Stratemeyer v. State

• Decision Date: 01 September 1995
• Docket Number: No. 123,123
• Citation: 668 A.2d 948,107 Md.App. 420
• Parties: John Ian STRATEMEYER v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 420

107 Md.App. 420

668 A.2d 948

John Ian STRATEMEYER v. STATE of Maryland.

No. 123, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Dec. 27, 1995.

Stuart L. Alison, Bel Air, for Appellant.

Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Joseph I. Cassily State's Attorney for Harford County, Bel Air, on the brief), for Appellee.

Argued before WILNER, C.J., and MOYLAN and WENNER, JJ.

WILNER, Chief Judge.

In Allen v. State, 91 Md.App. 775, 605 A.2d 994, cert. denied, Allen v. State, 328 Md. 92, 612 A.2d 1315 (1992), we held that the forfeiture of a defendant's motor vehicle pursuant to Md.Code art. 27, § 297, on the ground that the vehicle had been used to transport a controlled dangerous substance, did not constitute a punishment for purposes of Federal or State double jeopardy law and therefore did not preclude the State from prosecuting criminal charges against the defendant arising from the possession of that substance.

We are called upon now to reconsider that holding in the light of several intervening decisions of the United States Supreme Court and the Maryland Court of Appeals. Those decisions convince us that the broad ruling announced and applied in Allen is no longer entirely correct. We now conclude that (1) a forfeiture of non-contraband property under § 297--i.e., property other than the unlawful substance or paraphernalia itself--constitutes punishment for purposes of double jeopardy, and (2) whether such a forfeiture either precludes a subsequent criminal action or is precluded by a prior criminal action depends, at least in part, on the respective bases for the forfeiture and the criminal action.

FACTS

In the summer of 1992, Harford County law enforcement officers began conducting an investigation of appellant for suspected illegal drug activity. As a result of that investigation, the State applied for and, on September 10, 1992, a judge of the Circuit Court for Harford County issued, search and seizure warrants with respect to two residential properties. Those warrants were executed the next day and resulted in (1) the arrest of appellant, and (2) the discovery and seizure of a pound of cocaine, certain other controlled dangerous substances and paraphernalia, and various documents and records.

Following the execution of the two warrants and based, in part, on some of the items seized, the police applied for and the court issued additional warrants to seize a Chevrolet Corvette, a 1992 Toyota truck, a 1973 Jeep, and a 1981 boat and trailer. ¹ Those warrants were based on probable cause to believe that the items had been purchased with proceeds from the sale of controlled dangerous substances. The warrants were executed and the property seized.

On October 21, 1992, in an 11-count indictment, appellant was charged with having, on September 11, 1992, imported, distributed, possessed with intent to distribute, and possessed various controlled dangerous substances, including cocaine, as well as having, on that same day, possessed controlled paraphernalia, maintained certain residential property as a common nuisance, and been a drug kingpin.

For various reasons, trial of the criminal case was delayed until January 17, 1995. In the meanwhile, shortly after the indictment was filed, the State filed a separate civil action to forfeit the Corvette, the Toyota truck, the Jeep, and the boat and trailer. ² In each case, the State alleged that the vehicle "was traceable to the proceeds of the alleged cocaine distribution by [appellant]" and that appellant knew or should have known that it was being used "to facilitate the transportation, sale, receipt, possession or concealment of suspected controlled dangerous substances."

The forfeiture case was tried in January, 1994. We are not privy to the evidence produced at the hearing, as neither a transcript of testimony nor any exhibits have been included in the record now before us. We know only, from a transcript of the judge's remarks at the conclusion of the hearing, that the court found as fact:

(1) that appellant had no significant employment or source of income other than from dealing in drugs;

(2) that the money used to purchase the boat and trailer "was from the drug activities that he was involved in" and that there was "a clear connection between the Defendant's drug purchase and sale activities with the purchase of this boat";

(3) that the Jeep was transferred to appellant "to satisfy a drug debt";

(4) that the cash used to purchase the Corvette "was from drug activities which he was involved with"; and

(5) that the cash used to purchase the Toyota truck "was related to [appellant's] drug activities and not from any other legitimate source" and, additionally, that the truck "was used after acquisition for drug purchases and/or distribution."

