State v. One 1972 Pontiac Grand Prix, Two-Door Hardtop, VIN 2K57T2A161214

• Decision Date: 21 May 1976
• Docket Number: No. 11720,TWO-DOOR,11720
• Citation: 242 N.W.2d 660,90 S.D. 455
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. ONE 1972 PONTIAC GRAND PRIX,HARDTOP, VIN 2K57T2A161214, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 660

242 N.W.2d 660

90 S.D. 455

STATE of South Dakota, Plaintiff and Appellant, v. ONE 1972 PONTIAC GRAND PRIX, TWO-DOOR HARDTOP, VIN 2K57T2A161214, Defendant and Respondent.

No. 11720.

Supreme Court of South Dakota.

Argued Feb. 13, 1976.

Decided May 21, 1976.

Doyle D. Estes, Asst. Atty. Gen., Pierre, for plaintiff and appellant; William J. Janklow, Atty. Gen., Pierre, on the brief.

Dan C. Hanson, for Mueller, Bennett & Hanson, Belle Fourche, for defendant and respondent.

DUNN, Chief Justice.

This is a vehicle forfeiture proceeding under the State Drugs and Substances Control Act against one 1972 Pontiac Grand Prix, Two-Door Hardtop, VIN 2K57T2A161214 automobile. Plaintiff State of South Dakota appeals from a judgment and an order of the Circuit Court of the Eighth Judicial Circuit which granted summary judgment in favor of the owners of defendant automobile. We affirm.

Police officers observed the defendant automobile squealing its tires and hitting a curb near a school in Belle Fourche on the evening of April 26, 1975. The officers stopped the automobile which contained four persons. They asked the driver Neil Newlander for his driver's license and vehicle registration certificate. The officers smelled what they believed to be marijuana smoke in the car and observed open containers of beer inside. Newlander was arrested for exhibition driving and for having open containers in the vehicle. When one officer conducted a pat-down search of Tom Reade, an occupant, he found a pipe which contained marijuana residue. Another officer found a warn pipe which also contained marijuana residue. The officers searched the car's console and found a substance which was later determined to be 0.4 of an ounce of marijuana seeds. A hypodermic needle was discovered in the shirt pocket of Steve Satzinger, another passenger in the car. The men were arrested for possession of less than one ounce of marijuana and Neil Newlander has since pleaded guilty to that charge, which is a misdemeanor in South Dakota. See SDCL 39--17--96.

The registered owners of defendant vehicle are Neil Newlander and his mother Shirley Newlander Rieb. The First National Bank of the Black Hills loaned purchase money and has a perfected security interest in the vehicle. At the time of seizure, $3,288.89 was owed to the bank on the automobile.

A summons and complaint dated May 9, 1975, seeking forfeiture of the vehicle was served by the State on the registered owners. The owners filed an answer and moved for summary judgment. Plaintiff then also moved for summary judgment. Affidavits supporting summary judgment were filed by both sides. On July 15, 1975, the court issued a memorandum opinion granting defendant's motion for summary judgment and denying plaintiff's motion for summary judgment. The judgment and order was signed by the court on July 25, 1975. Thereafter findings of fact and conclusions of law were signed and filed by the court.

Both plaintiff and defendant raise constitutional questions regarding the provisions in SDCL 39--17--129 through 39--17--137. Defendant argues that the forfeiture provisions violate the due process and equal protection clauses of the United States Constitution, as well as those of the South Dakota Constitution. We deem it unnecessary to reach the constitutional questions on this appeal.

It is the prerogative of the people of the State of South Dakota, through their legislature, to determine the necessity for a vehicle forfeiture law and the type of violations that would require forfeiture. The Attorney General is vested with the power to enforce the law, but the standards for enforcement must come from the legislature. Schryver v. Schirmer, 1969, 84 S.D. 352, 171 N.W.2d 634.

SDCL 39--17--129 provides:

'The following shall be subject to forfeiture and no property right shall exist in them:

(4) All conveyances including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of property described in (1) or (2), except as provided in §§ 39--17--130 and 39--17--131 * * *.'

