Boyd v. Hickman

HOLLANDER, Judge. On May 29, 1992, while Diane Wisner was driving her mother, Marie Boyd, home from the grocery store, Ms. Wis-ner was arrested by members of the Carroll County Narcotics Task Force (the “Task Force”) for possession of cocaine with intent to distribute. Incident to Ms. Wisner’s arrest, and pursuant to Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 297 (“the Maryland drug forfeiture law” or “the statute”), the Task Force seized the vehicle Ms. Wisner had been driving, which was owned by Ms. Boyd and her husband, Paul Boyd, appellants. Later, Ms. Boyd agreed to pay $2,000 for the return of her car, pursuant to the Task Force’s “buy back” program.

In exchange for the payment, the Task Force agreed not to recommend the car for forfeiture, and the State’s Attorney’s office agreed not to file a petition for forfeiture. Subsequently, appellants brought suit against Thomas E. Hickman, State’s Attorney for Carroll County, Barton F. Walker, III, Senior Assistant State’s Attorney for Carroll County, and two of the arresting officers on the Task Force, Sergeant Andrew McKendrick and Trooper First Class (“TFC”) Robert Heuisler, appellees. Appellants asserted claims for fraud, conspiracy, and violations of Articles 6, 9, 19, and 24 of the Maryland Declaration of Rights. Appellees filed motions to dismiss and, in the alternative, motions for summary judgment.

After the Circuit Court for Carroll County granted the defendants’ motions to dismiss, appellants timely noted their appeal. They present the following questions for our review: ¹¹⁴ I. Are the Defendants entitled to a qualified immunity defense for their violations of Maryland Constitutional Law?

II

Were plaintiffs’ allegations of malice sufficient to withstand a Motion to Dismiss under both the constitutional and nonconstitutional tort claims?

III

Were plaintiffs’ allegations of intentional misrepresentation sufficient to withstand a Motion to Dismiss under both the Constitutional and nonconstitutional tort claims?

IV

Is the Maryland forfeiture law unconstitutional as written and as applied? We conclude that the Maryland forfeiture law is neither unconstitutional as written nor unconstitutional as applied. Moreover, we conclude that the court below properly granted appellees’ motions for summary judgment as to all counts, although the court designated the motions as motions to dismiss. Accordingly, we decline to reach the remaining questions.

Factual Background During May 1992, Ms. Wisner was under surveillance by the Task Force, 1 which was acting on a tip from a confidential informant that Ms. Wisner was distributing cocaine from several automobiles, including a 1985 Ford Tempo. On May 29, 1992, after corroborating the tip through direct observation, Task Force members Sergeant McKendrick and TFC Heuisler, along with other Task Force members, stopped Ms. Wisner in Westminster as she was driving her mother home from the grocery store in her mother’s 1985 Ford Tempo. The officers searched Ms. Wisner and in her purse found cocaine, as well as drug paraphernalia, $2081 in cash and checks, and tally sheets. They arrested Ms. Wisner and seized the automobile.

Ms. Wisner was charged with posses ¹¹⁵ sion of a controlled dangerous substance with intent to distribute, and was subsequently convicted of that offense. Immediately after the arrest of her daughter and the seizure of her car, Ms. Boyd was driven by TFC Heuisler to the Maryland State Police Barriek in Westminster. She told the officer that she owned the Ford Tempo and had allowed her daughter to use it for the prior four to six weeks. Ms. Boyd alleged in her complaint that when she asked TFC Heuisler when her car would be returned, he responded that she would “never” get her car back.

Another Maryland State Police Trooper then drove Ms. Boyd home with her groceries. Ms. Boyd contended in her complaint that, after arriving at her house, she took two small bags of groceries into the house and returned to the curb to find that the Trooper had thrown her remaining groceries onto the lawn and driven away. On May 30, 1992, after she had been released on bond, Ms. Wisner called Sgt. McKendrick regarding her mother’s car.

The Boyds’ complaint alleges that Sgt. McKendrick told Ms. Wisner that it would cost $500 to get the car back, and that he would call her back at a later time. In Sgt. McKendrick’s affidavit, submitted in support of his summary judgment motion, he stated that he had no recollection of this exchange.

When Sgt. McKendrick did not call after several days, Ms. Boyd called the State’s Attorney’s Office and was referred to Mr. Walker, who handled forfeiture matters for the State’s Attorney’s office. 2 In a series of telephone conversations, Mr. Walker informed Ms. Boyd that the “blue book” value of the car was $2,500, but that she could “buy back” the car for $2,000. The complaint alleges that Mr. Walker instructed her to bring that amount in cash to the Westminster Police Station. In fact, Ms. Boyd brought a Treasurer’s Check to the police station, payable to the Carroll County Narcotics Task Force.

