Return of Property in State v. Jones, 97-33606
| Citation | 226 Wis.2d 565,594 N.W.2d 738 |
| Decision Date | 03 June 1999 |
| Docket Number | No. 97-33606,97-33606 |
| Parties | In re the RETURN OF PROPERTY IN STATE of Wisconsin V. Leonard L. JONES. Leonard L. Jones, Appellant-Petitioner, v. State of Wisconsin, Respondent. |
| Court | United States State Supreme Court of Wisconsin |
For the appellant-petitioner there were briefs by Colleen D. Ball and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee and oral argument by Colleen D. Ball.
For the respondent there was a brief and oral argument by Kenneth M. Farmer, assistant district attorney.
Leonard L. Jones seeks review of an unpublished court of appeals decision 1 which affirmed the circuit court's order denying his request for return of $1,783 in cash which was seized, along with various drug paraphernalia under the Uniform Controlled Substance Act (UCSA), 2 during a search incident to his arrest for operating a motor vehicle while intoxicated (OWI). This case presents two issues for our review:
(1) If property is seized pursuant to a search that leads to a charge of a violation of the USCA, and the state has not initiated forfeiture proceedings, may an interested party seek return of the property under Wis. Stat. § 961.55. We conclude that the legislature intended that the return of property provision in § 961.55(3) can only be triggered by an unsuccessful forfeiture action brought by the state. In all other situations where the state has not initiated a forfeiture action, we conclude that a person claiming the right to property seized by the authorities is limited to the procedures set forth in Wis. Stat. § 968.20.
(2) If the interested party brings an action for return of property under Wis. Stat. § 968.20, is cash considered "contraband" within the meaning of Wis. Stat. § 968.13(1), particularly when the charge arising out of the property seized during the search is ultimately dismissed? When the state has not instituted forfeiture proceedings and an interested party seeks return of seized property under § 968.20, we conclude that in order to retain the property, the state must establish that the property is either contraband or is needed as evidence in a case. For property alleged to be contraband, the state must establish a logical nexus between the seized property and illicit behavior on the part of the petitioning property owner. If the property is found to be contraband, then the property need not be returned whether criminal charges are ultimately filed or not. Even though the circuit court mistakenly placed the burden on the defendant to show whether the cash was or was not contraband, we conclude that based on the evidence of record, this error was harmless. Accordingly, we affirm.
¶2 The facts are undisputed. According to the testimony of Madison Police Officer Kevin Linsmeier, he received a report of a vehicle parked curbside on Moland Street with its engine running. At the scene, he found an individual, later identified as Jones, seated in the driver's seat and non-responsive. After repeated knocking on the window, Jones eventually rolled the window down, but would not exit the vehicle. Linsmeier testified that Jones' speech was slurred, he smelled of intoxicants, and his eyes appeared glassy and dilated. Linsmeier believed Jones was impaired and not free to leave, so he threatened to break the window if Jones would not exit the vehicle. Jones chose to exit the vehicle; in the process, Linsmeier observed him lean on the vehicle to maintain his balance. Jones refused Linsmeier's request to submit to several field sobriety tests. Consequently, Linsmeier placed him under arrest for OWI.
¶3 Linsmeier then conducted a search of Jones and the vehicle incident to that arrest. Linsmeier uncovered $1,783 in cash on Jones 3 and he uncovered a small scale, six cigarette lighters, and three pieces of charred "Chore-boy" scouring pads within the vehicle. 4 According to Linsmeier, the "Chore-boy" is regularly used in a crack pipe for ingesting crack cocaine and a scale is a common tool that drug dealers use to measure their drugs for selling. Linsmeier indicated that he did not find any drugs, nor did he witness an actual drug transaction.
¶4 Linsmeier testified that based on his training and experience, he believed the money was drug-related. Linsmeier stated that crack cocaine is most often purchased as "a 20" with a $20 purchase price. He further indicated that the "wads" of cash found on Jones are indicative of drug dealing: "a lot of people that deal drugs will have their money in one part of their body, drug money in other parts, and then a lot of them want to know like exactly how much is on them so they will have it in set amounts like the thousand dollars in $20 bill[s]." Linsmeier confiscated the cash and property found in the search.
