Director of Fin., Pr. Geo's Co. v. Cole

GEORGE’S OF PRINCE FINANCE DIRECTOR OF COUNTY, MARYLAND al. v. et D. COLE

RICHARD et al. Term, 1981.] September

[No. GEORGE’S PRINCE DIRECTOR OF FINANCE OF COUNTY, MARYLAND v. et al. HAROLD GOLDBERG

LEONARD Term, 1981.] September [No. September

Decided 3,1983; denied filed on October Motion for reconsideration on October

The causes were argued J., Murphy, Smith, before C. Eldridge, Cole, JJ. Rodowsky, Davidson Ostrom,

Robert B. County Attorney and Steven M. Gilbert, Associate Attorney, with whom was Michael O. Connaughton, Deputy County Attorney, on the brief, for appellants.

Alan J. Horowitz, Goldstein with whom were Oneglia, Goldstein, Parker, brief, Foran & P.A. on the appellees. for Eldridge

Cole, J., opinion delivered the of the Court. JJ., concurred in Case No. 108 and dissented in Davidson, Case J., No. 107. filed a dissenting and concurring Eldridge, opinion page infra, at in which J., concurs. Davidson, two cases appeal this purposes consolidated We County, Maryland, George’s Prince of Director of Finance of Cole, of Finance and Director v. D. et al. et al. Richard H. et v. Leonard County, Maryland, al. George’s Prince interpreta- to render an Goldberg. In we are asked both cases (1957, Repl. Code Maryland tion and construction Vol.), 27, procedural There are certain 264. Article with this complying the Court from precluding obstacles However, address in Cole we shall Goldberg. request court, pro- of its criminal part as issue of whether a trial to pursuant seized ceedings, can order the return 27, by Article violations covered gambling an arrest for § 264. CASE

THE GOLDBERG 1979, 7, H. Leonard December In the afternoon of Laurel, a Road address Goldberg was arrested at Contee tele- taking bets over the sports Maryland, allegedly while seizure to a search and pursuant made phone. The arrest was at Goldberg’s person was seized from warrant and $501.00 time the search time his At about same arrest. Road, officers were other being conducted on Contee Goldberg’s home seizure warrant at executing a search and $3,562.00 were in cash gambling and where records of seized. 7, 1980, brought to trial May Goldberg was

On County. pleaded guilty He George’s District Court of Prince $1,000 and proba- fine to violation and received (1957, 1978 Code Maryland under judgment tion before Subsequent Vol., Supp.), 1980 Cum. Article Repl. County determination, August Goldberg, Attorney George’s County informed for Prince (d), applica- he § 264 must make pursuant to Article for the county reimbursed tion attorney August Goldberg’s a result of his arrest. On money plus county return of the requesting wrote 5,1980, Attorney denied September interest. On request. Thereafter, Goldberg filed a motion for the return of his money in the District Court which criminal had his case been heard. No given George’s notice was to the Prince County Attorney nor to the Director of Finance of Prince George’s County, Brown, Jr., William R. who was the local official who custody had seized. On October 1980, a hearing held in was the District Court at which George’s County neither the Prince Attorney nor Mr. Brown was present. hearing The result was a determination that Goldberg money seized; was entitled to recover the therefore, the District Court judge ordered Brown to return Goldberg $4,063.00 county. held No appeal was taken from this order. 21,1980,

On November order, the District Court requiring the Director of Finance to return the money seized from Goldberg, Brown, was served on on January Goldberg filed a against rule to show cause Brown in the same 3, 1981, criminal case. On February Brown answered the rule to county show cause and Brown and the filed a motion to revise order of October under M.D.R. 625. However, George’s County Prince and the Director of Finance filed no motion to April intervene this case. On 3, 1981, the District Court heard the criminal case. At this proceeding, Goldberg that, argued county because the was not a party case, county to the criminal and its Director of Finance had no standing to file the motion to revise. Goldberg argued also that the October order had not been appealed and addition, thus had become final. In the State’s Attorney opposed presence Attorney, saying that representation by the State at the October 8 proceeding adequately protected county’s interests. The trial judge orally Finance, Brown, held the Director of contempt failing of court for pay Goldberg seized, although mentioning no sanction or prescribing means which Brown could purge himself of the contempt. The trial court further held that George’s Prince County had standing no party case because it criminal cause. docket as noted District Court clerk judgment denied and to revise

April that "Motion However, Judge DiTrani.” contempt per Mr. Brown held in order of con- sign a formal judge did not Court District 3, April 1981. tempt until County and Brown 2, 1981, George’s Prince April

On motion to Court denial appealed from the District holding him from order appealed the revise and Brown In County. George’s for Prince Court contempt Circuit the affirmed District 1981, the circuit court September, to paid the involved and directed that Court order County George’s Prince of Finance of Goldberg. The Director for certiorari petition filed a George’s and Prince granted. which we following the issue: petition presented

That Money Where Was Gambling In a Criminal Case To Order Seized, Court Authorized Was the Trial Defen- Money to the Criminal Payment of That dant, Guilty Received Probation Who Pleaded and Notice Judgment, Prior to Without (b) Issue Jurisdiction, or Trial Seizing Money Was Contraband? Whether has However, closely the course this action having examined Court, we now conclude certain taken in the District preclude us from principles jurisdictional procedural addressing this issue. case Goldberg separate appeals presented

Two were — and one from the denial contempt one from the order However, appeals both of these should motion revise. court. have been dismissed the circuit improper An because appeal contempt from the "order” — 2, on before there was appeal April was noted judge’s The trial oral completed contempt written order. evidencing same do not entry ruling and the docket appeal may contempt constitute a order from time, no At the court noted sanction properly be taken. elements of valid con- purging provision, both essential tempt Elzey Elzey, 369, 374, order. See v. 291 Md. 435 A.2d (1981); Scholl, see v. Roll generally State 267 Md. (1973). 714, 298 Thus, appeal A.2d 867 Brown could not from contempt as of April order 1981. only appealable signed by order contempt was 3,1981. judge trial on April This order did contain a sanction proper provision. However, only purging order appeal April was filed appeal on 1981. Because the was premature, being filed before the final judgment, appeal Messall, must be dismissed. See Merlands Club Md. v. Md., (1965); Rwy. A.2d 687 Del. & v. Va. Co. (1916). Johnson, Md. A. 600 There also appeal has been no proper taken from original judgment entered in the criminal case October The county and its did attempt Director Finance appeal order; from the trial court’s refusal to revise this however, this motion to never properly before the revise county District Court. Neither the nor Mr. could peti- Brown tion they the court to revise its order because were never parties in the criminal case. At no time did either a file motion to in intervene though proper case even role county of the in proceeding argued at the April was 2nd now, hearing. county Because the and Mr. are Brown not been, and never have parties case, they to this were not entitled file a motion to revise under M.D.R. 625.1 could Consequently, they from appeal the denial of the Therefore, motion. we must vacate the of the order circuit court and the case remand to that court with instructions to the appeals. dismiss

