WILLIAM BOZMAN v. OFFICE OF FINANCE OF BALTIMORE COUNTY, MARYLAND
No. 88, September Term, 1982
Court of Appeals of Maryland
August 12, 1983
296 Md. 492 | 463 A.2d 832
Alan I. Baron, with whom were Finley, Kumble, Wagner, Heine, Underberg & Casey on the brief, for appellant.
MENCHINE, J., delivered the opinion of the Court. ELDRIDGE and DAVIDSON, JJ., dissent. ELDRIDGE, J., filed a dissenting opinion at page 501 infra, in which DAVIDSON, J., concurs.
This case concerns the meaning and effect of
On October 27, 1979, three Baltimore County police officers, accompanied by “members of the Department of Justice and Drug Enforcement Administration Officers” executed a search and seizure warrant at the home of the Appellant, William Bozman, in Cockeysville, Baltimore County, Maryland.
Seized in the bedroom of Bozman were small quantities of the following Controlled Dangerous Substances:
- Phentermine (Schedule IV)
- Marijuana (Schedule I)
- Clorazepate (Schedule IV)
- Methaqualone (Schedule II)
Seized in a bathroom “right off the bedroom” was a substance analyzed as cocaine hydrochloride (Schedule II).
Additional marijuana was seized in the bedroom of Bozman‘s son.
Tally sheets with names, weights and prices on them were found throughout the house.
At the same time, Baltimore County Police seized $2,170.00 in U. S. Currency from a safe within the bedroom of Bozman. An additional $1,780.00 in U. S. Currency found in that bedroom dresser and in Bozman‘s wallet also was seized.
On April 13, 1981, the Office of Finance of Baltimore County filed a petition in the Circuit Court for Baltimore County against William Bozman pursuant to the provisions of
Admitting that the money or currency was his, Bozman‘s answer conceded that he has “never been charged, tried or convicted” of criminal charges stemming from the seizure of the controlled dangerous substances in close proximity to which the money or currency here involved was alleged to have been found.
On September 4, 1981, after hearing, the trial court passed an order “that the sum of $3,950.00 seized from the Respondent, be forfeited to the sole use and gain of Baltimore County.”
On Bozman‘s appeal from that order, the trial court was affirmed by the Court of Special Appeals (52 Md. App. 1).2 We granted certiorari.
- Does the absence of evidence of final disposition of criminal proceedings defeat an application to the court for the forfeiture, pursuant to
Maryland Code Article 27, Section 297 (b) (4) (i) and(ii) , of money or currency seized underSection 297 (a) (6) and thus require the return of such money or currency to the person from whom it was seized? and - Was the trial clearly erroneous in his finding that the seized money or currency was “found in close proximity to contraband controlled dangerous substances or controlled paraphernalia” within the meaning of
Article 27, Section 297 (a) (6) ?
“Sec. 297 Forfeitures and seizures generally; . . .
(a) Propеrty subject to forfeiture - The following shall be subject to forfeiture and no property right shall exist in them:
* * *
(5) All books, records, and research, including formulas, microfilm, tapes and data which are used, or intended for use, in violation of this subheading;
(6) All money or currency which shall be found in close proximity to contraband controlled dangerous substances or controlled paraphernalia or which otherwise has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia.
This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it, or to any other
person, except in the manner hereinafter provided:3 (Emphasis added)
(7) All drug paraphernalia as prohibited by
Sec. 287A of this article, and controlled paraphernalia as prohibited bySec. 287 of this article.(b) Seizure of property subject to forfeiture - Any property subject to forfeiture under this subheading may be seized upon process issued by any court having jurisdiction over the property except that seizure without such process may be made when —
(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this subheading;
(3) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.
In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, except all proceedings relating to money or currency, which shall be instituted within 90 days from the date of final disposition of criminal proceedings which arise out of Article 27, Sec. 276 through Sec. 302 inclusive. (Emphasis added)
(i) All applications for the forfeiture of money or currency contraband shall be made by the director of finance of Baltimore City, the county treasurer, municipal treasurer, or the Attorney General. The applications shall be by petition, affidavit and show cause order and shall be filed in the District Court or circuit court of the county or in the District Court of Baltimore City or a law court of the Supreme Bench of Baltimore City.
(ii) The рetition, affidavit and show cause order shall be served in the first instance pursuant to Rule 104 of the Maryland Rules of Procedure or Rule No. 104 of the Maryland District Rules, and thereafter, the summons having been returned non est the director of finance of Baltimore City, county treasurer, municipal treasurer, or attorney general may proceed pursuant to Rule 105 b, subsection 3 of the Maryland Rules of Procedure as amended, or Rule No. 104 h of the Maryland District Rules.”
