State ex rel. Campbell v. $18,235.00

• Court: Oklahoma Supreme Court
• Writing for the Court: Taylor
• Citation: State ex rel. Campbell v. $18,235.00, 184 P.3d 1078, 2008 OK 32 (Okla. 2008)
• Decision Date: 08 April 2008
• Docket Number: No. 104,016.,104,016.
• Parties: STATE of Oklahoma ex rel. Mark CAMPBELL, District Attorney, Plaintiff/Appellant, v. EIGHTEEN THOUSAND TWO HUNDRED THIRTY-FIVE DOLLARS IN U.S. CURRENCY ($18,235.00), Defendant, Shawn Gandy, Appellee.

184 P.3d 1078

2008 OK 32

STATE of Oklahoma ex rel. Mark CAMPBELL, District Attorney, Plaintiff/Appellant, v. EIGHTEEN THOUSAND TWO HUNDRED THIRTY-FIVE DOLLARS IN U.S. CURRENCY ($18,235.00), Defendant Shawn Gandy, Appellee.

No. 104,016.

Supreme Court of Oklahoma.

April 8, 2008.

On Writ of Certiorari to the Court of Civil Appeals, Division 3.

¶ 0 After marihuana was found in the claimant's vehicle, he was charged with possession of a controlled dangerous substance in violation of Oklahoma's Uniform Controlled Dangerous Substances Act, 63 O.S. §§ 2001, 2-101 et seq. Thereafter, the district attorney sought the forfeiture of $18,235.00 in cash allegedly found in close proximity to the marihuana. The district court granted the claimant's motion to dismiss the forfeiture proceeding. The Court of Civil Appeals affirmed. This Court granted certiorari.

REVERSED AND REMANDED.

Greg Jenkins, Assistant District Attorney, Atoka, Oklahoma, for the Appellant.

Robert Locke, Locke & Moore, Tulsa, Oklahoma, for the Appellee.

TAYLOR, J.

¶ 1 The questions before this Court are (1) whether simple possession in violation of the Uniform Controlled Dangerous Substances Act (the Act), 63 O.S.2001, §§ 2-101 et seq., can give rise to title 63, subsection 2-503(A)(7)'s rebuttable presumption that monies found in close proximity to any amount of a controlled dangerous substance are themselves forfeitable, (2) whether forfeiture pursuant to subsection 2-503(A)(7) of the Act is independent of an in personam criminal charge or conviction, and (3) whether a subsection 2-503(A)(7) forfeiture is limited by the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We answer questions one and two in the affirmative. We answer question three in the negative.

I. FACTS

¶ 2 Shawn Gandy was charged in Bryan County, Oklahoma, for possession of marihuana.¹ Gandy agrees that the State of Oklahoma has evidence that at the time of his arrest, it recovered $8,035.00 from his person, 2.86 grams of marihuana from the vehicle's passenger compartment, $10,200.00 in a plastic bag in a shaving kit which was in an overnight bag in the vehicle's cargo bed, and 0.21 grams of marihuana in the same shaving kit. The total of monies found was $18,235.00.

II. PROCEDURAL HISTORY

¶ 3 The State petitioned for forfeiture of the $18,235.00 in the district court of Bryan County, Oklahoma, pursuant to title 63, subsection 2-503(A)(7) of the Act, based on its being found in close proximity to a controlled dangerous substance. Gandy filed a motion to dismiss, relying on State v. Eighteen Thousand Six Hundred Sixty-Three Dollars and Twenty-Five Cents Cash, 2000 OK CIV APP 102, 11 P.3d 1253. Gandy argued that forfeiture under subsection 2-503(A)(7) is not authorized except when the forfeiture is based on a violation of the Act of more than simple possession. Gandy further argued that if forfeiture is proper under subsection 2-503(A)(7) based on simple possession, then the forfeiture violates the prohibition against the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

¶ 4 The State responded that the evidence is sufficient to allow forfeiture under title 63, subsection 2-503(A)(7). The State also submitted because forfeiture is civil in nature, the Eight Amendment is not implicated.

¶ 5 The district court ruled that "[f]orfeiture of large sums of money in connection with a misdemeanor possession of marijuana prosecution violates the excessive fines clause of the Eighth Amendment." The district court ordered the seized money returned to the claimant. The Court of Civil Appeals ruled that a simple possession charge is insufficient to support a forfeiture of money found in close proximity to a controlled dangerous substance.

¶ 6 The relevant provisions of title 63, subsection 2-503(A)(7), as amended in 2004 and under which the State seeks forfeiture, state:

A. The following shall be subject to forfeiture:

1. All controlled dangerous substances which have been . . . possessed in violation of the Uniform Controlled Dangerous Substances Act;

. . .

7. All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption[.]

(Emphasis added.) A 2004 amendment to subsection 2-503(A)(7) added "any amount of before "forfeitable substances."

