Com. v. Brown

• Decision Date: 15 January 1998
• Citation: 426 Mass. 475,688 N.E.2d 1356
• Parties: COMMONWEALTH v. Bruce BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1356

688 N.E.2d 1356

426 Mass. 475

COMMONWEALTH v. Bruce BROWN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 6, 1997.

Decided Jan. 15, 1998.

Michael Vitali, Blue Bell (David Rossman, Boston, Marie Foley and James McCarroll, Revere, with him), for defendant.

Nancy L. Hathaway, Assistant District Attorney, for the Commonwealth.

Dana A. Curhan, Boston, for the Massachusetts Association of Criminal Defense Attorneys, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

GREANEY, Justice.

The defendant, Bruce Brown, challenges an order entered in the Boston Municipal Court Department pursuant to G.L. c. 94C, § 47(b ), ordering the forfeiture of $142, money attributable to the sale of controlled substances as provided in G.L. c. 94C, § 47(a )(5). We transferred his appeal to this court on our own motion.

Brown, as claimant of the money, argues that the Commonwealth failed to meet its initial burden under G.L. c. 94C, § 47, of showing probable cause to institute the forfeiture proceeding, and that the allocation to him of the burden of proof in the statute violates the due process provisions of the Fourteenth Amendment to the United States Constitution, and of arts. 1, 10, and 12 of the Massachusetts Declaration of Rights, and Pt. 2, c. 1, of the Massachusetts Constitution.

We conclude that the Commonwealth demonstrated probable cause to commence the proceeding, but that it failed to give Brown adequate notice it was seeking forfeiture of the $142. This latter conclusion requires that we vacate the judgment and remand the matter for further consideration in the Boston Municipal Court. Because the proceedings may be retried, it becomes necessary to consider Brown's constitutional argument. We conclude that the regimen of proof set out in G.L. c. 94C, § 47, does not violate either Federal or State due process protections.

Brown was charged on October 4, 1995 in the Boston Municipal Court with the unlawful distribution of a class B controlled substance (crack cocaine), see G.L. c. 94C, § 32A, and conspiracy to violate the controlled substances act, see G.L. c. 94C, § 40. On December 6, 1995, Brown appeared in that court with counsel, waived his right to a jury trial, and admitted to sufficient facts to warrant a finding of guilty on both charges. After a colloquy, in which the judge satisfied herself that there was a basis for Brown's admission, and that he understood and waived his rights, the judge continued the case without a finding for a period of one year on certain conditions to be satisfied by Brown. ¹

Immediately following the disposition, the judge considered the Commonwealth's motion for forfeiture of $142 seized from Brown at the time of his arrest. The Commonwealth had filed the forfeiture motion on the disposition of the charges against Brown. Brown's counsel made a brief argument against forfeiture, which the judge rejected. An order of forfeiture entered on the same date. ²

1. General Laws c. 94C, § 47(d ), provides that, in a forfeiture proceeding, "the commonwealth shall have the burden of proving to the court the existence of probable cause to institute the [forfeiture] action, and [the] claimant shall then have the burden of proving that the property is not forfeitable." ³

To meet its burden of proving probable cause, the Commonwealth at the forfeiture hearing relied on the facts it produced to support the criminal charges against Brown. Those facts were taken from the police incident report and read into the record by the prosecutor as follows:

"On October third 1995 at approximately nine thirty p.m. at thirty-five Essex Street, members of the drug control unit were conducting drug investigation. Officer Simpson observed one David Brown engaged in conversation with one Nam Hyunh. David Brown then walked over to the defendant standing before you, Bruce Brown, at which time Bruce Brown handed an item over to David Brown. David Brown then walked over to Mr. Hyunh. Mr. David Brown handed to Hyunh an item believed to be crack cocaine ... that he had previously received from Bruce Brown and examined it. Hyunh then handed U.S. currency over to David Brown. Hyunh was stopped and recovered with one plastic bag of off-white rock believed to be crack cocaine. On further analysis, the[ ] one plastic bag was found to contain [.11] grams of crack cocaine."

