State v. One 1983 Black Toyota Pickup, VIN JT4RN48S6D0065995, No. 15597

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER; WUEST; HENDERSON; HENDERSON
• Citation: 415 N.W.2d 511
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. ONE 1983 BLACK TOYOTA PICKUP, VIN JT4RN48S6D0065995, Defendant and Appellee.
• Decision Date: 18 November 1987
• Docket Number: No. 15597

Page 511

415 N.W.2d 511 STATE of South Dakota, Plaintiff and Appellant,
v.
ONE 1983 BLACK TOYOTA PICKUP, VIN JT4RN48S6D0065995,
Defendant and Appellee. No. 15597. Supreme Court of South Dakota. Argued Sept. 3, 1987.
Decided Nov. 18, 1987.

Janine Kern, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Michael E. Ridgway, Yankton, for defendant and appellee.

MILLER, Justice.

This is an appeal from an order dismissing a vehicle forfeiture proceeding. We reverse and remand.

FACTS

David Earl (Earl), the owner of the 1983 black Toyota pickup, was arrested for driving while under the influence of alcohol. At the time of his arrest, Earl possessed a small quantity of methamphetamine, a controlled substance. SDCL 34-20B-16. State commenced a civil forfeiture proceeding to obtain the vehicle. SDCL 34-20B-70. After a hearing, the trial court granted Earl's motion to dismiss State's complaint, holding that SDCL 34-20B-70(4) does not allow forfeiture of a vehicle which was merely transporting controlled substances for the private possession and consumption of the owner. We disagree.

ISSUE

Whether SDCL 34-20B-70 authorizes forfeiture of a conveyance when the drugs conveyed are for the personal possession and consumption of the owner of the defendant conveyance.

This court's first occasion to rule on the forfeiture statute (at that time, SDCL 39-17-129) was in the case of State v. One 1972 Pontiac Grand Prix, 2-Door Hardtop, 90 S.D. 455, 242 N.W.2d 660 (1976). SDCL 39-17-129 provided, in salient part:

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 Sec. 39-17-130 and 39-17-131....

We held in the One 1972 Pontiac Grand Prix case that this statute did not permit the forfeiture of a vehicle transporting misdemeanor amounts of marijuana but only for transporting substances which would constitute a felony. Additionally, we held "that the Act requires something more than a mere showing that controlled substances were contained in the vehicle at the time it was stopped." Id. at 663. We stated that the vehicle could not be merely incidental to the possession of the marijuana but must have been used to "facilitate" the possession.

Page 512

The forfeiture statute was later amended and codified at SDCL 34-20B-70(4), in 1977, to read, in part, as follows:

All conveyances including aircraft, vehicles, or vessels, which transport, possess or conceal, or which are used, or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of marijuana in excess of one ounce or any quantity of any other property described in subdivision (1) or (2) except as provided in Secs. 34-20B-71 to 34-20B-73, inclusive.... (new language underlined)

Subsequently, in State v. One 1972 Lincoln Continental, 295 N.W.2d 343 (S.D.1980), we had occasion to rule on the above-amended forfeiture statute. There, too, the owner of the vehicle was found to be in possession of a small amount of methamphetamine. The circuit court dismissed State's action and we affirmed, holding that the statute as amended did not encompass forfeiture of a conveyance based on a personal use or consumption of controlled substances found in a vehicle. We specifically stated:

If the legislature had intended the act to include forfeiture based upon the personal possession and consumption of a controlled substance while in a conveyance, it would have specifically stated such intent. Rather, the legislature added 'which transport, possess or conceal,' reinforcing our previous holding that the automobile must be used to facilitate in order to be in possession of the controlled substance.

Id., 295 N.W.2d at 345 (emphasis added). However, Justice Wollman dissented and stated that:

The addition of the phrase 'which transport, possess or conceal' can only be interpreted as a legislative extension of the forfeiture doctrine to include those instances in which the conveyance transports a controlled substance irrespective of any showing that the conveyance is specifically being used to transport or to facilitate the transportation of the controlled substance.

Id.

In 1985, the legislature again amended the statute, adding an additional phrase to SDCL 34-20B-70(4). This phrase provides that:

This subdivision includes those instances in which a conveyance transports, possesses or conceals marijuana or a...