Com. v. Rufo

• Decision Date: 14 April 1999
• Parties: COMMONWEALTH & another 1 v. Anthony J. RUFO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 947

708 N.E.2d 947

429 Mass. 380

COMMONWEALTH & another ¹ v. Anthony J. RUFO.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 8, 1999.

Decided April 14, 1999.

Gregory I. Massing, Assistant Attorney General, for the Commonwealth & another.

Jeffrey A. Gorlick, Boston, for the defendant.

The following submitted briefs for amici curiae:

Donald K. Stern, United States Attorney, & Richard L. Hoffman, Assistant United States Attorney, for the United States.

Eva S. Nilsen, Scott A. Weseley, & Andrew H. Good, Boston, for Boston University Defender Program & another.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

WILKINS, C.J.

On June 29, 1992, the Metropolitan District Commission police (now part of the Department of State Police) ² arrested the defendant for operating a motor vehicle while under the influence of intoxicating liquor and operating negligently so as to endanger. During an inventory search of the defendant's vehicle, an officer seized a closed briefcase from the front passenger seat. On opening the briefcase, the officer found $38,692 in United States currency and two lawfully registered handguns. A further search of the briefcase at the police station revealed a folded packet containing 1.51 grams of cocaine. The defendant was then charged additionally with operating while under the influence of drugs and possession of a class B controlled substance.

On March 9, 1993, a judge in the Boston Municipal Court ruled that the further search of the briefcase that disclosed the cocaine was an investigatory search, not an inventory search, and was unlawful. He allowed the defendant's motion to suppress its contents. The Commonwealth then moved to dismiss all charges against the defendant except the charge of operating while under the influence of intoxicating liquor. On October 25, 1993, a jury found him not guilty of that offense. On November 19, 1993, the defendant moved for the return of his property, including the money. On November 26, 1993, a judge in the Boston Municipal Court allowed that motion.

All this would be an unexceptionable process but for the fact that, unbeknownst to the judge who ordered the property to be returned, approximately five weeks after the defendant's arrest, the State police had submitted a forfeiture report and delivered the currency to the Drug Enforcement Administration (DEA) of the Federal government. DEA promptly initiated administrative forfeiture proceedings. ³ See 19 U.S.C. §§ 1602 et seq. (1994 & Supp. III 1997); 21 U.S.C. § 881 (1994 & Supp. III 1997). On September 25, 1992, the DEA issued a declaration of forfeiture. See 19 U.S.C. § 1609 (1994). The defendant, claiming insufficient notice of the DEA forfeiture proceeding, challenged the forfeiture by submitting a petition for remission or mitigation to the DEA. See 19 U.S.C. § 1618 (1994); 28 C.F.R. §§ 0.100(b), 0.101(c), 9.5 (1998).

On May 17, 1994, the defendant moved in the Boston Municipal Court for enforcement of the order for the return of his property. On June 30, 1994, after the Boston Municipal Court judge had learned of the DEA proceedings, he decided to take no action on the defendant's motion "at least until the Federal Forfeiture decision becomes final." On October 3, 1994, the DEA denied the defendant's request for reconsideration of its declaration of forfeiture. The Boston Municipal Court judge thereafter considered whether, in light of the Federal forfeiture, he should vacate his order that the property be returned to the defendant. He decided not to do so and directed the State police to pay the defendant $38,692. The Commonwealth appealed, and a single justice of the Appeals Court stayed the order of payment on condition that the amount in question be deposited in an account pending the appeal. We granted the application of the Commonwealth and State police for direct appellate review. The appeal was timely because the Boston Municipal Court judge reopened the entire issue. Cf. Commonwealth v. Hallet, 427 Mass. 552, 554, 694 N.E.2d 845 (1998).

If the issue in this case is whether the Federal forfeiture or the Boston Municipal Court order to return the money takes precedence, the applicable rule of law is clear. When a State and a Federal court each proceeds against the same res, "the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other." Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935). See Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 413, 597 N.E.2d 430 (1992).

