Jones v. State

DAVIS, Judge. On this appeal, appellant James Desmond Jones presents two questions for our review, which we restate as follows: I. Did the circuit court err in denying appellant’s motion to suppress?

II

Did the circuit court err in refusing to set aside appellant’s guilty verdicts and dismiss the criminal charges against him under double jeopardy principles? We respond to these questions in the negative and, therefore, affirm the circuit court’s rulings. ⁴⁵⁹ FACTS On May 3, 1995, the State of Maryland filed a criminal information in the Circuit Court for Kent County (Price, J.) charging appellant with possession of cocaine and possession of cocaine with intent to distribute. On the same day, pursuant to Md.Ann.Code art. 27, § 297, Kent County filed a complaint in the circuit court seeking to obtain the forfeiture of appellant’s 1979 Chevrolet Truck and $330 in cash recovered from appellant at the time of his arrest. The forfeiture complaint alleges that the truck was used to transport or facilitate the transportation, sale, and possession of controlled dangerous substances, see Md.Ann.Code art. 27, § 297(b)(4), and that the cash was used in connection with the illegal distribution or possession of controlled dangerous substances, see Md.Ann.Code art. 27, § 297(b)(6).

The prosecutor in State of Maryland v. James Desmond Jones also prosecuted the forfeiture complaint. Appellant filed a motion to suppress the evidence, arguing that the police allegedly obtained evidence in violation of appellant’s rights under the Fourth Amendment of the U.S. Constitution and under the Maryland Constitution. Appellant also filed a motion seeking to consolidate the suppression hearing with the forfeiture hearing. The motion to consolidate was granted.

The consolidated hearing was held on July 6, 1995. Four witnesses testified: Sergeant Vernon J. Conaway of the Maryland State Police, assigned as supervisor of the Kent County Drug Task Force (Task Force); Sergeant Timothy S. Knapp of the Task Force; Trooper First Class Harry L. McDaniel of the Task Force; and Detective Robert A. Walters of the Kent County Sheriffs Office, assigned to the Task Force. We summarize the testimony of these witnesses as follows. Sergeant Conaway, a veteran drug enforcement officer, testified that, on Thursday night of March 30, 1995, he conducted a surveillance at the Village Tavern Bar (Tavern) in Chestertown, Maryland.

The purpose of the surveillance was to observe appellant—a suspect about whom complaints and ⁴⁶⁰ information had been received alleging that appellant was a cocaine dealer and that he dealt cocaine from the Tavern primarily on Thursdays, Fridays, and on some Saturdays. This information came from both citizen complaints and from a confidential informant. According to Sergeant Conaway, the confidential informant’s information was reliable, it having led in the past to arrests of other individuals for drug law violations and to seizures of drugs and narcotics. The confidential informant never in the past gave false or misleading information to the Task Force.

According to Sergeant Knapp (another veteran drug enforcement officer), during the preceding four or five years the police had received complaints regarding appellant’s drug involvement. Indeed, Sergeant Knapp acknowledged that a search warrant of appellant’s home was executed two years before the Tavern surveillance, but nothing incriminating was recovered. During the surveillance, Sergeant Conaway and Sergeant Knapp were stationed in a vacant third floor apartment of a nearby building, looking down at the Tavern. Sergeant Conaway was looking out of a bedroom window and Sergeant Knapp was on the balcony.

According to Sergeant Conaway, they were positioned approximately 300 feet away from the Tavern. Sergeant Knapp, however, stated that they were about twenty-five or thirty yards away. The lights were out in the apartment. In addition to binoculars, they employed a night vision telescope.

Detective Walters and Trooper McDaniel were in a covert vehicle parked down the street from the Tavern. At approximately 10:00 p.m., appellant drove his pick-up truck into the back parking lot of the Tavern, which is illuminated by lights on the back of the building. After parking, appellant walked into the Tavern. At approximately 10:30 p.m., appellant came out of the Tavern and walked toward his truck.

As he was walking, appellant was counting paper currency that he was holding in his hand. Appellant entered his truck from the driver’s side, sat down, and flipped the truck’s sun visor down. After doing so, appellant was ⁴⁶¹ observed looking down into his lap and then putting the sun visor up. Appellant exited the truck and began walking.

