Cavaliere v. Town of North Beach

WILNER, Chief Judge. The issue before us in this appeal is whether a State or local police officer who seizes a motor vehicle under the authority of Md.Code art. 27, § 297 may, instead of proceeding with a forfeiture action under that statute, defer to a Federal forfeiture proceeding under 21 U.S.C. § 881 . That issue, involving money rather than a vehicle, was probably before us once before, in State v. Walls, 90 Md.App. 300 , 600 A.2d 1165 (1992), but, because of the extremely poor manner in which that case proceeded and was presented at both the trial and appellate levels (we characterized it at 303 as a “nightmare of procedural missteps and errors by everyone involved”), we did not appreciate the issue and therefore ³²¹ gave it scant attention. We shall address it fully now, and our answer, under the circumstances of this case, is “yes.” We therefore shall affirm the judgment of the Circuit Court for Calvert County.

Underlying Facts; Adoptive Seizures The relevant facts here are not in. dispute. In the early morning hours of May 14, 1992, Jason Leavitt, a police officer employed by the town of North Beach, in Calvert County, stopped appellant for erratic driving. After conducting certain field sobriety tests, Officer Leavitt arrested her for driving while intoxicated and transported her to a nearby State Police barrack. Her car was towed to the town garage.

At the barrack, police discovered in appellant’s purse four packets of cocaine weighing approximately 4/£ grams. As a result, appellant was charged not only with DWI but also with possession with intent to distribute cocaine and possession of cocaine. At that point, the town police could have set in motion the procedure established by State law, in art. 27, § 297, for the forfeiture of appellant’s car. That would have required, among other things, (1) a formal determination by the chief law enforcement officer of the town that forfeiture was warranted under the standards set forth in § 297(i), (2) a written recommendation by that officer to the Town Council—the town’s legislative body, (3) an independent determination by the Council, using the same standards, that forfeiture was warranted, (4) a determination from the records of the Motor Vehicle Administration of all lienholders, (5) an application by the Town Council to the circuit court, thereby inaugurating a judicial proceeding for forfeiture, and (6) three publications of notice of the forfeiture action in a newspaper of general circulation in the county.

If, as was the case here, the vehicle was subject to a lien, the town, following an order of forfeiture by the court, would have been required to turn the car over to the lienholder for sale, and would, in the end, have received only the net proceeds after satisfaction of all expenses, court costs, and the lien. That is a formidable process for a town ³²² whose population, according to the 1991-92 Maryland Manual, numbered only 1,173. Section 297 is not the only forfeiture statute operative in Maryland. Through the Controlled Substances Act, Congress, as a matter of Federal law, declared cocaine to be a controlled substance ( 21 U.S.C. § 812 ), the knowing and intentional possession of that substance to be unlawful (§ 844), and vehicles used to facilitate the transportation of it subject to forfeiture by the United States (§ 881(a)(4)).

Such vehicles may be seized by the Attorney General without process when the seizure is incident to an arrest or when the Attorney General has probable cause to believe that the property is subject to civil forfeiture under the Act. § 881(b)(1) and (4). The forfeiture procedure under Federal law is somewhat less cumbersome than under art. 27, § 297. For one thing, for vehicles not exceeding $100,000 in value, it is principally an administrative proceeding. Section 881(d) incorporates the statutory procedure used in the forfeiture of property under the customs laws ( 19 U.S.C. §§ 1602-1618 ), which is explained as well in 21 C.F.R. Subpart E (§§ 1316.71-1316.81).

Under this procedure, upon seizing a vehicle, the Federal agency— here the Drug Enforcement Administration (DEA)—has it appraised. It then publishes notice of the seizure three times in a newspaper of general circulation in the judicial district. The notice describes the property seized and warns that any person desiring to make claim to it must, within 20 days after the first publication, file a claim with the DEA along with a bond for the lower of $5,000 or 10% of the property’s value (§ 1316.75). 1 If a claim and bond are not received within the 20 days, DEA declares the property forfeit. No court proceeding or order is required in that circumstance.

If a claim and bond are timely filed, the administrative forfeiture proceeding ceases and DEA forwards the matter to the U.S. Attorney, who then may institute condemnation pro ³²³ ceedings in the U.S. District Court (§§ 1316.76-78). Court action is thus required only if a claim and bond are filed. In addition to contesting a forfeiture through the claim procedure, a person interested in the seized property may, within 30 days after notice of the seizure, file a petition for remission or mitigation with DEA. No bond is necessary for such a petition, but the grant of remission or mitigation is discretionary with DEA or, if the matter has already been referred to the U.S. Attorney, with that official. 19 U.S.C. § 1618 ; 21 U.S.C. § 881 (d); 21 C.F.R. § 1316.81 .