Sgt. McKendrick accepted this check, and required Ms. Boyd to sign a release before receiving her car. The release reads, in relevant part: ¹¹⁶ I agree to pay the sum of TWO THOUSAND DOLLARS ($2,000.00) on this date, as a result of an agreement which was reached between myself, and Sgt. Andrew McKendrick of the Carroll County Narcotic [sic] Task Force and Bart Walker of the Carroll County States [sic] Attorney’s Office, whereby, I understand that the Carroll County Narcotic [sic] Task Force will not file a petition of forfeiture for this vehicle, as is provided for by Article 27, Section 297, of the Annotated Code of Maryland.

This agreement is made freely and voluntarily without any threats, promises or coertion [sic] and with the understanding that it will have no bearing upon, or consideration in any currently pending or future criminal prosecution involving myself. I also acknowledge that I have been afforded the opportunity to have this agreement reviewed by my attorney. [ 3 ] (Emphasis supplied). Mr. Boyd, a co-owner of the car, did not sign the release, although he was present. 4 The circuit court found that “the car was lawfully seized and recommended for forfeiture under the governing statute,” but the parties do not' contend that the car was recommended for forfeiture. Rather, the Boyds regained possession of their vehicle after Ms. Boyd made payment and signed the release.

It is that event that is central to this dispute. Discussion I. Appellees filed motions to dismiss and, in the alterna ¹¹⁷ tive, motions for summary judgment. 5 As a preliminary matter, we must determine which motion was actually granted. The trial court’s memorandum opinion and the docket sheet refer to the disposition as a grant of the motions to dismiss, and appellants urge us to review the trial court’s decision under the standard for such a motion. Appellees note, however, that the trial judge considered materials outside the pleadings, and therefore urge us to treat the order as the grant of a motion for summary judgment.

In analyzing a motion to dismiss, the trial court must decide whether the complaint states a claim, assuming the truth of all well-pleaded facts in the complaint and taking all inferences from those facts in the light most favorable to the plaintiff. Sharrow v. State Farm Mut. Auto. Ins.

Co., 306 Md. 754, 762, 768 , 511 A.2d 492 (1986) (citing Tadjer v. Montgomery Co., 300 Md. 539, 542 , 479 A.2d 1321 (1984)). “Dismissal is proper only if the facts and allegations ... would ... fail to afford plaintiff relief if proven.” Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993) (collecting cases); see also Davis v. DiPino, 337 Md. 642 , 655 A.2d 401 (1995). In deciding a motion for summary judgment, the court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law. Davis, 337 Md. 642 , 655 A.2d 401 ; Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Telephone Co. of Md., 97 Md.App. 557, 576-77 , 631 A.2d 485 (1993); Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992). Here, defendants supplemented their motions with affidavits and other materials, including Ms. Wisner’s criminal record.

When the circuit court considers matters outside the pleadings, the court treats the matter as a motion for summary ¹¹⁸ judgment, and the legal effect of the ruling in favor of the moving party is to grant a motion for summary judgment, notwithstanding the court’s designation of the ruling as a motion to dismiss. Md. Rule 2 — 822(c); see Fairfax Sav. v. Kris Jen Ltd. Partnership, 338 Md. 1, 9 , 655 A.2d 1265 (1995); Hrekorovich v. Harbor Hosp. Ctr., 93 Md.App. 772 , 614 A.2d 1021 (1992), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993). Although the circuit court’s memorandum opinion stated that it granted the defendants’ “motion to dismiss,” the circuit court clearly considered the affidavits and other materials submitted by the defendants.

For example, the circuit court relied on Sgt. McKendrick’s affidavit to conclude that Task Force members found enough drugs in Ms. Wisner’s possession to indicate that a sale was contemplated. The circuit court also relied on the áffidavit and other materials to conclude that the Task Force had corroborated evidence that Ms. Wisner sold drugs from and transported drugs in Ms. Boyd’s car. Moreover, extrinsic evidence showed that Ms. Wisner was subsequently convicted of a felony drug offense arising from the May 29 arrest.