He was met by a second man. Sergeant Knapp recognized the man as an individual about whom “well over 100 calls” have been received indicating that he was a cocaine addict. Sergeant Conaway testified that he observed appellant hand the man—in a “nonchalant exchange, which is customary in the drug culture”—an item concealed in appellant’s hand. Sergeant Conaway could not actually see what that object was.

Although the police did not apprehend the second man to confirm that he had received drugs from appellant, Sergeant Conaway believed from his training and observations that a drug transaction just transpired between appellant and the man. Similarly, Sergeant Knapp testified, “There is no question in my mind what I saw was a drug transaction.” Thereafter, Sergeant Conaway and Sergeant Knapp met in the living room of the apartment and acknowledged having witnessed a drug deal. According to Sergeant Knapp, “at that time, we called for TFC McDaniel and for Detective Walters to come to ... that location so we could take down the [appellant].” Sergeant Knapp explained that this was when the decision was made to place appellant under arrest. Sergeant Conaway and Sergeant Knapp then left the apartment and entered the Tavern.

Approximately ten minutes had elapsed since the officers observed the transaction. They approached appellant and asked him to step outside of the crowded bar. Sergeant Conaway explained that he held one of appellant’s arms as appellant was escorted out of the Tavern. The officers informed appellant of their observations and told him to place his hands on the concrete wall of the Tavern located outside of the doorway.

Sergeant Conaway searched appellant and recovered $330 in cash and the keys to the truck. Sergeant Conaway handed the keys to Sergeant Knapp. By this time, Detective Walters and Trooper McDaniel had arrived on the scene. Holding appellant’s arms, Sergeant Conaway and Trooper McDaniel escorted appellant approxi ⁴⁶² mately 120 to 130 feet to his truck, with Sergeant Knapp and Detective Walters leading the way.

Sergeant Conaway testified that he and Trooper McDaniel had held appellant to prevent appellant—who “wasn’t free to leave”—from fleeing their control and custody. According to Sergeant Knapp, appellant was in handcuffs during the walk to the truck. Sergeant Knapp also stated that on an occasion in the past, a drug suspect had eluded and fled from him in the Tavern parking lot. Sergeant Knapp proceeded to search appellant’s truck.

He began searching under the seat and behind the back seat of the truck, at which time Sergeant Conaway instructed Sergeant Knapp to flip down the sun visor. After doing so, Sergeant Knapp recovered seven small plastic bags of cocaine. Sergeant Knapp explained that, from his observations and from the fact that “there would be no reason for the [appellant] to go to the vehicle prior to the drug transaction which occurred behind the Village Tavern,” his belief before searching the truck was that it contained drugs. At some point, Sergeant Knapp directed Detective Walters to take the truck to the Sheriff’s Office to finish the search because a small crowd started to gather in the parking lot and Sergeant Knapp believed it would be safer to move the truck.

From Detective Walter’s further search, a document that appellant allegedly used to keep a record of his drug debts was recovered. Sergeant Knapp then approached appellant and advised him that he was under arrest for possession of cocaine with intent to distribute. Miranda warnings were read to appellant at that time. Sometime thereafter, appellant is alleged to have voluntarily made incriminating statements.

At the close of the consolidated hearing, after making factual findings matching the facts presented above, the circuit court denied the motion to suppress. Just as the circuit court was preparing to rule on the forfeiture complaint, the prosecutor—apparently anticipating that the circuit court was going to order the forfeiture of appellant’s property and recognizing ⁴⁶³ a potential double jeopardy problem—interjected and requested the circuit court not to order the forfeiture until after the prosecutor had submitted an order of forfeiture to the circuit court following the final decision in the criminal case. In this regard, the prosecutor stated, “If I was going to lose one on double jeopardy, I would opt to lose the forfeiture over the criminal case.” Over the objection of defense counsel, the circuit court granted the prosecutor’s request and reserved judgment on the forfeiture issues. On October 13, 1995, a bench trial was conducted on appellant’s criminal charges.

