Howard County v. One 1994 Chevrolet Corvette Vin No. 1G1YY22P5R5100931

SALMON, Judge. We must consider in this case the question of whether civil forfeiture to Howard County of a 1994 Chevrolet Corvette belonging to Douglas Tennant (Tennant), due to the involvement of the Corvette in violations of the Maryland drug laws, constitutes an excessive fine in violation of Article 25 of the Maryland Declaration of Rights. The trial court (Leasure, J., presiding) concluded that the forfeiture did violate Tennant’s right. We agree with the trial judge and shall affirm.

I. BACKGROUND FACTS Tennant owned a business in Howard County called Maryland Car Care, Inc. His entire income during all periods here relevant was derived from that corporation. In August 1993, ⁹⁹ Tennant purchased the Corvette that is the subject of this case with income from the corporation. Tennant became addicted to cocaine and heroin in June 1995. Tennant’s girlfriend, Kimberly Houck, 1 was employed as the bookkeeper for Maryland Car Care, Inc. Ms. Houck also was addicted to cocaine and heroin.

Between June 1995 and January 1996, she purchased at least some of the drugs that she used from Rodney Smith (Smith) and Smith’s wife, Yvonne Jackson (Jackson). Between June 28, 1995, and the latter part of January 1996, Ms. Houck wrote numerous checks to either Smith or Jackson. The payor of these checks was Maryland Car Care, Inc. The checks bore the signature of Tennant but, according to Tennant’s later testimony, he neither signed the checks nor authorized anyone to sign them on his behalf. 2 On January 24, 1996, Tennant attended a Board of Directors meeting of a family-owned corporation at which he threatened to commit suicide. The family notified the police to be on the lookout for Tennant, who was driving a purple Corvette.

Shortly thereafter, Officer Guy Williams, of the Howard County Police Department, saw Tennant pull into the driveway to his home. Tennant emerged from the Corvette and was confronted by Officer Williams who asked for his license and registration. Tennant stepped back into his Corvette and opened a console to retrieve the registration card. When he did so, Officer Williams noticed a home-made crack pipe inside the console.

Tennant was arrested for possession of drug paraphernalia. He was then searched. In his pants ¹⁰⁰ pocket the police found a baggie and a small box. Police suspected that both items contained cocaine.

Later tests confirmed that the small box contained .05 grams of cocaine, but the baggie taken from appellant’s pocket contained 2.2 grams of heroin. Tennant pled not guilty to the criminal charges of possession of drug paraphernalia and possession of controlled dangerous substances. 3 He was found guilty of both charges in the District Court for Howard County. The findings of guilt were stricken, however, and he was given a disposition of probation before judgment pursuant to Article 27, section 641A, of the Maryland Annotated Code (1957,1992 RepLVol.). 4 Tennant was placed on three years active probation. Approximately six weeks after his arrest on the drug charges, Howard County filed a “Complaint to Acquire a Motor Vehicle.” In the Complaint, the County alleged, inter alia, that Tennant’s 1994 Corvette was subject to forfeiture to the County pursuant to Article 27, section 297(b)(4), 5 because the vehicle “was used or intended to be used to facilitate the transportation of cocaine, a Schedule II controlled dangerous substance, and controlled paraphernalia, in violation of law.” 6 A trial in the forfeiture case was held in the Circuit Court for Howard County on October 21, 1996.

At the trial, very few facts were in dispute. Tennant admitted that on the day of his arrest he did possess both heroin and cocaine together with a crack pipe. Tennant, who was called by the County as ¹⁰¹ an adverse witness, testified that he could not remember if he had used drugs on the day of his arrest. He admitted, however, that he probably had consumed drugs that day because, as of that date, he had a severe drug addiction.

He was unable to say for sure if other persons had used drugs while in the 1994 Corvette, but he conceded that Ms. Houck could have done so, possibly “two, three, [or] four [times].” Tennant testified that he could not think of anyone other than Ms. Houck who may have used drugs in his Corvette. During the course of his testimony, Tennant invoked his Fifth Amendment privilege against self-incrimination and declined to answer questions regarding the identity of his drug supplier(s), whether Ms. Houck ever procured drugs for him, whether Smith ever procured drugs for him, or whether he used the crack pipe found in his car on the day of his arrest. The parties agreed at trial that the Corvette had a value of approximately $20,000. It was also agreed that Tennant owned a 1988 Ford pick-up truck and a Datsun 300Z in addition to the Corvette.