THE COLE CASE Richard D. Cole and several persons other were arrested gambling charges Park, in College Maryland on October arrest, 1977. At the time of the which was conducted Significantly, 1. applies only proceedings M.D.B. 625 to civil and no civil proceeding was county ever instituted Mr. Brown or the to forfeit the money involved. to search acting pursuant George’s County Police Prince $15,500.00 and a sum of warrants, evidence of filed charges criminal were Subsequently, were seized. in the Dis- charging document in a one-count against Cole prayed jury Cole George’s County. Court for Prince trict Court for to the Circuit transferred trial and the case was filed court State George’s County. In the circuit Prince Cole under which charging document a motion to amend thereupon The State The motion was denied. charged. in against criminal information Cole brought a seven-count Thereafter, County. George’s District for Prince Court voluntarily charges dismiss its the State moved In the granted. District circuit court and the motion was the evidence seized. suppress a motion to Court Cole filed subsequently nol granted and the State The motion was January, 1980. prossed charges its entry ninety 21,1980, days within the State’s On March Court, County filed George’s Prince pros of nol the District George’s County to petition in the Circuit Court for Prince in confor- purportedly forfeit the monies seized from Cole 27, § petition with Article demurred to the mance Cole him requested circuit court to return to and ordered seized. The circuit court sustained the demurrer requiring county to Cole. This order pay testimony, receiving payment hearing was entered without evidence, making It was on the fact findings fact. based proceeding. that Cole was not criminal convicted county held appealed Special Appeals, to the Court of county to peti- that Article 264 did not authorize the conviction, forfeiture, tion for because there had been no ordering erred in further held that the circuit court Fin., Cole, money. Pr. Co. v. return Director of Geo’s (1981). 633, App. 48 Md. 428 A.2d 1227 in the of appeal pending Special While the was Court Appeals, appropriate Cole filed motion for relief with the (in May 6,1980 George’s County on Circuit Court for Prince voluntarily had appeal the one-count criminal which been by 1979), in nol contending pros dismissed the State money. entered entitled that court to order the of return his George’s Prince County sought and obtained intervention in proceedings court on the circuit June 1980. The circuit hearing court held a Cole’s post- motion and decided to pone its pending decision appeal results of the Court of Special Appeals. 23, 1981,

On June appeal after the result of the in the obtained, of Special Appeals Court had been the Circuit Court for George’s County Prince ordered Prince George’s to return the it had seized from Cole in the prossed case nol in that court. Prince George’s County filed a motion August for reconsideration that was heard on granted and was denied. We prior certiorari in the case to its by Special Appeals. consideration the Court of

We by shall examine the issue as petitioner: framed

In a Criminal Gambling Money Case Where Seized, Charges By Voluntary Were Terminated State; Charges Dismissal New Were Brought; Charges Criminal Second Case Terminated Ultimately Were Prosequi. Nolle Circumstances, Under These Was The Trial Court Criminal in the First Case Authorized to Order Payment Money of the Seized to the Criminal Trying Defendant Without the Issue Whether the Money was Contraband?

Analyzing requires this issue interpretation extensive provisions Maryland (1957, and construction of the Code Repl. Vol.), relating Article forfeiture disposition money seized in arrests for gambling vio- beginning statute, lations. Before our discussion how- ever, digression history into the nature forfeiture provisions general background against will afford us a analyze the specific provisions forfeiture of Article 27, § 264 opportunity and an legislative to discern the intent enacting the statute. concept began forfeiture a feature common England. Revolution,

law of Prior to the American

617 occasions; any on two required forfeiture common law to death was forfeited causing object inanimate someone’s felony for or and a conviction a "deodand” Crown as of goods and of the lands the forfeiture treason caused ever inte- customs was of these two one convicted. Neither their effects law but grated into the American common reason, For a short discussion today. with remain us each is order. dandum, thing Deo a to from Latin Deodand is derived 1979). (5th Dictionary to ed. God. Black’s Law given Law,2 any its in the Mosaic

Supposedly having origins inanimate, or which was chattel whether animate personal King’s subjects, of one of the the immediate cause of death King for sale distribution was forfeited appease God’s proceeds poor by high to almoner to implication At wrath. the base of the doctrine was the having from instrumentality of death was affected far this the case that Blackstone caused death. "So was offending says applied, though that the forfeiture even Com., 1 Blacks. belonged person [instrument] killed. 24; Mait., History 301; Holmes, Law, 2 Pollock & Common (2d Tate, Ed.), Co. v. English Law 473.” Parker-Harris (1916). 509, 514, 54, 55 Tenn. 188 S.W. changed practice of The

As times so did the the deodand. applied religious proceeds the forfeiture ceased to be became a source of eleemosynary purposes and deodand revenue, being justified penalty as a for carelessness. Crown 663, Leasing Co., v. Pearson Yacht 416 U.S. Calero-Toledo (1974). 2080, eventually It was 94 S.Ct. 40 L.Ed.2d Act, passage Campbell’s abolished in with the Lord Id. at wrongful which death. created cause action n. 19. type English

The of forfeiture at common law was second goods escheat of forfeiture and chattels lands woman, die, they gore or a he See Exodus 21:28: "If an ox man eaten, but owner of the ox shall be his shall not be shall stoned and flesh James) Leasing quit.” (King (quoted be Co., in Calero-Toledo v. Pearson Yacht (1974)). 416 U.S. 681 n. 40 L.Ed.2d S.Ct. upon felony Palymyra, conviction for or treason. See (12 Wheat.) 1, 14, (1827); U.S. 6 L.Ed. 531 Calero-Toledo v. Co., supra. Yacht Leasing Pearson "The basis for these forfeitures that a breach of the criminal law was an King’s justify offense to the peace, was felt denial right property.” own Id. at 682. practiced These common law forfeitures were never in this country. Farley $168,400.97, 31, 201, 204 v. 55 N.J. 259 A.2d (1969). However, the practice the act forfeiture and seizing goods pursuant was carried on See to statute. C. J. Moore, 133, 499, Hendry Co. v. U.S. 318 63 S.Ct. 87 L. Ed. (1943). At an early stage 663 in enforcing statutes, these Chief Justice Marshall noted a distinction between common statutory In Grundy law and forfeitures. United v. States (3 Cranch) Thornburgh, 337, (1806), and 7 U.S. 2 L.Ed. 459 he observed that at law no rights thing common in government in the legal step vested until some was taken for the assertion of the A government’s interest. forfeiture con statute, however, pursuant dispensed ducted with the government’s rights common law rules and the the thing immediately forfeited vested or on the performance of some act, particular Legislature. whichever was the will of the Id. Stowell, at 1, 350-51. See also United States v. 133 U.S. 10 244, (1890); States, S.Ct. 33 L.Ed. Origet 555 v. United 240, (1888); 846, U.S. 8 S.Ct. 31 L.Ed. 743 Henderson’s (14 Wall.) Spirits, 44, (1872); Distilled 81 U.S. L.Ed. 815 (8 Cranch) Coffee, United v. Bags 398, States 12 U.S. (1814). 3 L.Ed. 602

Despite the between distinction common law and statu- tory rights goods vest, forfeitures as to when law, i.e., of the rationale common the forfeiture was against the and a for offending penalty carelessness, article Cab, continued. See George’s Pr. Co. v. Blue Bird 263 Md. 655, (1971); 284 A.2d 203 State Thirty-Six v. Pinball (1977). Machines, 416, 222 Kan. P.2d This is demon- strated the in rem proceedings character of forfeiture and development of the rule that of the the'innocence owner property Greer, of the is no defense. State v. 263 Md. (1971). held that In vein it has been 284 A.2d 233 the same offender, George’s Co. v. Pr. treated as the (36) Pinball Cab, Thirty-Six v. supra; Blue State Bird is not considered Machines, the forfeiture itself supra; that offense, United Origet v. part punishment the forfeiture States, proceeding in rem supra; that as a civil One Lot proceeding, a criminal way dependent upon no States, 409 U.S. Ring and One v. United Emerald Cut Stones (1972); Kapande, v. People 93 S.Ct. 34 L.Ed.2d 438 Rumfolo, (1961); v. 23 Ill.2d 177 N.E.2d 825 State (Tex. 1976); indeed, is a the forfeiture S.W.2d 752 from separate apart proceeding completely civil Cut Stones One Lot Emerald proceeding. criminal See States, George’s Co. v. Blue supra; Pr. Ring One v. United either Cab, proceedings Bird The result of the civil supra. v. goods, Caldwell perfects government’s interest (8 How.) (1850); States, 12 L.Ed. United 49 U.S. Stowell, in a determina supra, v. or results United States returned. they contraband and should be tion that are not are proceeding in forfeiture proceeded against The items In contraband. characterized, purposes, for our as at least contraband regard, types this there are two of contraband: inherently illegal possess) to per (property se which is possess to legal (property derivative contraband which circumstances, illegal). make it See except for the which Require- Comment, the Warrant Forfeiture Seizures and (1981). ment, Contraband L. Rev. 962 n. 17 48 U. Chi. se, course, for forfeiture. per requires proceeding no hand, some contraband, require the other does Derivative on illegally. See property was used showing kind of that Rumfolo, supra. State v. leading Maryland

The State v. cases on forfeiture are Greer, Cab, supra; George’s supra; Pr. Co. v. Blue Bird (1972). State, Gatewood v. 264 Md. 285 A.2d 623 These provide cases in so some foundation for the decision this case we shall pause to discuss their facts and rationale to better understand the proceedings. instant

In Greer, State supra, v. appealed State a circuit court decision that returned to the possession owner of a car that had been seized Montgomery County Police as result pursuant 27, § narcotics violations to Article 297.3 The owner of the car had not been illegal connected with the activity any way. The circuit court’s order was issued without notifying the State or Montgomery County of the proceeding.

