State to Use of Frederick City Police Dept. v. One 1988 Toyota Pick-up Truck VIN JT4RN63A5J0211499
| Decision Date | 01 September 1993 |
| Docket Number | No. 88,PICK-UP,88 |
| Citation | 639 A.2d 641,334 Md. 359 |
| Parties | STATE of Maryland to the Use of the FREDERICK CITY POLICE DEPARTMENT v. ONE 1988 TOYOTATRUCK VIN. JT4RN63A5J0211499. , |
| Court | Maryland Court of Appeals |
N. Lynn Tillery, City Atty. (Lawrence A. Dorsey, Jr., Arthur M. Kravetz, Office of the State's Atty. for Frederick County, on brief), Frederick, for appellant.
William H. Poffenbarger, Frederick, for appellee.
Argued before MURPHY, C.J., RODOWSKY, McAULIFFE, * CHASANOW, KARWACKI, BELL, and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (Retired, Specially Assigned), JJ.
This case involves Maryland's forfeiture statute, codified as Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Art. 27, § 297. 1 In its original form, as enacted by ch. 403 of the Acts of 1970, and as it now provides, § 297(b) states in part:
"(b) The following shall be subject to forfeiture and no property right shall exist in them:
(1) All controlled dangerous substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of the provisions of this subheading;
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled dangerous substance in violation of the provisions of this subheading;
(3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2) of this subsection;
(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, sale, receipt, possession or concealment of property described in paragraph (1) or (2) of this subsection ..." (emphasis added).
Section 297(b)(4)(i) and (ii) exempts the seizure or forfeiture of certain commercially used conveyances unless the owner or other person in charge of the conveyance consented or was privy to a violation of the statute, and § 297(c) expressly prohibits the forfeiture of property if the owner establishes that the violation was done without the owner's actual knowledge.
Section 297 was substantially amended by ch. 659 of the Acts of 1972. According to its title, the purpose of ch. 659 was "to provide certain guidelines and procedures for the seizure and forfeiture of motor vehicles used in violation of [the subtitle captioned Health-Controlled Dangerous Substances ]." The 1972 amendment added a number of new subsections to § 297, one of which, formerly designated as (f), is now designated as subsection (i); it reads in its current form, in pertinent part, as follows:
"(i) In exercising the authority to seize motor vehicles pursuant to this section the following standards shall be utilized:
(1) A motor vehicle used in violation of this section shall be seized and forfeiture recommended to the forfeiting authority when:
(i) Controlled dangerous substances in any quantity are sold or attempted to be sold in violation of this subtitle;
(ii) Although the violator has not sold or attempted to sell controlled dangerous substances in violation of this subtitle, an amount of such substances or paraphernalia is located which would reasonably indicate that sale is contemplated by the violator; or
(iii) The total circumstances of the case dictate that seizure and forfeiture is justified; these circumstances would include such factors as the following:
1. The possession of controlled dangerous substances;
2. An extensive criminal record of the violator 3. A previous conviction of the violator for a controlled dangerous substances violation;
4. Corroborated information is developed indicating that the violator is or was recently a seller, or frequently associates with individuals known to be distributors of illegal controlled dangerous substances or paraphernalia;
5. Circumstances of the arrest; or
6. The manner in which the vehicle was being used."
Following these provisions of § 297(i) is subparagraph (2) which directs that a motor vehicle used in violation of the subheading shall not be seized (a) when the vehicle is being used by a member of the family other than the registered owner and controlled dangerous substances ("CDS") or drug paraphernalia are located therein in a quantity insufficient to suggest that a sale is contemplated, and where no sale was made or attempted, and the registered owner neither knew nor should have known that such material was in the vehicle; (b) when an innocent registered owner lends the vehicle to another and the latter or someone invited into the vehicle by such person causes CDS or drug paraphernalia to be brought into the vehicle without the owner's knowledge; or (c) the vehicle falls within the provisions of § 297(b)(4)(i) or (ii), supra.
