Thompson v. Grindle

THIEME, Judge. This appeal is from a civil forfeiture action, in the Circuit Court for Dorchester County, in which a 1984 BMW and $4,094 in U.S. currency were deemed to be forfeited pursuant to Md.Code Ann. (1996 RepLVol.), Article 27, section 297, 1 based upon the alleged distribution of CDS by appellant, Thompson. FACTS On 18 November 1994, Deputy Russell Phillips of the Dorchester County Sheriffs Department was on routine patrol and saw appellant, Darryl Thompson, driving a 1984 BMW which was registered to Thompson’s mother, appellant Shirley Mae Thompson. Knowing that there was an outstanding warrant for Thompson, 2 Phillips stopped the vehicle and placed him' under arrest.

In a search incident to the arrest, ⁴⁸¹ Phillips recovered from Thompson’s right front pocket a plastic bag containing cocaine and marijuana. From his left front pocket, Phillips recovered $1,250 in U.S. currency. Thompson was transported for processing, and the BMW was driven to the sheriffs office. While presumably conducting an inventory search of the vehicle, Phillips located $2,840 between the front seat and the center console, adjacent to where Thompson had been sitting, and an additional $4 near the ashtray on the console. 3 On or about 29 December 1994, Gerald Grindle, Treasurer for Dorchester County, filed a complaint in the Circuit Court for Dorchester County, seeking forfeiture of the BMW and currency.

It was alleged that all were fruits of distribution of controlled dangerous substances, and that Thompson was the true owner of the car. The same BMW previously had been the subject of a forfeiture complaint which was denied on different facts. On 5 September 1995, Thompson pled guilty to one count of possession of cocaine, and received a split sentence of three years incarceration, half of which was suspended. 4 A civil trial was held in the Circuit Court for Dorchester County to determine whether the car and the money were to be forfeited. Shirley Thompson filed a motion in limine seeking to prevent the county from introducing any evidence that contradicted her ownership of the car based upon the court’s previous denial of forfeiture, where her ownership was an underlying issue.

The circuit court denied Thompson’s motion, indicating that the issue of ownership had not been specifically addressed in the court’s prior ruling. A trial on the merits was held on 24 May and 16 August 1995. At trial, Shirley Thompson, the registered owner of the BMW, testified that she permitted Thompson to drive the ⁴⁸² BMW because he had no other transportation. Thompson testified that the currency seized from his person and the vehicle were not proceeds of the sale of narcotics, but, rather, earnings from automotive repair and related work.

Other witnesses testified on behalf of appellants to corroborate the sources of the funds. On 1 December 1995 the court issued an oral opinion ordering the forfeiture of both the BMW and the currency seized, based upon Thompson’s failure to rebut the presumption that both were derivatives and instrumentalities of the sale of narcotics. The court further determined that although the BMW was titled in the name Shirley Thompson, the appellee had rebutted the presumption of ownership and the true owner of the car was Thompson. “Title registration merely raises a presumption of ownership, which, not being conclusive is rebuttable by evidence to the contrary if such is produced.” Liberty Mut. Ins.

Co. v. American Auto. Ins. Co., 220 Md. 497, 500 , 154 A.2d 826 ,(1959). This timely appeal followed.

Appellants present six issues for this Court’s review: 1. Did the court err in denying appellant Shirley Thompson’s motion in limine concerning her ownership of the vehicle? 2. Did the court err in' denying appellants’ motion for judgment at the close of appellee’s case? 3. Did the court err in denying appellants’ motion for judgment at the close of all evidence? 4.

Did the court err in finding that appellant Thompson failed to rebut adequately the presumption that the currency seized was forfeitable? 5. Did the court err in entering judgment for appellee when, as a matter of law, he was not in compliance with the procedures governing forfeitures? 6. Did the court err as a matter of law in ordering the forfeiture of the BMW and the currency seized? ⁴⁸³ We answer “Yes” and “No” respectively to the two aspects of the final question for the reasons set forth herein, without reaching the merits of the remaining issues. Discussion Forfeiture, although generally sought as a result of a criminal matter, Allied Bail Bonds v. State, 66 Md.App. 754 , 505 A.2d 918 (1986), is a civil in rem proceeding, State v. Greer, 263 Md. 692 , 284 A.2d 233 (1971), in which the burden of proof is by preponderance of the evidence rather than proof beyond a reasonable doubt.

