Commonwealth v. Irland

• Citation: 153 A.3d 469
• Decision Date: 13 January 2017
• Docket Number: No. 448 C.D. 2015,448 C.D. 2015
• Parties: COMMONWEALTH of Pennsylvania v. Justen IRLAND; Smith and Wesson 9MM Semi–Automatic Pistol, Serial #PDW0493 Appeal of: Justen Irland
• Court: Commonwealth Court of Pennsylvania

153 A.3d 469

COMMONWEALTH of Pennsylvania

v. Justen IRLAND; Smith and Wesson 9MM Semi–Automatic Pistol, Serial #PDW0493Appeal of: Justen Irland

No. 448 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued February 10, 2016

Decided January 13, 2017

Sean A. Mott, Gettysburg, for appellant.

Adam J. Barr, Assistant District Attorney, Gettysburg, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE McCULLOUGH

The dispositive question presented on appeal is whether the doctrine of common law forfeiture exists in Pennsylvania and can serve as a legal basis to allow the Commonwealth to forfeit any property with a "nexus" to a crime absent any statutory authority to do so. We conclude that common law forfeiture, as that concept originated and developed in England, was never incorporated into or became part of our Commonwealth's common law tradition. Based upon our research, the Commonwealth's organic law, namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790,¹ denounces and effectively abolishes any notion of common law forfeiture and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America. Therefore, absent a statute that specifically authorizes the forfeiture of property, the Commonwealth and the courts have no authority to seek and order forfeiture of so-called derivative contraband.

Justen Irland appeals from the March 9, 2015 order of the Court of Common Pleas of Adams County (trial court) granting the Commonwealth's motion for forfeiture and destruction of property and denying Irland's motion for return of property. Because the Commonwealth sought forfeiture based on a common law theory, and there was no statute that explicitly authorized the forfeiture, we reverse.

I. Background

The facts here are not in dispute. On August 25, 2014, Irland entered a guilty plea to the summary offense of disorderly conduct, see section 5503(a)(4) of the Crimes Code, 18 Pa.C.S. § 5503(a)(4), for an incident on November 7, 2013, when Irland was driving on a road in Adams County and a driver behind him was tailgating his car. In response, Irland displayed his handgun to the driver through the rear windshield of his vehicle, in an apparent attempt to induce the driver behind him to increase the distance between the two vehicles. Someone contacted the authorities, and the local police detained Irland and confiscated the handgun. The Commonwealth charged Irland with simple assault, harassment, disorderly conduct as a third degree misdemeanor, and disorderly conduct as a summary offense. Following his guilty plea to disorderly conduct as a summary offense, the trial court ordered Irland to pay a $200.00 fine.

On December 10, 2014, Irland filed a motion for return of the handgun. On February 4, 2015, the Commonwealth filed a motion for forfeiture and destruction of the handgun based on a theory of common law forfeiture. On March 9, 2015, the trial court denied Irland's motion for return of property and ordered that the handgun be destroyed. Irland then filed a timely notice of appeal.

On April 2, 2015, the trial court directed Irland to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Irland did on April 15, 2015. In his statement, Irland contended that there was no such thing as common law forfeiture in Pennsylvania and that his property could only be forfeited pursuant to a statute. Irland also asserted, in the alternative, that the legislature enacted a comprehensive scheme of statutory forfeiture which displaced and superseded common law forfeiture.

On May 7, 2015, the trial court filed an opinion in support of its March 9, 2015 order pursuant to Pa.R.A.P. 1925(a). Citing this Court's decision in Commonwealth v. One 2001 Toyota Camry , 894 A.2d 207 (Pa. Cmwlth. 2006) (en banc), as well as the Superior Court's decisions in Commonwealth v. Salamone , 897 A.2d 1209 (Pa. Super. 2006), and Commonwealth v. Crosby , 390 Pa.Super. 140, 568 A.2d 233 (1990), the trial court determined that "there is no doubt that Pennsylvania appellate courts currently recognize the existence of common law forfeiture." (Trial court op. at 3.) The trial court noted that it was not within that court's province "to forge new legal ground, but simply to apply the law as it has been interpreted by the higher courts." Id. The trial court also concluded that for purposes of common law forfeiture, there was no qualitative difference between a felony conviction and a summary offense conviction, and found that the Commonwealth established a substantial nexus between the crime committed and the object to be forfeited. Id. at 3–4.

