Bozman v. OFFICE OF FIN., BALTO. CTY.

52 Md. App. 1 (1982) 445 A.2d 1073 WILLIAM BOZMAN v. THE OFFICE OF FINANCE OF BALTIMORE COUNTY, MARYLAND. No. 1385, September Term, 1981. Court of Special Appeals of Maryland. Decided June 3, 1982.

The cause was argued before GILBERT, C.J., and MOORE, J., and WILLIAM W. WENNER, Associate Judge of the Sixth Judicial Circuit, specially assigned. ² William D. Quarles, with whom were Finley, Kumble, Wagner, Heine, Underberg & Casey and Alan I. Baron, P.C. on the brief, for appellant. Michael J. Moran, Assistant County Solicitor for Baltimore County, with whom was Leonard S. Jacobson, County Solicitor for Baltimore County, on the brief, for appellee. GILBERT, C.J., delivered the opinion of the Court. William Bozman would have us reverse an order of the Circuit Court for Baltimore County (BRIZENDINE, J.) that effected the forfeiture of $3,950 found in the Bozman home during the execution of a search and seizure warrant.

THE FACTS Whatever domestic tranquility existed in the Cockeysville home of William Bozman on Saturday morning, October 27, 1979, must have been shattered when three Baltimore County police officers and an unstated number of "members of the Department of Justice and Drug Enforcement Administration officers," all armed with a search and seizure warrant entered those premises. One of the County police officers was Detective Robert Walbrecher, then assigned to the Narcotics Division. Walbrecher acted as "the evidence man." From the record we infer that such a person is an inventory taker or tally clerk. Whenever anything is seized by the police, the "evidence man" lists the identity of the item and where it was found.

Among the seized items listed by Walbrecher were small amounts of several proscribed controlled dangerous substances as well as paraphernalia patently used in connection with such substances. All but one of the items were seized from the "master bedroom" and an adjoining bathroom. The officers seized $1,780 from the appellant's dresser and a total of $2,170 from a safe in the bedroom and from Bozman's ³ wallet which was apparently found on the dresser. Walbrecher did not know in what part of the bedroom the controlled dangerous substances were found but was able to state that no controlled dangerous substances were found in the safe, the wallet, or the dresser.

The Office of Finance of Baltimore County filed a petition in the circuit court [1] for the forfeiture of the money "seized or captured in close proximity to [the] contraband controlled dangerous substances or controlled paraphernalia." In due time Bozman answered the petition. He asserted that the funds were his "property"; that he had never been "charged, tried or convicted pursuant to the arrest in connection with which said funds were seized"; that seizure occurred during an "illegal" search, and that a similar petition to that of the instant case was "filed" in the "District Court of Maryland for Baltimore County" and was "voluntarily dismissed." When the case was tried before Judge Brizendine, Bozman did not testify and offered no evidence. [2] Judge Brizendine obviously concluded that the monies were found in "close proximity" to the contraband, and he directed the forfeiture. THE ISSUE Bozman posits two arguments to us, namely: "I. The trial judge erred in granting the appellee's forfeiture petition in the absence of proof that the forfeited money was found in close proximity to contraband controlled dangerous substances.

II

The trial judged [ sic ] erred in granting the appellee's forfeiture petition in the absence of proof of a final disposition of related criminal proceedings." ⁴ THE LAW Md. Ann. Code art. 27, § 297, provides in pertinent part: "(a) Property subject to forfeiture. — The following shall be subject to forfeiture and no property right shall exist in them: .... (6) All money or currency which shall be found in close proximity to contraband controlled dangerous substances or controlled paraphernalia or which otherwise has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia. This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it, or to any other person, except in the manner hereinafter provided...." The breadth of the term "close proximity" deliberately has not been defined by either Maryland appellate court. Were we to undertake a delineating of "close proximity," it is almost a foregone conclusion that in any future searches, monies will always be found outside the area embraced by our definition.

We shall not, therefore, attempt to define "close proximity." Instead, we shall treat the term with the same deference afforded "fraud" [3] and "a quantity sufficient to indicate an intent to distribute." [4] We liken "close proximity" to Justice Stewart's comment on pornography. We do ⁵ not define it, but we know it when we see it. [5] In short, we shall determine "close proximity" on a case-by-case basis. "Close proximity" as used in Md. Ann. Code art. 27, § 297 (a) (6) must be understood with reference to the legislative purpose. Judge Digges, in Prince George's County v. Blue Bird Cab Co., Inc., 263 Md. 655, 662 , 284 A.2d 203, 207 (1971), observed that the Legislature's purpose in adopting the forfeiture provisions was an "attempt not only to curtail drug traffic in this [S]tate, but to discourage such a blight from continuing in the future." In that case, the vehicle was leased from the cab company on a yearly basis at a daily rate of $16.

The lessee was arrested while "sitting in ... [the] cab outside of Central High School in Prince George's County." The police had observed the lessee conduct heroin transactions from the cab. The sales were made to high school students. The County sought to have the vehicle forfeited to the County. The trial court dismissed the petition, but the Court of Appeals held that the proscribed sale of heroin from the cab met the stricture of the forfeiture statute.

Thus, Blue Bird figuratively speaking watched its cab fly away. The forfeiture directed by section 297 (a) (6) is directed at money that either was or is intended to be a part of an illicit controlled dangerous substance, or paraphernalia dealing. While unquestionably drugs or drug paraphernalia are forfeited because their mere possession violates the criminal law of this State, the same is not true generally of monies seized on or about premises that are searched pursuant to a valid warrant. To be subject to forfeiture the monies must be derived from criminal activity.

Recognizing the great degree of difficulty that would confront the prosecution if it were required to prove that monies found in a search of premises were directly attributable to proscribed activity, the General Assembly wisely eliminated that burden by declaring that monies in "close proximity to contraband controlled dangerous ⁶ substances or controlled paraphernalia" were forfeited unless, after a hearing on a petition for forfeiture, [6] the court shall find that the monies seized were not in close proximity to contraband. "Forfeiture is grounded in the legal fiction that an inanimate object can be guilty of a crime." Prince George's County v. Blue Bird Cab, 263 Md. at 658 , 284 A.2d at 204 . See also United States v. United States Coin and Currency, 401 U.S. 715 , 91 S.Ct. 1041 , 28 L.Ed.2d 434 (1971). Whatever the practical effect may be, a forfeiture is not viewed in the eyes of the law to be a future or additional punishment of the individual whose property is so confiscated.

Instead, the law looks upon the property as a living being and thus subject to punishment by way of forfeiture. It is, more simply stated, as if the property were a living co-defendant. See Various Items of Personal Property v. United States, 282 U.S. 577, 581 , 51 S.Ct. 282, 284 , 75 L.Ed. 558, 561 (1931). At English common law, the prerequisite to forfeiture was a conviction.

The reason the conviction was required was because forfeiture was seen as a punishment of the offender for his crime. [7] Forfeiture was not directed at the property itself. The English did not share our concept of the property's being a separate and distinct living thing, a co-defendant, or co-offender. Maryland, as do most of the states, treats forfeiture as an action in rem, prosecuted against the property because of its connection with a crime. Prince George's County v. Blue Bird Cab, supra ; see also The Palmyra, 25 U.S. (12 Wheat.) 1, 14-15 , 6 L.Ed. 531, 535-36 (1827), where Mr. Justice Story, for the Court, said: "In the contemplation of the common law, the ⁷ offender's right was not devested until the conviction.

But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum, or malum in se. ... Many cases exist, where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam.