 297(b)(9) subjects to forfeiture “[i]n the manner provided under subsection (1) and (m) of this section, all real ⁶⁵⁴ property.” Section 297(c) defines property not subject to forfeiture. It provides: Property or an interest in property described under subsections (b)(4), (9) and (10) of this section may not be forfeited if the owner establishes by a preponderance of the evidence that the violation of this subheading was done without the owner’s actual knowledge. In 1986 Mercedes Benz, 560 CE, supra, construing subsection (l), the provisions of which we characterized as clear and unambiguous, we said: It is rebuttably presumed that property which a person owns or in which he or she has an ownership interest constitutes proceeds and, hence, is subject to forfeiture, whenever the State, by clear and convincing evidence proves that: (1) the person has committed one or more of several enumerated controlled dangerous substances offenses; (2) the person acquired the property during the period in which, or within a reasonable time after, the violation or violations occurred; and (3) the violation was the only likely source of the property.

Id. at 278-79, 638 A.2d at 1171 . Subsection (m) references certain drug activity, engagement in which subjects property used therewith to forfeiture. Among the drug activity proscribed is possession of a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to distribute a controlled dangerous substance. See § 286(a)(1).

The applicable forfeiture provision in this case is § 297(m). Because § 297(c) references subsection (b)(9), which in turn refers to subsection (m), the exemptions contained in subsection (c), are also applicable to subsection (m). Thus, § 297(m), like §§ 881(a)(4) and (a)(7) of the federal statute, contains an innocent owner exemption. That, in addition to knowledge, the federal statute refers to the consent or willful blindness of the owner does not require or suggest a different result.

See United States v. One Parcel of Real Estate at 6640 Southwest 48th Street, 831 F.Supp. 1578, 1585 (S.D.Fla.1993); United ⁶⁵⁵ States v. 2901 Southwest 118th Court, 683 F.Supp. 783, 788 (S.D.Fla.1988). Furthermore, forfeiture in the case of subsection (m) is tied, as in the federal statute, to various drug offenses, including, as applicable herein, the possession with intent to distribute a controlled dangerous substance. Finally, the legislative history of § 297 in general, State v. One 1984 Toyota Truck, 311 Md. 171, 177 , 533 A.2d 659, 661-62 (1987); Pr. George’s Co. v. One 1969 Opel, 267 Md. 491, 495 , 298 A.2d 168, 170 (1973) and subsection (m), 9 in particular, Floor Report on Senate Bill 419 at 1, reveals a purpose, like that of the federal forfeiture statute, to “deter crime by creating civil procedures governing the forfeiture of property and proceeds derived from enumerated CDS offenses, or used to commit or facilitate these crimes.” That history also indicates that the Legislature, like Congress, intended forfeiture to be “a powerful prosecutorial tool for stopping CDS offenders and depriving them of the huge profits reaped from their illegal activities.” Floor Report at 4.

Therefore, the construction of the federal statute is persuasive as to the meaning of the Maryland statute. See Allen v. State, 91 Md.App. 775, 783 , 605 A.2d 994, 998 , cert. denied, 328 Md. 92 , 612 A.2d 1315 (1992). It is also relevant that the State and the trial court held that the purpose of the Maryland forfeiture statute is, at least in part, punitive. Accordingly, it follows that § 297, and in particular subsection (m) is, like §§ 881(a)(4) and (a)(7), a punitive statute, the purpose of which is to require “direct payment to a sovereign as punishment for some offense.” Browning-Ferris, 492 U.S. at 265 , 109 S.Ct. at 2915 , 106 L.Ed.2d at 232 .

B. The appellant argues that the Excessive Fines Clause of the Eighth Amendment is applicable to the forfei ⁶⁵⁶ ture sub judice. We do not reach that issue, however, because we hold that the excessive fines provision of Article 25 of the Maryland Declaration of Rights applies. 10 Article 25 is, textually and historically, substantially identical to the Eighth Amendment. Indeed, both of them were taken virtually verbatim from the English Bill of Rights of 1689. Walker v. State, 53 Md.App. 171, 183 , 452 A.2d 1234, 1240 (1982), citing Phipps v. State, 39 Md.App. 206, 211 , 385 A.2d 90, 93-4 (1978).

Thus, it is well settled in this State that Article 25 of the Maryland Declaration of Rights is in para materia with the Eighth Amendment. See Minor v. State, 313 Md. 573 , 589 n. 4, 546 A.2d 1028 , 1035 n. 4 (1988) (Eldridge, J. concurring). ⁶⁵⁷ Indeed, the excessive fines provision of Article 25 was one of eight such provisions which served as a model for the Excessive Fines Clause of the Eighth Amendment. See Browning-Ferris, 492 U.S. at 264 n. 5, 109 S.Ct. at 2915 n. 5, 106 L.Ed.2d at 231 n. 5. Thus, the excessive fines provision of Article 25 should be interpreted co-extensively with the excessive fines provision of the Eighth Amendment.

III

The Austin court declined Austin’s invitation “to establish a multi-factor test for determining whether a forfeiture is constitutionally ‘excessive.’ ” _ U.S. at _, 113 S.Ct. at 2813 , 125 L.Ed.2d at 505 . It explained: Although the Court of Appeals opined “that the government is exacting too high a penalty in relation to the offense committed, ... it had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry. Prudence dictates that we allow the lower courts to consider that question in the first instance.” Id. (citations omitted).

