Com. v. Nineteen Hundred and Twenty Dollars U.S. Currency
| Decision Date | 30 June 1992 |
| Citation | 149 Pa.Cmwlth. 132,612 A.2d 614 |
| Parties | COMMONWEALTH of Pennsylvania v. NINETEEN HUNDRED AND TWENTY DOLLARS UNITED STATES CURRENCY, Survival Knife, 1985 Honda Prelude, VIN JHMAB5223FC050729 Pager, Amplifier-Speaker, Footswitches, Guitar, Drug Paraphernalia and Marijuana. Appeal of Baron JASPER, Sherri Jasper, and Kevin Boll. |
| Court | Pennsylvania Commonwealth Court |
Sherri Jasper, Baron Jasper and Kevin Boll, appellants, pro se.
Jacquelyn C. Paradis, Deputy Dist. Atty., and Paul C. Lawrence, Asst. Dist. Atty., for appellee.
Before CRAIG, President Judge, PELLEGRINI, J., and BLATT, Senior Judge.
Baron Jasper, Sherri Jasper and Kevin Boll appeal from the forfeiture order of the Court of Common Pleas of Lehigh County entered pursuant to the Controlled Substances Forfeiture Act (Forfeiture Act), June 30, 1988, P.L. 464, 42 Pa.C.S. §§ 6801-6802.
At approximately 1:30 a.m. on April 19, 1989, Officer Artim of the Whitehall Township Police Department attempted to stop a 1985 Honda Prelude for a possible DUI violation. 1 Although Officer Artim activated the cruiser's overhead lights and siren, the vehicle failed to stop and a chase ensued. Shortly thereafter, a second police cruiser driven by Officer Busch joined the pursuit. During the eight mile chase through Allentown at speeds up to 100 m.p.h., the driver failed to observe traffic The officers conducted an inventory search of the vehicle and found 13 marijuana seeds on the front passenger seat; 10 empty cough drop boxes behind the driver's seat; a packet of "Zig Zag" rolling papers in the glove compartment; a pager on the driver's visor; a wallet containing $1920 in $20, $50 and $100 denominations, but no identification, stuffed between the driver's seat and the center console; and a knife, a guitar, and an amplifier-speaker in the trunk. During a narcotics "sniff" search conducted by Pennsylvania State Police Corporal McCreary, a canine detected the scent of drugs in the glove compartment, in the trunk, and on the money. 4 Nothing was found during a search of the area where the passenger was believed to have thrown things from the car.
signals and disregarded a roadblock. The passenger continuously turned to look at the pursuing vehicles and Officer Busch twice observed her throwing objects out the window. The chase ended when the driver attempted to pass two trucks stopped at a red light and lost control of the vehicle. The police placed the driver, Kevin Boll, under arrest. 2 They identified the passenger, Sherri Jasper, as the owner of the vehicle. 3
On June 1, 1989, the appellants filed a Petition to Return Property. On August 7, 1989, the Commonwealth filed a Petition for Forfeiture and Condemnation. At the August 2, 1990, hearing on the consolidated petitions before the trial court, the Commonwealth presented the testimony of Officers Artim, Busch, and Oswald of the Whitehall Township Police Department, Corporal McCreary of the Pennsylvania State Police, and Sergeant Combs of the Allentown Police Vice Squad. The appellants also testified.
On October 17, 1990, the trial court issued an order for forfeiture. The appellants appealed to the Superior Court and the Commonwealth filed motions to quash and to transfer jurisdiction to this Court. By order dated July 31, 1991, the case was transferred 5 and the motion to quash the appeal was denied as moot.
The issues raised on appeal are (1) whether the appellants' due process rights were denied, 6 (2) whether the Commonwealth met its burden of proving by a preponderance of the evidence that the seized property was used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act), 7 and (3) whether Baron Jasper established that he was a statutory lienholder. 8
Appellants argue that they were deprived of due process of law because the search was conducted without a warrant or articulated probable cause and because the forfeiture petition was not filed "forthwith." We disagree. While the trial court opined that the illegality of a search and seizure is irrelevant to forfeiture, we look to the Forfeiture Act which provides that property subject to forfeiture may be seized without process if the search is incident to arrest or if there is probable cause to believe that the property has been used, or is intended to be used, in violation of the Controlled Substance Act. 42 Pa.C.S. § 6801(b)(1), (4). The police conducted an inventory search of the vehicle incident to the appellants' arrest and the appellants' flight and attendant conduct support a finding of probable cause.
