Com. v. One 1976 Cadillac DeVille Auto.

• Decision Date: 16 April 1980
• Citation: 380 Mass. 411,403 N.E.2d 935
• Parties: COMMONWEALTH v. ONE 1976 CADILLAC DeVILLE AUTOMOBILE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 935

403 N.E.2d 935

380 Mass. 411

COMMONWEALTH v. ONE 1976 CADILLAC DeVILLE AUTOMOBILE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 10, 1980.

Decided April 16, 1980.

John C. McBride, Everett, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

We granted direct appellate review of a judgment of the Superior Court, Middlesex County, that forfeited the defendant Cadillac automobile to the Commonwealth under G.L. c. 94C, § 47, as a "conveyance" involved in drug trafficking as therein defined. On this appeal the claimant-owner argues that the car was not a conveyance within the statute and that the whole forfeiture proceeding was invalidated because it was started too late. We affirm.

The facts as found by the judge and somewhat amplified from the record were as follows. On the night of May 24, 1979, undercover Officer David Nieves of the Metropolitan District Commission police made contact with Phyllis Cohen. Cohen said she could arrange for him to buy one ounce of cocaine. On May 29, Nieves accompanied by William L. Thompson, another MDC undercover officer, went to Cohen's apartment. At Thompson's request that she arrange for the cocaine sale, Cohen telephoned "Dave" in Medford. She reported that Dave would sell them an ounce the following evening at the "wholesale" price of $1,800 to $1,900.

Thompson spoke to Dave later identified as David Albro over the telephone next evening. Dave told him the cocaine was coming from Providence, Rhode Island, in a "big boat" driven by a man named "David." Accordingly the sale was to take place at 10 P.M. that night; the place set was the parking lot of a restaurant at Wellington Circle, Medford.

At the agreed time and place Albro appeared and approached the two officers on foot. He said the driver was "paranoid" and was waiting down the street at a construction site until Albro could canvass the area and report. Apparently satisfied, Albro left in a pickup truck (not previously noticed) to tell the waiting driver that the coast was clear.

About 10:20 P.M. a Cadillac DeVille sedan with Rhode Island license plates drew into the parking lot. David Izzo was driving. Seated next to him was Virginia Voccola and next to her John Rutkowski. Albro was in the back seat. Thompson approached the car and Albro introduced the other three to him. Izzo wanted Thompson to get into the car and take a ride with them in order to try the cocaine. Thompson agreed but said they would have to return to the restaurant parking lot to get the money because he had stored it in the trunk of his car.

With Thompson in the back seat of the Cadillac, Izzo drove to the parking lot of a nearby doughnut shop and parked deliberately so that the lights fully illuminated the interior of the car. Izzo asked Voccola for the cocaine. According to Thompson, "Voccola either leaned down, reached down I didn't see where she retrieved the cocaine from and handed it to Mr. Izzo." Thompson believed the cocaine did not come from Voccola's handbag (she seemed to be reaching down too far for that), but he admitted he did not have a clear field of vision. Izzo passed to Thompson a double-wrapped clear plastic bag received from Voccola containing a white powdery substance and asked Thompson to try it. Thompson pretended to sample the powder by sniffing, said it was "fine with me," and told Izzo to return to the car at Wellington Circle to get the money. Izzo drove there. Thompson went to his car, opened the trunk, produced the money, and returned to Izzo's car. At this signal, backup officers moved in and arrested the four in the Cadillac, and seized the car.

Searches of the car produced the bag destined for Thompson with twenty-nine grams of cocaine (about an ounce), and an eyeglass case tucked into the front seat beside the driver. In this case was a second bag holding about fourteen grams of cocaine, a quantity of marihuana, and a razor blade wrapped in paper (presumably, according to Thompson, to be used to "cut" cocaine into smaller units for sale). Three marihuana cigarettes were found in a cigarette pack on the dashboard, and recovered from the interior of the car was a .357 magnum handgun with two rounds.

Izzo was charged with possession of a Class B controlled substance (cocaine) with intent to distribute, and other drug offenses. Various charges were also lodged against Albro, Voccola, and Rutkowski. Cohen was later arrested and also charged. Izzo's probable cause hearing was scheduled for June 25, 1979.