Allen v. State, 91 Md.App. 775 , 605 A.2d 994 , cert. denied, 328 Md. 92 , 612 A.2d 1315 (1992); One Chevrolet Van v. State, 67 Md.App. 485 , 508 A.2d 503 (1986), aff'd, 309 Md. 327 , 524 A.2d 51 (1987). Considered harsh and odious, forfeitures are disfavored in law and should be avoided when possible. State ex rel. Frederick City Police Dept. v. One 1988 Toyota Pick-up Truck, 334 Md. 359 , 639 A.2d 641 (1993).

In those instances when forfeiture is warranted despite the severity of the proceedings, the governing statutory provisions must be interpreted strictly and applied. Vieira v. Prince George’s County, 101 Md.App. 220 , 645 A.2d 639 , aff'd, 340 Md. 651 , 667 A.2d 898 (1995). Appellants contend that the trial judge erred in ordering the forfeiture of both the BMW and the currency because, based upon the totality of circumstances of the case, seizure and forfeiture are not justified. They direct this Court’s attention to § 297 (1996 RepLVol.), which provides in pertinent part: (b) Property subject to forfeiture. - The following shall be subject to forfeiture and no property right shall exist in them: (6) All money, coin, currency, or weapons which have been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia.

All money, coin, currency, or weapons which are found in ⁴⁸⁴ close proximity to contraband controlled dangerous substances, controlled paraphernalia, or forfeitable records of the importation, manufacture, or distribution of controlled dangerous substances are presumed to be forfeitable under this paragraph. The burden of proof is upon a claimant of the property to rebut this presumption. This money, currency, or weapons shall be deemed to be contraband of law and all rights, title and interest in and to the money, currency, or weapons shall immediately vest in and to. .... the county in which it was seized.....and no such money,currency, or weapons shall be returned to any person claiming it, or to any other person, except in the manner hereinafter provided; (h) Procedure; notice.- (i) Motor Vehicles - Standards for seizure. - In exercising the authority to seize motor vehicles pursuant to this section the following standards shall be utilized: (1) A motor vehicle used in violation of this section shall be seized and forfeiture recommended to the forfeiting authority when: (i) Controlled dangerous substances in any quantity are sold or attempted to be sold in violation of this subtitle; (ii) Although the violator has not sold or attempted to sell controlled dangerous substances in violation of this subtitle, an amount of such substances or paraphernalia is located which would reasonably indicate that sale is contemplated by the violator; or (in) The total circumstances of the case dictate that seizure and forfeiture is justified; these circumstances would include such factors as the following: 1. The possession of controlled dangerous substances; 2.

An extensive criminal record of the violator; 3. A previous conviction of the violator for a controlled dangerous substances violation; ⁴⁸⁵ 4. Corroborated information is developed indicating that the violator is or was recently a seller, or frequently associates with individuals known to be distributors of illegal controlled dangerous substances or paraphernalia; 5. Circumstances of the arrest; or 6.

The manner in which the vehicle was being used. In reviewing the trial court’s order of forfeiture, we must apply the facts of the instant case to the statutory factors listed above, and then determine if there exists any conceivable rationale to support the lower court’s conclusions that underlie its judgment. The “excessive fines” analysis under the Eighth Amendment of the United States Constitution and Article 25 of the Maryland Declaration of Rights was raised by appellant in his brief and in both his initial statement and closing argument to the trial court. 5 It was also addressed by the trial judge in his oral opinion. We are therefore satisfied that the issue is properly preserved for this Court’s review.

The Court of Appeals in Aravanis v. Somerset County, 339 Md. 644 , 664 A.2d 888 (1995), cert. denied,-U.S.-, 116 S.Ct. 916 , 133 L.Ed.2d 846 (1996), held that civil in rem forfeitures are subject to an excessive fines analysis. Aravanis, 339 Md. at 656-57 , 664 A.2d 888 . Although appellants raised the issue in a cursory fashion, we think it incumbent upon this Court to exercise its plenary discretion under Maryland Rule 8-131(a) in fully addressing the issue. The Supreme Court, in Austin v. United States, 509 U.S. 602 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993), declined to delineate a multi-factor test to aid in the determination of ⁴⁸⁶ whether a forfeiture is unconstitutionally excessive. 6 The Court suggested that such a determination ought best be initially considered by the lower federal courts.