The above is but a portion of the State Drugs and Substances Control Act which was adopted by the legislature. Section 17, Ch. 229, S.L.1970. It had its origin in the Uniform Controlled Substances Act which was approved by the National Conference of Commissioners on Uniform State Laws in 1970. Although SDCL 39--17--129 was changed slightly when adopted by the legislature, it is substantially the same as § 505 of the Uniform Act. The Commissioners' Notes after § 505 set out the purpose for the forfeiture sections. 'Effective law enforcement demands that there be a means of confiscating the vehicles and instrumentalities used by Drug traffickers in committing violations under this Act. The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and To deprive the drug trafficker of needed mobility.' 9 Uniform Laws Annotated § 505, p. 338. (emphasis supplied)

In United States v. One 1972 Datsun, Vehicle Id. LB1100355950, 1974, D. New Hampshire, 378 F.Supp. 1200, the court was called upon to interpret 21 U.S.C. § 881(a)(4). The wording of that section is identical with the wording of SDCL 39--17--129. There the court stated:

'The legislative history surrounding these Amendments clearly shows that a purpose of vehicle forfeiture in the enforcement of the narcotics laws is to prevent the flow of narcotics by depriving Narcotics peddlers of the 'operating tools' of their trade, thereby financially incapacitating the illegal narcotics activity.' 378 F.Supp. at 1205 (emphasis supplied)

The legislative history of both the Uniform Law and the federal law indicates that the prime target of vehicle forfeitures is the 'narcotics peddler' and 'drug trafficker' and the purpose of forfeiture is to deny these people mobility and to financially weaken the narcotics enterprise.

We have closely examined the language of SDCL 39--17--129(4) in light of the above mentioned legislative history, and we conclude that the forfeiture provisions do not apply to the facts presented in this case. First, we are convinced that in passing the State Drugs and Substances Control Act the legislature did not intend the harsh result of forfeiture to apply to vehicles containing misdemeanor amounts of marijuana. ¹ In this case the Attorney General is asking this court to construe SDCL 39--17--129(4) so strictly that a $4,000 automobile can be forfeited to the State because 0.4 ounce of marijuana seeds and some pipes containing marijuana residue were found in the vehicle when the driver was stopped for exhibition driving. Yet, it was conceded in oral argument that had this automobile been stopped in February of 1976, rather than April of 1975, no forfeiture proceeding would have been commenced. Apparently the Attorney General agrees with our construction of SDCL 39--17--129(4) because he has changed his policy and is no longer forfeiting vehicles containing misdemeanor amounts of marijuana. ² In the absence of a clearer mandate by the legislature, we cannot construe this statute to embrace misdemeanor amounts of marijuana found in an automobile. ³ To do so would lead to an unconscionable and unjust result.

Accordingly, we construe SDCL 39--17--129(4) to be limited to vehicles which are involved in the transportation, sale, possession or receipt of controlled substances that are of the type or amount which constitute a felony under the law of the State of South Dakota. To interpret this section otherwise would be to pervert and demean the basic objectives of the entire Act and the recent efforts of law enforcement officers to stem the flow of illegal drugs in this state.

Second, we hold that the Act requires something more than a mere showing that controlled substances were contained in the vehicle at the time it was stopped. SDCL 39--17--129(4) subjects to forfeiture conveyances 'used, or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment' of controlled substances. The instant case involves only possession of marijuana in the defendant automobile. There is nothing in the affidavits to indicate that the movements of the automobile on April 26, 1975, were directly related to the possession of marijuana. The automobile was not used to 'facilitate' the possession of marijuana, but was merely incidental to its possession. As the Supreme Court of Utah stated in construing the identical language in State v. One Porsche 2-Dr. I.D. No. 911211026, T. PP10026F, etc., 1974, Utah, 526 P.2d 917, 919, 'The statute is Transportation to accomplish possession, not simply transportation 'with' possession.' (emphasis theirs) Here, there is no evidence in the affidavits of a conscious design to transport, sell, receive, possess or conceal a controlled substance in the defendant automobile.

Had the possession of controlled substances here constituted a felony, we would remand the case for an evidentiary hearing to determine if facilitation of possession was involved. However, it is uncontroverted that the possession of the marijuana was a misdemeanor. Therefore, summary judgment was properly granted, and the judgment of the circuit court is affirmed.

WINANS, J., concurs.

COLER, J., concurs specially.

WOLLMAN, J., dissents.

COLER, Justice (concurring specially).

While I agree with the result reached by the opinion written by the Chief Justice, I cannot condone the judicial rewrite of the statute involved to either accommodate the construction given to the statute by the office of the attorney general or the making retroactive of Section 42--19 of Chapter 158 of the Session Laws of 1976 which does not become effective until April 1, 1977 (See § 43--8, Ch. 158, S.L.1976).

It is too well established to be open to...