This Court reversed the decision of the circuit court based First, determined that principles. three the Court forfeiture, otherwise, in rem pro- is a civil specified unless therefore, ceeding. significance, It of little that culpable owner of the car was not for the criminal behavior Second, justified the applicable the forfeiture. Id. at 694. statute, (c), custody Article provided of the person property. seized vehicle is in the who seized the Therefore, necessary seizing jurisdiction party was a Lastly, the action. Id. at 694. the Court held that because State, seizing jurisdiction, any neither the nor other proceeding, pro- interested notice of the such party received ceeding violated due Id. at 695. process. (a) (4) (1957, Vol.), Maryland Repl. pro- Code Article

vides that: — (a) Property subject following to forfeiture. shall be sub- ject property right forfeiture and no shall exist them: (4) vessels, conveyances including aircraft, All vehicles or used, use, any transport, are or intended for or in manner to sale, transportation, receipt, possession, facilitate the or con- (2), that, except cealment of described in (i) conveyance person No a common carrier or used vehicle for hire in the as a common carrier transaction business subheading or vehicle for hire shall be unless it conveyance under this seized or forfeited appears person charge that the owner or other consenting party privy was a or to a violation of this subheading; and (ii) conveyance provisions No shall be forfeited under the of this by any by section reason of act or omission established the owner any by person thereof to have been or other committed omitted conveyance unlawfully than such owner while such in the other than the owner in violation of the was possession person of a States, any criminal laws of the United or of state. Cab, a cab George’s supra, In Pr. Co. v. Blue Bird by belonging Company, to the Blue Bird Inc. was seized Cab 27, § Article George’s County pursuant Prince Police to as a vehicle from which having as been used a cab driver an company complained to distribute heroin. The that cab 27, § to it express provision applied contained in Article con- rejecting company’s and forbade In the cab forfeiture. tentions, future forfeiture cases. This we set the tone for proceeding, Court noted a civil in rem that forfeiture is can "grounded legal object fiction that an inanimate (citations crime,” omitted), guilty of a id. at 658 a mere proof necessary burden of to sustain the forfeiture is preponderance proof beyond and not a rea- of the evidence doubt, is of no sonable the innocence of the owner consequence. Id. at 659-62. Maryland far as our

Perhaps significant the most case as State, supra. decision here is concerned is Gatewood v. At pleaded guilty lottery Gatewood to a violation ofthe laws. $6,182.00 from police the time of his arrest had seized convicted, pocket. being applied Gatewood’s After Gatewood to the court that heard the criminal case for the return of However, initially seized. He was successful. change required pay court had a of heart and he was money back. Gatewood This Court held that the appealed. 27, § proceeding forfeiture mandated Article 264 was therefore, proceeding, civil Gatewood’s Baltimore, the Criminal Court of which did not have civil jurisdiction, nullity. was a Id. at 304-05.

With background this we turn to discuss the forfeiture 27, § statute at issue. Article 264 was first enacted in 1951 27, 307A, adjunct 27, § Article to Article 307. 1951 Laws, Md. Ch. 299. purpose, preamble, Its stated provide in certain mechanism for "the confiscation money, currency captured counties of or cash seized or illegal gambling operation connection with arrest for any lottery.” required Section that all 307A in any connection with playing arrest for the or operation any lottery, table, game, gaming or device ... shall prima be deemed facie to be contra- band of law as a gambling part device or as of a gambling operation. money, currency No such or any cash shall be returned person claiming same, any or to person, other in except the manner hereinafter this section provided. (b)

Section 307A with, directed that the "deposited and County accounted for County,” Treasurer of the pending trial or disposition ultimate of the charges.

Once there had been a final determination on the criminal (c) (d) charges, § 307A and swung into effect. Section 307A (c) pertained to records of conviction and stated that in such County cases the Treasurer

may after one month from the date of the record of entry of such conviction ... make the Circuit Court County, of the for an order declaring and ordering money, that such currency or cash in custody of the Treasurer shall be forfeited to the sole use gain of the said county.

The statute further required the circuit court to determine whether there was other money. cláimant to the In cases where the result of the criminal proceeding "acquit- was an tal or other final determination of such proceedings favor person of the persons so arrested” the was to be "returned to the person from expiration whom taken on the ninety days from acquittal such or other final determina- tion,” unless someone else money, asserted a claim to the which case the court adjudicate was to that claim.

From 1951 to 1974 the act was amended several times. However, changes, exception, with one merely renumbered 307A as jurisdictions 264 and added to the ,list of those covered the act. In 1967 the list of offenses covered expanded and "bookmaking, betting wagering on horses or athletic events” among were included applied. the act to which group violations changes, several sweeping made Legislature In 1974 circumstances. significant are in the instant of which amendments, preamble as stated purpose procedures rights set "forth legislation, was to in connection other money and respecting laws.” dangerous substances with and controlled Laws, (emphasis supplied). 1974 Md. Ch. 666 may there legislation up cleared doubt The 1974 also money vested in the to to seized have been as when title (a), §in Following provision contained government. contraband, the Legisla- money prima that the seized is facie rights, interest in and "[a]ll further title and ture added that immediately in money, cash vest currency to such or shall ..” city local of the and counties.. governments and to the power of the supplied.] Because is within [Emphasis rights to of to seized legislature determine when transfer Coffee, Bags of place, takes States v. 1960 goods United Maryland point at the Legislature has fixed supra, money prima At this moment the seizure occurs. time the belongs jurisdiction whose facie contraband and authorities consummate the seizure. (c) § Legislature also made alterations to con-

cerning disposition money pro- the criminal of the where time, to ceeding Up resulted in a record of conviction. this or provided County Treasurer Director the statute "may, entry month” date of the of Finance after one from the conviction, of Chapter for forfeiture. the Laws apply of he Maryland changed of to read that "shall this Thus, ninety days” application. Legisla- within make the what permissive application ture made had been a manda- limit tory statutory and set time within which forfeiture, Finance apply Treasurer Director of must in thereby any doubt as to who had interest dispelling Baltimore, money at what United time. Cf. States v. (4th 1977) (the permissive features

F.2d Cir. heavily by pre-1974 upon enactment were relied Fourth opine judicial Court of order Appeals Circuit that until forfeiture was made the was still the seized). those from whom it was (d) Legislature also modified subsection The 1974 264, relating disposition in the event of acquittal or other final person determination favor of the language pertaining disposi- arrested. The to "other final tion” was struck and replaced with "dismissal.” This restricted and pertinent dispositions, making defined the (d) applicable acquittals only, subsection and dismissals and eliminating arguably dispositions other favorable such stet, prosequi, probation judgment. nolle before major wrought

