One 1965 Ford Econoline Van, I.D. No. E14TH591372, Calif. Lic. No. 98921U, Matter of

• Decision Date: 20 February 1979
• Docket Number: CA-CIV,No. 1,1
• Citation: 591 P.2d 569,121 Ariz. 477
• Parties: In the Matter of ONE 1965 FORD ECONOLINE VAN, I.D. NO. E14TH591372, CALIF. LIC. NO. 98921U. John PARKER, Appellant, v. STATE of Arizona, Appellee. 3845.
• Court: Arizona Court of Appeals

Page 569

591 P.2d 569

121 Ariz. 477

In the Matter of ONE 1965 FORD ECONOLINE VAN, I.D. NO. E14TH591372, CALIF. LIC. NO. 98921U John PARKER, Appellant, v. STATE of Arizona, Appellee.

No. 1 CA-CIV 3845.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 20, 1979.

Rehearing Denied April 16, 1979.

Review Denied May 8, 1979.

Maricopa County Legal Aid Society, by William E. Miller, Jr., and Timothy M. Hogan, Phoenix, for appellant

Charles F. Hyder, Maricopa County Atty., by Daniel F. McIlroy, Deputy County Atty., Phoenix, for appellee.

OPINION

JACOBSON, Judge.

This appeal rises out of the forfeiture of a 1965 Ford Econoline van pursuant to A.R.S. §§ 36-1041 to 36-1048 and requires us to determine the following:

(1) Whether A.R.S. § 36-1041 authorizes forfeiture of a vehicle where there is no evidence the vehicle was used in the sale or trafficking of marijuana,

(2) If A.R.S. § 36-1041 allows forfeiture of a vehicle where the occupants are possessing marijuana for personal use only, whether the statute is unconstitutional, and

(3) Whether the plea agreement entered into in this case prohibits a subsequent forfeiture of the vehicle involved in the underlying prosecution.

The facts are not in dispute. On the evening of October 16, 1976, appellant, John Parker, the registered owner of the 1965 Ford Econoline van involved here drove his vehicle to the home of a friend named Roger in order that they could go shopping. After completing their shopping, appellant made an illegal turn in the presence of two Phoenix police officers. Upon stopping the vehicle, the officers approached the van and detected the aroma of marijuana. The subsequent search of the vehicle revealed two small pouches of marijuana (containing 32 grams) and a partially consumed marijuana cigarette.

There is no contention that appellant or Roger was a dealer in marijuana or that the vehicle was or ever had been used for selling or trafficking in marijuana. Nor is there any contention made that the marijuana found in the vehicle was intended to be used in any manner other than for the personal consumption of the occupants.

The appellant and Roger were arrested for simple possession of marijuana. Appellant, pursuant to a plea agreement, entered a plea of guilty to a misdemeanor charge of possession of marijuana and was fined the sum of $60 as his total criminal punishment. The plea agreement entered into contained a clause which provided: "That this plea agreement in no way affects a civil forfeiture proceeding pursuant to A.R.S. § 36-1041 through 36-1048 or A.R.S. § 32-1993, if applicable." The estimates of the value of the van involved range from $300 to $3,000, with a probable realistic value in the $1,000 range.

Based upon these facts, the trial court ordered forfeiture of the van and this appeal followed.

Appellant first argues that the legislative intent in enacting A.R.S. § 36-1041 was to deter trafficking in controlled substances and therefore forfeitures under that statute should be limited to situations falling within that legislative intent.

A.R.S. § 36-1041 provides "The interest of the legal owner or owners of record of any vehicle used to transport unlawfully a narcotic drug, ¹ or in which a narcotic drug is unlawfully kept, deposited or concealed, or in which a narcotic is unlawfully possessed by an occupant, shall be forfeited to the state."

Appellant argues that the commission's notes to the forfeiture provisions of the Uniform Controlled Substances Act should be controlling as to the intent of the Arizona legislature in enacting A.R.S. § 36-1041. It is true that the Uniform Controlled Substances Act was intended to provide a "means of confiscating the vehicles and instrumentalities used by drug traffickers" and "to deprive the drug trafficker of needed mobility." 9 Uniform Laws Annotated § 505, p. 338. However, Arizona has not passed the Uniform Act and the Arizona statute is dissimilar from the Uniform Act in several particulars. Section 505(a)(4) of the Uniform Act which corresponds to A.R.S. § 36-1041 provides:

"The following are subject to forfeiture:

"(4) all conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to Transport, or in any manner to facilitate the transportation, for the purpose of Sale or Receipt of property described in paragraph (1) or (2) . . . ." 9 Uniform Laws Annotated, p. 336. (Emphasis added.)

The Uniform Act, unlike the Arizona statute, does not expressly allow forfeiture where the illegal substance is "kept, deposited or concealed, or in which a narcotic is unlawfully possessed by an occupant . . . ." A.R.S. § 36-1041.