Tennant argues that the forfeiture of his Corvette, under the circumstances of this case, would violate the excessive fines prohibition set forth in Article 25 of the Maryland Declaration of Rights. Article 25 reads: Excessive bail, fines and punishment. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law. The trial judge, relying on the test set forth in Aravanis v. Somerset County, 339 Md. 644, 665 , 664 A.2d 888 (1995), cert. denied, 516 U.S. 1115 , 116 S.Ct. 916 , 133 L.Ed.2d 846 (1996), ruled that the excessive fines provision in Article 25 prevented her from awarding Howard County title to Tennant’s vehicle.

II

STANDARD OF REVIEW Both this Court and the Court of Special Appeals, when reviewing a case tried without a jury, must “review ¹⁰² the case on both the law and the evidence.” Maryland Rule 8-131(c) (1995 Repl.Vol.). The Court must “not set aside the judgment of the trial court on the evidence unless clearly erroneous,” and must “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Id. In addition, we must consider the evidence in the light most favorable to the prevailing party and decide not whether the trial judge’s conclusions of fact were correct, but only whether they were supported by a preponderance of the evidence. Urban Site Venture II Ltd. Partnership v. Levering Assocs.

Ltd. Partnership, 340 Md. 223, 229-30 , 665 A.2d 1062 (1995) (some citations omitted).

III

ANALYSIS There are four basic legal propositions that must be kept in mind whenever a forfeiture action is before the Court. First, a forfeiture action is a civil in rem proceeding subject to an “excessive fines” analysis. Aravanis, 339 Md. at 651 , 664 A.2d 888 . Second, forfeitures are not favored in the law and should be avoided whenever possible.

State ex rel. Frederick City Police Dept. v. One Toyota Pick-Up Truck, 334 Md. 359, 375 , 639 A.2d 641 (1994). Third, the burden of proof necessary to sustain a forfeiture, is that of a preponderance of the evidence. Prince George’s County v. Blue Bird Cab Co., 263 Md. 655, 659 , 284 A.2d 203 (1971).

Fourth, Article 25 of the Declaration of Rights is, “textually and historically, substantially identical to the Eighth Amendment” to the United States Constitution and thus “should be interpreted coextensively with the excessive fines provision of the Eighth Amendment.” Aravanis, 339 Md. at 656-57 , 664 A.2d 888 . In Aravanis , the petitioner, George Aravanis, owned a farm in Somerset County, Maryland. Id. at 646 , 664 A.2d 888 . He used the farm as part of a marijuana distribution enterprise.

Id. The police received word of Mr. Aravanis’s illicit activities, searched the farm, and found approximately two pounds ¹⁰³ of marijuana within a gas barbeque grill located outside his house. They also found marijuana plants growing near the house and drug paraphernalia in Mr. Aravanis’s possession. Id. at 647 , 664 A.2d 888 .

Aravanis pled guilty to one count of possession of a controlled dangerous substance in sufficient quantity to indicate an attempt to manufacture, distribute, or dispense (the marijuana) as prohibited by Article 27, section 286. Id. In Aravanis , Somerset County sought forfeiture of Mr. Aravanis’s real property due to Aravanis’s violation of Maryland’s drug laws. The trial judge concluded that Aravanis’s farm was used in connection with the distributing of marijuana and that, because no statutory exceptions applied, the court had no discretion to do anything except order forfeiture of the farm.

Aravanis challenged the forfeiture as an excessive fine under both the Eighth Amendment of the United States Constitution and Article 25 of the Maryland Declaration of Rights. The Aravanis Court reversed the trial court and held that, upon remand, the court should analyze whether Article 25 barred the forfeiture. Aravanis, 339 Md. at 657 , 664 A.2d 888 . The trial court was directed to apply two separate tests to determine whether forfeiture of Aravanis’s property constituted an “excessive fine” within the meaning of Article 25.

