1995 CORVETTE VIN# 1G1YY22P585103433 v. Mayor and City Council of …, 63

• Decision Date: 23 February 1999
• Docket Number: No. 63,63
• Citation: 353 Md. 114,724 A.2d 680
• Parties: ONE 1995 CORVETTE VIN# 1G1YY22P585103433 v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

724 A.2d 680

353 Md. 114

ONE G1YY22P585103433 v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 63, Sept. Term, 1998.

Court of Appeals of Maryland.

February 23, 1999.

M. Albert Figinski, Baltimore, Richard A. Finci, New Carrollton (Kenneth W. Ravenell, Harry Levy, Schulman, Treem, Kaminkow and Gilden, P.A., Baltimore), on brief, for petitioner.

Andrew H. Baida, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General

of Maryland; Patricia Jessamy, State's Atty. for Baltimore City, Rudolph F. Drayton, Assistant State's Attorney, Baltimore), on brief, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

CATHELL, Judge.

Weldon Connell Holmes filed a petition for writ of certiorari with respect to a decision of the Court of Special Appeals that reversed the decision of the Circuit Court for Baltimore City suppressing evidence in a civil forfeiture case brought by the State's Attorney to seize petitioner's automobile. The issue presented in the petition is "[w]hether the Exclusionary Rule, based on the Fourth Amendment of the United States Constitution, applies in a civil forfeiture case in Maryland seeking the forfeiture of an automobile allegedly used in the drug trade."

I. Facts

Based on an informant's tip, three veteran officers of the Baltimore City Police Department's Northwest District Drug Enforcement Unit were conducting a general surveillance on Parkview Avenue in Baltimore City when they observed petitioner park his 1995 Corvette in the area. During the surveillance, they observed another man, also unknown to them, hand petitioner a large black bag through the Corvette's window, after which petitioner drove away. Even though the officers at that time had no prior knowledge of petitioner's involvement with controlled dangerous substances, they believed petitioner had conducted a drug transaction with the other man. The officers followed petitioner, but lost him. A police helicopter, however, tracked petitioner and eventually other officers stopped him in the 300 block of East Cold Spring Lane. The drug enforcement officers arrived on the scene and approached petitioner.

One of the officers, explaining that he believed petitioner may have been involved in a drug transaction, asked about the contents of the bag. Petitioner responded that it contained gym equipment. The officer explained to petitioner that petitioner need not reveal the contents of the bag, but that he would request a drug-sniffing dog because of the earlier observations. Petitioner quickly opened and closed the bag. An officer observed a plastic bag inside the black bag, which he believed contained a controlled dangerous substance.

Petitioner was arrested on drug-related charges.¹ During the arrest, another officer took the black bag out of the car and looked inside. The bag contained approximately 500 grams of cocaine. The three officers also found a brown paper bag inside the car that contained smaller bags of cocaine totaling approximately forty-eight grams. The officers then seized the car.

Respondent, through the State's Attorney for Baltimore City, filed a forfeiture action in the Circuit Court for Baltimore City against petitioner on June 6, 1996, pursuant to Maryland Code (1957, 1996 Repl.Vol., 1998 Cum.Supp.),² Art. 27, section 297. That provision states in relevant part:

(b) Property subject to forfeiture.—The following shall be subject to forfeiture and no property right shall exist in them:

(1) All controlled dangerous substances...

(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled dangerous substance ...

....

(4) All ... vehicles ... 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 ...

....

(10) Everything of value furnished, or intended to be furnished, in exchange for a controlled dangerous substance in violation of this subheading, all proceeds traceable to such an exchange .... [Emphasis added.]

