State v. 1971 Green GMC Van

• Court: Louisiana Supreme Court
• Writing for the Court: CALOGERO; SANDERS, C. J., and MARCUS; SUMMERS; SUMMERS
• Citation: State v. 1971 Green GMC Van, 354 So.2d 479 (La. 1977)
• Decision Date: 19 September 1977
• Docket Number: Nos. 59461 and 59635,s. 59461 and 59635
• Parties: STATE of Louisiana v. 1971 GREEN GMC VAN. STATE of Louisiana v. ONE 1973 PONTIAC GRAND PRIX.

Page 479

354 So.2d 479

STATE of Louisiana v. 1971 GREEN GMC VAN.

STATE of Louisiana v. ONE 1973 PONTIAC GRAND PRIX.

Nos. 59461 and 59635.

Supreme Court of Louisiana.

Sept. 19, 1977.

Rehearing Denied Oct. 21, 1977.

Dissenting Opinion Feb. 13, 1978.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-relator in 59461 and for plaintiff-appellant in 59635.

Joseph P. Brantly, IV, Baton Rouge, for defendant-respondent in 59461.

Robert W. Morgan, Baton Rouge, for defendant-appellee in 59635.

CALOGERO, Justice.

These two consolidated cases raise an issue of first impression: the constitutionality of the automobile forfeiture statute, La. R.S. 40:989(A)(4). ¹ Both trial judges have ruled in favor of releasing the vehicles at issue here.

The case involving the 1971 Green GMC van arose in the following manner. On October 14, 1976 at 11:15 p.m., officers of the Baton Rouge Police Department observed four young men standing beside a green GMC van, passing a hand-rolled cigarette among themselves. One young man was rolling another cigarette. The officers arrested the four for possession of marijuana. One of the four, Charles Baughman, gave a written consent to search the van. The search of the van revealed two plastic bags containing suspected marijuana, one shoe box containing suspected marijuana, and two packs of cigarette papers. The four young men were each charged with possession of marijuana with intent to distribute. The material seized was confirmed by chemical analysis to be marijuana.

As far as this record shows, no criminal charges have been filed against any of the four arrested. ² Instead the District Attorney filed a rule to show cause why the GMC van should not be forfeited pursuant to La. R.S. 40:989. The rule alleges that the vehicle was registered to Polly M. Baugham, and that it was "used to transport a controlled dangerous substance; to wit: Marijuana, on October 14, 1976." Ms. Baughman (who is Charles Baughman's mother and who had absolutely no involvement with the criminal transaction) moved to quash the rule on the grounds that: 1) it would be a denial of due process of law in violation of the federal and state constitutions to require forfeiture of her property where it cannot be shown that she had actual or implied knowledge of criminal activity; 2) it would be a denial of equal protection of law to require forfeiture of this vehicle, and not a vehicle owned and operated by a common carrier; 3) the action is premature because no hearing has been held concerning the validity of the search of the van sought to be forfeited; and 4) the statute is unconstitutionally overbroad.

At the rule hearing, counsel stipulated to the police report, evidently agreeing that the substance found in the van was marijuana and indicating that the van was parked the entire time it was in police view. Polly Baughman testified that the title of the van was in her name, although everyone in the family used the van, including her son Charles who was using it on the night in question with her permission.

The trial judge denied the forfeiture on the basis that the legislature intended the forfeiture provision to be available in cases of drug trafficking, but not in cases of simply possessing or using a drug within a vehicle. He felt that the statute was overly broad, and thus a violation of due process, since its language made possible the confiscation of a person's property when he or she had no knowledge that any illegal substance was present in the vehicle. We granted the state's application for writs to review the judge's ruling, and consolidated the case with State v. One 1973 Pontiac Grand Prix.

The 1973 Grand Prix case involves a similar factual situation. On September 4, 1976, officers of the Baton Rouge Police Department, while investigating an automobile accident, were informed that the driver of one of the vehicles, a 1973 Pontiac Grand Prix, was seen just after the collision to have concealed something in his trunk. Officers approached the man, Jeffrey Scott, who, according to police officers, voluntarily opened the trunk and handed a paper bag to them which contained suspected marijuana. Officers searched the entire automobile and found other marijuana. ³ A total of twenty-six lids and one pound of marijuana was recovered.