At the conclusion of the State’s case, the circuit court denied appellant’s motion for acquittal. After notifying the circuit court that the defense would not call any witnesses and that appellant would not testify, appellant renewed his motion for acquittal, after which counsel presented closing arguments. The circuit court, thereupon, found appellant guilty of both charges beyond a reasonable doubt. On November 6, 1995, appellant filed a Motion for Court Decision requesting the circuit court to render a decision with respect to the forfeiture complaint.

In this motion, appellant argued that the purpose of the prosecutor’s request for a reservation of judgment in the forfeiture matter was to prevent appellant from filing a motion to dismiss the criminal proceedings on double jeopardy grounds. The prosecutor responded that the disposition of the forfeiture matter should occur on November 29, 1995 at 9:00 a.m.—the date and time that appellant was scheduled to be sentenced. On November 7, 1995, appellant filed a motion, pursuant to Maryland Rule 4-331 (b), requesting the circuit court to set aside the guilty verdict and dismiss the charges on double jeopardy grounds. At the November 29, 1995 hearing, the circuit court denied appellant’s Rule 4-331(b) motion.

In so doing, the circuit court determined that appellant was not placed twice in jeopardy in violation of the U.S. Constitution or the Maryland Constitution. In addition, the circuit court determined that the truck was used to transport controlled dangerous substances. Accordingly, the circuit court ordered the forfeiture ⁴⁶⁴ of the truck. The circuit court also ordered the forfeiture of the $330. 1 Finally, the circuit court sentenced appellant to ten years in prison (seven years suspended).

Although the circuit court stated that it typically would have imposed a fine in such a case, it refused to do so in view of the forfeiture order. After a series of unsuccessful post-sentencing motions seeking to set aside the guilty verdict and sentence, appellant noted an appeal to this Court. Other facts shall be presented during our disposition of the legal questions with which those facts pertain. DISCUSSION I Appellant first argues that the circuit court erred in denying the motion to suppress.

In this regard, appellant essentially contends that the warrantless search of the truck was illegal and that the warrantless arrest of appellant was illegal. We disagree. 2 The arrest of appellant was a lawful warrantless arrest. An arrest of an individual is valid when a police officer has probable cause to believe that the individual has commits ted a felony or misdemeanor in the officer’s presence or view. Md.Ann.Code art. 27, § 594B(b) (1992).

In Collins v. State, ⁴⁶⁵ 322 Md. 675, 680 , 589 A.2d 479 (1991), the Court of Appeals explained the nature of probable cause: Probable cause, we have frequently stated, is a nontechnical conception of a reasonable ground for belief of guilt. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Our determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge. Probable cause exists where the facts and circumstances taken as a whole would lead a reasonably cautious person to believe that a felony had been or is being committed by the person arrested.

Therefore, to justify a warrantless arrest the police must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion. (Citations omitted). The Supreme Court of the United States, in Ornelas v. United States, — U.S.-, 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), very recently addressed the issue of the appropriate standard by which appellate courts should review the decision of the suppression hearing judge. In Ornelas , the Supreme Court disagreed with the United States Court of Appeals for the Seventh Circuit, which determined that findings of reasonable suspicion to stop and probable cause to search should be reviewed deferentially and for clear error.

Id. Rather, the Supreme Court determined that these ultimate questions are to be reviewed de novo on appeal. Id. at-,---, 116 S.Ct. at 1659, 1661-64 . Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

Id. at---, 116 S.Ct. at 1663-64 . Specifically, an appellate court shall give due weight to a trial court’s determi ⁴⁶⁶ nation that the officer was credible and the inference was reasonable. Id. Ornelas modifies this State’s existing law in a very subtle, yet important, manner.

In State v. Blackman, 94 Md.App. 284 , 617 A.2d 619 (1992), this Court thoroughly explained how Maryland appellate courts review determinations of suppression hearing judges. According to Blackman , an appellate court shall extend great deference to the suppression hearing judge’s findings of first-level facts and assessments of credibility, unless those determinations are clearly erroneous as a matter of law. Id. at 293 , 617 A.2d 619 . In this regard, Blackman and Ornelas are in synchronization.