I. Necessity for proof of final disposition of criminal proceedings
Appellant contends that “because the final disposition of related criminal proceedings is a condition precedent tо the institution of a forfeiture proceeding, proof of such a final disposition was a necessary element of the case the appellee was required to establish by a preponderance of the evi- dence.” We shall hold that
“(4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.
In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, EXCEPT ALL PROCEEDINGS RELATING TO MONEY OR CURRENCY, WHICH SHALL BE INSTITUTED WITHIN NINETY (90) DAYS FROM THE DATE OF FINAL DISPOSITION OF CRIMINAL PROCEEDINGS WHICH ARISE OUT OF ARTICLE 27, SECTION 276 THROUGH SECTION 302 INCLUSIVE.”
He argues that the Court of Special Appeals in Office of Finance v. Jones, 46 Md. App. 419, 424; 417 A. 2d 470, 473 (1980), cert. den. 288 Md. 740 “has held that final disposition [of criminal proceedings] trigger[s] the 90 day period within which [a local government is] required to file its forfeiture petition“, and that this Court in United States Coin and Currency v. Director of Finance, 279 Md. 185, 367 A. 2d 1243 (1977) “held that the recordation of the establishment of guilt and the imposition of sentence were a condition precedent to the institution of forfeiture proceedings.”
He misreads both cases. In Jones and in U. S. Coin and Currency, the forfeiture proceeding was commenced after the specific limitation upon the filing fixed by statute. Both are inapposite to the subject issue.
We note also that U. S. Coin and Currency dealt with
We believe that the Legislature, by adding the previously emphasized language to
The legislative purpose plainly was to place a specific time limitation of 90 days after a concluded criminal prosecution in the case of the seizure of money or currency in lieu of the previously indefinite requirement that the filing “shall be instituted promptly.”
The late Judge J. Dudley Digges said for this Court in Prince George‘s Co. v. Blue Bird Cab, 263 Md. 655, 659, 284 A. 2d 203, 205, that “it makes no difference whether there is any conviction of a crime related to those seized goods” and footnoted that the individual who had been observed to carry out the heroin transaction “has never been indicted or convicted.” Judge Digges concluded by saying: “[The drug forfeiture statute‘s] purpose is to attempt not only to curtail drug traffic in this State, but to discourage such a blight from continuing in the future. Historically, decisive action
At this time in our society, the proliferation of drug abuse threatens the capability of the judicial system to deal with the criminality engendered thereby. Thus it is absurd to say that the legislative insertion of the noted language in
Quite valid reasons may exist why the prosecution of a particular person may never be commenced or if commenced, never brought to final disposition. Prosecutorial choice or the accused becoming a fugitive from justice come instantly to mind. Surely it was not the legislative intent in such cases that the seized funds be returned, although clearly contraband within the meaning of the forfeiture statute.
Equally certain it is that the Legislature did not intend that seized money or currency should remain forever in limbo if prosecution is not commenced and concluded.
We see nothing in the amendment of
When the drug supply becomes small, money is required for their replenishment.
In this case there was no explanation for the presence of multiple controlled dangerous substances within a single bedroom and its connecting bath. Neither was there an explanation for the presence within that same room of an unusually large sum of money.
The pertinent words of the statute here are “close proximity.” Both words have relative rather than precise definitions. Thus, the interpretation of both depends upon the facts and circumstances existing in connection with their application.
We are unable in this case to declare that the trial court was clearly erroneous in his determination thаt absent the slightest explanation, the presence of multiple proscribed drugs and large sums of money within a single bedroom fell within the meaning of the words of the statute. We shall affirm.
Judgment affirmed.
Appellant to pay the costs.
Eldridge, J., dissenting:
On October 27, 1979, a search warrant was executed at the Baltimore County home of William Bozman, the petitioner. During the search, the police seized controlled dangerous substances and suspected drug paraphernalia from the master bedroom and adjoining bathroom. In addition, the police seized $1,780.00 from the bedroom dresser and from Bozman‘s wallet and $2,170.00 from a locked bedroom safe. Although the police were unsure where in the bedroom the controlled dangerous substances were located, they testified that no controlled dangerous substances were found in the dresser, wallet or locked safe.
On April 13, 1981, the Office of Finance of Baltimore County (the County) filed a petition in the Circuit Court for Baltimore County pursuant to
Bozman answered the County‘s petition alleging that the seized money was his property, that he had “never been charged, tried or convicted pursuant to the arrest in connection with which said funds were seized,” that the money was seized pursuant to an illegal arrest, and that the County had previously voluntarily dismissed an earlier forfeiture petition involving these funds. He requested that the court deny the forfeiture petition and order the County to return the seized funds to Bozman.
