One 1988 Jeep Cherokee Vin No. 1JCMT7898JT159481 v. City of Salisbury

⁶⁷⁸ WENNER, Judge. We shall here interpret the so-called “innocent owner” defense contained in Md.Code (1957, 1992 RepLVol.) Art. 27 § 297. In this appeal, appellant, Dr. Richard Long (Dr. Long), challenges an order of the Circuit Court for Wicomico County granting a Petition for Forfeiture filed by appellee, the City of Salisbury (City). On appeal, Dr. Long presents us with four questions: 1.

Whether the trial court erred in granting the Petition for Forfeiture when the City of Salisbury failed to prove a nexus between the vehicle which had been used to facilitate the possession of illegal drugs and the illegal drugs. 2. Whether the trial court erred in admitting evidence that Appellant may have known of his son’s prior drug use. 3. Whether the trial court erred in finding that possession of the Jeep Cherokee was sufficient to order forfeiture when the registered owner had no actual knowledge that the conveyance in question was to be used in violation of Article 27. § 297. 4. Whether the Order of Forfeiture of the Jeep Cherokee was a violation of the Appellant’s constitutional right to protection from excessive punishment under the Eighth Amendment of the United States Constitution and Article 25 of the Maryland Declaration of Rights when the value of the forfeited property far exceeded the value of the contraband seized.

We shall answer Dr. Long’s third question in the affirmative, and shall reverse the judgment of the circuit court. BACKGROUND While driving Dr. Long’s 1988 Jeep Cherokee (Cherokee), his son, Kevin, was stopped by Trooper David Owens of the Maryland State Police. Trooper Owens searched the Cherokee and found various drugs, including one Valium pill, two partially burned marijuana cigarettes, and a residue of white ⁶⁷⁹ powder contained in a pill crusher. Trooper Owens also found small quantities of prescription drugs, Torbutral and Zantac.

The City filed a Petition for Forfeiture of the Cherokee and Dr. Long responded, requesting that it be denied. At a hearing held on February 8, 1992, Dr. Long testified that he had purchased the Cherokee for use in his veterinary practice, and had loaned it to Kevin for use in driving to and from his job in Ocean City. Dr. Long was out of state when the Cherokee was stopped, searched, and seized. According to Dr. Long, he kept in the Cherokee various drugs and instruments associated with his profession.

He said that Torbutral was an animal cough suppressant and that Zantac was a prescription medicine for Kevin’s ulcer. Dr. Long also said that he was unaware that Kevin was using the Cherokee to transport controlled dangerous substances. Dr. Long acknowledged that he was aware that Kevin had been convicted in August of 1990 of Driving Under the Influence. 1 Although the arresting officer testified that, following Kevin’s arrest in August of 1990, Dr. Long had told him of Kevin’s drug problem, Dr. Long had no recollection of the conversation. Nevertheless, Dr. Long testified at the hearing that he suspected that Kevin had removed some drugs from his veterinary clinic.

As we have mentioned, after considering all of the testimony, the trial court ordered the Cherokee forfeited. I. In 1989, the General Assembly rewrote Maryland’s forfeiture statute, Md.Code (1957, 1992 Repl.Vol.), Art. 27 § 297. 1989 Md.Laws, Ch. 285. Although many of its sections remained the same, some were deleted and several new sections were added. ⁶⁸⁰ The forfeiture statute now contains a section of definitions, § 297(a), as well as sections governing the forfeiture of real property, §§ 297(m) and (n). Section 297(r), entitled “Rights of Lienholder” was also added, as was § 297(s), entitled “Powers of Court.” In addition, the so called “Innocent Owner Defense,” was significantly changed.

In previous Art. 27 § 297, the innocent owner defense was contained in § 297(a)(4)(iii). It provided: No conveyance shall be forfeited under the provisions of this section to the extent of the interest of an owner of the conveyance who neither knew nor should have known that the conveyance was used or was to be used in violation of this subtitle. We had occasion in State v. One 1985 Ford, 72 Md.App. 144 , 527 A.2d 1311 (1987) to explain the operation of the innocent owner defense within the legislative scheme of Art. 27, § 297. In One 1985 Ford , the trial court had dismissed the State’s petition for forfeiture after the State had presented its case.

Writing for us, Judge Moylan explained that the dismissal was premature: We hold that once the illicit use of the vehicle is shown, the vehicle is presumptively subject to forfeiture and the burden of proof is upon the owner to demonstrate entitlement to an exception from that presumptive forfeiture. Id. at 147 , 527 A.2d 1311 . Judge Moylan emphasized that the burden of proving entitlement to an exception from the presumptive forfeiture is on the party claiming innocent ownership. Moreover Judge Moylan went on to say that a mother, whose son transported drugs in her car was required to show “(1) that she did not know and (2) that there was no reason that she should have known that her son was using her automobile to transport, to possess, or to conceal drugs.” Id.

We then held that the trial court erred in finding that the mother was an innocent owner without requiring her to so prove, and remanded the case to the trial court for further proceedings. ⁶⁸¹ Perhaps in response to One 1985 Ford , revised Art. 27, § 297 explicitly sets forth the burden of proof explained by Judge Moylan, and contains other significant changes. In previous Art. 27, § 297, the innocent owner defense varied depending on the type of property subject to forfeiture. If a motor vehicle was subject to forfeiture, an innocent owner could prevail if the owner “neither knew nor should have known that the conveyance was used or was to be used in violation of this subtitle.” See Supra § 297(a)(4)(iii). If the property seized consisted of anything of value furnished, or intended to be furnished, in exchange for a controlled dangerous substance, the innocent owner could avoid forfeiture if the “act or omission” giving rise to forfeiture occurred “without the owner’s knowledge or consent.” § 297(a)(9). 2 Whatever the reason for designating different standards for the forfeiture of different types of property, the General Assembly has now standardized the innocent owner defense by moving it to a section of its own: (c) Property not subject to forfeiture. — Property or an interest in property described under subsection (b)(4), (9), and (10) of this section may not be forfeited if the owner establishes by a preponderance of the evidence that the violation of this subheading was done without the owner’s actual knowledge.

We note that, in addition to the organizational change, revised Art. 27, § 297, et seq., changed significantly the burden to be met by the owner in order to avoid forfeiture. In contrast to both sections of previous § 297, under new ⁶⁸² § 297(c), the owner of certain property could have avoided forfeiture by proving that “the violation of this subheading was done without [his or her] actual knowledge.” § 297(c) (Emphasis added.) It is this change that leads us to our decision in the case at hand.

II

Notwithstanding new Art. 27, § 297(c), the problem of what evidence one must present in order to show that one lacked “actual knowledge,” or what evidence the State must present in order to overcome an owner’s claim that he or she lacked “actual knowledge” must still be determined. Dr. Long contends that he clearly met his burden of proving that he lacked actual knowledge that Kevin was illegally using the Cherokee. Pointing out that other jurisdictions have said that actual knowledge can be inferred from the circumstances, the City contends that the trial judge did not err in finding that Dr. Long had not met the burden of proving the innocent owner defense. The legislative history of revised Art. 27, § 297 sheds little light on why the standard of proving knowledge was changed, or how it should be interpreted.

Thus, “in our efforts to discover purpose, aim, or policy, we