State v. One Motor Vehicle to Wit: 1982 Plymouth, Serial No. JP3BE4439CU404899

MOYLAN, Judge. The ancient common law of deodand 1 has been for most crimes relegated to the dustbin of history. It remains, however, an effective weapon in society’s arsenal against the use of and traffic in illicit drugs. Under the subheading “Health—Controlled Dangerous Substances,” §§ 276 through 302 of Article 27 spell out the various provisions of law available to combat the use of contraband drugs.

Section 297 specifically deals with the forfeiture of property to the State. Narrowing the focus more tightly, subsection ³¹² (a)(4) sets forth the circumstances under which a motor vehicle “shall be subject to forfeiture”: “(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 paragraph (1) or (2) of this subsection____” Of present pertinence, the key words are: “(4) All ... vehicles ... which are used ... in any manner to facilitate the ... possession, or concealment of [controlled dangerous substances].” The issue before us is that of whether a further subsection of § 297—subsection (f), “Motor Vehicles—Standards for seizure”—is a modification, by way of limitation, on subsection (a)(4)’s forfeiture conditions or whether subsection (f) is rather a set of “guidelines” to the police to assist them in deciding when to seize a vehicle and to recommend forfeiture to the State’s Attorney. For reasons to be discussed, we hold the latter to be the case. Even in that context, there remains an issue of what standard of review, if any, the judge at a forfeiture proceeding shall employ to determine whether the policeman properly followed the guidelines provided by the statute.

As we turn to the facts of the case, it is beyond dispute that the 1982 Plymouth in question was used, at the very least, for the possession and concealment of marijuana, if not, indeed, for the transportation, sale, or receipt of marijuana. On February 24, 1985, Officer Hicks, of the Northern District Drug Enforcement Unit, was on patrol, with two other officers, in an unmarked vehicle. They observed the Plymouth parked on the north side of the 1600 block of Sulgrave Avenue. The Plymouth was occupied by two persons: Laura Blasetti (the registered owner), in the driver’s seat; and a male, in the front passenger seat.

The officers parked their vehicle approximately 20 to 30 feet behind the Plymouth. Aided by the car’s interior lights and ³¹³ by street lights in the vicinity, the officers “could see very vividly through the rear window of the [Plymouth].” Based on his observation of the occupants, Officer Hicks “believed there might be a narcotics transaction or some kind of narcotics violation possibly taking place.” He and one of the other officers approached the Plymouth. They saw Laura Blasetti hand the male a white, hand-rolled cigarette. When the two officers identified themselves, Ms. Blasetti attempted to place the cigarette into her purse, which was located between the two seats.

Officer Hicks recovered the cigarette. Based upon his experience, he believed it to contain marijuana. The search of the vehicle produced a large zip-lock freezer bag containing a “plant material,” which later analysis showed to be 213.6 grams of marijuana. The bag was located on a shelf underneath the glove compartment.

In Officer Hick’s expert opinion, the large amount of marijuana indicated strongly that it was not for personal consumption but for commercial sale. After Officer Hicks seized the vehicle and recommended forfeiture to the State’s Attorney, the State, on April 4, 1985, filed in the Circuit Court for Baltimore City a Petition for Forfeiture of the Plymouth. Both Laura Blasetti, the registered owner, and the Equitable Bank, N.A., the registered lienholder, filed an answer. At the forfeiture hearing held on June 13, 1985, however, Equitable Bank did not participate. 2 The hearing judge ultimately superimposed upon the sufficient conditions for forfeiture unequivocally recited by subsection (a)(4) the additional condition that at least one of the criteria spelled out in subsection (f)’s “guidelines” be satisfied as well.

He looked, clearly not by way of any due process review of the propriety of Officer Hicks’s pretrial conduct (the judge had earlier denied Ms. Blasetti’s Motion ³¹⁴ to Dismiss in that regard), at all of the substantive evidence “as the fact finder.” His stated purpose was to determine whether the State had shown “by a preponderance of the evidence that there is a cause of action.” As the ultimate fact finder on the substantive issue, the judge found: “I find as a fact, based upon the circumstances and notwithstanding the large amount of marijuana found in the car, namely, 213.6 grams, I find as a fact that under these circumstances no sale was contemplated. I also find, and I do not think it is contested, that none of the other criteria in Subsection F of Section 297 of Article 27 is satisfied. I find as a fact that a distribution of marijuana did take place in that vehicle on that night in question from the Defendant to the passenger, the Defendant being the owner of the vehicle; however, I find as a fact that that distribution was not a sale. It was just a gratuitous transfer. ...