The Court pointed out, however, that it did not “rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits the Court of Appeals from considering other factors in determining whether the forfeiture of Austin’s property was excessive.” Id. at _ n. 15, 113 S.Ct. at 2812 n. 15, 125 L.Ed.2d at 505 n. 15. The latter comment was in response to Justice Scalia’s concurring opinion proffering an instrumentality test as the proper standard by which the excessiveness of fines must be judged under the Eighth Amendment. Agreeing that the forfeiture in that case “works as a fine” and, thus, raises the excessiveness issue, Justice Scalia stated his belief that “the excessiveness analysis must be different from that applicable to monetary fines and, perhaps, to in personam forfeitures,” in which “the touchstone is the value cf the fine in relation to the offense.” Id. at _, 113 S.Ct. at 2814-15 , 125 L.Ed.2d at ⁶⁵⁸ 508 . Commenting on the relevance of the offense of which the defendant is convicted to the property sought to be forfeited, Justice Scalia argues: But an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense—the building, for example, in which an isolated drug sale happens to occur.

Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth but whether the confiscated property has a close enough relationship to the offense. _ U.S. at _, 113 S.Ct. at 2815 , 125 L.Ed.2d at 509 . According to Justice Scalia, therefore, the relevant inquiry involves asking whether the relationship of the property to the offense is “close enough to render the property, under traditional standards, ‘guilty’ and hence forfeitable?” Id. Since the Austin decision, a number of courts have been faced with the task of formulating a test by which to assess whether an in rem forfeiture is excessive under the Excessive Fines Clause of the Eighth Amendment or a comparable State provision.

The results have not been uniform. Some courts have adopted the instrumentality test espoused by Justice Scalia. See United States v. Chandler, 36 F.3d 358 (4th Cir.1994); 11 One Ford Motor Vehicle VIN # 1 FACP41A8LFZ17570 v. State, 104 Md.App. 744 , 657 A.2d 825 (1995); In Re King Properties, 535 Pa. 321 , 635 A.2d 128 (1993); SAS, Inc. v. Commonwealth, 162 Pa.Cmwlth. 263 , 638 A.2d 455 (1994). Other courts, indeed the majority, have combined the instrumentality test with some form of a proportionality test.

See e.g. United States v. R.R. No. 1, Box 224, ⁶⁵⁹ 14 F.3d 864, 875 (3d Cir.1994) (adopting the test of Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983)— weighing gravity of offense and harshness of penalty, and sentences imposed in the same and other jurisdictions for same offense, taking account of “the absolute magnitude of the crime” and the “culpability of the offender”); United States v. Alexander, 32 F.3d 1231, 1238 (8th Cir.1994) (for purposes of proportionality, consider extent and duration of criminal activities, gravity of offense, value of property forfeited, specific facts involved in case, sentences imposed, and factors identified in United States v. Sarbello, 985 F.2d 716, 724 (3rd Cir.1993), i.e. personal benefit reaped by defendant, his or her sentence, and extent that defendant and the property are “guilty”); United States v. 9638 Chicago Heights, 27 F.3d 327, 330 (8th Cir.1994) (monetary value of property, nature and use of the property, effect of forfeiture on innocent users of property); 12 United States v. 18755 North Bay Road, 13 F.3d 1493 , 1498 (11th Cir.1994) (opting for proportionality analysis, court determined that it is appropriate to measure seriousness of offense by looking at whether conduct was the sort Congress intended the forfeiture laws to punish); United States v. 461 Shelby County Road, 857 F.Supp. 935, 938 (N.D.Ala.1994) (financial condition of defendant, nature and use of property forfeited, culpability of owner); United States v. One Parcel Property at 427 & 429 Hall St., 853 F.Supp. 1389, 1399-1400 (M.D.Ala.1994) (using instrumentality test as threshold—if sufficient nexus—consider whether forfeiture is grossly disproportionate, given the nature of offense involved); 13 United States v. 6625 Zumirez Drive, 845 F.Supp. 725, 732 (C.D.Cal.1994) (combining instrumentality test with gravity of offense and harshness of penalty, and extensiveness of criminal activi ⁶⁶⁰ ty); United States v. 24214 Lemay Street, 857 F.Supp. 1373, 1382 (C.D.Cal.1994) (same); United States v. One 1990 Ford Ranger Truck, 876 F.Supp. 1283 (N.D.Ga.1995) (applying a modified 427 & 429 Hall Street analysis—the second prong of which measures not value of the property, but hardship engendered by forfeiture.); United States v. Rural Route 1, 1994 WL 194172 (N.D.Ill.1994) (the Zumirez test); United States v. Real Property: 835 Seventh Street Rensselaer, 820 F.Supp. 688, 689 (N.D.N.Y.1993) (adopting the pre-Austin test formulated by the court in United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.1992)) 14 ; United States v. Shelly’s Riverside Heights Lot X, 851 F.Supp. 633 (M.D.Pa.1994) (applying the tri-part test of Solem v. Helm, supra; Idaho v. Real Property Located in Minidoka County, 126 Idaho 422, 425 , 885 P.2d 381, 384 (1994) (remanding case for development of test for determining excessiveness, noting the Austin court’s refusal to limit the lower courts to consideration of the relationship between the forfeited property and the offense); People v. 1992 Oldsmobile Station Wagon, 265 Ill.App.3d 93 , 202 Ill.Dec. 727, 730-31 , 638 N.E.2d 373, 376-77 (1994) (noting the appropriateness of considering whether too high a penalty has been exacted, given the offense committed,