¶5 Jones was subsequently charged in Madison Municipal Court with operating while under the influence of an intoxicant or controlled substance. The court apparently entered a default judgment against Jones for that charge. 5
¶6 Jones was also charged in Dane County Circuit Court with possession of drug paraphernalia as a repeater in violation of Wis. Stat. §§ 961.573(1) and 939.62. Jones filed a handwritten motion for return of all money and property confiscated from him, and for dismissal of the drug paraphernalia charges on the grounds that Linsmeier lacked probable cause to conduct a search of the vehicle.
¶7 Based on the undisputed testimony of Linsmeier, Dane County Circuit Court Judge Jack F. Aulik denied the motion. After finding the arrest and search to be valid, the circuit court then addressed the seized money: "Whether or not [the money] constitutes contraband depends on a finding that it is property that is either used in the commission of a crime or is the result of the commission of a crime." The court noted that the items found in the vehicle (the scale), and on Jones (the Chore-boys), are generally used in either the use or distribution of cocaine. Because Jones offered nothing in support of his burden to prove the money was not contraband, the court concluded that it was contraband and subject to forfeiture under Wis. Stat. § 968.20.
¶8 In a July 2, 1997, order, the circuit court denied Jones' motion and ordered that the $1,783, which was found to be contraband, be forfeited to the School Fund when no longer needed as evidence. The drug charges were subsequently dismissed by the State because Jones had received a 12-year prison sentence on another pending case. Jones appealed the circuit court's order.
¶9 The court of appeals affirmed the circuit court's denial of Jones' motion. The court reasoned that the money was seized as a result of a search incident to arrest and under Wis. Stat. § 968.20, the property must be returned only if Jones established his right to possession and that it was not "contraband." The court looked to Wis. Stat. § 968.13(1) for the definition of contraband. Because those items listed in § 968.13(1) are related to the commission of a crime, and because the list is without limitation, the court determined that on this record, the $1,783 was so closely related to the commission of a crime that it may be considered contraband. Jones appeals.
¶10 The first issue presented in this case, whether the state must always bring forfeiture proceedings under Wis. Stat. § 961.55 for property seized due to an alleged UCSA violation, or whether Wis. Stat. § 968.20 provides an alternative means for retaining property, requires that we interpret the statutes and their relationship. A question of statutory interpretation is a question of law that we review independent of the circuit court and the court of appeals. State v. Cardenas-Hernandez, 219 Wis.2d 516, 538, 579 N.W.2d 678 (1998); Morris v. Juneau County, 219 Wis.2d 543, 551, 579 N.W.2d 690 (1998). Our goal, in statutory interpretation, is to discern and to give effect to the intent of the legislature. Cardenas-Hernandez, 219 Wis.2d at 538, 579 N.W.2d 678. To achieve this goal, we first look to the plain language of the statute. Id. If a statute is unambiguous, this court will apply the ordinary and accepted meaning of the language of the statute to the facts before it. Id.; Swatek v. County of Dane, 192 Wis.2d 47, 57, 531 N.W.2d 45 (1995). If a statute does not clearly set forth the legislative intent, we then look to the scope, history, context, subject matter, and object of the statute. Cardenas-Hernandez, 219 Wis.2d at 539, 579 N.W.2d 678; Swatek, 192 Wis.2d at 58, 531 N.W.2d 45.
¶11 Wisconsin Stat. § 961.55(1) 6 provides that "money, directly or indirectly derived from or realized through the commission of any crime" and any drug paraphernalia are subject to a state forfeiture action. Seizure without process may be made if the seizure is incident to arrest. § 961.55(2)(a). The statute further provides that any property seized but not forfeited shall be returned to its rightful owner, and any person claiming the right to possession of seized property may apply for its return to the circuit court for the county in which the property was seized. § 961.55(3).
¶12 Wisconsin Stat. § 968.20(1) 7 states that any person claiming the right to possession of property seized with or without a search warrant may apply for its return to the circuit court for the county in which the property was seized. If the right to possession is proved to the court's satisfaction, it shall order property, other than contraband, returned if it is not needed as evidence or all proceedings have been completed. Id.
¶13 Jones argues that because the statutes overlap--both Wis. Stat. §§ 961.55 and 968.20 involve property (criminal contraband) that is seized by the authorities with or without a search warrant--this court should hold that § 961.55, the more specific of the two is the appropriate means by which a property owner may apply for return of property seized for an alleged connection to the USCA.
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