Not satisfied with the modifications 1974, the Legislature again revised the statute in 1977. See Laws, "in hardly mentioning 1977 Md. Ch. It needs 720.4 Maryland usually there little prepassage evidence of Hamilton, intent.” Judgment Unsatisfied Claim and Fund v. (1969). 56, 57, However, 256 Md. 259 A.2d 303 with this particular provided bill are with we a note contained Committee, files Proceedings Senate Judicial author unknown, to the effect that "most forfeitures involve less 5,000 than and there present at are over forfeiture $100 up City cases backed in Baltimore problems because of with present law.” The modifications contained in the 1977 enactment, therefore, were intended to streamline and clar- ify procedure for forfeitures in order to alleviate the overburdening experienced by system. the court

The change first relevant Chapter made 720 was in (a). Legislature to, The added and in doing clarified, so provision vesting title immediately govern- in the local ment to provision include the if money was seized authorities, State such title would vest the State. (d) completely

Subsection was rewritten. The ultimate dis- positions that were favorable to the accused and to which the subsection applied were expanded acquittal from Chapter Maryland 418 of the 1977 Laws of also amended Article However, only money § 264. that amendment concerned the investment of analysis after seizure and is not relevant to our the instant case. Further, prosequi. and nolle include stet dismissal to within since provided, had previous statute disposition of the favorable ninety days from the date another unless to the accused money to be returned was language The new money. claim to the party had asserted a was that any of the seized claiming that all or

any person (a) and under of law money ... is not contraband claimant, year within one to the be returned should entered or or order was judgment after the date the constituted taken which the action was may make disposition, ultimate to the State notice days’ prior written giving ten or Director Treasurer, Treasurer Custodian a determina- Finance, court for appropriate of the claim- money ... is the tion that the [1977 Md. returned. for an order that ant and (1).] (d) Laws, 720, § 264 Ch. evaluating the burden of thereby removed Legislature

The arrested claims, persons two as in the case where conflicting money, from an interest time both claimed at same possession of it authority who had government the local in all must be made provided judicial that a determination outcome. regardless cases made to be the court in the determinations

To assist money, Legisla- interests in seized regarding conflicting statutory presumptions subsection ture enacted a series of (d) (2). dismissal, prosequi constituted acquittal, An or nolle A not contraband. that the prima facie evidence contendere, proba- conviction, or nolo plea guilty evidence that the prima facie judgment tion before were no gave stet rise to entry was contraband. way. either presumptions (d) (3) provided proceedings,

To finalize the subsection timely petition either failed to file that where the claimant contra- judicial decision that or received a band, the the custodian without seized was forfeited to (d) (4) required timely action. Subsection judicial

further any known claimants. given must be notice (e) legislation provides leg Subsection of this one appellees’ defining claims in case. After "ultimate dis- this (e) conviction,” position” provided and "record of an prohibit judge "[t]his section does not the trial after immediate return of all acquittal ordering or dismissal from provision unchanged seized.” This continues (e) (4) 27, § present scope meaning Article and its and will be discussed later. Legislature responded problem

In to a in again by being experienced City.5 law Baltimore Carl Maryland today. pertinent part In The 1979 enactment is the law in provides: § 264 — any money, currency, Deemed contraband. Whenever or any captured by police in in cash is seized or connection with officer this State any any playing operation arrest for the or events, bookmaking, betting wagering or on horses or athletic game, table, any lottery, gaming or device unlawful under article, currency, provisions money, of this all such or cash shall be prima deemed facie to be contraband of law as a device title, part gambling operation. rights, All or as a of a and interest money, currency, by police in and to such or cash seized government immediately govern- local ments of the in shall vest and to the local county, municipality, City, if or Baltimore or seized authorities, State, money, currency, or State and no such same, any person claiming any cash shall be returned to other or to person, except provided City in this section. The Baltimore police department authority purposes is not a State of this section. — (b) Pending disposi- Deposited pending trial. trial or ultimate indictments, charge charges, growing tion of the or indictment or any money, out of currency shall with which arrest connection such may captured, or cash have been so seized or the same deposited interest-bearing bank account or invested county in treasurer of the accordance with Article 95 accounted for county City. or the director of finance in Baltimore — (c) upon Forfeiture conviction. If the trial or other ultimate indictments, disposition charge charges, or indictment or entered such being against person results in a record of conviction arrested, money, persons or currency, with so connection may captured, or cash have been so State Treasurer, county county treasurer of the or director of finance City, days in Baltimore shall within 90 from the date of the record conviction, entry appealed of the appellate court of the of such unless the case is to an court, make to the District Court or circuit county City or to the District Court of Baltimore or a City, Supreme law court of the Bench of Baltimore for an order declaring ordering money, currency, or cash in that such City, for Baltimore City Berenholtz, Solicitor Assistant Proceedings Judicial the Senate hearing before at a testified body that Committee, informing that Treasurer, county trea- custody or director of finance the State of State, county gain of the to sole use and be forfeited surer shall any application been directed city. has to which such or The court pending and there is no to satisfaction that shall undetermined of surer, so its establish any court proceeding has been filed or suit or competent jurisdiction, against of finance trea- the director money, currency recovery or cash seeking of the return or a proceed order a custody, so to the court shall held in before State, county currency or money, or to the cash of such forfeiture City. Baltimore (1) shall be applications forfeiture of contraband for the All be copy petition cause order shall petition and show and a of the Maryland pursuant 104 the to Rule of the first instance served in Rules, Maryland District of the Rule No. 104 Rules of Procedure or est, having thereafter, non been returned the summons and State City county Treasurer, or Baltimore director of finance of b, pursuant may proceed to Rule 105 subsection treasurer amended, Maryland or as Rules of Procedure 3 of subsection Maryland District Rules. 104 h of the Rule No. — (1) (d) money. Upon the Application return of seized charge charges, or disposition or indictment of such ultimate dismissal, stet, indictments, resulting acquittal, a nolle a 641, any person provisions prosequi, probation of or under the currency, money, any cash is claiming or that all or the seized of to the be returned of under and should not contraband law claimant, judgment or year order was the date within one after the ultimate prior taken which constituted entered or the action was days’ may application giving written ten make disposition, notice to tor of money, currency, treasurer, custodian, Treasurer, county or direc- State finance, appropriate that the court for determination claimant and for an ofthe or cash is it order that be returned. (2) acquittal, proceeding upon an In a gambling charges dismissal, or currency viction, the respect prosequi or with a nolle money, cash, or of the in the seizure indictments involved A prima contraband. con- that it is not is facie evidence contendere, probation guilty under plea or of nolo prima provisions is contra- facie evidence entry proceeding presumption in attach shall band. No stet. (3) finally filed, timely properly if petition or it is not If a claimant, moneys disposed of against the seized decided judicial action. further forfeited the custodian without shall be (4) appro- Timely given mail or other must certified notice be address, claimants, last known priate at their means to known making requirements claim for the return section for of this moneys moneys, shall not forfeited seized of provided (3) by paragraph of this section. — (1) (e) Definitions; property. In of seized immediate return meanings following indicated. words have this section charges disposition’’ indictments and of "Ultimate gray there [under was a area the old as to law] who had the burden filing petition for forfeiture when a criminal defendant probation had received before verdict.