It’s my view, in reading the Statute, that in order for a vehicle to be subject to forfeiture, then at least one of the criteria in Subsection F must be satisfied, and I find that none of the criteria in Subsection F have been satisfied____” We hold that the judge’s interpretation of the substantive law as to forfeiture was incorrect as a matter of law. In stating the necessary conditions for a forfeiture, subsection (a)(4) “covers the waterfront.” The overall scheme of § 297 makes that clear. Its thirteen lettered subsections—(a) through (m)—each bears its own descriptive subtitle. Subsection (a), subtitled “Property subject to forfeiture,” is the only one remotely concerned with the necessary conditions for forfeiture.

Barring exceptions not here pertinent, the use of a vehicle for the possession of drugs, standing alone, is enough. The judge found that condition to have been satisfied: “I find as a fact that a distribution of marijuana did take place in that vehicle on that night in question from the ³¹⁵ Defendant to the passenger, the Defendant being the owner of the vehicle; ...” No commercial aspect to the crime is required. The result may seem harsh. The Legislature, however, intended it to be harsh.

It provided, moreover, that the courts would have little option but to apply the law with all of its intended rigor. In a series of decisions from 1971 through 1973, the Court of Appeals explained that the forfeiture law was deliberately created as a stern measure. Those decisions, each by a unanimous Court, did not hesitate to apply the stern measure. Each was brought on appeal by the State.

Each reversed a decision by the trial court to deny forfeiture. Prince George’s County v. Blue Bird Cab Co., 263 Md. 655 , 284 A.2d 203 (1971); State v. Greer, 263 Md. 692 , 284 A.2d 233 (1971); State v. One 1967 Ford Mustang, 266 Md. 275 , 292 A.2d 64 (1972); Prince George’s County v. One 1969 Opel, 267 Md. 491 , 298 A.2d 168 (1973). In Prince George’s County v. Blue Bird Cab Co., supra, the Court of Appeals held unequivocally that the innocence of the title owner of the taxicab is of no consequence. In holding that the trial judge had no alternative but to order the forfeiture, Judge Digges concluded for the Court, at 263 Md. 662 , 284 A.2d 203 : “We agree that in some ways this is a harsh law; however, it is within the Legislature’s power to decide whether such a forfeiture provision is desirable.

Its purpose is to attempt not only to curtail drug traffic in this state, but to discourage such a blight from continuing in the future. Historically, decisive action has been required to prevent any plague from spreading. In the present case the Legislature has clearly indicated its purpose for this act. It is to control the proliferation of dangerous drugs in our society and it is a noble purpose, but an arduous task.

The measures that have been taken are not out of step with the great weight of authority.” ³¹⁶ In State v. Greer, supra, the return of her Chevy II was sought by an innocent mother, whose teenaged son had been charged with but not yet convicted of having sold marijuana to an undercover policeman from the Chevy II. In reversing on three separate grounds the trial judge’s decision to release the automobile to the mother, the Court of Appeals pointed out, at 263 Md. 694 , 284 A.2d 233 , that “it is of little significance whether there is a criminal conviction” and that “[i]n the same vein the innocence of the owner of the vehicle is no defense.” In Prince George’s County v. One 1969 Opel, supra, a trial judge in Prince George’s County had declared a predecessor forfeiture law to be unconstitutional because it failed to provide adequate criteria or guidelines for the police and for the State’s Attorneys in forfeiture situations. The chancellor had condemned the predecessor law in the following terms: “ ‘[T]he Legislature has, by empowering local authorities to exercise discretion, indicated that it is not its wish that all vehicles, not subject to the stated exceptions, be forfeited; and it has given no indication of what criteria should be employed. Was it the Legislature’s wish that Mr. Marshall’s standard of ‘absolute innocence’ of the owner of the vehicle be used or would the Legislature prefer the Prince George’s County Police Departments’ guidelines, whatever they might be?

There is no way of knowing the answer.’ ” (Emphasis in original). Quoted at 267 Md. 493 -494, 298 A.2d 168 . In reversing that determination, the Court of Appeals, speaking through Judge McWilliams, noted that the replacement statute, essentially the present law, does now provide some guidelines for the police and for the State’s Attorney. The Court ruled, however, that the lack of guidelines and standards in the predecessor statute did not in any way render that statute unconstitutional.