On September 4, 1981, the circuit court, after hearing the evidence,2 found “sufficiеnt proximity” between the money and the controlled dangerous substances and ordered the sum of $3,950.00 forfeited to the County. Bozman appealed this order to the Court of Special Appeals which affirmed, holding that the trial judge was not clearly erroneous in finding a “close proximity” between the drugs and the money and concluding that no final disposition of criminal charges is required before forfeiture under
A.
Ҥ 297. Forfeitures and seizures generally; motor vehicles.
(a) Property subject to forfeiture. — The following shall be subject to forfeiture and no property right shall exist in them:
* * *
(6) All money or currency which shall be found in close proximity to contraband controlled dangerous substances or controlled paraphernalia or which otherwise has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia.
This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it, or to any other person, exceрt in the manner hereinafter provided; and
* * *
(b) Seizure of property subject to forfeiture. — Any property subject to forfeiture under this subheading may be seized upon process issued by any court having jurisdiction over the property except that seizure without such process may be made when —
(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this subheading;
(3) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.
In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, except all proceedings relating to money or currency, which shall be instituted within 90 days from the date of final disposition of criminal proceedings which arise out of Article 27, § 276 through § 302 inclusive.” (Emphasis added).
The language of the second paragraph of
In this way,
The majority seems to predicate its contrary conclusion on the language of
“This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it, or to any other person, except in the manner hereinafter provided....”
This language, added by Ch. 552 of the Acts of 1977, originated as H.B. 1404. The majority totally ignores the purpose of the language. As stated in the Committee Notes, “this language is necessary to clarify who has interim title to the money because without it [(the language)] the I.R.S. can and
B.
Even if there were any ambiguity in
“(D) If the trial or other ultimate disposition of such charge or charges, indictment or indictments, results in a record of conviction being entered against the person or persons so arrested, in con-
nection with which the money, currency, or cash may have been so seized or captured, the state treasurer, the county treasurer, the municipal treasurer, or director of finance in Baltimore City, shall within 90 days from the date of the record of the entry of such conviction, unless the case is appealed to an appellate court, make application to the district court or circuit court of the county or to the District Court of Baltimore City or a law court of the Supreme Bench of Baltimore City, for an order declaring and ordering that such money, currency or cash in the custody of the state treasurer, director of finance, county treasurer or municipal treasurer shall be forfeited to the sole use and gain of the State, county, municipality, or city. The court to which any such application has been directed shall establish to its satisfaction that there is no pending and undetermined suit or proceeding which has been filed in any court of competent jurisdiction, against the director of finance or treasurer, seeking a return or recovery of the money, currency or cash so held in custody, before the court shall proceed so to order a forfeiture of such money, currency or cash to the State, county, municipality, or Baltimore City.
All applications for the forfeiture of contraband shall be by petition and a copy of the petition and show cause order shall be served in the first instance pursuant to Rule 104 of the Maryland Rules of Procedure or Rule No. 104 of the Maryland District Rules, and thereafter, the summons having been returned nоn est, the State Treasurer, Director of Finance of Baltimore City, county treasurer, or municipal treasurer may proceed pursuant to Rule 105 B, subsection 2 and subsection 3 of the Maryland Rules of Procedure as amended, or Rule No. 104 H of the Maryland District Rules.”
(D-1) (1) Upon the ultimate disposition of a charge or charges, indictment or indictments, relating to seized money or currency and resulting in acquittal, dismissal, a stet, a nolle prosequi, or probation under the provisions of Section 292, any person claiming that all or any of the seized money, currency, or cash is not contraband of law under (A) and should be returned to the claimant, within 1 year after the date the judgment or order was entered or the action was taken which constituted the ultimate disposition, and after giving 10 days’ prior written notice to the State Treasurer, custodian, county treasurer, Municipal treasurer, or director of finance, may make application to the appropriate court for a determination that the money, currency, or cash is the property of the claimant and for an order that it be returned.
(2) In a proceeding upon that application an acquittal, a dismissal, or a nolle prosequi with respect to the narcotics charges or indictments involved in the seizure of the money, cash, or currency is primа facie evidence that it is not contraband. A conviction, plea of guilty or of nolo contendere, and probation under the provisions of Section 292 is prima facie evidence that it is contraband. No presumption in the proceeding shall attach to any entry of stet.
(3) If a petition is not timely and properly filed, or if it is finally decided against the claimant, the seized moneys not disposed of shall be forfeited to the custodian without further judicial action.
