DeSantis v. State

⁶⁵⁸ RAKER, Judge. The United States Attorney General has authorized the federal Drug Enforcement Agency (DEA) to “adopt” seizures of property made by state or local authorities in the course of drug investigations, generally after the state or local authorities request the DEA to do so. See 21 U.S.C. § 873 . After the DEA completes federal forfeiture proceedings on the property, the DEA is further authorized to distribute a large percentage of the proceeds from the forfeited property back to the state or local authority that requested federal adoption.

See 21 U.S.C. § 881 (e)(1)(A). The question presented for our review is whether the Maryland State Police may, consistent with Md.Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Art. 27, § 297(e), 1 deliver custody of such seized property to the DEA after the request for adoption has been granted but without first obtaining a formal order from a Maryland court permitting the transfer of the property. I. On September 10, 1999, a Maryland State Police trooper stopped a car traveling northbound on 1-95 in Cecil County for tailgating. After conducting several sobriety tests on the vehicle’s sole occupant, William DeSantis, Jr., the trooper determined that DeSantis had been driving while intoxicated and arrested him.

During a search of the car, incident to the arrest, the trooper discovered a substantial amount of marijuana as well as a tan suitcase containing $20,000 in cash. The trooper charged DeSantis with possession with intent to distribute, possession of marijuana, and possession of paraphernalia. Pursuant to authority granted the State Police in ⁶⁵⁹ § 297(d) and (e), the trooper seized the $20,000 as illicit drug proceeds. The money was then deposited into an account controlled by the State Police.

On September 30, 1999, the Office of the Attorney General of Maryland sent a letter to the DEA advising the federal agency that “the State of Maryland does not plan to initiate forfeiture action on [the $20,000 seized]” and “requesting that the Drug Enforcement Administration handle the forfeiture proceedings concerning the seizure of this currency.” On October 8, 1999, the DEA granted the State’s request for federal adoption and instructed the State Police to send a certified check in the amount of $20,000 to its office in Washington, D.C. The State Police, without obtaining any court authorization, complied with the DEA’s instruction. Upon receipt of the check in Washington, the DEA assigned the currency an identification and case number and initiated federal administrative forfeiture proceedings. On November 30, 1999, the DEA provided DeSantis with notice of the federal seizure of the property as required by federal law. DeSantis did not contest the federal forfeiture.

On March 14, 2000, the money was forfeited to the United States pursuant to 21 U.S.C. § 881 . On April 12, 2000, the DEA paid to the State Police an amount representing 80% of the amount forfeited, minus administrative expenses. Fourteen months after the federal forfeiture had been completed, on May 22, 2001, DeSantis filed a complaint against the State in the Circuit Court for Baltimore County, alleging that the State Police unlawfully had deprived him of $20,000. Before the Circuit Court, the parties stipulated to the facts and moved for summary judgment.

Judge J. Norris Byrnes granted the State’s motion for summary judgment. DeSantis noted a timely appeal to the Court of Special Appeals, and we granted certiorari on our own initiative to consider whether the State Police may deliver custody of such seized property to the DEA without first obtaining an order from a Maryland court. 380 Md. 617 , 846 A.2d 401 (2004). ⁶⁶⁰ II. The United States may adopt seizures of property initially seized by non-federal law enforcement agencies and declared by federal statute subject to forfeiture. See Dodge v. United States, 272 U.S. 530 , 47 S.Ct. 191 , 71 L.Ed. 392 (1926); United States v. One Ford Coupe Auto., 272 U.S. 321 , 47 S.Ct. 154 , 71 L.Ed. 279 (1926).

Such adoptions cloak the initial seizure with federal authority, as if federal, not state, officials had made the seizure. See One Ford Coupe Auto., 272 U.S. at 325 , 47 S.Ct. at 155 ; Madewell v. Downs, 68 F.3d 1030, 1039 (8th Cir.1995). With respect to the illicit drug trade, the Attorney General of the United States is authorized to cooperate with local and state police departments in combating the traffic of controlled substances and in suppressing drug abuse. See 21 U.S.C. § 873 .

To facilitate such cooperation, the United States Department of Justice has established so-called “equitable sharing programs” whereby local or state officials request that the DEA adopt the seizure of and commence federal forfeiture proceedings against property subject to forfeiture under 21 U.S.C. § 881 . After the federal forfeiture process has been completed and the property forfeited to the United States, the DEA disburses a large portion of the forfeited property back to the local or state law enforcement authority, minus administrative expenses. See 21 U.S.C. § 881 (e)(1)(A). This practice of “pot-splitting” between the federal and state law enforcement authorities is widespread and well-established. 2 See, e.g., In re United States Currency, ⁶⁶¹ $844,520.00, 136 F.3d 581, 583 (8th Cir.1998) (per curiam) (Loken, J., concurring); United States v. Winston-Salem/Forsyth County Bd. of Educ., 902 F.2d 267 , 269-70 (4th Cir.1990); Johnson v. Johnson, 849 P.2d 1361, 1362 (Alaska 1993); Franz J. von Kaenel, Missouri Ups the Ante in the Drug Forfeiture “Race to the Res,” 72 Wash.