We are trying up any to clear ambiguity which may have existed the old law in order to be clear as to filing who has the burden the petition for forfeiture and going who has the burden of forward with the court case. hearing The eventual court could be held to determine whether or not the money confiscated members of the Baltimore City Department Police in connection with the was, fact, defendant’s criminal arrest contraband of law under provisions of Article Section (d) (2). and (c) Section 264 of the 1977 had enactment directed that (defined cases where there awas record of conviction to pleas include guilty contendere, 27, § of and nolo Article (e) (3)) Treasurer or Director of Finance was to petition for forfeiture and that in cases where there was an stet, acquittal, dismissal, prosequi or nolle toup it was claimant to petition money. for return of the Article (d) (1). § 264 merely The 1979 Amendment includes "proba- provisions [probation tion under the of before section 641 judgment]” dispositions in among group of favorable (d) (1), § 264 mandating thus it was the claimant’s responsibility get money in such to to back. petition cases his (d) (2) Further, § probation to include amended disposi- before judgment among dispositions those where the money tion prima facie evidence that contraband. Laws, See 1979 Md. Ch. 123. dismissal, acquittal, guilty, probation prior judgment, includes to stet,

pleas guilty contendere, prosequi, of and of a nolo nolle and proceedings pursuant appeal. termination criminal to (3) pleas guilty and nolo "Record conviction” includes contendere. judge acquit- This section does the trial sifter prohibit ordering tal or dismissal from return of all immediate seized. it evolved legislatively § 264 has It is that as clear then judicial experienced by needs responded perceived has become its and has machinery administering provisions detailing procedures to comprehensive enactment of arrests money as the result where has been seized followed a detailed Having provided such gambling for violations. responsi- those Legislature has admonished procedure, compelling and administration unmistakable ble its pursuant gambling arrests terms that no same, or to claiming the any person "shall be returned to Article person, except other this section.” provided (a) (emphasis § 264 supplied). history general at char-

Having explored length history proceedings acteristics forfeiture believe specific provisions of Article we pertinent mechan- explain advisable to summarize and development, prefatory to an light ics of 264 in of this law of the case at bar. to the facts violations, by leg- money pursuant Seizure of determination, into prima islative transforms that (a). 27, § Until evidence is facie contraband. Article inference, illegal for presented statutory to rebut this it is authority anyone seizing possess other than the to title, money. all and interest rights, Section 264 vests seizing jurisdic- money at the moment seizure tion. money shall be proceeding

The whether the determine in rem pro- its a civil forfeited returned to claimant is money thing proceeded is ceeding where the itself against any pro- is criminal and which unconnected with ceeding. Ring Lot Emerald Cut Stones and One v. See One Cab, States, George’s United Pr. v. Blue Bird supra; Co. therefore, supra. preponderance proof, The standard is Cab, George’s v. Blue Bird evidence standard. Pr. Co. however, does, supra. proceeding of any result criminal (d) §27, statutory raise Article 264 presumptions. certain (2).

630

If the record, result is conviction then is a pre- there (d) sumption money contraband, that the (2), § is 264 and jurisdiction the seizing ninety days has within which to apply money to a court However, to have the forfeited. (d) Legislature § in enacting 264 seems to have modified our holding in Dir., United States Currency Coin & v. 279 Md. 185, (1977), jurisdiction’s A.2d 1243 that the seizing untimely filing it money. caused to lose its claim to the (d) § Under the claimant does not become entitled to the money merely governmental entity because the fails to file for ninety days. forfeiture within The claimant still must apply for its return year and he must do so one within after judgment date of the of conviction. He then must also overcome the presumption money that the is contraband. (d) (3) condition, Failing § either would forfeit the seized money to the custodian. if

Similarly, the ultimate disposition is the result of a plea guilty or nolo contendere probation or results in under the provisions 641, § 27, money Article then the is (d) presumptively contraband, 27, (2), any § Article and apply claimants must year its return within one (d) (1). prove § illegally. that it was not used Article If the disposition dismissal, ultimate acquittal, is an or nolle prosequi contraband, then the presumptively is not (d) (2), Article apply claimant must to the (d) court returned, for an order Article (1), during proceeding State, burden if it able, by preponderance show a of the evidence that the part was used as of a violation. See Pr. George’s Cab, v.Co. Blue Bird supra.6 Plymouth Pennsylvania, In Sedan v. 380 U.S. 85 S.Ct. (1965), Supreme illegally L.Ed.2d 170 Court held that evidence being transport whiskey from an automobile used violation of Pennsylvania proceeding law was in a inadmissible to forfeit said vehicle. suggest illegally The Court did that an seized vehicle must be returned independent defendant could not be if forfeited there were evi- illegally happened, Plymouth dence said vehicle had been used. As it However, independent, Sedan there was no such untainted evidence. when available, Plymouth such implicitly untainted evidence Sedan authorizes government to obtain forfeiture. See United v. States One 1971 (9th Harley-Davidson Motor., 1974); Imports, 508 F.2d 351 Cir. John Bacall it apply proceed law we developed the relevant Having money was Here when the before us. to the facts of case a matter of facie contraband prima deemed seized was money in title, in the vested interest rights, law and all charging filed a one-count County. The State George’s Prince Court, was transferred document in the District trial. The State jury a prayed circuit court when Cole prosecution but before ultimately moved to dismiss in criminal information it filed a seven-count doing so was subse- prosecution at attempt District Court. The second State. quently nol prossed the char- proceedings of these

Throughout pendency whit. change one money did acter ofthe and status pros was reached there nol disposition an ultimate Once contra- was not that the prima was facie evidence (2). (d) title, However, rights, all § 264 band. Article pro- a county and until civil interest still had vested determine, by preponderance a held ceeding was part evidence, money had in fact been whether title, and interest would rights, all gambling operation, county. remain pros of nol Prince entry ninety days of the State’s

Within of the funds for forfeiture George’s petition filed a proceeding in a civil petition seized. This was demurred judge trial by the properly demurrer was sustained forming a basis for the no because there had been conviction Cole, Fin., v. Pr. Geo’sCo. application. State’s See Director of still vested supra. Nonetheless, custody of the County. George’s Prince (9th 1969); States, v. United States

Ltd. United 412 F.2d 586 Cir. v. States, (E.D. 1981); Mayo $297,235.00, United Supp. v. F. Mo. (E.D. $168,400.97, 1976); Farley 259 A.2d 201 Supp. v. 55 N.J. F. Ill. Jones, (1965); 172, 215 (1969); Sherry, A.2d 536 State v. State v. 46 N.J. Armour, (1981); Fuqua Super. v. 543 S.W.2d 64 N.J. 438 A.2d 581 (Tenn. Currency, 1976); $1,058.00 in States v. United see also United States (1st (3rd States, 1963); 303 F.2d 34 v. United 323 F.2d Cir. Interbartolo (Iowa 1975). 1962); Seized, Cer 225 N.W.2d Cir. State v. Merchandise tainly to the suggest per be returned se contraband must the dissent does not it, illegally see is no constitutional if seized. As we there defendant contraband; per making derivative basis for between se and distinction therefore, may procedure, Legislature prescribe to be the forfeiture followed. 264). (i.e., case, obtaining in this 632 May

On 6, 1980, Cole filed a motion for return of the money in voluntarily the criminal had appeal which been 8, 1979, February dismissed on in the Circuit Court for Prince George’s County. clearly This action was more than year one after the in disposition ultimate that case and is (d) (3) § governed by resulting in an automatic county. forfeiture to the

However, assuming even arguendo proceeding that county initiated somehow tolled this limitations Cole, period for there still has no proceeding been held (d). 27, § conformance with Article The motion filed was earlier, done in the criminal As case. we said the forfeiture proceeding separate is civil nothing action that has to do proceeding the criminal other presumptions with than the to which the disposition gives ultimate the criminal case rise. hearing County At the on the motion the Assistant Attorney for George’s County continually Prince bemoaned the fact that he had not was not and allowed to offer evidence money that the judge proceeded was contraband. The on the premise that proceeding sufficiently the criminal had deter- mined this question accordingly. quite and ruled This clearly language § contravened the purpose fell far short the requirements of the statute.