Blackman further explained that once these first-level findings and credibility determinations are made, a reviewing court does not second-guess the initial decision of the police officer that then became the object of judicial scrutiny. Id. Rather, according to Blackman , when reviewing an officer’s “on the street” determination of probable cause, an appellate court’s task is to decide whether.the officer had a substantial basis for concluding that probable cause existed. Id. at 293, 298 , 617 A.2d 619 .

It is in this regard that Blackman and Ornelas part ways. Ornelas , as we explained, holds that a reviewing court does not extend this sort of deference to the officer, but must make its own de novo determination of whether probable cause existed in light of the not clearly erroneous first-level findings of fact and assessments of credibility. Applying the principles of Ornelas to the instant case, we conclude the following. The circuit court obviously found the police officers’ testimony during the consolidated hearing to be credible given that the circuit court’s recital of its findings of fact matched the testimony of the officers.

As a result, we shall give great deference to the first-level facts as testified to by the officers. Armed with these facts, our task then is to determine, de novo, whether probable cause to arrest appellant existed. We are convinced that it did. ⁴⁶⁷ In view of the circumstances and events leading up to the point at which appellant was placed under arrest, we have no question whatsoever that probable cause existed to believe that appellant had committed a crime in thé parking lot of the Tavern. 3 Without repeating the entire testimony, the confluence of several facts compels a finding of probable cause: the reliable confidential informant’s information indicating that appellant dealt cocaine out of the Tavern on Thursdays, Fridays, and Saturdays; appellant’s conduct in counting currency on his way to the truck; his apparent retrieval of something from the visor of his truck; and his covert exchange of a small item with a known cocaine user in a secluded area. In addition, the surveying officers were veteran drug enforcement officers who had determined that, based on their experience, the exchange was consistent with a drug deal.

Consequently, the arrest of appellant was lawful. The search of appellee’s pick-up truck was also lawful. “[G]iven probable cause to believe that an automobile is transporting contraband, a warrantless search of an automobile is not unreasonable within the meaning of the Fourth Amendment.” State v. James, 87 Md.App. 39, 45-46 , 589 A.2d 81 (1991) (citing Carroll v. United States, 267 U.S. 132, 149 , 45 S.Ct. 280, 283-84 , 69 L.Ed. 543 (1925)). The “automobile exception” to the warrant requirement is recognized because exigent circumstances exist from the fact that cars can be moved quickly. Id. at 46, 589 A.2d 81 .

Additionally, the ⁴⁶⁸ expectation of privacy associated with a car is less than that associated with a home or office. Id. In the instant case, there can be no doubt that the police had probable cause to believe that drugs were in the truck. They watched as appellant exited the Tavern counting money, entered his truck and pulled down the visor, and then met with a known drug user to exchange a small object.

As we explained above, the police had probable cause to believe that a drug deal had just occurred. Moreover, they had probable cause to believe that the truck was the source of the drugs in view of the foregoing facts and in light of the reasonable inference that if drugs were not in the truck, appellant would not have made a detour to his truck and pulled down the visor before making the covert exchange. Of course, the fact that an automobile is the subject of the police search does not mean that the Fourth Amendment is ignored. In this regard, we held in Humphrey v. State, 39 Md.App. 484, 493-94 , 386 A.2d 1238 , cert. denied, 283 Md. 733 (1978), as follows: At the time of the search, appellant was under arrest and was being held at the police station.

The search was conducted during the middle of the night at a time when the truck was parked in a placid environment in front of appellant’s house. The State failed to proffer any evidence that either appellant’s employer (the owner of the truck), appellant’s accomplices in the crime, or his wife in any way evidenced a potential to remove the truck before the police could obtain a search warrant. In this factual posture we are persuaded that the reasoning employed by Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443 [ 91 S.Ct. 2022 , 29 L.Ed.2d 564 ] (1971) is also appropriate to the case sub judice. At pages 461-62, he said: “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.