Therefore, the circuit court’s consideration of matters outside the pleadings rendered its decision a grant of a motion for summary judgment. We review the grant of a motion for summary judgment to determine whether the trial court was legally correct. Baltimore Gas & Electric Co. v. Lane, 338 Md. 34 , 656 A.2d 307 (1995); Warner v. German, 100 Md.App. 512 , 642 A.2d 239 (1994); Barnett v. Sara Lee Corp., 97 Md.App. 140 , 627 A.2d 86 , cert. denied, 332 Md. 702 , 632 A.2d 1207 (1993). In our view, the court’s decision was legally correct.

We explain.

II

The Maryland drug forfeiture law “is, and was intended to be, a harsh law.” Prince George’s County v. Vieira 340 Md. 651, 658 , 667 A.2d 898 (1995). The purpose of the statutory scheme is to impede the drug trade by depriving drug dealers of the instrumentalities that facilitate the sale and use of illegal drugs. Aravanis v. Somerset County, 339 ¹¹⁹ Md. 644, 655, 664 A.2d 888 (1995), cert. denied, — U.S. -, 116 S.Ct. 916 , 133 L.Ed.2d 846 (1996). Section 297 is a civil in rem forfeiture statute.

Aravanis, 339 Md. at 653 , 664 A.2d 888 ; 1986 Mercedes Benz 560 CE v. State, 334 Md. 264, 273 , 638 A.2d 1164 (1994). The Supreme Court has recently re-affirmed the historical view that in a forfeiture proceeding, Ht is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted and punished. The forfeiture is no part of the punishment for the criminal offense.

United States v. Ursery, — U.S. -, ---, 116 S.Ct. 2135, 2140-41 , 135 L.Ed.2d 549 (1996) (quoting Various Items of Personal Property v. United States, 282 U.S. 577, 581 , 51 S.Ct. 282, 284 , 75 L.Ed. 558 (1931)) (emphasis in Ursery omitted). A civil forfeiture statute will not be considered punishment for Double Jeopardy purposes unless the legislative body intended it to be punitive, or its effect was so punitive as to negate its remedial purpose. Id. at ---, 116 S.Ct. at 2147-48 . 6 In One 1984 Ford Truck v. Baltimore County, 111 Md.App. 194 , 681 A.2d 527 (1996), we concluded, based on the factors articulated in Ursery , that Art. 27, § 297 7 “is not so punitive as to require criminal constitutional protections.” Id. at 207, 681 A.2d 527 . We reasoned that the ¹²⁰ Legislature intended § 297 to serve a remedial and deterrent purpose and that the statutory scheme was not unduly punitive in purpose or effect.

Id. The statute provides that vehicle seizure must be supported by “probable cause to believe that the property has been used or [is] intended to be used in violation of this subheading.” § 297(d)(iv). Subsection 297(b) refers to the property subject to forfeiture and “covers the waterfront.” State v. One 1982 Plymouth, 67 Md.App. 310, 314 , 507 A.2d 633 (1986). It is “the only [provision] remotely concerned with the necessary conditions for forfeiture." Id.

(Emphasis supplied). It provides, in relevant part, that “[a]ll conveyances including ... vehicles ... which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment” of controlled dangerous substances or paraphernalia, are subject to forfeiture. §§ 297(b)(1),(4). If the driver of the seized vehicle is not the registered owner, however, the determination of the ultimate forfeitability of the vehicle depends on whether the vehicle owner can establish an innocent owner defense, pursuant to § 297(c). See State v. One 1985 Ford, 72 Md.App. 144, 147 , 527 A.2d 1311 (1987) (holding “once the illicit use of the vehicle is shown, the vehicle is presumptively subject to forfeiture and the burden of proof is upon the owner to demonstrate entitlement to an exemption from that presumptive forfeiture.”).

The statute sets forth a three-step process for seizing, recommending forfeiture, and ultimately filing a complaint for forfeiture of a motor vehicle. First, when a seizure occurs without preliminary judicial process (such as a warrant), the arresting officer must make the decision to seize the automobile based on the factors enumerated in subsection (i). Second, the chief law enforcement officer reviews the seizure using the same factors, and also reviews Motor Vehicle Administration records to determine all registered owners and lienholders. The chief law enforcement officer then decides whether to recommend to the forfeiting authority the forfeiture of the vehicle. § 297(i)(3)(i).

Third, upon a recommendation of forfeiture, the forfeiting authority conducts its own ¹²¹ independent review, § 297(j), and may then file a complaint for forfeiture in the circuit court. § 297(h)(2)(ii). The forfeiting authority must file a petition for forfeiture within 45 days of seizure. Id. If the forfeiting authority makes an independent determination that one of the innocent owner exceptions in subsection (i)(2) applies, or that the standards enumerated under subsection (i)(l) were not met, “the forfeiting authority shall surrender the vehicle upon request to the owner.” § 297(j).