In addition, the trial court determined that the Controlled Substances Forfeiture Act (Drug Forfeiture Act), 42 Pa.C.S. §§ 6801 –6802, was not a comprehensive legislative scheme and does not prohibit common law forfeiture. The trial court noted that there were other Pennsylvania statutes that permitted forfeiture and determined that the Forfeiture Act is not the exclusive authority for forfeiture actions. For these reasons, the trial court concluded that common law forfeiture has not been superseded by a pervasive statutory regime.

Irland then filed a timely appeal to this Court.²

II. Discussion

In the statement of questions portion of his appellate brief, Irland asks: "Did the [trial] court commit an error of law in recognizing the existence of a so-called ‘common law forfeiture’ power that permits the Commonwealth to seize any property with a ‘nexus' to a crime, where no such statutory authority otherwise exists?" (Brief for Irland at 4.) In the argument portion of his brief, Irland's contentions, distilled to their essence, advance a relatively straightforward proposal: the proposition that common law forfeiture exists in Pennsylvania is based on a misinterpretation of statutory forfeiture authority. Irland contends that even if government authority once existed to seize property linked to a crime, it has been superseded by comprehensive statutory authority defining the limits of forfeiture. He argues that these statutes would be superfluous if the General Assembly intended to retain common law notions of forfeiture.

Although this Court does not in any way condone Irland's behavior, upon our review, we find Irland's contentions meritorious as a matter of law.

At the outset, this Court notes that decisional law recognizes two types of contraband: contraband per se and derivative contraband.

Contraband per se is property the mere possession of which is unlawful.... Heroin and ‘moonshine’ whiskey are examples of contraband per se. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. An example of derivative contraband is a truck used to transport illicit goods.

Commonwealth v. Howard , 552 Pa. 27, 713 A.2d 89, 92 (1998). Further, "[p]roperty is not derivative contraband merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity." Howard , 713 A.2d at 92.

In this case, there is nothing illegal about Irland's possession of a handgun. In re Firearms, Eleven , 922 A.2d 906, 910 (Pa. Super. 2007). The handgun, or property, was used in perpetration of the summary offense of disorderly conduct. Therefore, this case concerns the issue of whether the property is derivative contraband. See id. at 910–11. Our following discussion regarding common law forfeiture is strictly limited to those instances where, in the absence of a statute, the derivative contraband is the item that is sought to be forfeited.

A. Common Law Forfeiture

In 1776, forfeiture existed in England both at common law and by statute. Austin v. United States , 509 U.S. 602, 611, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Specifically, there were three kinds of forfeiture: (1) deodand, (2) forfeiture upon conviction for a felony or treason, and (3) statutory forfeiture. Id.

Deodand

"At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required." Austin , 509 U.S. at 611, 113 S.Ct. 2801 (citations and internal quotation marks omitted). "This forfeiture proceeding was In rem in nature with the property itself considered [to be] the offender: It is the property to a legal fiction, held guilty and condemned to a legal fiction, held guilty and condemned as though it was conscious instead of inanimate and insentient." Commonwealth v. 2010 Buick Enclave , 99 A.3d 163, 166–67 (Pa. Cmwlth. 2014) (quoting Various Items of Personal Property v. United States , 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558 (1931) ).

However, as this Court has recognized, "[d]eodand was never embraced in American common law." 2010 Buick Enclave , 99 A.3d at 167 (citing Calero–Toledo v. Pearson Yacht Leasing Co. , 416 U.S. 663, 682, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) ). In Calero–Toledo , the United States Supreme Court determined whether a forfeiture statute passed constitutional muster. In doing so, the United States Supreme Court traced the history of common law forfeiture and cited Parker–Harris Co. v. Tate , 135 Tenn. 509, 188 S.W. 54 (1916), wherein the Supreme Court of Tennessee observed:

The doctrine [of deodand], after being subtly refined and pared down, was discarded in England by Stat. 9 and 10, Victoria, c. 62. To the credit of American jurisprudence,

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