State v. Manuel

• Decision Date: 10 January 1983
• Docket Number: No. 82-K-1364,82-K-1364
• Citation: 426 So.2d 140
• Parties: STATE of Louisiana v. Delbert James MANUEL.
• Court: Louisiana Supreme Court

Page 140

426 So.2d 140

STATE of Louisiana v. Delbert James MANUEL.

No. 82-K-1364.

Supreme Court of Louisiana.

Jan. 10, 1983.

Richard P. Ieyoub, Lake Charles, for relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Wayne Frey, Asst. Dist. Atty., Eugene Bouquet, Asst. Dist. Atty., for respondent.

DENNIS, Justice.

This case presents the questions of whether the controlled dangerous substances contraband forfeiture statute, La.R.S. 32:1550, is constitutional and, if so, whether there is probable cause for proceedings to forfeit two vehicles as contraband articles related to the production, manufacture or distribution of controlled dangerous substances under the statute.

The state seized two vehicles allegedly owned by Delbert James Manuel and instituted this proceeding under La.R.S. 32:1550 to forfeit them as contraband. Defendant Manuel moved for the release of the automobiles on the ground that the forfeiture statute is unconstitutional. After a hearing, the district court denied defendant's motion. This court granted defendant's application for a review of the ruling. 416 So.2d 936. Except for a controversy as to the ownership of one of the automobiles, the evidence is without dispute.

On November 13, 1981, a police informant arranged for the purchase of 100 Methaqualone (Quaalude) tablets from defendant, Delbert J. Manuel, later that evening. The informant and defendant met in a vacant parking lot, where their transaction was observed from a distance by two police officers. Defendant drove to the point of exchange in a black 1981 GMC pickup truck, registered in his name.

About four months later, on March 18, 1982, a police informant met defendant in a motel parking lot for the purpose of buying 104 Diazepam (Valium) capsules for the price of $100. Defendant arrived at the location in a tan 1976 Buick four-door sedan, which defendant claims belonged to his wife. The transaction was monitored electronically and also observed from a distance by four police officers. Defendant was followed from the parking lot by officers, who stopped defendant and arrested him for distribution of controlled dangerous substances, La.R.S. 40:969 A(1).

On March 22, 1982, officers of the state police submitted affidavits reciting the above facts and obtained warrants to seize the 1981 GMC pickup truck and the 1976 Buick. Both vehicles were seized and impounded by police that same day. Six weeks later, by bill of information, the state charged defendant with three counts of distribution of controlled dangerous substances: two counts of distribution of diazepam, in violation of La.R.S. 40:969 A(1), and one count of distribution of methaqualone, in violation of La.R.S. 40:967 A(1). The bill of information alleges that the distributions took place on September 10, 1981, October 13, 1981, and March 18, 1982. Trials have not commenced on these criminal charges.

A forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law. The forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the prosecution. U.S. v. U.S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1885); State v. Billiot, 254 La. 988, 229 So.2d 72 (1969); Cornman v. Conway, 178 La. 357, 151 So. 620 (1933).

The defendant's motion for release of the vehicles is similar to a motion to quash in that he contends the forfeiture proceedings are based on an invalid statute. See La.C.Cr.P. art. 532(1). At the hearing, the parties tacitly expanded the proceedings to include the question of whether there was probable cause to forfeit the vehicles under the statute if it were declared to be constitutional. Thus, the proceedings also took on characteristics of a preliminary examination. See La.C.Cr.P. arts. 291 et seq. It was appropriate for the district court to consider these questions in a pretrial proceeding. Where no procedure is specifically prescribed by statute, the court may proceed in a manner consistent with the spirit of the provisions of the constitution and the law. La.C.Cr.P. art. 3.