If the funds in dispute had been seized pursuant to a search warrant, a strong argument could be made that the State courts first exercised jurisdiction over the property. Property seized pursuant to a search warrant in Massachusetts is held "under the direction of the court" and all property (other than stolen property) "seized in execution of a search warrant shall be disposed of as the court or justice orders." G.L. c. 276, § 3. Better reasoned opinions recognize that a State statute of that character provides a proper basis for jurisdiction over property seized pursuant to a search warrant. See Scarabin v. Drug Enforcement Admin., 966 F.2d 989, 993 (5th Cir.1992) ("From the moment of seizure the state district court had exclusive control over the res by virtue of issuing the search warrant that procured the seized funds ..."); United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120, 122 (7th Cir.1991) ("A local police department may not take seized property and just pass it on as it pleases to the FBI in flagrant disregard of state laws mandating judicial authority for such turnovers"); United States v. $490,920 in U.S. Currency, 911 F.Supp. 720, 725-728 (S.D.N.Y.1996); Johnson v. Johnson, 849 P.2d 1361, 1364 (Alaska 1993). ⁴ On the other hand, in the absence of a State statute providing for judicial control over seized property, courts have held that the seizure of property by State authorities does not alone confer in rem jurisdiction on a State court. See Madewell v. Downs, 68 F.3d 1030, 1042 (8th Cir.1995); United States v. 566 Hendrickson Blvd., 986 F.2d 990, 994-995 (6th Cir.1993); United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1146 (9th Cir.1989); United States v. $639,470.00 U.S. Currency, 919 F.Supp. 1405, 1410-1412 (C.D.Cal.1996).

In the case before us, the property in dispute was not seized pursuant to a warrant. No Massachusetts statute prescribes judicial control over property that was not seized pursuant to a warrant. ⁵ The Commonwealth argues that the Boston Municipal Court did not have in rem jurisdiction over the money until the defendant moved for its return, an event which occurred many months after the Federal forfeiture proceedings commenced. ⁶ In the absence of a State statute like G.L. c. 276, § 3, applicable to warrantless seizures of property, the Federal government established in rem jurisdiction first, and thus the Boston Municipal Court lacked jurisdiction over the money seized from the defendant. ⁷ See Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935); Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 413, 597 N.E.2d 430 (1992). Obviously, there must be a process for returning to its owner property unlawfully seized without a warrant (see Commonwealth v. Sacco, 401 Mass. 204, 207 n. 3, 515 N.E.2d 1185 [1987] ), but there is no basis for extending the reach of G.L. c. 276, § 3, beyond its terms to justify an assertion of in rem jurisdiction over property not seized pursuant to a warrant.

The defendant contends that, even if the Federal forfeiture procedure controls the disposition of the money, the Boston Municipal Court in this case, as a matter of equity and relying on Commonwealth v. Sacco, 401 Mass. 204, 515 N.E.2d 1185 (1987), could order the State police to pay him an equivalent amount. He points out that the money was seized in violation of his constitutional rights and promptly turned over to the DEA with the prospect that, if declared forfeit, eighty-five per cent of it would be returned to the State police to pay salaries and to purchase vehicles and equipment. On the other hand, assuming that weighing equities is appropriate, we would give no weight to claimed improprieties in the Federal forfeiture proceeding, a dispute between the defendant and the Federal authorities that the defendant lost. ⁸ In this case the police did not violate any law in submitting the money to be forfeited by the Federal government. ⁹ The deterrent purpose of the suppression of evidence was served, to the defendant's benefit, when various charges against him were dismissed.

In Commonwealth v. Sacco, supra, the Somerville police made an unlawful, warrantless seizure of the defendant's funds. They then lost the money. The defendant moved for the return of his property. A judge ordered that the equivalent amount be paid to the defendant. We held, on the Commonwealth's appeal, that where evidence was unlawfully seized and no third person had a claim against it (e.g., there had been no forfeiture proceeding), an order against Somerville to pay the amount of money that was lost provided a fair, prompt, and efficient means of resolving the defendant's claim as part of the criminal proceeding. Id. at 208, 515 N.E.2d 1185.

The Sacco opinion provides no answer to the question whether, in this case, an order against the State police to pay money to the defendant would be appropriate. In the case before us, the Boston Municipal Court never had in rem jurisdiction over the funds, whereas the court in the Sacco case had in rem jurisdiction over the property when Sacco moved for its return. In the Sacco case the police wrongfully lost the defendant's money, which would have been returned to him in the normal course but for the police...