Mayor and City Council of Baltimore v. One 1995 Corvette VIN No. 1G1YY22P585103433

• Decision Date: 01 September 1997
• Docket Number: No. 209,No. 1G1YY22P585103433,1G1YY22P585103433,209
• Citation: 706 A.2d 43,119 Md.App. 691
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. ONE 1995 CORVETTE VIN,
• Court: Court of Special Appeals of Maryland

Page 691

119 Md.App. 691

706 A.2d 43

MAYOR AND CITY COUNCIL OF BALTIMORE v. ONE 1995 CORVETTE VIN No. 1G1YY22P585103433.

No. 209, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Feb. 26, 1998.

Kimberly Smith Ward, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Patricia Jessamy, State's Atty. and Rudolph F. Drayton, Asst. State's Atty. for Baltimore City, on the brief), Baltimore, for appellant.

No brief filed by appellee's counsel.

Before MOYLAN and HARRELL, JJ., and ROSALYN B. BELL, Judge (retired, Specially Assigned).

MOYLAN, Judge.

Outline

I. Procedural History ................................................... 45

II. The Issue ............................................................ 46

III. The High Water Mark of Mapp v. Ohio .................................. 47

IV. Holding the Line Against Mapp's Extension ............................ 49

F. The Exclusionary Rule Does Not Apply to Grand Jury Proceedings ... 50

G. The Exclusionary Rule is Not a Factor in Federal Habeas Corpus

Review ......................................................... 50

H. The Exclusionary Rule Does Not Apply to Tax Forfeitures of

Gambling Proceeds .............................................. 51

I. The Exclusionary Rule Does Not Apply to Civil Deportation

Proceedings .................................................... 52

J. The Exclusionary Rule Does Not Apply to Live Witnesses Discovered

in the Course of a Fourth Amendment Violation .................. 53

. K. The Exclusionary Rule Does Not Apply to the Impeachment in

Rebuttal of Testimonial Credibility ............................ 53

L. The "Good Faith Exception" to the Application of the Exclusionary

Rule ........................................................... 53

V. Maryland Cases Recognizing the Limited Reach of Mapp's Exclusionary Rule ............................................................... 55

A. The Exclusionary Rule Does Not Apply to Sentencing Proceedings ... 55

B. The Exclusionary Rule Does Not Apply to Criminal Contempt ........ 55

C. The Exclusionary Rule Does Not Apply to Probation Revocation Proceedings .................................................... 56

D. The Exclusionary Rule Does Not Apply to the Termination of Employment for the Commission of a Crime ....................... 57

VI. The Issue As Viewed Through the Lens of History ...................... 58

VII. One 1958 Plymouth Sedan .............................................. 59

VIII. Boyd v. United States Has Been Completely Repudiated ................. 61

A. The Intimate Relation of the Fourth and Fifth Amendments ........ 62

B. Boyd's Application of the Fifth Amendment Privilege ............. 64

1. Fifth Amendment Privilege Limited to Criminal Cases ........ 65

2. Personal Papers and Documentary Records No Longer Enjoy a Fifth Amendment Privilege ................................ 67

C. The Repudiation of Boyd's "Mere Evidence Rule" .................. 70

D. The Literal Boyd Decision Itself Has Been Implicitly Overruled .. 74

E. Boyd v. United States: The Final Requiem ........................ 75

1. What Boyd Would Do That Would Not Today Be Done ............ 76

2. What Boyd Would Not Do That Could Today Be Done ............ 77

IX. The "Quasi Criminal" Characterization in One 1958 Plymouth Sedan Was Ad"Hoc ............................................................. 77