Respondent based its complaint on subsections (4) and (10). At the forfeiture hearing, petitioner initially moved to dismiss the case because, he alleged, the evidence necessary to prove respondent's case, the bags of cocaine, had been obtained in violation of the Fourth Amendment and thus should be suppressed under the "exclusionary rule." See generally Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)

; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). After both parties argued their positions, the trial judge denied petitioner's motion. Petitioner made the same motion twice more during the hearing. The trial judge again denied each motion, but permitted a continuing motion for the record. At the conclusion of the hearing, the trial judge offered the parties the opportunity to submit written memoranda on the issue. Ultimately, the trial court ruled that a Fourth Amendment violation had occurred and the exclusionary rule would apply, thus suppressing the evidence from the forfeiture trial. The court then dismissed the case. Respondent filed a timely appeal, arguing that the exclusionary rule does not apply to forfeiture proceedings under section 297. The Court of Special Appeals reversed, Mayor of Baltimore v. One 1995 Corvette, 119 Md.App. 691, 706 A.2d 43 (1998), and we granted a writ of certiorari.

II. Plymouth Sedan

Central to this case is One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 1251, 14 L.Ed.2d 170 (1965), in which the United States Supreme Court held that the exclusionary rule applies to forfeiture proceedings "such as the one involved" in that case. In Plymouth Sedan, officers of the Pennsylvania Liquor Control Board stopped George McGonigle shortly after he drove his 1958 Plymouth sedan across the Benjamin Franklin Bridge into Philadelphia, Pennsylvania. The officers, positioned at the foot of the bridge in New Jersey, had followed Mr. McGonigle after observing that the rear of his Plymouth was "low in the rear, quite low." Id. at 694, 85 S.Ct. at 1247, 14 L.Ed.2d 170. During the stop, the officers searched the car without a warrant, finding thirty-one cases of liquor not bearing the necessary state tax seals. The officers arrested Mr. McGonigle.

The Commonwealth of Pennsylvania subsequently filed a petition for forfeiture of Mr. McGonigle's car based on a state statute that proclaimed "[n]o property rights shall exist in any ... vehicle ... used in the illegal manufacture or illegal transportation of liquor... and the same shall be deemed contraband and proceedings for its forfeiture to the Commonwealth may ... be instituted...." Id. at 694 n. 2, 85 S.Ct. at 1247 n. 2, 14 L.Ed.2d 170. Mr. McGonigle initially moved to dismiss the case, arguing that because the evidence necessary to prove the Commonwealth's case, the thirty-one cases of liquor, had been obtained in violation of the Fourth Amendment, they should be suppressed under the exclusionary rule. The trial judge granted the motion and dismissed the case. The Commonwealth appealed, and the Superior Court of Pennsylvania reversed the trial court. The Pennsylvania Supreme Court affirmed the Superior Court, holding that "even if the instant automobile had been illegally seized, such fact would not preclude the instant civil proceeding of forfeiture." Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 547, 201 A.2d 427, 431 (1964), rev'd,380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). The United States Supreme Court "granted certiorari to consider the important question of whether the constitutional exclusionary rule enunciated in [Weeks and Mapp ] applies to forfeiture proceedings of the character involved here." Plymouth Sedan,380 U.S. at 696,85 S.Ct. at 1248,14 L.Ed.2d 170 (citations omitted). The Court held "that the constitutional exclusionary rule does apply to such forfeiture proceedings," and reversed the Pennsylvania Supreme Court. Id.

In Plymouth Sedan, the Supreme Court relied heavily on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886),³ a case in which it was alleged that crates of plate glass were imported without the payment of the proper customs duty. The statute in that case provided a criminal penalty of $50 to $5000, up to two years imprisonment, and forfeiture of the goods. The government instituted a civil in rem forfeiture action against the imported glass. Addressing the civil nature of the proceeding, the Supreme Court in Boyd explained:

If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants,—that is, civil in form,—can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. The information, though technically a civil proceeding, is in substance and effect a criminal one.... As, therefore, suits for penalties and forfeitures, incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution....

Id. at 633-34, 6 S.Ct. at 534, 29 L.Ed. 746, quoted in Plymouth Sedan, 380 U.S. at 697-98, 85 S.Ct. at 1249, 14 L.Ed.2d 170. The Plymouth Sedan Court made clear that, although Boyd involved evidence sought by subpoena, that factual difference was irrelevant because "the essential question is whether evidence[,] ... the obtaining of which violates the Fourth Amendment may be relied upon to sustain a forfeiture." Plymouth Sedan, 380 U.S. at 698, 85 S.Ct. at 1249, 14 L.Ed.2d 170. Going on to...