And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States—no alerted criminal bent on flight, no fleeting ⁴⁶⁹ opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a warrant’, Carroll, supra, at 153 [45 S.Ct. at 285 ], and the ‘automobile exception,’ despite its label, is simply irrelevant.” Under circumstances such as these when there is no apparent risk that a delay in the search would raise the possibility of destruction or removal of the evidence, it is incumbent that the police first obtain a search warrant, as mandated by the fourth amendment, before a search of the vehicle can be conducted. The individual rights safeguarded by the requirement that a search warrant be issued by a neutral, detached magistrate prior to search far outweigh the inconvenience incurred by having the police guard the vehicle for a short period of time when, as here, such action could have prevented its removal. Appellant argues that the facts of the instant case are like those of Coolidge (and, inferentially, like those of Humphrey).

In this regard, appellant asserts that the police had ample opportunity to secure a search warrant for the truck. Appellant observes that he was in police custody, the locked truck was in police control, and there were four officers at the scene safeguarding the vehicle. Appellant further asserts that, as in Coolidge , the officers arguably possessed probable cause for the search of the truck for weeks prior to March 30,1995. He also points out that the truck was not an unexpected discovery at the scene and that the time within which it took to set up the surveillance demonstrates that there was sufficient time to procure the warrant.

According to appellant, therefore, no exigent circumstances existed to justify the warrantless search of the truck. We disagree. ⁴⁷⁰ The facts of the instant case are vastly different from those in Coolidge and Humphrey . As the Court of Appeals recognized in Mobley v. State, 270 Md. 76, 88 , 310 A.2d 803 (1973), the vehicle in Coolidge was immobilized on a private driveway; the defendant was arrested and his wife was in protective custody; and, most critically, the police had probable cause for weeks to obtain a proper warrant to search the vehicle. In Humphrey , the defendant was far from the scene being held at the police station, and the search was conducted in the middle of the night in a “placid environment in front of [the defendant’s] house.” In the instant case, the vehicle was parked in the parking lot of a very crowded bar at a time when a crowd was already beginning to gather outside—not in the middle of the night in the “placid environment” of a private driveway.

Although appellant was under police control, appellant was still on the scene in the parking lot. While it may not have been too much to ask for the police to stand guard outside of the vehicle located in the placid environment described in Humphrey , we refuse to require the police to do the same in the setting of this case. Cf. Fowler v. State, 79 Md.App. 517, 526 , 558 A.2d 446 , cert. denied, 317 Md. 392 , 564 A.2d 406 (1989) (upholding a warrantless search of a car under circumstances in which—although the defendant was at large—there was no chance of the car being moved because two armed police officers remained with the car and intended to prevent anyone from moving or interfering with the car).

Most significantly, the police did not have probable cause for weeks to search appellant’s truck as they did in Coolidge . Although the police obtained detailed information regarding where and when appellant conducted his drug transactions, the information did not relate specifically to his truck as being a “treasure trove” for drugs. Indeed, had appellant not made the special trip to his truck and flipped down the sun visor before making the exchange, the police would have lacked probable cause to believe that drugs were in the truck. Thus, probable cause to believe that drugs were in the truck did not ⁴⁷¹ exist weeks before the March 30, 1995 exchange, but sprung into being at the conclusion of the exchange.

In sum, the warrantless search of the truck was lawful and the warrantless arrest of appellant was lawful. The circuit court’s denial of appellant’s motion to suppress is affirmed. II Appellant lastly argues that his double jeopardy rights were violated because he was subjected to two prosecutions (the criminal action and the forfeiture action) and was punished twice (the prison term and order of forfeiture). As a result of recent and significant Supreme Court developments in this area of constitutional law, we reject appellant’s argument. 4 Furthermore, these developments require us to reconsider the correctness of Stratemeyer v. State, 107 Md.App. 420 , 668 A.2d 948 (1995)—a double jeopardy case concerning civil forfeitures that this Court decided earlier in this term on December 27,1995.

In Stratemeyer v. State, we confronted a defendant’s double jeopardy argument that the trial court erred in refusing to dismiss criminal charges pending against him when the trial court had previously ordered a forfeiture under Md.Ann.Code art. 27, § 297 of non-contraband property. Id. at 423, 668 A.2d 948 . The defendant was charged with, among other things, having imported, distributed, possessed, and possessed with intent to distribute cocaine. Id. at 424 , 668 A.2d 948 .