(4) Timely notice must be given by mail or other appropriate means to any known claimants, at their last known address, of the requirements of this section for making claim for the return of seized moneys, or the seized moneys shall not be forfeited as provided by paragraph (3) of this subsection.
(5) (I) In this section the following words have the meanings indicated:
(II) ‘Ultimate disposition’ of charges and of indictments includes acquittal, dismissal, guilty, probation prior to judgment, pleas of guilty and of nolo contendere, a stet, a nolle prosequi, and termination of the criminal proceedings pursuant to appeal.
(III) ‘Record of conviction’ includes pleas of guilty and of nolo contendere.
(IV) This section does not prohibit the trial judge after an acquittal or dismissal from ordering immediate return of all property seized.”
Although neither of these bills was enacted, the Committеe Notes and the testimony at hearings are instructive on the question of whether some final disposition of criminal proceedings was a prerequisite to forfeiture proceedings under
According to the House Judiciary Committee Notes on H.B. 1233, the problem with
Similar statements appear in Senate Judicial Proceedings Committee Notes and testimony at hearings on S.B. 745. Again, the Notes indicate that, as
From the legislative history of H.B. 1233 and S.B. 745, it would appear that the Legislature did not believe that
C.
Additionally, the majority makes much of Bozman‘s failure to explain the presence of a small quantity of controlled dangerous substances in the same room as $3,950.00 ($2,170.00 of which was in his locked safe with the remainder located in his wallet and dresser). But because criminal charges against Bozman had not been finally disposed of (indeed, none had yet been brought), it was obviously Bozman‘s constitutional right, and in his best interest, not to testify. The majority improperly uses against Bozman his invocation of the privilege against self-incrimination, protected by the
In fact, considerations of the privilege against self-incrimination underscore one of the reasons for the statutory requirement that criminal proceedings be instituted and terminate before money can be forfeited. Money is not contraband per se; whether or not it is contraband depends upon its connection with the controlled dangerous substances. The majority opinion holds that money is subject to forfeiture based simply on its being in the same room as controlled dangerous substances, absent an explanation for
D.
In sum, the language of
Judge Davidson has authorized me to state that she concurs in the views here expressed.
Notes
“(a) (6) ALL MONEY, COIN OR CURRENCY WHICH has been used intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia. MONEY, COIN, OR CURRENCY WHICH IS FOUND IN CLOSE PROXIMITY TO CONTRABAND CONTROLLED DANGEROUS SUBSTANCES, CONTROLLED PARAPHERNALIA, OR FORFEITABLE RECORDS OF THE IMPORTATION, MANUFACTURE, OR DISTRIBUTION OF CONTROLLED DANGEROUS SUBSTANCES ARE PRESUMED TO BE FORFEITABLE UNDER THIS PARAGRAPH. THE BURDEN OF PROOF IS UPON A CLAIMANT OF THE PROPERTY TO REBUT THIS PRESUMPTION.
This money or currency shall be deemed to be contraband of law and all rights, title and interest in and to the money or currency shall immediately vest in and to Baltimore City or the county in which it was seized, the municipal corporation, if seized by municipal authorities, or, if it was seized by State authorities, the State; and no such money or currency shall be returned to any person claiming it or to any other person, except in the manner herеinafter provided; and” (The Legislature transposed certain phrases in the first paragraph of (6) above; provided that such money, coin or currency was presumed to be forfeitable; and cast the burden of proof upon a claimant to rebut the presumption. No change was made in the second paragraph. The statutory declaration that such money is deemed contraband and shall immediately vest in the seizing authority remained unchanged.)
“(c) Forfeiture upon conviction. — If the trial or other ultimate disposition of such charge or charges, indictment or indictments, results in a record of conviction being entered against the person or persons so arrested, in connection with which the money, currency, or cash may have been so seized or captured, the State Treasurer, the county treasurer of the county or director of finance in Baltimore City, shall within 90 days from the date of the record of the entry of such conviction, unless the case is appealed to an appellate court, make application to the District Court or circuit court of the county or to the District Court of Baltimore City or a law court of the Supreme Bench of Baltimore City, for an order declaring and ordering that such money, currency or cash in the custody of the State Treasurer, director of finance or county treasurer shall be forfeited to the sole use and gain of the State, county or city. The court to which any such application has been directed shall establish to its satisfaction that there is no pending and undetermined suit or proceeding which has been filed in any court of competent jurisdiction, against the director of finance or treasurer, seeking a return or recovery of the money, currency or cash so held in custody, before the court shall procеed so to order a forfeiture of such money, currency or cash to the State, county or Baltimore City.”