On October 18, 1976, the District Attorney of East Baton Rouge Parish filed a rule to show cause why the 1973 Pontiac Grand Prix should not be forfeited, naming Jeffrey Scott as the person to whom the car was registered. A motion to quash was filed urging that the forfeiture statute is unconstitutional in that it provides for the seizure of property without due process of law in violation of Article I, Section 2 of the Louisiana Constitution of 1974 and the fifth and fourteenth amendments to the United States Constitution, and that the statute does not require a showing of guilty knowledge or intent as a prerequisite to forfeiture.

The trial judge granted the motion to quash on the grounds that the statute violates the guarantee of due process in Article 1, section 1 of the Louisiana Constitution, and the right to property embodied in Article I, section 4 of the Louisiana Constitution. The state appealed that ruling. La.Const. art. V, § 5.

The forfeiture statute, ⁴ passed by the legislature in 1972, allowed the forfeiture of any conveyance (aircraft, vehicle or vessel) which is used "or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, (or) possession . . .," of a controlled dangerous substance. R.S. 40:989(A)(4). The statute exempts common carriers except in a case where the owner was "knowingly and intentionally a consenting party or privy to a violation of this part". R.S. 40:989(A)(4)(a). Also exempted are private owners when the vehicle was stolen, or when the substance involved is one ounce or less of marijuana and the offense is committed by someone other than the owner without the consent of the owner. R.S. 40:989(A)(4)(b). The statute provides that the District Attorney shall proceed against the vehicle by rule to show cause in the district court having jurisdiction of the offense "on producing due proof that the vehicle was being used in violation of the provisions of this part." R.S. 40:989(G). The vehicle "shall not be repleviable" but is forfeited to the use of the seizing law enforcement agency, for its own use or its disposal at public auction, the proceeds to be used for the costs of the proceeding. R.S. 40:989(D)(1)(2). Any excess funds go into the general fund of the parish (or, in Orleans Parish, to the Commission Council of the City of New Orleans). R.S. 40:989(J).

By its terms, the statute covers the two cases of marijuana possession now before the Court. ⁵ The illegal substance was discovered in vehicles which were being used in some manner to facilitate their possession. There is no necessity under the statute for the state to secure a criminal conviction against the car owner or driver, to establish that the seizure of contraband was legally made or that the possessor was lawfully arrested. Nor must the state prove its case beyond a reasonable doubt, or prove that the car owner had any knowledge whatsoever of the illegal possession (except in the two instances explained above which are not relevant here). The statute simply provides for confiscation of the vehicle on the state's production of "due proof" that the vehicle contained any controlled dangerous substance or any materials or equipment used or intended for use in its manufacture. The issue now before us is whether the state can constitutionally cause the forfeiture of these two vehicles.

The state urges that the trial judge in the GMC Van case and the trial judge in the Grand Prix case erred in finding that the statute violated Article I, section 2 of the Louisiana Constitution which proscribes the taking of property without due process of law. The state asserts that due process guarantees are met by the statute which requires the state to file a rule to show cause and thereafter establish that the vehicle was used in violation of the statute, and was legally in the hands of the user. Defendant then, it is argued, has the opportunity to show that the vehicle should be exempt from the statute.

Defendants, on the other hand, argue that due process requires a full and fair evidentiary hearing, a burden of proof higher than the civil more-probable-than-not standard, and opportunity for appeal of the forfeiture order before the forfeiture may be effected. Defendants also complain that under the statute the vehicle can be forfeited and sold before it is determined whether the search which produced the contraband was legal. Finally, defendants argue that requiring forfeiture of a car, especially when the owner had no knowledge at all of the criminal activity, is basically unfair as it is merely a punitive measure. Defendants, therefore, argue that the statute violates both procedural and substantive due process.

Initially it can be noted in regard to the substantive due process claim that a person convicted of his first possession of marijuana can be imprisoned no longer than six months and/or fined no more than five hundred dollars for the criminal offense, R.S. 40:966(D)(1) (or no more than five years and/or $2,000.00 on his second) but that he stands to lose his automobile, boat or plane in a forfeiture proceeding (very possibly a more severe penalty) when the state has not secured a conviction of any criminal law, has not even initiated prosecution, and may not even intend to attempt prosecution for any criminal violation. In regard to the procedural due process claim, it can be stated that the myriad protections which surround criminal prosecutions are not present in the forfeiture proceeding which offers no jury trial,...