¶ 7 This Court has not addressed this subsection either before or after the 2004 amendment. However, it is clear from the Court of Civil Appeals' decisions and the briefs in this case that subsection 2-503(A)(7)'s construction has not been uniform. State ex rel. Lane v. Seven Hundred Twenty Five Dollars ($725.00), 2006 OK CIV APP 74, ¶¶ 9-12, 136 P.3d 1076, 1078-1079; State v. Eighteen Thousand Six Hundred Sixty-Three Dollars and Twenty-Five Cents ($18,663.25) Cash, 2000 OK CIV APP 102, ¶¶ 7-18, 11 P.3d 1253, 1255-1257; State v. Eleven Thousand Five Hundred Sixty-Six ($11,566.00) Dollars, 1996 OK CIV APP 67, ¶¶ 10-12, 919 P.2d 34, 37-38; State v. $2,200.00 in U.S. Currency, 1993 OK CIV APP 22, ¶¶ 5-6, 851 P.2d 1081, 1082-1083.

III. FORFEITURE PURSUANT TO TITLE 63, SUBSECTION 2-503(A)(7)

¶ 8 A peace officer of this state may seize property subject-to forfeiture under the Act (1) when "[t]he seizure is incident to an arrest or search warrant," (2) when "[t]he property has been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding under" the Act, (3) when "[p]robable cause exists to believe" it presents a public health danger, or (4) when "[p]robable cause exists to believe the property has been used, or will be used in violation" of the Act. 63 O.S.2001, § 2-504. For forfeiture of property addressed in title 63, subsection 2-503(A)(7), the party seeking forfeiture must show by a preponderance of the evidence the applicable requirements for seizure. Id. at § 2-506(G). For title 63, subsection 2-503(A)(7), the party seeking forfeiture must produce evidence that the monies were found in close proximity to any amount of forfeitable substance, forfeitable paraphernalia, or forfeitable records. Once the party seeking forfeiture has met this burden of production, a rebuttable presumption arises that the monies are forfeitable under the Act. Id. at § 2-503(A)(7).

¶ 9 The discrepancies in subsection 2-503(A)(7)'s construction arise, at least in part, because it is unclear what makes the monies forfeitable under the Act. In construing a statutory enactment, the goal is to ascertain the Legislature's intent. In re Estate of Villines, 2005 OK 63, ¶ 9, 122 P.3d 466, 470. If the enactment is unambiguous, it is presumed that the Legislature intended what it expressed. Id. When an ambiguity exists, provisions of a legislative act will be construed together to result in a harmonious whole, id. at ¶ 9., and will be given a reasonable and sensible construction which will avoid absurd consequences. State ex rel Dept. of Public Safety v. 1985 GMC Pickup, 1995 OK 75, ¶ 7, 898 P.2d 1280, 1282. Further, general words which are associated with specific words may be limited by the specific words when they are capable of an analogous meaning. Oklahoma Tax Comm'n v. Fortinberry Co., 1949 OK 75, ¶ 14, 207 P.2d 301, 305.

¶ 10 Title 63, subsection 2-503(A)(7) operates to create a presumption that monies found in close proximity to any amount of a forfeitable substance are forfeitable. Title 63, subsection 2-503(A)(1) makes a controlled dangerous substance and other items which are possessed in violation of the Act forfeitable. Under these two provisions, possession of any amount of a controlled dangerous substance in violation of the Act unambiguously gives rise to the presumption that the monies found in close proximity to it, in this case marihauna, are forfeitable.

¶ 11 We next turn to the evidentiary proof necessary to rebut the presumption and, if the presumption is rebutted, to support a forfeiture under subsection 2-503(A)(7). Forfeiture under title 63, subsections 2-503(A)(2)-(6), and (8)-(9) is based on manufacturing and distribution of controlled dangerous substances in violation of the Act. These subsections provide for the forfeiture of materials and equipment used to manufacture controlled dangerous substances, conveyances used to distribute them, records used to manufacture and distribute them, proceeds of their sale, and other property and weapons possessed or used to facilitate a violation of the Act. The focus of these subsections is on the forfeitability of instrumentalities of drug trafficking,² leading to the conclusion that the Legislature intended that subsections 2-503(A)(2)-(6) and (8)-(9) forfeiture provisions to be based on drug trafficking.

¶ 12 Extending this legislative intent to subsection 2-503(A)(7), evidence that monies found in close proximity to any amount of a controlled dangerous substances possessed in violation of the Act creates a pre-sumption that the monies are the proceeds from the distribution or manufacture of a controlled dangerous substance. Once the presumption arises, the person claiming the monies may rebut the presumption by showing that "the forfeited currency bore no nexus to a violation of the Act," or, in other words, that there is a legal source of the currency. State v. One Thousand Two Hundred Sixty-seven Dollars ($1,267.00), 2006 OK 15, ¶ 30, 131 P.3d 116, 126. Once rebutted, the party seeking forfeiture must produce contrary evidence. See 63 O.S.Supp. 2004, § 2-506(G).

¶ 13 The next step in the resolution of the questions before us is to determine whether a subsection 2-503(A)(7) forfeiture is dependent on an in personam criminal charge or...