Bozman v. Office of Finance of Baltimore County

• Decision Date: 12 August 1983
• Docket Number: No. 88,88
• Parties: , 38 A.L.R.4th 480 William BOZMAN v. OFFICE OF FINANCE OF BALTIMORE COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 492

296 Md. 492

463 A.2d 832, 38 A.L.R.4th 480

William BOZMAN v. OFFICE OF FINANCE OF BALTIMORE COUNTY, Maryland.

No. 88.

Court of Appeals of Maryland.

Aug. 12, 1983.

Alan I. Baron, Baltimore (Finley, Kumble, Wagner, Heine, Underberg & Casey, Washington, D.C., on the brief), for appellant.

Michael J. Moran, Asst. County Sol., Towson (Leonard S. Jacobson, County Atty., Towson, on the brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON and COUCH, JJ., and W. ALBERT MENCHINE, Retired, Specially Assigned, Judge.

W. ALBERT MENCHINE, Special Judge.

This case concerns the meaning and effect of Maryland Annotated Code Article 27, Section 297 as that section relates to the forfeiture of "money or currency" found "in close proximity" to the seizure of contraband "controlled dangerous substances." ¹

On October 27, 1979, three Baltimore County police officers, accompanied by "members of the Department of Justice and Drug Enforcement Administration Officers" executed a search and seizure warrant at the home of the Appellant, William Bozman, in Cockeysville, Baltimore County, Maryland.

Seized in the bedroom of Bozman were small quantities of the following Controlled Dangerous Substances:

Phentermine (Schedule IV)

Marijuana (Schedule I)

Clorazepate (Schedule IV)

Methaqualone (Schedule II)

Seized in a bathroom "right off the bedroom" was a substance analyzed as cocaine hydrochloride (Schedule II).

Additional marijuana was seized in the bedroom of Bozman's son.

Tally sheets with names, weights and prices on them were found throughout the house.

At the same time, Baltimore County Police seized $2,170.00 in U.S. Currency from a safe within the bedroom of Bozman. An additional $1,780.00 in U.S. Currency found in that bedroom dresser and in Bozman's wallet also was seized.

The Bozman bedroom was described as being "about 18 X 18". The safe was in one corner of that bedroom; the dresser in another. The wallet of Mr. Bozman "was sitting on the dresser or in the corner or in his pants pocket, which was on the floor." The safe was "no more than 3 or 4 feet to the entrance to the bathroom."

On April 13, 1981, the Office of Finance of Baltimore County filed a petition in the Circuit Court for Baltimore County against William Bozman pursuant to the provisions of Maryland Annotated Code, Article 27, Section 297(b)(4)(i) alleging that the currency above described was "seized in close proximity to contraband, controlled dangerous substances or controlled paraphernalia." The petition prayed "that the sums (sic) of $3,950.00 be declared forfeit to the sole use and gain of Baltimore County, Maryland." No explanation for the presence of multiple controlled dangerous substances or for the large sums of nearby money or currency was offered at the hearing.

Admitting that the money or currency was his, Bozman's answer conceded that he has "never been charged, tried or convicted" of criminal charges stemming from the seizure of the controlled dangerous substances in close proximity to which the money or currency here involved was alleged to have been found.

On September 4, 1981, after hearing, the trial court passed an order "that the sum of $3,950.00 seized from the Respondent, be forfeited to the sole use and gain of Baltimore County."

On Bozman's appeal from that order, the trial court was affirmed by the Court of Special Appeals (52 Md.App. 1, 445 A.2d 1073). ²

We granted certiorari.

The issues presented for our decision are these:

I. Does the absence of evidence of final disposition of criminal proceedings defeat an application to the court for the forfeiture, pursuant to Maryland Code Article 27, Section 297(b)(4)(i) and (ii), of money or currency seized under Section 297(a)(6) and thus require the return of such money or currency to the person from whom it was seized?

and

II. Was the trial judge clearly erroneous in his finding that the seized money or currency was "found in close proximity to contraband controlled dangerous substances or controlled paraphernalia" within the meaning of Article 27, Section 297(a)(6)?