Based upon the dissimilarity between the two acts, we do not find the intent of the commission in drafting the Uniform Act to be persuasive in interpreting the Arizona statute.

Appellant next argues that A.R.S. § 36-1047(B) supplies the necessary legislative intent to limit forfeitures to drug traffickers because that section uses the word "transport" which has connotations of trafficking. This section provides:

"B. If the court finds that the vehicle was not used to Transport narcotic drugs, it shall order it released to the owner as his right, title or interest appears of record as of the date of the seizure." (Emphasis added.)

This argument overlooks A.R.S. § 36-1045(C) which provides:

"At the hearing (forfeiture hearing) any owner or claimant who has a verified answer on file may show by competent evidence that the vehicle was not used to Transport narcotic drugs illegally, Or that narcotic drugs were not unlawfully Possessed by an occupant of the vehicle, Nor the vehicle used as a Depository or place of Concealment for narcotic drugs." (Emphasis added.)

Our overall reading of the forfeiture statutes does not lead us to believe that the legislature intended by the use of the word "transport" in A.R.S. § 36-1047(B) to limit forfeitures only to situations involving transportation for sale.

Next, appellant argues that several Arizona appellate decisions have stated the legislative intent that forfeitures should be so limited; for example: In re 1962 Volkswagen Sedan, Motor No. 4230506, 10 Ariz.App. 349, 350, 458 P.2d 969, 970 (1969), Vacated, 105 Ariz. 315, 464 P.2d 338 (1970) ("The obvious legislative purpose (in enacting A.R.S. § 36-1041) is to create a secondary defense against unlawful drug traffic."); In re A 1972 Dodge Van, California License # 247-FNB, 24 Ariz.App. 337, 339, 538 P.2d 766, 768 (1975) ("The obvious intent of the legislature in enacting the forfeiture legislation was to deter the trafficking in narcotics . . ."). We agree that these and other Arizona cases accurately describe one of the ascertainable intentions of the legislature in enacting our forfeiture statutes. However, these cases do not hold that the controlling of drug trafficking was the Sole evil addressed by the legislature or that enforcement of the forfeiture provisions should be limited to those cases where that one evil is present.

Finally, on this subject, appellant argues that the "modern trend" of judicial decisions have limited drug-related vehicle forfeitures to drug trafficking situations. In this regard, appellant cites Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So.2d 853 (1975); In re Forfeiture of 1972 Porsche 2 Dr., '74 Florida License Tag ID 91780, 307 So.2d 451 (Fla.App.1975); State v. One 1972 Pontiac Grand Prix, Two-Door Hardtop, VIN 2K57T2A161214, 242 N.W.2d 660 (S.D.1976); and State v. One Porsche 2-Door, I.D. No. 911211026, 526 P.2d 917 (Utah 1974).

Insofar as the cases from Alabama, Florida and South Dakota are concerned, the statutes in those states are sufficiently dissimilar to the Arizona statute so as to afford little authority for interpretation of our statute.

The Utah case requires a further comment. The Utah statute allows forfeiture of vehicles "used or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or concealment of (illegal drugs). . . ." In a three to two decision, the Utah Supreme Court was able to determine that the legislative intent was:

"directed exclusively toward the Transportation of a controlled substance for distribution according to erstwhile law merchant principles, and not for personal possession and consumption." 526 P.2d at 918-19. (Emphasis in original.)

We are unable to ascertain the same legislative intent in the Arizona statute. Under A.R.S. § 36-1041, forfeitures are mandated under three separate circumstances: (1) When the motor vehicle is "used to transport unlawfully a narcotic drug"; (2) when a "narcotic drug is unlawfully kept, deposited or concealed" in the vehicle; and (3) when a "narcotic is unlawfully possessed by an occupant" in the vehicle.

The statute is clear and unambiguous. Forfeiture is not limited to transportation alone. Nor is the amount of the drug material. In this case, it is uncontested that marijuana was "kept, deposited or concealed" and "unlawfully possessed by an occupant" in the vehicle. The acts complained of fall within the clear provisions of the statute and no amount of judicial juggling can make it otherwise. ² In view of the widening gap between the criminal penalties imposed for possession of small amounts of marijuana (misdemeanors) and the the financial impact of forfeiture caused by such possession, the legislature may well want to reconsider whether the public policy of this state should allow forfeiture where personal possession of marijuana is involved. However, as stated by Justice Crockett, in his dissent in State v. One Porsche 2-Door, I.D. No. 911211026, 526 P.2d 917 at 923:

"whatever the problem may be, it should be dealt with legislatively rather than judicially."

We therefore hold that A.R.S. § 36-1041 allows forfeiture of a vehicle in which marijuana is found, regardless of how small the amount and even though the intended use of the marijuana was for personal...