Section 297(i)(3) was also added to the statute by the 1972 amendment; it provides that forfeiture shall be recommended "only after the chief law enforcement officer of the police department ... that seized the motor vehicle has determined from the records of the Motor Vehicle Administration the names and addresses of all registered owners and secured parties." This subsection further provides that forfeiture can only be recommended after the chief law enforcement officer "has personally reviewed the facts and circumstances of the seizure and has personally determined, according to the above guidelines, that forfeiture is warranted and so represents in writing to the appropriate forfeiting authority." (emphasis added).
Subsection 297(j), as it now reads, provides that "[i]f the forfeiting authority determines independent of the decision of the police department ... that seized the motor vehicle" that it falls within the exemptions specified in § 297(i)(2), or that the standards to be utilized pursuant to subsection (i)(1) of § 297 were not met, the forfeiting authority shall surrender the vehicle upon request to the owner. 2
What is now § 297(k) was added to the statute by the 1972 amendment as subsections (q) and (r); it is thereby provided that "[i]f, after a full hearing," the court determines that the property should not be forfeited, it shall order its release, but if it determines that forfeiture is proper, the court shall order that the property be forfeited.
In light of these provisions, and particularly subsections 297(b)(4) and 297(i), the question before us is whether a motor vehicle, used by an individual in an attempt to purchase illicit drugs, is subject to seizure and forfeiture in the circumstances of this case.
In November of 1992, members of the Frederick City Police Department and other area law enforcement agencies engaged in a street level undercover drug operation in Frederick, Maryland. The purpose of this operation was to arrest individuals who attempted to buy a controlled dangerous substance, crack cocaine, from undercover police officers. Because it is known as an area where considerable drug activity takes place, the police selected the Brookside Apartments in Frederick to conduct the operation.
On November 6, 1992, two undercover police officers were standing in the entrance way of building number 1105 of Brookside Apartments. At approximately 7:25 p.m., Mark Allen Willard approached the officers and asked "Can I get a forty?" This language is commonly used by individuals engaged in the illegal drug trade to signify an offer to purchase $40.00 worth of crack cocaine. One of the police officers answered in the affirmative and walked with Willard under the stairwell of the building. The officer then displayed three individually packaged "rocks" of what purported to be crack cocaine. Willard selected two of the "rocks," handed the undercover officer $40.00, and left the area. The price of $20.00 per "rock" was consistent with the price of crack cocaine in Frederick in November of 1992.
Unknown to Willard, the substance that he bought from the officer was not crack cocaine; rather, it was a substance specially manufactured by a local law enforcement chemist for the undercover drug operation. Although the size, shape, color, texture, and packaging of the substance was substantially identical to crack cocaine, the substance was in fact comprised solely of a non-controlled substance ("non-CDS").
After the transaction, the police observed Willard enter a 1988 Toyota Pick-Up Truck. As he began to drive away, members of the arrest team stopped the vehicle and placed Willard under arrest. A search incident to the arrest uncovered the two "rocks" of non-CDS which Willard had just purchased; no CDS or drug paraphernalia was found in the vehicle. 3
After the arrest, the police seized Willard's vehicle. Consistent with the provisions of § 297(i), Frederick Chief of Police Raffensberger thereafter wrote to the State's Attorney, sending him a copy of the police forfeiture report and related documents concerning Willard's arrest and the seizure of his vehicle. Raffensberger's letter stated that "[t]he facts and circumstances" of the seizure had been reviewed by him and he determined that forfeiture is warranted under § 297(i)(1)(iii). Raffensberger therefore requested that proceedings be instituted to forfeit the vehicle. The State's Attorney, having made the requisite determination "independent of the decision of the police department," advised the Motor Vehicle Administration of his intention to initiate forfeiture proceedings and sought to ascertain, as required by the statute, whether the vehicle was subject to any liens or security interests. Subsequently, based upon the recovery of the two "rocks" of non-CDS found in Willard's vehicle, the State's Attorney for Frederick County filed a petition in the Circuit Court for Frederick County for the forfeiture of Willard's 1988 Toyota Pick-Up Truck.
At the trial of the forfeiture proceeding, the facts were...
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