Finally, contention, it is Cole’s concurred the lower court, § that Article 264 and 551 provide Article returning money. alternate means for Rather than treating request Cole’s of money separate return his as a proceeding, civil authority the trial court it assumed had the county money. to order the give up to its justify To deci- (e) (4) 27, § concluded, construing Article sion the court together 27, § with Article these two sections empowered court, part jurisdiction the trial as over its case, criminal to order the custodian of seized to that money. return This rationale enabled the lower court that, hold George’s County because neither Prince nor the Director Finance for Prince George’s parties were criminal proceeding, requirement there was no they be represented proceeding at the to determine the in this inapplicable is money. This rationale status of as a see, entirely unsound and, also shall case we general proposition. First, (e) (4) simply apply. do not

Sections already Cole’sfunds inapplicable because these sections are (d) (3). § 264 county pursuant forfeited to the had been of seized (d), if for the return petition Under date of the year from the properly filed within one case, moneys are seized the disposition ultimate that action.” judicial without further "forfeited to the custodian money seized seeking the return the Cole filed his motion case, had May 6, original criminal voluntarily court and was been transferred to circuit filed over February 1979. Cole’smotion was dismissed on disposition the criminal case year the ultimate after therefore, his money; his sought which he the return of (d) (3) acts as Section 264 in effect action was ineffective. petition if defendant could Even statute of limitations. money, he not do of his could the criminal court for return of that year disposition the ultimate so more than a after criminal case. (b) (e) (4) §

Furthermore, § nor 551 even neither 264 (e) only applies applied to facts in Cole. Section These acquittal or dismissal.” where there has been "an terminating by the court terms refer to actions taken trial entry favorably to the accused. The docket proceedings evidencing proceeding termination of this criminal State.” This was "dismissed indicates that case §in 264 term is used disposition was not a dismissal as that (e) (4), State, 293 Hooper v. prosequi. but rather a nolle See (e) (4) (1982). Therefore, § 264 did 162, 168, 443 Md. A.2d 86 Absent proceed Cole to in the criminal case. not authorize (e) clearly (4), § § irrelevant. any application of (a) money no shall be returned provides Section 264 that clearly This any person except provided in this section. § it in concert preempts any unless is used application of 551 (4). (e) (4) (e) § apply not with Because subsection does § Cole, apply. 551 also could Finally, if even the trial arguably pursuant court acted (b), express requirements of this section were not met. provides This section for the return of all (a) "except Section 264 clearly contraband.” states money seized in connection with a gambling arrest "deemed prima facie be contraband of law.” Because this money (b) contraband, § was deemed expressly precluded its return to the defendant. Although trial judge money, ordered the return of the he never found that money was not in fact contraband. The trial judge simply reasoned that if the property was not per contraband se and if the prove State could not in the criminal it court that was pursuant to a gambling operation, then the county could not keep money. analysis logically This cannot construed as a money factual determination that was not contraband, overriding thus presumption that Therefore, was contraband. because contraband, presumptively § 551 could not apply. reasons, For these we hold that the judge trial erred in relying on provisions these as authorization for ordering the county to Furthermore, return to Cole. we conclude in general provisions these do not provide alterna- procedure tive § that outlined in detail in (e) 27, § Article provides that the provisions of § 264 do prohibit "not judge acquittal the trial after an dismissal from ordering property immediate return of all section, seized.” This observed, as we have became a part of § Laws, 264 in part 1977. 1977 Md. Ch. 720. It was effort to eliminate confusion and facilitate rapid and disposition smooth money of seized that characterized this legislation. It hardly logical seems that the purpose would be served, however, by tacking on a section at the end of 264 abrogate that would procedure elaborate of the statute by allowing the return of absent a consideration of the prevailing presumptions money. and character of the (d)

Sections 264 through outline a procedure clear civil logically dealing disposition money pur- with the seized (e) (4) suant to gambling arrests. merely Subsection makes prohibit section does that this general statement a property of all return an immediate ordering from judge trial to be (e) (4) procedures no establishes seized. Subsection government for the local followed, provision no makes not address and does represented, holding funds be to the conflicting claims if there are procedure appropriate that general a statement simply money. provision is This procedure with the detailed easily be reconciled cannot sug- effect Giving it the in rest of the statute. outlined the obvious totally abrogate would by the lower court gested confusion act, creating again of this purposes estab- money. It is well of this uncertainty disposition a will statute portion specific, that a well-defined lished statute. of the same provision general, uncertain control 335-36, Ellicott-Brandt, 237 Md. Dep’t v. See State A.2d State, (1965); 192 Md. Maguire v. A.2d 131 Sutherland, (1949); Statutory Construction 2A also see "[wjhere 1973) (4th there (stating that ed. Sands § 46.05 provisions terms or general inescapable conflict between specific of a therein provisions terms or a statute other nature, effect over given and be specific prevail will Therefore, in a when the general”). time seizure at the presumptively

case is contraband (e) (4) judge criminal application no has money. authority no to order return proceeding has search general § 551 is a Finally, note Article we has where there been It provides and seizure statute.7 pertinent part provides: 7. Section If, county trict that described believing any time, judge to a at the circuit court of judge or of the Criminal Court of Baltimore or of the Dis- Court, appears property is not same as that the taken probable cause the warrant or that there no grounds the existence of the on which the warrant was issued, or that the under warrant issued more was taken seizure, prior judge days than 15 calendar said must cause person it to be restored to the discretion of the received at from whom it was taken. In the open may judge, an oral motion made in court any application making of time for the return seized application grounds property if the for return is based on the property the warrant, taken is not same as that described in the the probable believing or that no for the exis- there is cause issued, grounds tence of the on the or that the which warrant was

an entry pros, dismissal, nol or acquittal of "all of property ...,' the person, except may contraband be returned to the person belongs to whom it without the of necessity per- son an instituting replevin any action for or other legal pro- (b) ceeding. § (emphasis supplied). ...” Article exception contraband was added of Chapter 704 the 1975 Maryland, Laws of significantly, perhaps, just year one after the Chapter It embellishments 666 in noted above. obvious, (a), is especially light § the language provides that no is except to be returned provided by that the Legislature did not intend that any upon 551 should have impact disposition money pursuant violations, to gambling prima which is facie contraband. property was taken under a warrant issued than 15 more calendar days prior judge grants motion, If the seizure. oral writing copy order of the court shall be in and a of the order shall attorney. rejects judge proffer be sent oral motion and taken an to State’s If the on an requires person property from whom the proceed property petition to for return of the seized police authority seizing property order show cause subsequently property and it is that the ordered be restored to the person taken, from whom it was court costs shall be assessed against petitioner. However, appears it property if that the taken is the same as that described the warrant and that there probable believing grounds cause for the existence of the on issued, judge which the warrant was then said person shall order the same custody seizing retained the according of the it or to be otherwise disposed to law. (b) property If the criminal person case in which of a was seized pursuant to a search warrant issued under subsection of this (i) (ii) disposed entry section is dismissal, prosequi, of because of of nolle (iii) acquittal, or if appeal or the State does not such a appeal expired, criminal case the from if property or the time for has all person, except any property prohibited by contraband or law being recoverable, may person be returned to whom belongs necessity person instituting without the of that an action replevin any legal proceeding against agency or other having custody property. (c)(1) If, any time, application judge at to a of the circuit court any county City of of the judge or of Criminal Court of Baltimore Court, property rightfully District it is found that taken being under a no wrongfully search warrant withheld after there is property, judge further need for retention of the must cause person it to be restored to the from whom it was taken. judge, In the open discretion of the an oral motion made in may making court application be received at time for the

return the of seized if the for return is based on grounds property, although rightfully that the taken under a viola- for therefore, money hold, that We (a) be returned 27, § cannot by Article tions covered provided those other than any means through its claimant case, there in which 27, § In the instant for in Article of whether any adjudication nor proceeding nowas civil complied contraband, 27, § was not Article money was compelled to County cannot be George’s Prince with and money. release — Finance v. Director of

In No. of the Circuit judgment Cole> Court for County George’s Prince reversed. pay the costs. Cole to — of Finance v. Director

In No. 108 the Circuit judgment of Goldberg, George’s for Prince Court remanded to and case vacated for appeals. Court dismissal of pay the George’s County to Prince costs. part: dissenting in and J., concurring part