The appellants also argue that the filing of the Petition for Forfeiture four months after seizure of the property violated the Forfeiture Act which requires proceedings to begin "forthwith" when seizure occurs without process. Id. § 6801(c). However, "compliance within a reasonable time is sufficient [and] [a]bsent a showing of prejudice, the mere passage of time ... is not sufficient justification to set aside an action...." Commonwealth v. One 1976 Oldsmobile Cutlass Supreme, 85 Pa.Commonwealth Ct. 433, 435, 482 A.2d 686, 687 (1984) (citations omitted); see also Matter of Kulbitsky, 112 Pa.Commonwealth Ct. 477, 536 A.2d 458, appeal denied, 520 Pa. 609, 553 A.2d 971 (1988). We find that the four month interval was reasonable and that the appellants failed to make the requisite showing of prejudice.
Property subject to forfeiture includes controlled substances, drug paraphernalia, equipment, conveyances and money. 42 Pa.C.S. § 6801(a). The use of property, otherwise lawful to possess and use, in violation of the Controlled Substance Act subjects it to seizure and forfeiture. Commonwealth v. One 1988 Ford Coupe, 393 Pa.Superior Ct. 320, 574 A.2d 631 (1990), appeal denied, 527 Pa. 631, 592 A.2d 1299 (1991). In a forfeiture proceeding, the Commonwealth bears the initial burden of proof which it must satisfy by a preponderance of the evidence. 42 Pa.C.S. § 6802(j); Commonwealth v. One 1988 Suzuki Samurai, 139 Pa.Commonwealth Ct. 68, 589 A.2d 770 (1991). To sustain its burden of proof, the Commonwealth must establish a nexus between unlawful activity and the property subject to forfeiture. 42 Pa.C.S. § 6802(j); In re King Properties, 145 Pa.Commonwealth Ct. 139, 602 A.2d 486 (1992). Where the Commonwealth sustains its burden, the burden of production shifts to the property owner to disprove the Commonwealth's evidence or establish a statutory defense to avoid forfeiture. Commonwealth v. One 1974 Chevrolet Box-Type Truck, 126 Pa.Commonwealth Ct. 173, 559 A.2d 76 (1989). The appellants argue that the Commonwealth failed to meet its burden of proof with regard to each captioned item. 9
Section 780-102 of the Controlled Substance Act defines "controlled substance" to include marijuana, 35 Pa. §§ 780-102, 780-104(1)(iv), and defines "marijuana" to include "the seeds thereof ... but shall not include ... the sterilized seed of such plant which is incapable of germination." Id. § 780-102. 10 Based on the trial court's finding that the Commonwealth offered no evidence that the seeds were capable of germination, op. at 6, we conclude that the Commonwealth failed to
meet its burden of proving that the marijuana seeds were a controlled substance.
The Forfeiture Act permits forfeiture of drug paraphernalia "distributed, dispensed or acquired" in violation of the Controlled Substance Act. 42 Pa.C.S. § 6801(a)(1). Drug paraphernalia is defined to include any materials used or intended for use, among other purposes, to contain or inhale controlled substances. 35 P.S. § 780-102(a). In determining whether an otherwise lawful object is drug paraphernalia, a court should, among other factors, consider the existence and scope of legitimate uses for the object, expert testimony concerning its uses, the owner's statements concerning its use, an owner's prior drug-related convictions, and the proximity of the object to controlled substances or their residue. Id.
The trial court properly concluded that the rolling papers and cough drop boxes were drug paraphernalia. In making its determination, it noted the presence of marijuana seeds in the vehicle and relied on the expert testimony of Sergeant Combs who opined that rolling papers are used to smoke marijuana and that cough drop boxes are used to conceal drugs. Notes of Testimony at 77-78. The trial court specifically rejected Sherri Jasper's explanation that the rolling papers were used for cigarettes because no loose tobacco was found in the vehicle. Op. at 5. Additionally, although the court did not cite it here, the record included reference to Sherri Jasper's prior drug-related conviction. The appellants offered no explanation for the ten empty cough drop boxes. 11
The Forfeiture Act permits forfeiture of equipment used, or intended for use, in delivering controlled substances. 42 Pa.C.S. § 6801(a)(2). The trial court found that Sergeant Combs' testimony that pagers are used to conduct drug transactions satisfied the Commonwealth's burden of proof and rejected the appellants' testimony that the pager was used by Boll in the conduct of his business because of evidence indicating its sporadic nature. Op. at 7. The court did not comment on the appellants' testimony that the pager was also used by Boll to communicate with his children. Although the trial court did not have the benefit of the statutory factors which informed its determination of drug paraphernalia, such considerations are equally relevant here and, coupled with the expert's testimony regarding unlawful use of a pager, are sufficient evidence on which to conclude that the pager was forfeitable.
The Forfeiture Act permits forfeiture of money exchanged for drugs or used, or intended for...
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