X. The Currently Controlling Criteria For What Is "Criminal" and what Is

"Civil" ............................................................ 82

XI. Statutory Forfeitures Generally As Civil In Rem Actions .............. 84

A. The Innocent Owner Cases ...................................... 84

B. The Double Jeopardy Cases ..................................... 86

XII. The "Quasi"Criminal" or "Partly Punitive" Hybrid Is Now Extinct ..... 87

XIII. Forfeiture Law in Maryland .......................................... 92

A. Other Maryland Forfeiture Proceedings ......................... 92

B. Earlier Versus Later Forfeiture Laws .......................... 93

C. Section 297 and Its Federal Counterpart ....................... 94

D. The Legislative Scheme of § 297 ............................... 96

E. The Civil In Rem Character of § 297 ........................... 97

1. The Use of the Civil Burden of Persuasion ............... 98

2. The Forfeiture Forum Is a Civil Court ................... 98

3. No Criminal Act Need Actually Occur ..................... 98

4. An Allegedly Innocent Owner Must Prove His Innocence .... 99

5. The Significance of § 297's Characterization as "Civil"

Goes Beyond the Double Jeopardy Clause ............... 100

XIV. Conclusion ......................................................... 101

Does the prophylactic ¹ Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), apply in a civil, in-rem forfeiture proceeding in Maryland of an automobile used in the drug trade? No, it does not. Does the case of One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), stand for the broad principle that Mapp 's Exclusionary Rule must be applied to all drug-related forfeitures of automobiles regardless of whether those forfeiture proceedings are criminal or civil in character? A close reading of the opinion reveals that it most certainly does not. In the years since 1965, however, the academic discipline of reading the case closely has been honored more in the breach than in the observance. Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not.

I. Procedural History

On May 9, 1996, Baltimore City police officers, conducting a surveillance in the 300 block of East Coldspring Lane, stopped a 1995 Chevrolet Corvette based on their belief that the driver had just engaged in a drug transaction. In the course of the stop, the automobile was searched and the following contraband was found: 487 grams of 82% pure cocaine in one large ziplock bag; approximately 12.8 grams of 80% pure cocaine packaged in seven blue ziplock bags; and 35 grams of 81% pure cocaine packaged in five plastic bags. The officers concluded that the automobile was being used to transport drugs. The automobile itself was seized, and the driver, Weldon Connell Holmes, was placed under arrest. ² At the time of the seizure, Weldon Holmes was the registered owner of the automobile, and the General Motors Acceptance Corporation (GMAC) was the lien holder.

On June 6, 1996, the State's Attorney for Baltimore City filed a complaint in the Circuit Court for Baltimore City seeking forfeiture of the Chevrolet Corvette pursuant to Maryland Annotated Code, Article 27, § 297. In pertinent part, subsection (b), listing the "Property Subject to Forfeiture," includes the following:

(4) All conveyances including ... vehicles ... which are used ... to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled dangerous substances].

...

(10) [A]ll proceeds traceable to ... an exchange [of] a controlled dangerous substance.

Pursuant to subsection (b)(4), the Complaint for Forfeiture included the following allegation:

That on or about the 9th day of May, 1996, Weldon Connell Holmes, and/or his agents used and intended to use the above described motor vehicle while engaged in an unlawful violation of the Controlled Dangerous Substance Law of the State of Maryland by having possession of 487 grams of 82% pure cocaine packaged in one (1) large ziplock, approximately 12.8 grams of 80% pure cocaine packaged in seven (7) blue ziplock bags, and thirty-five (35) grams of 81% pure cocaine packaged in five (5) plastic bags as well as other possible related violations, as proscribed by Article 27 Section 276-302, Annotated Code of Maryland.

As an alternative basis for the forfeiture and pursuant to subsection (b)(10), the Complaint for Forfeiture included the following allegation:

8. That the subject vehicle is a proceed traceable to the profits made from the illegal sales of Controlled Dangerous Substances.

On September 10 and 12, 1996, a hearing was held on the forfeiture action, at which time the defense moved to dismiss the complaint based on the illegal search and seizure of the drugs from the automobile. The trial court denied the motion. The defense renewed its motion to dismiss prior to the testimony of Officer Tony Ellison, one of the officers involved in the search. The motion was again denied. A continuing objection was then made by the defense to the introduction of the drugs seized from the automobile. At the conclusion of all of the testimony, the trial court, despite its two earlier rulings, requested that both counsel submit memoranda of law on the issue of whether the Exclusionary Rule applied to exclude evidence in a civil forfeiture proceeding.

In a Memorandum and Order dated October 29, 1996, the trial court concluded that the Fourth Amendment had been violated because the police officers lacked probable cause to believe that contraband was located in the automobile. As a result of the Fourth Amendment violation the trial court, relying almost exclusively on One 1958 Plymouth Sedan, held that the Exclusionary Rule applies in civil forfeiture cases. In doing so, the court stated, "[t]he rule established by the Supreme Court in Plymouth Sedan is still persuasive mandatory authority on this Court. While Plymouth Sedan is a 1965 case, it has not been explicitly overruled by the Supreme Court." Accordingly, the trial court ruled that the drugs illegally seized from the automobile could not be admitted at the forfeiture proceeding and dismissed the State's complaint. From that dismissal the State appeals.

No ruling was made with respect to the State's alternative theory of forfeiture, to wit, that the vehicle was "a proceed traceable to the profits made from the illegal sales of...