Eldridge, opinion Court’s portion of the fully I concur with Goldberg. For the relating to the defendant judgment should the circuit court opinion, forth in that reasons set Goldberg case. appeals have dismissed both First, I do not case, however, I must dissent. In the Cole scope of Art. the case comes within believe (a) Second, of that statute. as delineated subsection 264,1 coverage disagree §of if the case falls within the even of Art. majority’s interpretation with (e) (4) these addressing (d), §§ Before and 551. forth. issues, case should be set relevant facts of the Cole warrant, wrongfully there is no being after withheld search grants judge property. If the further need for retention writing copy motion, and a be in of the court shall oral of the order shall be the order attorney. sent to State’s On September 23,1977, 1 and two court orders were issued authorizing the interception of telephone communications from three telephone numbers in George’s County, Prince purpose of gathering evidence gambling. Based upon gained information from wiretaps, search warrants were pursuant 27, § issued to Art. of Maryland executed; Code.1 The warrants were Richard Cole and others arrested, were $15,000.00 in cash was seized police. The seized was turned over the Director of Finance of County. Prince George’s single-count

A charging document filed in the District Maryland, Court of charging Cole conspiracy with to violate the gambling laws. request Cole filed a jury trial, for a and the case was removed to the Circuit Court for Prince George’s County. State, on September 21, 1978, filed a motion in the circuit court to amend the charging document Maryland (1957, Repl. Vol., 1. Supp.), Code 1978 Cum. Art. (a), during period, provided as it read the part: relevant time in Issuance; contents; "§ search, etc.; disposition of prop- time of erty seized. (a) appear any judge Supreme Whenever be made to of the City, any judge any Bench of Baltimore or to theof circuit courts State, Court, in by any judge the counties this or to of the District application written applicant, and sworn to the signed accompanied by containing or affidavit affidavits within facts personal knowledge affiants, of the affiant or that there is probable cause, the basis of which shall be set forth in said affidavit affidavits, any felony or being to believe that misdemeanor or by any any building, apartment, prem- committed individual or in ises, place thing jurisdiction or judge, within the territorial of such any subject or that to seizure under the criminal laws of any person the State is situated or located on the such individual building, any or or apartment, premises, place on thing, such or judge may then the forthwith issue a search warrant directed any duly police policeman, authorizing constituted or officer him to individual, suspected building, apartment, premises, search such place under the thing, any property or and to seize found liable to seizure State, provided any criminal laws of this such describe, search warrant partic- shall name or with reasonable ularity, individual, building, apartment, premises, place

thing searched, grounds to be and such search the name of applicant on whose written as aforesaid the issued, provided any warrant was further that search or sei- authority warrant, zure under the within 15 calendar of such search shall be made days from the date the issuance thereof and expiration 15-day period after the said warrant shall be null and void....” being four substan- charges, specific by setting forth seven conspir- being laws and three gambling tive violations of thereafter, judge denied the trial acy charges. Shortly charging its document. amend motion to State’s document, charging a new the State filed Consequently, Court. On counts, Cole the District against with seven pending 8, 1979, moved to dismiss February the State case, granted. this motion was circuit court Cole, motion filed Next, suppression pursuant to wiretaps on from the suppressed all evidence derived court illegal. The then nol wiretaps State ground that the were charging document. the new District Court prossed (the thereafter, County days George’s Prince Within 90 Court for County) petition equity Circuit filed a County, of the seized George’s seeking Prince forfeiture (c).2 27, § money under Art. The court sustained ground that he had petition Cole’s demurrer offense, and ordered that been convicted of by the appealed Cole. That order was be returned to Appeals which affirmed Special to the Court of its demurrer but reversed sustaining circuit court’s Cole, Fin., Pr. Geo’sCo. v. money. return of Cole’s Director (1981).3 633, 428 A.2d 1227 Md.App. (a) part 27, (c), provide § in 2. Art. as follows: — "(a) money, currency, any or in Deemed Whenever contraband. by any captured police cash is connection with or officer this State seized any any playing operation of for the or arrest events, wagering bookmaking, betting or on horses or athletic table, any lottery, game, gaming the or device unlawful under article, money, currency, provisions or shall be of this all such cash prima deemed or as be contraband of law as a device facie to part gambling operation.... a of — "(c) upon If the trial or other ultimate Forfeiture conviction. being charge disposition of such ... results a record of conviction arrested, county against person persons entered the or so ... the days of the shall within 90 from the date of the record treasurer... entry an order application of make to the ... court... for such conviction... declaring ... shall be forfeited....” ... that such Special Appeals’ 3. There no further review of the Court decision was by Court, this and the in that case are not before us the instant issues any opinion Consequently, inappropriate express to con- case. cerning it would be Special Appeals. the decision of the Court of appeal While the the Special Court of Appeals was pending in County’s § the civil forfeiture action under (c), Cole filed in the circuit court criminal case a "Motion For (Return Appropriate Relief Property),” seeking Seized $15,500.00 return of the pursuant seized to the search warrant. by filing answered a motion to inter vene and an opposition to the return of money, arguing the (e) 27, (4), § that Art. did not authorize the relief. The defendant Cole responded by opposing intervention (e) arguing (4), §§ that Art. 551 and 264 authorized the for motion return of the property. (b), provides Art. enacted Ch. 704 the of Acts of as follows: "(b) If property person the criminal case in which of a pursuant to a search warrant issued under subsection (i) disposed entry of this section is of because of of nolle (ii) (iii) prosequi, dismissal, criminal acquittal, or ifor the State does not appeal all appeal such a case expired, or if the time for has property person, any except property of the contraband or prohibited by being recoverable, may law from be returned to the person instituting against belongs necessity person to whom it without the replevin any legal proceeding an action or for other custody agency having property.” the of the (c), Art. provided enacted Ch. 704 of the Acts of „ during period: follows time relevant "(c)(1) If, time, any application judge at ato of the circuit any county court of City or Criminal Court of Baltimore judge Court, property rightfully District found is being wrongfully taken under a search warrant is withheld after there is no further property, judge need for retention of the person must cause it to be restored from whom it was taken. (2) judge, In open the discretion an oral motion made in may making court at application be received time property return of seized if the for return is based on grounds property, although rightfully the search that the taken under a warrant, being wrongfully withheld after there no property. further need oral of the judge grants for retention of the If the motion, writing copy the order court shall inbe and a attorney. order shall be sent to the State’s judge rejects If proffer requires of an oral motion and person property proceed from whom the was taken to for return property by petition of the seized and an order to show cause authority wrongfully withholding and it is subse- quently property person ordered that the be restored to the from taken, whom it against was court costs shall not he assessed the petitioner.” the property, motion for return The defendant’s intervene, heard County’s motion to the together with over the criminal case presided by judge circuit who had the J.) hearing, ofthe 6,1980. At the (Bowen, conclusion on June intervene, held that the the the motion court denied money ought contraband, that the and held money was not however, if the civil indicated, that to be returned. court would be appeal, proceedings further on case were reversed held. in the civil Appeals’ decision Special

After the Court of 11, 1981, a motion for County filed case, May the on case, Judge Bowen con and the criminal reconsideration During the 1981. hearing August ducted a further on money] "if is not represented [the that hearing, County be returned.” agree it should then we connected to delivered Judge Bowen hearing, At conclusion of "money was seized out that opinion pointing oral "the crim gambling,” an accusation connection with money is not contra charges proven,” inal could not be that, se, possibility proving once the per band money was not contra disappeared, the gambling violation County held that under the The court band statutes. money would and that the permitted would be to intervene intervention permitting be returned. An order $15,500.00 filed on returning the defendant Cole was appeal 1, 1981, filed an order of September and the argument in Court day. briefing on same Prior granted County’s petition this Court Special Appeals, for a writ of certiorari. (e) (4), provides by Ch. 720 of the Acts of Art. enacted follows: prohibit judge acquittal "This the trial after an section does ordering all or dismissal from immediate return of seized.” by Special Appeals, As case was not decided Court we are Rather, petition. not Maryland limited to the issues raised certiorari under b, Court issues which Rule 813 "this will consider those would be cognizable appeal.” Consequently, principle on that an a case direct appellate adequately ordinarily judgment any ground court wil affirm a trial court’s record, though not relied on the trial shown even court 642

I. majority opinion The states on the first of page its court, issue in this is of its part case "whether trial as proceedings, money criminal can order return of seized pursuant gambling by to an arrest for violations covered 27, however, § question, Article 264.” The threshold "money whether this case involves to an pursuant gambling § arrest If it by violations covered ... 264.” § not, does simply applicable, 264 is not and no issue arises 264, as can, § to whether the trial under court order return of the in the criminal case. (a) 264, coverage 27, §

The of Art. is set forth in subsection of (a), the statute. Under applicable subsection statute is "[wjhenever any money, or currency, cash is seized ... any police any speci- officer ... in connection with arrest for” view, gambling my fied violations. In there are two separate why § reasons 264 has ho to this case.