It quoted, at 267 Md. 499 , 298 A.2d 168 , with approval, from Pressman v. Barnes, 209 Md. 544, 555 , 121 A.2d 816 (1955): ³¹⁷ “ ‘The modern tendency of the courts is toward greater liberality in permitting grants of discretion to administrative officials in order to facilitate the administration of the laws as the complexity of governmental and economic conditions increases.’ ” It is, however, the decision of Judge Digges for the Court of Appeals in State v. One 1967 Ford Mustang, supra, that is absolutely foreclosing on the effort of the trial judge to deny forfeiture in this case. The trial judge there sought, by way of exercising his discretion, to do what the trial judge did here, by adding a condition to the forfeiture requirements. In that case, the owner of the Ford Mustang was simply driving on the John F. Kennedy Memorial Highway when he was stopped by a Maryland State Trooper. In standing at the window of the Mustang, the trooper “detected a strong odor of marijuana.” He subsequently seized two pipes and a vial containing what turned out to be marijuana.

The owner was convicted of simple possession and sentenced to serve 90 days. From that criminal conduct, clearly involving possession alone and without any intimation of any commercial aspect, the State petitioned for the forfeiture of the Ford Mustang. The trial judge there concluded, as we believe the trial judge here concluded, that the forfeiture of an automobile was perhaps an overly harsh sanction for a marijuana violation. The trial judge there found it “ ‘neither consistent nor conceivable’ that the legislature would place the judiciary in ‘an inflexible strait jacket.’ ” 266 Md. at 277 , 292 A.2d 64 .

He could not believe that the Legislature would “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.’ ” Id. He ruled that “forfeiture is not automatically ordered when requested by the Attorney General. Id. He found that the “loss of the car would work a severe hardship on Harris and his family____” Id.

The trial judge exercised his discretion to deny the forfeiture. In reversing, the Court of Appeals surveyed the federal and state ³¹⁸ law nationally and concluded, “we have been unable to find a case holding that, in the absence of statutory permission, discretion is vested in the judiciary to deny forfeiture.” 266 Md. at 279 , 292 A.2d 64 . In looking more directly to the legislative intent behind the Maryland law, Judge Digges held, at 266 Md. 277 -278, 292 A.2d 64 : “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 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. If the Legislature had desired to make this forfeiture discretionary it could have so provided____ Under the Controlled Dangerous Substances Act the duties and powers of the courts are narrowly limited in forfeiture proceedings. Once the seizing authority decides to seek forfeiture, the court’s only responsibilities are to require proof that the vehicle seized was ‘used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled dangerous substances]’; determine that no statutory exceptions are applicable; and insure the adherence to due process requirements.” 3 (Citations omitted). The trial judge here may not do indirectly, by a legal ruling, what the trial judge there could not do directly, by exercising his discretion. ³¹⁹ If not an additional set of preconditions for forfeiture, what then is subsection (f)?

It is what its subtitle clearly states: “Motor vehicles—Standards for seizure.” Three such standards are spelled out. None of them deals in any way with the ultimate forfeiture itself. They refer rather to the antecedent steps of 1) seizing the vehicle in the first instance and 2) recommending forfeiture to the State’s Attorney. As an internal examination of them readily reveals, they are directed to police officials.

Indeed, in referring to subsection (f), an addition to the law taking effect two days prior to the decision in that case, Judge Digges in State v. One 1967 Ford Mustang, supra, described the new subsection as: “Providing] guidelines for the exercise of discretion by the seizing authority in deciding whether to recommend forfeiture to the State’s Attorney.” 266 Md. at 278, n. 3 , 292 A.2d 64 . These clearly are not guidelines for the judge. In the first place, the judge is not “the seizing authority.” It is furthermore clear that it is not the judge who will be “deciding whether to recommend forfeiture to the State’s Attorney.” The decision to seize and the decision to recommend forfeiture to the State’s Attorney are not judicial decisions either in the first instance or by way of de novo determination. The overall scheme of subsection (f), and subsections (g) and (h) as well, is clear.

After providing some guidelines for when a policeman should seize a vehicle and recommend its forfeiture and some guidelines for when a policeman should not seize a vehicle or recommend its forfeiture, the statute provides safeguards upon the exercise of that discretion by establishing two levels of review within the executive branch of government. After setting out both the affirmative and negative standards themselves in subsection (f)(1) and (2), (f)(3) goes on to provide an initial review by “the chief law-enforcement officer” of the concerned police department: “(3) Forfeiture of the motor vehicle used in violation of this subtitle shall be recommended to the State’s Attor ³²⁰ ney only after the chief law-enforcement officer of the police department, bureau, or force that seized the motor vehicle has determined from the records of the Motor Vehicle Administration the names and addresses of all registered owners and