State v. One 1985 Ford, 1517

• Decision Date: 01 September 1986
• Docket Number: No. 1517,1517
• Citation: 72 Md.App. 144,527 A.2d 1311
• Parties: STATE of Maryland v. ONE 1985 FORD, etc. ,
• Court: Court of Special Appeals of Maryland

Page 144

72 Md.App. 144

527 A.2d 1311

STATE of Maryland v. ONE 1985 FORD, etc.

No. 1517, Sept. Term, 1986.

Court of Special Appeals of Maryland.

July 13, 1987.

Ann E. Singleton, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., Kurt L. Schmoke, State's Atty. and Jamey Hochberg, Asst. State's Atty. for Baltimore City, on brief, Baltimore, for appellant.

Arnold M. Zerwitz, Towson, for appellee.

Argued before MOYLAN, WEANT, GETTY, JAMES S. (Retired, specially assigned), JJ.

MOYLAN, Judge.

The State of Maryland, appellant, timely petitioned for the forfeiture of One 1985 Ford motor vehicle in the Circuit Court for Baltimore City. At the end of the State's case, without requiring Jean Marie Gluck, the registered owner of the motor vehicle, to put on any defense, the trial judge dismissed the petition. The State has taken a timely appeal and we reverse. We find our recent decision in the case of State v. 1982 Plymouth, 67 Md.App. 310, 507 A.2d 633 (1986), to be absolutely dispositive.

Joseph Gluck, the son of Jean Marie Gluck, was initially stopped, while driving the 1985 Ford in question, by Maryland Toll Facilities Police Officer Vaughn Cronauer on April 28, 1986. Officer Cronauer had been operating a stationary radar, monitoring northbound traffic on Interstate 695 (the Baltimore Beltway), when he observed the 1985 Ford travelling at 69 miles per hour, well in excess of the posted speed limit. When stopped, Joseph Gluck jumped out of the vehicle and ran over to Officer Cronauer's vehicle. Gluck's eyes were bloodshot and glazed; his speech was slurred; he swayed as he walked and his balance was unsteady. Officer Cronauer detected a strong odor of marijuana about his person. Gluck was given a field sobriety test and was neither able to recite the alphabet nor to count backwards from one hundred. He was placed under arrest.

On searching the vehicle, Officer Cronauer observed a partially burnt marijuana cigarette. A further search turned up a film canister containing a green leafy substance which was analyzed to be marijuana. The officer also recovered five plastic bags containing 18.5 grams of what turned out to be marijuana. Each plastic bag of marijuana had an estimated street value of $25. Also recovered were a pack of plastic baggies of the type used to package marijuana, a pipe with marijuana residue, an ashtray with marijuana residue, hand-rolled cigarettes containing marijuana, and a pair of hemostats (tweezers) containing marijuana residue.

Detective Lloyd Caster, a seven-year veteran of the narcotics squad, was accepted as an expert witness. He offered the opinion that the marijuana in this case was possessed for purposes of sale.

At his criminal trial, Joseph Gluck was convicted of simple possession of marijuana and possession of paraphernalia. In terms of the continuing nature of his problem, Joseph Gluck told the judge, at time of sentencing, that he had been "having trouble with drugs since the time he was in junior high" and that he was intending to seek professional counselling for his problem.

In terms of the ultimate forfeiture hearing, State v. 1982 Plymouth, supra, pointed out unequivocally that the merits of the forfeiture issue are to be controlled by the provisions of Md.Ann.Code Art. 27, § 297(a) (1982 Repl.Vol. & 1986 Supp.). Narrowing the focus more tightly, subsection (a)(4) sets forth the circumstances under which a motor vehicle "shall be subject to forfeiture":

"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 ..."

Of present pertinence, the key words are:

"All ...vehicles ...which are used ... in any manner to facilitate the transportation ...possession, or concealment of [controlled dangerous substances]...."

The hearing judge found, as a matter of fact, that Joseph Gluck was using the marijuana in the 1985 Ford. The hearing judge found, moreover, that Joseph Gluck had obtained the marijuana in Ocean City and brought it back as far as the Baltimore Beltway. The appellee cannot even controvert the fact that the 1985 Ford was used to facilitate the transportation, to facilitate the possession, and/or to facilitate the concealment of the marijuana--any one of which facilitations would be enough, by the clear terms of the statute, to mandate the forfeiture.