Similarly, in Aravanis, Judge Robert M. Bell (presently Chief Judge) indicated: It would be premature for us to propose, by this opinion, a precise formula or laundry list of factors to fit every case that will come before the courts. We can at this juncture only paint with a rather broad brush, identifying the required areas of consideration and the non-exclusive list of factors we have discussed, leaving to the trial judges in the first instance the weighing of factors appropriate to each individual case. 339 Md. at 665-666 , 664 A.2d 888 . In Aravanis, the Court of Appeals adopted a two-prong test, the first prong commonly called the “instrumentality test” and the second called the “proportionality test.” Both prongs must be considered in resolving whether the forfeiture of property constitutés an excessive fine. Since the Austin decision, the Court of Appeals for .the Fourth Circuit, in United States v. Chandler, 36 F.3d 358 (4th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1792 , 131 L.Ed.2d 721 (1995), espoused an instrumentality test that the Aravanis Court seemingly endorsed as the “instrumentality” component of the split test currently applied in forfeiture actions by Maryland courts.

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 ⁴⁸⁷ culpability of the owner, and (3) the possibility of separating offending property that can readily be separated from the remainder.” (Citation omitted.) Aravanis, 339 Md. at 661 , 664 A.2d 888 (quoting Chandler, 36 F.3d at 365 ). Returning to, and pursuing, the rationale of appellants’ allegation of error on the part of the trial court, an analysis of the statutory factors that dictate forfeiture under § 297 must be applied to the instant case.

In our attempted resolution of appellants’ allegation that the trial judge’s order of forfeiture was not warranted in light of the statutory factors presented above, we give great deference to the factual determinations made by the trier of fact within the course of a forfeiture proceeding, and will not disturb those findings on appeal unless they are clearly erroneous. One Ford Motor Vehicle v. State, 104 Md.App. 744 , 657 A.2d 825 (1995). Because of the factual uniqueness of each case, the trial judge is vested with the discretion to apply the appropriate criteria underlying the court’s decision of whether to grant a complaint for forfeiture on a case-by-case basis. Aravanis, 339 Md. at 666 , 664 A.2d 888 .

In considering the applicable standard of review, we are not persuaded that any error in factual findings of the trial court rises to the level of being clearly erroneous. If such findings are upheld as to their validity and conclusiveness, based upon the governing statutory provisions, the forfeiture ordered by the court may nonetheless be subject to further analysis as an excessive fine under Aravanis. I. The Instrumentality Prong <The Nexus> In Austin , Justice Scalia wrote separately to express the view that proportionality between the offense and the size of the punishment is relevant to an Eighth Amendment excessiveness analysis with respect to monetary fines and in personam forfeitures. According to Justice Scalia, the analysis of in rem forfeitures should be treated differently because, “un ⁴⁸⁸ like monetary fines, statutory in rem forfeitures have traditionally been fixed, not by determining the appropriate value of the penalty in relation to the committed offense, but by determining what property has been ‘tainted’ by unlawful use, to which the value of the property is irrelevant.” Austin, 509 U.S. at 627 , 113 S.Ct. at 2815 .

It necessarily follows, therefore, that the excessiveness inquiry as to in rem forfeitures, in Justice Scalia’s view, should focus solely on the nature of the relationship between the property and the offense: “The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.” (Emphasis in original.) Id., 509 U.S. at 628 , 113 S.Ct. at 2815 . Armed with the understanding that forfeiture is based upon the legal fiction that an inanimate object can be guilty of a crime, 7 Prince George’s County v. Blue Bird Cab Co., 263 Md. 655 , 284 A.2d 203 (1971), we follow Justice Scalia’s suggestion that, under the proposed instrumentality test, the proper inquiry as to the relationship between the item that is the subject of the forfeiture action and the offense is whether they are “close enough to render the property, under traditional standards, ‘guilty and hence ‘forfeitable.’ ” Austin, 509 U.S. at 628 , 113 S.Ct. at 2815 . Consequently, we believe the nexus prerequisite