State v. One 1967 Ford Mustang

Digges, J., delivered the opinion of the Court. This appeal by the State of Maryland is from an order of the Circuit Court for Cecil County directing the State Police to return to its owner a motor vehicle that had been seized for forfeiture. The State contends that the court did not have the discretionary power to order the vehicle’s return but, rather, was required to forfeit the automobile. In issuing the order, Judge Mackey observed, “If discretion is part of the trial judge’s work kit then under [the facts of this case] we feel this Court will be affirmed.

If not, it will be reversed.” Since we conclude that he did not- have the discretion to deny forfeiture, we reverse his decision. The happenings giving rise to this dispute are very simple and were stipulated to at the forfeiture trial. It was agreed that: on April 30, 1971, Joseph Harris, the owner of the 1967 Ford Mustang sought to be forfeited, was driving on the John F. Kennedy Memorial Highway in Cecil County when he was stopped by the Maryland State Police; when the trooper approached the automobile, he detected a strong odor of marihuana and upon investigation found two pipes and a vial containing something which appeared to be that substance; later chemical analysis proved this supposition correct; Harris was then charged with having marihuana in his possession, a violation of Maryland Code (1957, 1971 Repl. Vol.), Art. 27, § 286; and upon being found guilty was sentenced by the court to serve 90 days in the county jail.

On December 23, 1971, a court trial was held to determine if, under the provisions of Code (1957, 1971 Repl. ²⁷⁷ Vol.), Art. 27, § 297 (a) (1), (4), the car could be forfeited. Those sections direct: “(a) Property subject to forfeiture. — The following shall be subject to forfeiture and no property right shall exist in them: (1) All controlled dangerous substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of the provisions of this subheading; * * * (4) All conveyances including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in (1) . . . Although no provision is made in this statute for the exercise of judicial discretion, Judge Mackey found it “neither consistent nor conceivable” that the legislature would place the judiciary in “an inflexible strait jacket”, “paint [it] into a corner”, or remove the “power and ability to exercise discretion and make an intelligent equitable consideration and disposition according to the extent of the wrong and the degree of culpability.” He ruled that forfeiture is not automatically ordered when requested by the Attorney General. Therefore, since he found that loss of the car would work a severe hardship on Harris and his family, the judge ordered it returned. 1 We conclude this was error.

Once the basis of forfeiture under § 297 is established by a preponderance of the evidence, the remedy is prescribed by law — loss of the seized vehicle. And it is no more permissible to deny forfeiture under these circumstances than it would be to order a debtor to repay a reduced amount than is lawfully due because extenuating circumstances indicate that requiring the full sum ²⁷⁸ to be paid would create great hardship. The statute’s mandate must be obeyed for it is not a penalty imposed as part of the criminal punishment that can be invoked at the discretion of the trial judge. 2 If the Legislature