The forfeiture provisions of subsection (a)(4) establish three sets of circumstances exempting the owner from the forfeiture of the vehicle. The first two exemptions, not here pertinent, deal with 1) common carriers or owners of vehicles available for hire and 2) situations where the owner establishes that the vehicle was unlawfully in the possession of the person using the vehicle in an illicit manner. The third exemption, arguably available to Jean Marie Gluck in this case, is subsection (a)(4)(iii), which provides:

"No conveyance shall be forfeited under the provisions of this section to the extent of the interest of any owner of the conveyance who neither knew nor should have known that the conveyance was used or was to be used in violation of this subtitle."

The legislative scheme is clear. We hold that once the illicit use of the vehicle is shown, the vehicle is presumptively subject to forfeiture and the burden of proof is upon the owner to demonstrate entitlement to an exemption from that presumptive forfeiture. The burden here was upon Jean Marie Gluck to show 1) that she did not know and 2) that there was no reason that she should have known that her son was using her automobile to transport, to possess, or to conceal drugs. The summary dismissal of the petition at the end of the State's case relieved Jean Marie Gluck of this burden of proof properly allocated to her. Jean Marie Gluck may well have been able to demonstrate her entitlement to an exemption from the forfeiture statute, but she could well have been subjected to cross-examination about knowledge of her son's drug history and about awareness of his then-present condition with respect to drugs. The only allusion to Mrs. Gluck's knowledge or lack of knowledge was by her counsel in the course of requesting a directed verdict:

"If Your Honor please, clearly, the State has not presented any evidence of Jean Marie Gluck as anything but an innocent owner of a vehicle. Through the State's own exhibit, Your Honor, she is the registered owner, and by the State's own evidence, there is no evidence that Mr. Joseph Gluck owns any interest in this vehicle."

That statement by counsel, of course, is not evidence. Indeed, it betrays the mistaken belief that the burden is allocated to the State to prove knowledge rather than to the owner to prove lack of knowledge. The State, in this case, was prejudiced by being erroneously saddled with a burden of proof that should not rightfully have been placed upon it.

Indeed, our reading of the colloquy immediately preceding the granting of the motion to dismiss persuades us that the trial judge was diverted from the issue of the proper allocation of the burden of proof as to lack of knowledge by a very different misreading of the forfeiture law. It is clear that the judge believed that forfeiture in the first instance, before even getting to the secondary question of possible lack of knowledge by an innocent owner, required that the vehicle be used for the commercial distribution or sale of drugs and not simply for the personal consumption of drugs:

"The Court: May I be heard now?

Ms. Hochberg: Yes, sir.

The Court: People go to Ocean City and come back, and they carry 6 bags of salt water taffy.

Ms. Hochberg: That's correct.

The Court: The officer was not able to say whether that was bulk bought or sold. He couldn't identify it. In other words-- Ms. Hochberg: He said [there] was intent to distribute by his testimony.

The Court: Well, on cross-examination, my recollection was, it could have been bought or sold. In other words, he could have had it for distribution or he could have just bought it. Now, there is no evidence that this was in the process or on its way to being distributed. The amount in question doesn't prove to my mind that there was distribution. There was use in the car. There was residue in the car. There was a strong odor of marijuana plus the tweezers, whatever, the hemostats. So, this is consistent with the use and I don't think the State has met its burden.

Ms. Hochberg: Your Honor, if I may respond, please.

The Court: Yes.

Ms. Hochberg: First of all, under the A-4 section, we don't have to show intent to distribute. We only have to show possession, which clearly was possession. So, under A-4, 297 (A-4), we clearly fall within the statutory prohibition and I think that's all the State needs to do until the burden shifts to the defendant to show innocent ownership.

Second of all, Detective Caster clearly stated that based upon his experience it was intent to distribute because of the way it was packaged, because there was $25.00 that was written on it.

The court has accepted Detective Caster as an expert. His conclusion [was] that it was intent to distribute. Therefore, if Mr. Zerwitz wants to give him hypothetical questions, he can do that all day long. That still didn't change Detective Caster's testimony that it was intent to distribute.

In any event, I don't think at this juncture we need to show intent to distribute. All we need to show is possession. Clearly, we more than hurdled both possession and, I would submit, the intent to distribute hurdle.

The Court: Motion is granted. I suggest that you take an appeal.

In requiring proof of sale or distribution, the trial judge was wrong as a matter of law. We held in State v. 1982 Plymouth, supra, that subsection (a)(4) "covers the waterfront," stating all of the necessary conditions for a forfeiture. We said...