The first is commonly called the “instrumentality test.” Id. at 657-58 , 664 A.2d 888 . The instrumentality test, among other things, inquires as to whether “the relationship of the property to the offense ... [is] close enough to render the property, under traditional standards, ‘guilty’ and hence forfeitable.” Austin v. United States, 509 U.S. 602, 628 , 113 S.Ct. 2801, 2815 , 125 L.Ed.2d 488 (1993) (Scalia, J., concurring). The second is the “proportionality” test, which compares the enormity of the loss to the owner with the gravity, scope, and duration of the illegal activity, and the degree of the owner’s culpability. Aravanis, 339 Md. at 665 , 664 A.2d 888 .

A. The Instrumentality Test Chief Judge Robert Bell, writing for the Court in Aravanis , recognized that one of the most important cases ¹⁰⁴ articulating the factors to be applied when utilizing the instrumentality test was United States v. Chandler, 36 F.3d 358 (4th Cir.1994). Judge Bell said: Chandler presents a forceful and well articulated defense of the instrumentality test. The court formulated a three part test for determining the excessiveness of an in rem forfeiture under the Eighth Amendment. That test “considers (1) the nexus between the offense and the property and the extent of the property’s role in the offense, (2) the role and culpability of the owner, and (3) the possibility of separating offending property that can readily be separated from the remainder.” 36 F.3d at 365 .

Aravanis, 339 Md. at 661 , 664 A.2d 888 . The Aravanis Court later made it clear that on remand the trial court should use the three factors set forth in Chandler when applying the instrumentality test to the facts of that case. Id. at 665, 664 A.2d 888 . 1. The Nexus Prong A court should first attempt to measure “the strength and extent of the nexus between the property and the offense.” Chandler, 36 F.3d at 365 .

In assessing this factor, a court looks at five items, viz: (1) the extent to which the use of the property was deliberate and planned or merely incidental and fortuitous; (2) the property’s importance to the success of the illegal activity; (3) how long the property was used and the spatial extent of its use; (4) whether the illegal use was isolated or repetitive; and (5) the purpose for acquiring, maintaining or using the property. Aravanis, 339 Md. at 661 , 664 A.2d 888 (citing Chandler, 36 F.3d at 365 ). The trial judge in the case sub judice found that the vehicle was being used to transport Tennant home from a Board of Directors’ meeting, but that the vehicle was not “deliberately” being used to “transport controlled dangerous substances.” In Judge Leasure’s words: “The testimony and evidence did ¹⁰⁵ not show ... that the subject vehicle had anything other than a de minimis role regarding the offenses of which [defendant was convicted.” The court noted that the vehicle was acquired by Tennant prior to the date he developed a drug habit and thus, implicitly, the court was of the view that the vehicle was not purchased for purposes connected with the transportation of drugs or drug paraphernalia. The trial judge concluded that the nexus between the Corvette and the offenses charged was so insubstantial that it failed to justify the forfeiture of the vehicle. 2.

Owner Culpability Prong As to the second prong of the instrumentality test (the role and culpability of the owners), the trial court’s only comment was that the owner admitted his guilt as to the offenses charged in the forfeiture petition. This factor simply “gives recognition to the fact that the forfeiture statute is a punitive statute and that the person punished is the owner of the property.” Aravanis, 339 Md. at 661 , 664 A.2d 888 (citing Chandler, 36 F.3d at 364 ). In regard to the property owner’s culpability: Proof of the relevant factors in a forfeiture case is not limited to a particular offense charged. Proof of the duration and extent of the course of criminal activity and its nexus to the property may be appropriate, and the State may well wish to show the extent of profit to the owner from this course of conduct because that fact bears on the question of how much the owner actually loses by the forfeiture.

Profits from the illegal activity may be shown by direct evidence, or indirectly through a showing of net worth of the owner and the absence of other known or demonstrable sources of income. Aravanis, 339 Md. at 665 n. 16, 664 A.2d 888 . In the case at hand, there was no evidence, direct or circumstantial, from which it could be inferred that Tennant sold drugs or had any connection with the drugs other than as a user. Moreover, there was no indication that Tennant had a prior criminal record.

Tennant did not profit by his connec ¹⁰⁶ tion