Brown argues that these facts do not warrant a finding of probable cause for purposes of the forfeiture statute because the Commonwealth failed to show a sufficient nexus between the $142 seized and the illegal drug transaction observed by Officer Simpson. In Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 9, 653 N.E.2d 153 (1995), we considered the extent of the Commonwealth's burden of proof under § 47(d ). We determined that our statute is virtually identical to the Federal forfeiture statutes, 21 U.S.C. § 881(a)(6) and 19 U.S.C. § 1615, and, based on that determination, concluded that it was "reasonable to think that the Legislature revised § 47(d ), to achieve the result reached by the Federal statutes as construed by the Federal Courts." Id. at 8, 653 N.E.2d 153. Relying on the construction given to the Federal laws, we decided that the Commonwealth's burden in a forfeiture proceeding is similar to its burden in seeking an indictment, and less than its burden at a probable cause hearing to determine whether an individual should be held for trial. Id. at 9, 653 N.E.2d 153. ⁴ Thus, the Commonwealth must produce "sufficient evidence to establish the identity of the accused ... and probable cause to arrest him," id. at 8-9, 653 N.E.2d 153, quoting Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982), but not necessarily "sufficient evidence to send the case to a jury." Commonwealth v. Matthews, 406 Mass. 380, 388, 548 N.E.2d 843 (1990), quoting Commonwealth v. Ortiz, 393 Mass. 523, 534 n. 13, 471 N.E.2d 1321 (1984). The Commonwealth's burden under the forfeiture statute is to "prove[ ] probable cause to proceed, in the form of sound reason to believe that the money-drug nexus exists." Commonwealth v. Fourteen Thousand Two Hundred Dollars, supra at 9, 653 N.E.2d 153.

The Commonwealth's evidence was sufficient to warrant the judge's determination that probable cause existed to institute the forfeiture proceeding. Brown admitted to sufficient facts to warrant a finding of guilty on charges of unlawful distribution of a class B controlled substance and conspiracy to violate the controlled substances law. In particular, Brown admitted to the sequence of events as transcribed in the police report, and the judge reasonably could have concluded that these facts were sufficient to form the basis for a belief that the money-drug nexus existed.

We reject Brown's argument that the Commonwealth failed to establish probable cause because there was no showing that the entire sum seized was proceeds from the single illegal drug sale witnessed by Officer Simpson. Brown was observed actively engaged in a drug transaction. Furthermore, he was operating as the sole source of the drugs sold, and it is reasonable to believe that he carried money to facilitate illegal drug sales. See Commonwealth v. Santaliz, 413 Mass. 238, 240-241, 596 N.E.2d 337 (1992) (observation of three-way transaction involving defendant gave police officer probable cause to search him). The probable cause standard in § 47 does not require the Commonwealth to establish a link between the money seized and a particular drug transaction. See United States v. $250,000 in U.S. Currency, 808 F.2d 895, 899-900 (1st Cir.1987). The Commonwealth must show only that "the money was probably derived from illegal drug transactions." Id. at 900. Such a showing was made.

2. The issue of the adequacy of notice to Brown of the Commonwealth's forfeiture motion was raised during oral argument of the appeal. The point arose in connection with the Commonwealth's contention that Brown's constitutional issues should not be entertained because he failed to argue at the forfeiture hearing that the allocation of proof under G.L. c. 94C, § 47(d ), violated constitutional due process protections. This argument was countered by Brown's claim, which the Commonwealth did not dispute, that he received notice of the forfeiture motion for the first time on December 6, 1995, the day on which he admitted to sufficient facts. He asserted that the swift hearing on the motion immediately following the conclusion of his admission to sufficient facts and the disposition deprived him of a meaningful opportunity to interpose a due process argument and to contest the merits of the forfeiture.

There is logic in Brown's point, particularly because fundamental due process considerations entitled him, as claimant of the $142, to proper notice prior to the forfeiture hearing. To preclude Brown's due process challenge, where the opportunity to raise the claim was suppressed because of deficient notice, would be a perverse form of circular reasoning. It is appropriate to decide whether the Commonwealth gave Brown adequate notice of the forfeiture motion.

The statute contemplates two methods by which forfeiture proceedings may be initiated by the Commonwealth: either by petition in the nature of a proceeding in rem filed in the Superior Court, G.L. c. 94C, § 47(d ), or, as happened here, by motion filed in a related criminal proceeding, G.L. c. 94C, § 47(b ). Although § 47(d ) expressly requires the Commonwealth to provide the owner of the property (and other interested persons) with notice prior to a hearing on a forfeiture petition, § 47(b ) does not prescribe any notice period relative to motions.

A forfeiture proceeding initiated by motion filed in a related criminal proceeding is outside the scope of the criminal matter and constitutes a civil proceeding. See Commonwealth v. Goldman, 398 Mass. 201, 203...