Although not expressly authorized in the Federal statutes or regulations, the U.S. Attorney General, as part of a cooperative effort between the Federal, State, and local governments in combatting the illicit distribution and use of controlled substances, has permitted DEA to “adopt” seizures made by local officials and to utilize the Federal forfeiture procedure with respect to such property. 2 As explained in the March, 1994 Department of Justice Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, “[a] state or local law enforcement agency that has seized property may request that [DEA] adopt the seizure and proceed with federal forfeiture. [DEA] may adopt such seized property for federal forfeiture where the conduct giving rise to the seizure is in violation of federal law and federal law provides for forfeiture.” Id. at 3 . In Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993), the Court further described the process: “Through informal arrangements, local police departments agree to notify the DEA when they seize property which may be subject to forfeiture pursuant to federal narcotics laws. Upon a DEA request, the local police department will transfer the property to the DEA, which will treat the ³²⁴ property as if it had been seized by federal authorities. That is, the DEA will ‘adopt’ the seizure.

The DEA will then institute federal forfeiture proceedings against the property. Once the forfeiture is complete, the DEA is authorized to ‘split the pot’ with the cooperating local police department.” See also Asset Forfeiture Law, Practice, and Policy, Asset Forfeiture Office, Criminal Division, U.S. Department of Justice, Vol.

I

(1988) at 38: “State and local agencies generally request federal adoption when, after making a seizure, they determine that a state forfeiture proceeding is not possible or that a federal proceeding would be more advantageous.” The Federal agencies do not adopt every State or local seizure but have developed guidelines for determining which they may and which they will not adopt. The “pot-splitting” noted in Johnson is specifically allowed by 21 U.S.C. § 881 (e)(1)(A), which authorizes the Attorney General, among other things, to transfer forfeited property “to any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property.” The ground rules for the splitting are set forth in the Department of Justice Guide cited above. The split is based on the net proceeds of the forfeiture, after deduction of Federal expenses, and the degree of pre-seizure activity performed by the State or local agency. Id. at 6-9 .

It was stipulated in the circuit court that “the North Beach Police Department has been working with the DEA Task Force on drug cases, and had a relationship with the DEA, and that’s why they chose to send this case to them for forfeiture.” The town’s counsel informed the court that DEA agents had earlier met with the Town Council and the local police chief and provided the town with the guidelines for adoptive seizures. One local officer was actually detailed to work as part of a joint task force. On May 14,1992—the same day that appellant was arrested and charged with the controlled substance offenses—the North Beach police department filled out and later filed with ³²⁵ DEA an Application for Transfer of Federally Forfeited Property on the form approved by the Attorney General for adoptive seizures. It appears that the application was received by DEA on June 5 and, on June 8, the seizure was adopted by DEA for administrative forfeiture.

The car was appraised at $7,000, with a wholesale value of $5,650, subject to a GMAC lien of $1,780. On June 29, DEA sent a notice of seizure by certified mail to appellant at the address shown on her driver’s license; it was also the address she had given the police upon her arrest. The notice to appellant was returned “unclaimed.” Counsel proffered to the court that appellant had “moved to another address not far away,” although there is no evidence as to when or where she moved or that DEA was aware of the move. On July 8, 1992, notice of the seizure was initially published in USA Today, a newspaper of general circulation in the District of Maryland.

That seems to be the newspaper of choice for DEA. See Sarit v. U.S. Drug Enforcement Admin., 987 F.2d 10, 12 (1st. Cir.), cert. denied, — U.S. —, 114 S.Ct. 241 , 126 L.Ed.2d 195 (1993). It is not contested that both notices complied with the applicable Federal regulation, 21 C.F.R. § 1316.75 , and warned that the last day for filing a claim was July 28, 1992.

On July 22, 1992, DEA received a lienholder petition from GMAC. Having received no claim from appellant, however, the agency, on August 14, 1992, entered an order that the vehicle “was administratively forfeited to the United States.” Immediately upon receiving notice of that forfeiture order, the town surrendered possession of the car to DEA. In October, DEA paid GMAC the amount of its lien. On July 22, 1992, after DEA decided to adopt the local seizure and sent and published notice of the proposed forfeiture, but before the administrative forfeiture proceeding was concluded and while the town still had physical possession of the vehicle, appellant filed in the Circuit Court for Calvert County a petition for writ of mandamus seeking an order directing the town of North Beach, the Chief of Police, or the ³²⁶ county State’s Attorney to return the vehicle to her.

The petition confirms appellant’s awareness that the matter had been referred to DEA, and thus indicates a conscious decision not to follow the Federal procedures for contesting the forfeiture or seeking remission or mitigation. Indeed, she charged that the referral was “an attempt to circumvent mandatory state law.” The petition was based on the requirement in art. 27, § 297(h)(2)(ii) that a complaint for forfeiture of a motor vehicle be filed in the circuit court within 45 days after the seizure of the vehicle. Because the town did not file such a complaint within 45 days after the May 14, 1992 seizure, appellant averred that she was entitled to have the vehicle returned. She contended that, having seized