Shortly after the indictment, the State filed a forfeiture action seeking an order requiring the defendant to forfeit various vehicles that he owned. Id. The State alleged that the vehicles were traceable to proceeds of the defendant’s drug distributions and that the defendant knew that the vehicles ⁴⁷² were used to facilitate the transportation, sale, and possession of controlled dangerous substances. Id.

At the onset of our opinion, we recognized that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Id. at 427 , 668 A.2d 948 . The focus in Stratemeyer was on the third protection. Id. at 427-28 , 668 A.2d 948 .

Relying on the analytical framework in United States v. Ursery, 59 F.3d 568, 571 (6th Cir.1995), we recognized that three questions must be addressed in determining whether the government has violated the defendant’s double jeopardy rights: (1) Did the civil forfeiture constitute “punishment” for double jeopardy purposes? (2) Are the civil forfeiture and criminal conviction punishment for the “same offense?” and (3) Are the civil forfeiture and criminal prosecution “separate proceedings?” Stratemeyer, 107 Md.App. at 429 , 668 A.2d 948 . An affirmative answer to these three questions results in a double jeopardy violation. Ursery, 59 F.3d at 571 .

We answered the first Ursery question in the affirmative, concluding “that a forfeiture under § 297(b)(4) and (b)(6) constitutes punishment for double jeopardy purposes.” Stratemeyer, 107 Md.App. at 436 , 668 A.2d 948 . As we shall explain, we held that three cases—United States v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989), Austin v. United States, 509 U.S. 602 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993), and Aravanis v. Somerset County, 339 Md. 644 , 664 A.2d 888 (1995)—compelled this conclusion. As we observed in Stratemeyer , the Supreme Court in Halper recognized that a civil monetary penalty imposed by ⁴⁷³ the government may constitute punishment for purposes of double jeopardy. Stratemeyer, 107 Md.App. at 430-31 , 668 A.2d 948 .

We further observed that Halper held that the government could not impose a criminal penalty and then, in an action based on the same conduct, receive a civil judgment that is not rationally related to the goal of compensating the government for its loss. Id. at 431-32, 668 A.2d 948 . We summarized Halper’s holding as follows: Halper , of course, did not involve a forfeiture statute; it merely set forth the required analytical framework for determining when a sanction ordinarily regarded as civil in nature may constitute punishment for double jeopardy purposes. Id. at 432, 668 A.2d 948 .

We further recognized in Stratemeyer that the Supreme Court in Austin held that a civil forfeiture constitutes payment to a government as punishment for an offense and, therefore, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause. Id. at 433-34, 668 A.2d 948 . Along the same lines, we observed that the Court of Appeals of Maryland—relying in large part on Austin—recently determined in Aravanis that a § 297 forfeiture constitutes punishment for purposes of Article 25 of the Maryland Declaration of Rights—Maryland’s counterpart to the Excessive Fines clause of the Eighth Amendment. 5 Id. at 436, 668 A.2d 948 . After analyzing the holdings in Halper, Austin, and Aravanis , we held: ⁴⁷⁴ When one puts these two lines of cases together, an inescapable conclusion emerges.

Halper , as clarified in Austin , establishes that, if a civil penalty or sanction has any punitive aspect to it, it constitutes punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment. Austin mandates' and Aravanis ... directly holds that a forfeiture under art. 27, § 297 constitutes punishment for purposes of at least the Maryland counterpart to the Excessive Fines clause of the Eighth Amendment, if not the Federal provision itself. Upon this reasoning and upon specific pronouncements of the Supreme Court and the Court of Appeals, we reject the State’s argument that a forfeiture of non-contraband property under § 297 may constitute punishment under the Eighth Amendment but not under the Double Jeopardy Clause of the Fifth. The most telling fallacy in that argument under the current case law is the fact that the “the Supreme Court used Halper’s definition of ‘punishment’ under the Double Jeopardy Clause to define ‘punishment’ for purposes of the Eighth Amendment.” We hold, therefore, that a forfeiture under § 297(b)(4) and (b)(6) constitutes punishment for double jeopardy purposes and declare that anything to the contrary said in Allen v. State, [ 91 Md.App. 775 , 605 A.2d 994 (1992) ], is hereby overruled. 6 Id. at 436-37 , 668 A.2d 948 (citations and footnote omitted).

After