Appellants assert a number of challenges to § 297. Their contentions focus primarily on § 297(i) of the statute, which is specific to seizing a motor vehicle and recommending it for forfeiture, and is distinct from the general provisions for forfeiture under § 297(b). For convenience, we set forth in full the provisions of § 297(i): 8 (i) Motor vehicles — Standards for seizure. — In exercising the authority to seize motor vehicles pursuant to this section the following standards shall be utilized: (1) A motor vehicle used in violation of this section shall be seized and forfeiture recommended to the forfeiting authority when: (i) Controlled dangerous substances in any quantity are sold or attempted to be sold in violation of this subtitle; (ii) Although the violator has not sold or attempted to sell controlled dangerous substances in violation of this subtitle, an amount of such substances or paraphernalia is located which would reasonably indicate that sale is contemplated by the violator; or (iii) The total circumstances of the case dictate that seizure and forfeiture is justified; these circumstances would include such factors as the following: 1. The possession of controlled dangerous substances; ¹²² 2.

An extensive criminal record of the violator; 3. A previous conviction of the violator for a controlled dangerous substances violation; 4. Corroborated information is developed indicating that the violator is or was recently a seller, or frequently associates with individuals known to be distributors of illegal controlled dangerous substances or paraphernalia; 5. Circumstances of the arrest; or 6.

The manner in which the vehicle was being used. (2) A motor vehicle used in violation of this subtitle shall not be seized and forfeiture shall not be recommended to the forfeiting authority when: (i) The motor vehicle is being used by a member of the family other than the registered owner and controlled dangerous substances or paraphernalia are located therein in a quantity insufficient to suggest a sale is contemplated, and where no sale was made or attempted, and the registered owner did not know that such material was in the motor vehicle; (ii) An innocent registered owner lends his motor vehicle to another and the latter or someone invited into the motor vehicle by such person causes controlled dangerous substances or paraphernalia to be brought into the vehicle without the knowledge of the owner[ 9 ]; or (iii) The motor vehicle falls within the provisions of subsection (b)(4)(i) or (ii) of this section. (3) (i) Forfeiture of the motor vehicle used in violation of this subtitle shall be recommended to the forfeiting authority ¹²³ only after the chief law enforcement officer of the police department, bureau, or force that seized the motor vehicle has determined from the records of the Motor Vehicle Administration the names and addresses of all registered owners and secured parties as defined in the Code, has personally reviewed the facts and circumstances of the seizure and has personally determined, according to the above guidelines, that forfeiture is warranted and so represents in writing to the appropriate forfeiting authority, (ii) In a proceeding under this section for forfeiture of a motor vehicle: 1. A sworn affidavit by the chief law enforcement officer that the chief followed the requirements of this paragraph is admissible in evidence; and 2.

The chief law enforcement officer may not be subpoenaed or compelled to appear and testify if another law enforcement officer with personal knowledge of the facts and circumstances surrounding the seizure and the recommendation of forfeiture appears and testifies at the proceeding. Subsection (i) is somewhat ambiguous, in that it seems to conflate the standards for seizure and for recommending forfeiture. Subsection (i)(l) states: “A motor vehicle used in violation of this section shall be seized and forfeiture recommended to the forfeiting authority” under certain conditions. (Emphasis supplied.) Subsection (i)(2) limits the language in subsection (i)(l) somewhat; it contains innocent owner exceptions, mandating that a “motor vehicle used in violation of this subtitle shall not be seized and forfeiture shall not be recommended” under the circumstances enumerated under the exceptions.

(Emphasis supplied). Seizure and recommendation for forfeiture, however, are never concurrent; seizure precedes recommendation for forfeiture, and the two events are effectuated by different law enforcement authorities. As written, the language of § 297(i)(2)(i) would seem to prevent a seizure if an innocent owner defense is available. The officer who seizes an automobile incident to an arrest, ¹²⁴ however, will probably not have enough information at the time of the arrest to determine if the innocent owner defense applies.

For example, the officer will likely not know that a registered owner did not know that drugs or paraphernalia were in the vehicle when someone other than the registered owner is arrested while driving the car. It would seem unlikely, when the “innocent owner” is in the car with the family member at the time of the family member’s arrest and the seizure of the car, that the police officer could ascertain with certainty that the owner was actually unaware of drug activity. Whether the factors in subsection (i)(2) have been met can usually only be determined subsequently by the chief law enforcement officer, after reviewing relevant information and the Motor Vehicle Administration records. Construed strictly as written, § 297(i)(2)(i) would seem to preclude the seizure of a vehicle incident to a lawful arrest when the driver is not the registered owner, because it is not possible for the arresting officer to know the state of mind of a registered owner who is not present at the time of the arrest.