Maryland Code Article 27, Section 297, in parts here pertinent to the issues presented, reads as follows:

"Sec. 297 Forfeitures and seizures generally; ...

(a) Property subject to forfeiture--The following shall be subject to forfeiture and no property right shall exist in them:

* * *

* * *

(5) All books, records, and research, including formulas, microfilm, tapes and data which are used, or intended for use, in violation of this subheading;

(6) All money or currency which shall be found in close proximity to contraband controlled dangerous substances or controlled paraphernalia or which otherwise has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia.

This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it, or to any other person, except in the manner hereinafter provided: ³ (Emphasis added)

(7) All drug paraphernalia as prohibited by Sec. 287A of this article, and controlled paraphernalia as prohibited by Sec. 287 of this article.

(b) Seizure of property subject to forfeiture--Any property subject to forfeiture under this subheading may be seized upon process issued by any court having jurisdiction over the property except that seizure without such process may be made when--

(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this subheading;

(3) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or (4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.

In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, except all proceedings relating to money or currency, which shall be instituted within 90 days from the date of final disposition of criminal proceedings which arise out of Article 27, Sec. 276 through Sec. 302 inclusive. (Emphasis added)

(i) All applications for the forefeiture of money or currency contraband shall be made by the director of finance of Baltimore City, the county treasurer, municipal treasurer, or the Attorney General. The applications shall be by petition, affidavit and show cause order and shall be filed in the District Court or circuit court of the county or in the District Court of Baltimore City or a law court of the Supreme Bench of Baltimore City.

(ii) The petition, affidavit and show cause order shall be served in the first instance pursuant to Rule 104 of the Maryland Rules of Procedure or Rule No. 104 of the Maryland District Rules, and thereafter, the summons having been returned non est the director of finance of Baltimore City, county treasurer, municipal treasurer, or attorney general may proceed pursuant to Rule 105b, subsection 3 of the Maryland Rules of Procedure as amended, or Rule No. 104h of the Maryland District Rules."

I. Necessity for proof of final disposition of criminal proceedings

Appellant contends that "because the final disposition of related criminal proceedings is a condition precedent to the institution of a forfeiture proceeding, proof of such a final disposition was a necessary element of the case the appellee was required to establish by a preponderance of the evidence." We shall hold that Section 297(b)(4) does not impose such a condition precedent.

Appellant's contention rests upon passage of Ch. 666 of Maryland Acts, 1974, the pertinent portion of which is shown by the italicized words inserted in Section 297(b)(4):

"(4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.

In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, EXCEPT ALL PROCEEDINGS RELATING TO MONEY OR CURRENCY, WHICH SHALL BE INSTITUTED WITHIN NINETY (90) DAYS FROM THE DATE OF FINAL DISPOSITION OF CRIMINAL PROCEEDINGS WHICH ARISE OUT OF ARTICLE 27, SECTION 276 THROUGH SECTION 302 INCLUSIVE."

He argues that the Court of Special Appeals in Office of Finance v. Jones, 46 Md.App. 419, 424; 417 A.2d 470, 473 (1980), cert. den. 288 Md. 740 "has held that final disposition [of criminal proceedings] trigger[s] the 90 day period within which [a local government is] required to file its forfeiture petition", and that this Court in United States Coin and Currency v. Director of Finance, 279 Md. 185, 367 A.2d 1243 (1977) "held that the recordation of the establishment of guilt and the imposition of sentence were a condition precedent to the institution of forfeiture proceedings."

He misreads both cases. In Jones and in U.S. Coin and Currency, the forfeiture proceeding was commenced after the specific limitation upon the filing fixed by statute. Both are inapposite to the subject issue.

We note also that U.S. Coin and Currency dealt with Maryland Code Article 27, Section 264, a statute dealing with seizures of money or property incident to violations of the gambling laws (Subsection 237-263 incl.), all misdemeanors subject to the general statute of limitations that effectively bars prosecution after one year. Courts and Judicial Proceedings...