As indicated, the car was seized by the officers at the time of the arrests on May 30. On June 20 the Commonwealth, pursuant to G.L. c. 94C, § 47(d ), filed its complaint, accompanied by an affidavit sworn by Thompson, in a "proceeding in rem" "deemed a civil suit in equity" ¹ praying forfeiture of the Cadillac, and requesting an order on the Commonwealth to serve notice by registered or certified mail on David Izzo, the apparent owner, at his Johnston, Rhode Island, address. Also sought was an ex parte order, under § 47(f ) (and G.L. c. 276) ² for retention of the car in the Commonwealth's possession pending the proceeding.

On June 21, 1979, Izzo commenced in the same court a cross-action against the Commonwealth in effect demanding dismissal of the forfeiture action on the ground that the car was not within § 47, or that that action had not been initiated within fourteen days of the seizure as allegedly required by G.L. c. 257, § 2, or was otherwise not timely brought, and so deprived him as claimant of due process. Temporary and final injunctive relief was requested against the Commonwealth's continued custody of the car, in support whereof Izzo's attorney filed his affidavit stating that he had searched the civil index on June 15 and June 18 and could find no record of the filing of a Commonwealth complaint for forfeiture.

On June 25 both actions came before a judge who ordered that custody remain with the Commonwealth pending an evidentiary hearing and denied Izzo his requested relief. Answer to the Commonwealth's complaint was filed on July 2. On July 5 a judge conducted a trial in the forfeiture proceeding, with Izzo appearing as claimant and resisting forfeiture on the same grounds alleged in his complaint. Facts were established as above set forth. ³ The judge on July 13, 1979, filed findings of fact and rulings of law, as required by § 47(d ), supporting the judgment of forfeiture appealed from. ⁴ (Izzo's action remained dormant after the order of June 25.)

1. Section 47(a )(3) makes subject to forfeiture: "All conveyances, including . . . vehicles . . . which are used, or are intended for use, to transport, conceal, or otherwise to facilitate the manufacture, dispensing or distribution of, or possession with intent to manufacture, dispense, or distribute, a controlled substance in violation of the provisions of section thirty-two (of c. 94C)." ⁵ According to § 47(d ), the Commonwealth must prove "all material facts by a preponderance of the evidence," but the "exceptions" of § 47(c )(3) are to be shown by the claimant, also by a preponderance. The first sentence of subsection (c )(3) states: "No conveyance shall be subject to forfeiture unless the owner thereof knew or should have known that such conveyance was used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances." And the second sentence: "Proof that the conveyance was used to facilitate the unlawful dispensing, manufacturing or distribution of, or possession with intent unlawfully to manufacture, dispense or distribute, controlled substances on three or more different dates shall be prima facie evidence that the conveyance was used in and for the business of unlawfully manufacturing, dispensing or distributing controlled substances."

Thus the Commonwealth is to prove that at least on one occasion the conveyance was used or intended for use in the manner described in (a )(3). The reference is then to (c )(3), but what are the "exceptions" of that provision, as to which the claimant has the burden, is not made altogether clear. However, in light of the Commonwealth's proof in the present case negating each element of possible "exception" in (c )(3), the question of burden becomes unimportant.

Clearly, as we held in Commonwealth v. One 1969 Mercedes-Benz Auto., --- Mass. ---, --- ^a, 378 N.E.2d 65, 68 (1978), the "mere personal possession of a controlled substance by one traveling in a vehicle would not constitute sufficient grounds under the statute for the forfeiture of the vehicle." There the car owner and another left the owner's house and entered the car in the driveway. After a short conversation, the owner and the passenger drove down the street. Police stopped the car shortly thereafter and found in the passenger's pocket a small quantity of heroin. Nothing was found on the owner or in the car. (A similar tin of heroin was found later in the owner's house.) The Commonwealth had not made a preponderant showing that the car was used (or intended to be used) to facilitate distribution of drugs within the meaning of § 47(a )(3). The judge's findings for the Commonwealth were held "clearly erroneous" (Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974)) and were set aside.

The present case is materially different. A trier could find on the evidence that the car was used to transport a controlled substance from Rhode Island to the site of the transaction with a view to its distribution ((a )(3)). In this connection we have a supportive finding by the judge that Voccola "took the bag (of cocaine) from someplace inside the car" as well as his ultimate finding that "the vehicle was used to transport and facilitate the distribution of controlled substances." We think there is no statutory requirement that the drug be physically stashed in the car...