U.L.Q. 1469, 1473 (Fall 1994) (noting that “[a]s of April 1993, over $1.1 billion had been distributed to more than 3000 agencies through equitable sharing programs”). The legality of equitable sharing programs in the State of Maryland was addressed in Cavaliere v. Town of North Beach, 101 Md.App. 319 , 646 A.2d 1058 (1994). In that case, the issue was whether a local police department had the authority to circumvent the state forfeiture procedure set forth in § 297 and opt instead for federal forfeiture procedures by requesting federal adoption of the local officer’s seizure. The Court of Special Appeals held that following the seizure of a motor vehicle pursuant to § 297 by a local police officer, the local police department had the authority either to proceed under the forfeiture proceedings set forth in § 297 or to request federal adoption and have the federal authorities initiate forfeiture proceedings under the federal forfeiture statute, 21 U.S.C. § 881 . 3 Id. at 330 , 646 A.2d at 1063 .

Petitioner does not challenge the holding of Cavaliere but presents the more subtle argument that the Department of ⁶⁶² State Police, after federal adoption has been duly authorized by the DEA and the Maryland Attorney General, is bound to abide by § 297(e), which, petitioner argues, requires a so-called “judicial turnover order” to validate the transfer. Petitioner’s theory is not novel, and other courts, both state and federal, have considered it. See, e.g., Madewell, 68 F.3d at 1040-44 ; United States v. One 1987 Mercedes Benz Roadster, 2 F.3d 241, 243-45 (7th Cir.1993); Scarabin v. DEA, 966 F.2d 989, 993-94 (5th Cir.1992); United States v. One 1986 Chevrolet Van, 927 F.2d 39, 44-45 (1st Cir.1991); United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120, 122-23 (7th Cir.1991); Winston-Salem, 902 F.2d at 272; United States v. $490,920 in United States Currency, 911 F.Supp. 720, 724 (S.D.N.Y.1996); In re $3,166,199, 337 Ark. 74 , 987 S.W.2d 663, 668 (1999); Commonwealth v. Rufo, 429 Mass. 380 , 708 N.E.2d 947 , 949 (1999); Johnson, 849 P.2d at 1364-65 . Petitioner argues that the State Police could not deliver custody of the seized property to the federal government without complying -with the statutory authority by which the property was seized. 4 He contends that the Maryland statute authorizing the seizure of his property, § 297, requires the seizing authority to obtain a court order, a “turnover order,” before relinquishing custody of the property to the federal government.

The State disagrees on two grounds. First, the State, relying on Cavaliere , argues that the State Police lawfully could proceed under either Maryland or federal law when it decided to subject the property to forfeiture. Because the State Police decided ultimately to proceed under federal forfeiture law, § 297, according to the State, “never came in to play,” and thus, the State Police was not required to comply with its provisions, including any requirement for a turnover order. Second, the State argues that even if the State Police ⁶⁶³ were required to comply with the provisions in § 297(e) before delivering custody of the property, the State Police did comply because the plain language of the statute indicates a turnover order is not required.

III

We begin by considering the State’s contention that the State Police had authority to circumvent § 297(e) entirely when it opted to pursue federal adoption and allow the DEA to forfeit the money under federal law. The State’s primary argument is that it is not bound by the strictures of § 297 because when the State Police opted for federal adoption and federal forfeiture, the State statute “never came into play.” We disagree. The State Police is not free to circumvent State law altogether when it decides to forgo State forfeiture proceedings in favor of federal forfeiture proceedings. When the State Police seized the cash in petitioner’s car, it was operating under State, not federal, law, because the State trooper seized the property pursuant to the statutory authority granted him under § 297.

Furthermore, when the State Police took custody of the property, it did so pursuant to State law, without any federal involvement whatsoever. At the time of the seizure and during the State Police’s custody of the property, the State Police was operating under § 297, not 21 U.S.C. § 881 . There is no evidence that federal authorities were involved in, or even had knowledge of, the seizure of petitioner’s property. Thus, whatever authority the State Police exercised in seizing and detaining the property emanated from State law, see § 297(d)(iv), 5 and not from the auspices ⁶⁶⁴ of federal authority.

Because the property was “taken or detained under [§ 297],” § 297(e) is applicable to the State Police. Indeed, almost all of the cases having considered this issue have assumed that state authorities cannot avoid their own state laws when they transfer the property to federal officials. See, e.g., In re United States Currency, $844,520.00, 136 F.3d at 583-84 (Loken, J., concurring); One 1987 Mercedes Benz Roadster, 2 F.3d at 243-44; One 1979 Chevrolet C-20 Van, 924 F.2d at 122-23 ; Johnson, 849 P.2d at 1363 ; In re $3,166,199, 987 S.W.2d at 667 . But see Madewell, 68 F.3d at 1040-43 ; Winston-Salem, 902 F.2d at 272-73.

The U.S. Department of Justice has also urged deference to state law in this area. See In re United States Currency, $811,520.00, 136 F.3d at 583-84 ; United States Department of Justice, Asset Forfeiture Law and Practice Manual, 2-21 to 2-22 (June 1998). We are in accord with these cases, and hold that the State Police cannot avoid the strictures of § 297(e) merely by asserting its right to request federal adoption and forfeiture under Cavaliere .

IV

Petitioner maintains that § 297(e) requires the State Police to obtain a turnover order from a Maryland court before it delivers custody of seized property to the federal government. Petitioner claims that the section, by its plain language, grants to a Maryland court exclusive authority to dispose of any seized property. We disagree. Section 297(e) of Article 27 provides as follows: “Seized property not repleviable; sealing and removal of seized property. — Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the seizing agency subject only to the orders, judgments, and decrees of the court or the official having ⁶⁶⁵ jurisdiction thereof.

Whenever property is seized under the provisions of this subheading, the seizing agency may: (1) Place the property under seal; and (2) Remove the property to a place designated by the court.” Two initial observations can be made from a reading of this section. First, § 297(e) limits the seizing agency’s options for disposal of the property. It may either place it