Yet such a reading would conflict with the plain language of subsection (d)(iv), which authorizes seizure when “there is probable cause to believe that the property has been used or intended to be used in violation of this subheading.” § 297(d)(iv). When analyzing a statute, “we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.” Frost v. State, 336 Md. 125, 137 , 647 A.2d 106 (1994); see also State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731 (1993) (courts must reach a statutory interpretation compatible with common sense). Section 297(i)(2)(i) can logically apply only in two situations. First, it would apply to preclude seizure when the arresting officer actually knows that the registered owner of the car is an innocent owner at the time of the arrest for a drug offense of a family member who is driving the car.

Second, it would apply to preclude recommendation for forfeiture if information concerning an innocent owner defense comes to light subsequent to the seizure. ¹²⁵ In any event, the lack of clarity in subsection (i) does not affect the resolution of the Boyds’ claim that the vehicle was not legally seized. This is because the Boyds did not qualify for an innocent owner defense under subsection (i), which concerns seizure and recommendation for forfeiture. 10 The factors set forth in § 297(i)(2)(i) are plainly conjunctive requirements; all of the factors must be met for the innocent owner exception to apply. Ms. Boyd cannot meet the requirement of seizure of a quantity “insufficient” to suggest an intent to distribute, because Ms. Wisner was arrested for possession of numerous baggies containing cocaine or cocaine residue, and was later convicted of possession with intent to distribute. Thus, Ms. Boyd’s asserted lack of knowledge that Ms. Wisner was using her car to transport cocaine, standing alone, would not have been enough to establish an innocent owner defense to the seizure or recommendation for forfeiture.

III

Appellants argue that the seizure of the car before a predeprivation hearing to determine whether the car is subject to forfeiture constitutes a due process violation. Significantly, appellants overlook § 297(h), which provides explicit procedures for notice and a hearing. “The purpose of the establishment of the standards, guidelines and methods of procedure [under § 297(h) ] is to provide, after due notice has been given to the owner, a forum in which it can be established whether the vehicle seized was used to facilitate the transportation, sale and possession of controlled dangerous substances....” State v. One 1979 Pontiac Firebird, 55 ¹²⁶ Md.App. 394, 399, 462 A.2d 73 (1983). Clearly, the statute does not contemplate, nor does due process require, that a hearing must precede a seizure. Rather, it requires only that notice and a hearing be afforded prior to the forfeiture of the property.

See Calero-Toledo v. Pearson, Yacht Leasing Co., 416 U.S. 663, 679-80 , 94 S.Ct. 2080, 2089-90 , 40 L.Ed.2d 452 (1974) (holding that pre-seizure notice and a hearing were not required for the seizure of a yacht, when the seizure served the significant governmental purpose of allowing the government to acquire in rem jurisdiction over the property, the property was of a kind that could easily be moved to another jurisdiction if advance notice of the seizure had been given, and the seizure was conducted pursuant to the provisions of a statute). Maryland courts have long recognized the constitutionality of both the seizure, and forfeiture provisions of the statute. Gatewood v. State, 268 Md. 349 , 301 A.2d 498 (1973); Prince George’s County v. One 1969 Opel, 267 Md. 491 , 298 A.2d 168 (1973); Prince George’s County v. Blue Bird Cab Co., 263 Md. 655 , 284 A.2d 203 (1971). The statute protects against arbitrary seizure of property; seizure of property requires “process issued by any court having jurisdiction over the property.” § 297(d).

Subsection (d) provides exceptions to this requirement, permitting property to be seized “incident to an arrest or a search under a search warrant,” § 297(d)(i), and when “there is probable cause to believe that the property has been used or intended to be used in violation of this subheading.” § 297(d)(iv). In the context of the seizure of paraphernalia, the provisions allowing for seizure incident to an arrest or when probable cause exists to believe the property has been used in illegal activity have been held to be “adequate protection against arbitrary action.” Mid-Atlantic Accessories Trade Ass’n v. Maryland, 500 F.Supp. 834, 848 (D.Md.1980). Moreover, the 1989 amendments added § 297(s) to the forfeiture law, enacting a “significant” additional procedural protection for owners who wished to interpose an innocent owner defense. One 1988 Jeep Cherokee v. City of Salisbury, 98 Md.App.