A statute authorizing the forfeiture of a person's property must in substance and application conform with several provisions of our state constitution. ¹ No person may be deprived of property except by due process of law. La. Const., art. 1 § 2. Every person has the right to enjoy all of the attributes of ownership of his private property, subject to reasonable statutory restrictions and the reasonable exercise of police power. Id. Art. 1 § 4. Every person shall be secure from an unreasonable seizure of his property, and a seizure without a warrant issued by a court upon probable cause is unreasonable per se, unless it falls within one of the narrow, traditionally recognized exceptions to the warrant requirement. Id. Art. 1 § 5; State v. Matthews, 366 So.2d 1348 (La.1978); State v. Gordon, 332 So.2d 262 (La.1976); State v. Massey, 310 So.2d 557 (La.1975). Personal effects, other than contraband, shall never be taken. Id. Art. 1 § 4.

In other words, personal effects may not be taken at all unless they are classified as contraband. Personal effects classified as contraband and other property may be taken but only by due process of law. In any event, a person's ownership rights may not be diminished except by reasonable statutory restrictions and the reasonable exercise of police power. Furthermore, a person's property may not be seized except with a warrant issued by a neutral magistrate upon a showing of probable cause, unless the seizure falls within one of the traditional exceptions to the warrant requirement.

The first question which should be answered, therefore, is whether the article to be forfeited is contraband. If the article is contraband, whether it is also a personal effect is irrelevant; its forfeiture will be governed by the rules applicable to property in general. For the reasons hereinafter assigned, we conclude that the automobiles which the state seeks to forfeit constitute a type of contraband if used in the manner alleged, and we proceed to determine whether the statute is constitutional on its face and as applied to these vehicles. ²

It is generally recognized that there are two kinds of property which may be classified as contraband. Things which intrinsically are illegal to possess and are therefore insusceptible of ownership are categorized as contraband per se. Such articles include illegal narcotics, unregistered stills, unlawful alcohol, and illicit gambling devices. See One 1958 Plymouth Sedan v. Pennsylvania supra; Brown v. State, Etc., 392 So.2d 415 (La.1980). Things which may be forfeited because they are the immediate instruments of a crime, but which are not ordinarily illegal to possess, are classed as derivative contraband. One 1958 Plymouth Sedan v. Pennsylvania, supra, U.S. v. One 1972 Chevrolet Corvette, 625 F.2d 1026 (1 Cir.1980). Derivative contraband encompasses guns, automobiles, ships and other such property when used to effectuate a proscribed activity. Id. This court and our courts of appeal, without explicitly labelling the type of property affected, have consistently upheld and applied statutes authorizing the forfeiture of both contraband per se ³ and derivative contraband. ⁴

We believe that "contraband," as used in the constitutional phrase "personal effects, other than contraband" means derivative contraband, and not contraband per se. Personal effects include derivative contraband but not contraband per se. A person cannot make an article which is contraband per se his personal effect because it may not be legally possessed or subjected to private ownership. Thus, an exception of articles insusceptible of ownership from the personal effects category of private property would be no exception at all and therefore meaningless. The convention proceedings, however, indicate that the exception was intended to have force and to include such articles as automobiles and weapons whenever they had been used as the immediate instruments of a crime. 9 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, January 3, 1973 at 3079. Moreover, an absolute exemption of all personal effects except contraband per se from any taking would prevent seizure of many articles as evidence of a crime. Other provisions of the constitution and the convention history make clear that reasonable seizures of criminal evidence may include any object tending to prove the commission of an offense. La. Const., art. 1 § 5; 6 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, August 31, 1973 at 1073. Accordingly, we conclude that a forfeiture statute does not violate Art. 1 § 4 of the 1974 Louisiana Constitution merely because it authorizes the forfeiture of personal effects which constitute derivative contraband.

In State v. 1971 Green GMC Van, 354 So.2d 479 (La.1977), we held the predecessor forfeiture statute unconstitutional primarily because it allowed the confiscation of the vehicle without any requirement that the owner know of the illegal activity, have consented to it or have any connection at all. However, after striking down the statute, we further criticized other of its provisions. The constitutional defect that proved fatal to the prior statute has been cured by the current statute. Since our further discussion of the statute was unnecessary to the holding in 1971 Green GMC Van, we now carefully reconsider our prior statements.

In that opinion, we rejected the state's argument that the contraband exception in Art. I, § 4 included derivative contraband. However, we are now squarely presented this question, and upon more...