Upon these findings, the court immediately ordered the forfeiture of the boat and trailer, the Jeep, and the Corvette. It held the matter of the Toyota sub curia for a time because that vehicle was titled in appellant's girlfriend's name and it was not clear who actually owned it. A month later, however, after giving further consideration to the matter, the court ordered the Toyota forfeited as well.

On January 17, 1995, appellant moved to dismiss the pending criminal charges, arguing that "forfeiture of the aforesaid property is punishment as contemplated by the law and is not remedial" and that "subsequent punishment for the same acts or omissions ... [is] prohibited by the double jeopardy provisions of the United States Constitution and the Constitution of Maryland." At a hearing on the motion held the same day, appellant relied principally on Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), in support of his contention that civil forfeitures are "punishment" within the ambit of double jeopardy.

The court denied the motion. It declared that appellant's reliance on Kurth was misplaced, that Kurth was a fact-specific case dealing with a "rather bizarre tax scheme," and that the holding and rationale of United States v. Borromeo, 995 F.2d 23 (4th Cir.1993), ³ was more applicable to this case. Appellant has taken an immediate appeal from that ruling. Bowling v. State, 298 Md. 396, 470 A.2d 797 (1984); Evans v. State, 301 Md. 45, 481 A.2d 1135 (1984), cert. denied, Grandison v. Md., 470 U.S. 1034, 105 S.Ct. 1411, 84 L.Ed.2d 795 (1985) (holding that a denial of a motion to dismiss on double jeopardy grounds is immediately appealable).

DISCUSSION

Introduction

Md.Code art. 27, § 297, which is part of the State controlled dangerous substance law, authorizes the forfeiture of certain kinds of property acquired, or used in connection with, or that facilitate the unlawful manufacture, possession, or distribution of controlled dangerous substances. We are concerned here with two categories of such property: (1) vehicles used or intended for use to transport or facilitate the transportation, sale, receipt, possession, or concealment of such substances (subject to forfeiture under § 297(b)(4)), and (2) property furnished or intended to be furnished in exchange for a controlled dangerous substance, including all proceeds traceable to such an exchange (subject to forfeiture under § 297(b)(10)).

These provisions mirror, and were largely adopted from, a comparable Federal forfeiture law, 21 U.S.C. § 881(a)(4) and (a)(6). Proceedings to forfeit property under these provisions of State or Federal law are regarded as civil proceedings in rem. 1986 Mercedes v. State, 334 Md. 264, 638 A.2d 1164 (1994); U.S. v. Winston-Salem/Forsyth County Bd. of Educ., 902 F.2d 267 (4th Cir.1990).

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The Supreme Court has interpreted that clause as protecting against "three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). ⁴ See also State v. Jones, 340 Md. 235, 666 A.2d 128 (1995).

Appellant did not argue below and does not argue here that either of the first two protections has been violated, so we need not address those aspects. His singular argument is that, because the forfeiture of his property constitutes a punishment already imposed for the offenses now pending against him, placing him in jeopardy of further, criminal sanctions will constitute a transgression of the third protection--against multiple punishment.

As noted, we addressed this same argument in Allen v. State, supra, 91 Md.App. 775, 605 A.2d 994. There, as here, a defendant was charged with violations of the controlled dangerous substance laws; prior to trial, his truck, in which the contraband was found, was forfeited; he then sought to have the criminal charges dismissed; and, when the court denied that motion and proceeded to put him on trial and convict him, he cried foul. In rejecting his double jeopardy claim, we started with the fact that forfeiture proceedings under Maryland law are civil in nature. We noted, however, that, in United States v. Halper, supra, 490 U.S. 435, 109 S.Ct. 1892, the Supreme Court had rejected the notion that a mere labeling of a sanction as "civil" sufficed to make it non-punitive for double jeopardy purposes and held instead that the character of the sanction and the purpose actually served by it must be examined.

Following that mandate, we determined from earlier pronouncements that the forfeiture law was intended "to curtail and discourage drug use and trafficking" and, quoting from United States v. Price, 914 F.2d 1507, 1513 (D....