A. (a) gambling violations listed in are all sub gambling Code, stantive under Art. 27 such offenses as bookmaking, lottery, etc. The defendant Cole was not any Instead, arrested for of these substantive offenses. as document, shown charging District Court the arrest laws,” was for "conspiracy to violate the gambling and the was seized conspir connection with this arrest for acy. Conspiracy to violate the laws is not one §in offenses set forth

It is conspiracy settled that "the crime of is not the same in law fact appel- substantive crime which the urged by party, fully applicable. Corp. See J. I. Case Credit v. Insley, 487, 483, (1982), 293 Md. 445 A.2d 689 and cases there cited. language encompasses money 6. The seized "in connection any playing operation any with wagering bookmaking, betting arrest for the or events, game, table, lottery, horses or athletic or gaming provisions device unlawful under the of this article ....” State, 202 Md. v. Rouse to commit.” lant, conspired if guilty, 865, denied, 74 S.Ct. U.S. 285, 481, 485, cert. 97 A.2d (1953) sub (distinguishing between L.Ed. 376 lot violate the conspiracy to lottery and stantive offense 318-319, laws). State, 201 Md. Scarlett v. tery Accord: denied, 73 S.Ct. 345 U.S. cert. 93 A.2d the substantive distinguishing (similarly L.Ed. violate the conspiracy to lottery from the offense offense of A. 464, 467-468, 121 State, laws); 142 Md. lottery v. Gilpin 86-87, 83, 75 A. 631 (1923); State, Md. 112 Garland v. 379-380, 259 A.2d 807 State, 370, (1910); Md.App. v. Jones (1969). complete is without conspiracy] [of "The crime illegal the crime is gravamen The act.... overt Gardner persons.” least two design harbored at scheme or (1979). 520, 524, See State, 408 A.2d 1317 Md. v. 119, 245, 250, appeal State, 157 A.2d 221 Md. Greenwald v. 721, 1599, 4 dismissed, L.Ed.2d 80 S.Ct. 363 U.S.

(1960). case, by treating offense con- majority in this offenses gambling to the substantive

spiracy identical changed a 264, § or sub silentio ignored has enumerated law. I would adhere criminal long-established principle of on the judgment court’s affirm the circuit principle that George’s 264, § Prince ground upon which that connection with relies, money seized in has no conspiracy. an arrest for

B. were an offense laws conspiracy If to violate 264, be by § would nevertheless the statute covered case, would and there still the facts inapplicable under interpretation issues with statutory no be need to reach arrest, case, In this majority which the concerned. illegal charge allegations and its resulted from an associated wiretap of that judge the trial ordered all fruits wiretap, and Vol.), §§ 10-405 (1974, Repl. Code suppressed. Under (i) (2) Proceedings and 10-408 and Judicial the Courts Article, an illegal the results of cannot be used in wiretap "any trial, hearing See proceeding.” other also 18 U.S.C. § Rep. and S. No. 90th 2d Cong., Sess. 69 ("[t]he perpetrator must be denied the fruits his unlawful Moreover, actions in civil proceedings”). and criminal of an seizure illegal fruits cannot be used as evidence in proceeding forfeiture violating without the Fourth Amend- Plymouth 693, 696, Pennsylvania, ment. Sedan v. 380 U.S. (1965). Any illegally S.Ct. 14 L.Ed.2d 170 seized se, evidence that is not per including money, contraband independent must be returned unless evidence is introduced prove is contraband. 380 U.S. at 699-700. Consequently, this Court cannot look to the fruits illegal wiretap in Coleto determine that the case falls within § 264. Because there independent showing was no evidence in connection with an arrest for a gambling offense enumerated that statute is inapplicable.7 .

II. If Art. applicable case, to this the question posed by majority answered, namely must may a trial judge, case, part of the criminal order the of return the (e) (4). money 27, §§ under Art. 551 and 264 This involves an (e) (4) interpretation §§of 551 and 264 and their relationship (a)-(d) § subsections of 264. Section previously quoted in notes 1 supra, (b) provides in case, subsection that if the criminal in which property was seized under a search warrant issued under (a), subsection was of a disposed pros, nol dismissal or acquittal, all property except seized may contraband returned without the of necessity being action instituted majority citing Plymouth cases, 7. The in n. after Sedan and other making states that "there is no constitutional basis for a distinction be- per tween Supreme se and derivative contraband.” But the Court Plymouth specifically distinguished per Sedan between se contraband and rule; purposes exclusionary fact, derivative contraband for the this was major point Supreme opinion. of the Court’s See 380 U.S. at 699-700. custody. having Subsection agency against government (c) property rightfully for the return provides §of after wrongfully withheld warrant but taken under a search Section property. retention of there no further need for is (e) § 264 supra, forth in note states that (4), also set acquittal or an judge, the trial after prohibit does not property of all seized. dismissal, ordering from the return § 264 coverage of within the Assuming that case falls this (e) (4) (b) specifically §§ and 264 language of (a), the The property. of the for the return authorized order not contrary result will arriving at a majority’s reasons for analysis. withstand

A. holding that given by majority for The first reason (e) (4) (b) not the motion and did authorize §§ 551 and 264 was that the motion property, order for return therefore, already that, was filed too late and (3). (d) § 264 County pursuant forfeited to the (d) solely § with civil actions Subsection of 264 deals (a). Sub- pursuant to subsection return (d) (1) "may” institute provides claimant section disposi- year such action one from the "ultimate civil within (d) (3) charges, provides criminal and subsection tion” filed, moneys if the seized timely the civil is not petition governmental of shall be forfeited to the disposed limit year the one time majority custodian. asserts that (d) a applicable is also for civil action under subsection (e) (4) (b). §§ 551 As motion in case a criminal under year filed than from the initial Cole’s motion was more charge, majority maintains dismissal the criminal that, was untimely consequently, that it (d) (3). finally reasoning This forfeited under subsection (e) (4) exception erroneous. Because creates limit for a civil one-year entire time remainder (d) §in 264 motion in a criminal inapplicable action is (e) (4) to a (b) (b). addition, § §§ In 551 case under specifically provides procedure that the there authorized an any alternative to civil prop- action for the return of the (4) (e) (b) erty. §§ § As neither nor contain period filing limitations for the of motions in the criminal case, only by time limit would seem be provided facts, principle of laches. Under the there would be no basis for a motion should have holding Cole’s been barred laches. (d) if one-year §

Even time limit of were applicable case, ato motion in the criminal the motion timely. defendant above, Cole was one-year As indicated (d) period of limitations contained in begins subsection run from "the disposition ultimate of’ the criminal "charge charges.” disposition” Here the "ultimate of the criminal charges was the nol pros January 1980, entered in and Mr. Cole’s motion for return of property May was made in 1980, clearly year. within one

B. Alternatively, majority that, concludes even if Cole’s motion for (d), return timely § under (e) § neither 551 nor authorized that motion. (1) Section 551 With respect to Art. majority holds that it inapplicable legislature because "the did not intend that § 551 any impact upon should have disposition money seized pursuant violations, to gambling is prima facie majority contraband.” The apparently means (b) phrase covering subsection "property return of ... pursuant to search warrant issued under subsection (c) section,” phrase this and the covering subsection warrant,” return of . taken "property. . under search do include seized in connection with arrest

647 § 551 interpretation of This violations. alleged gambling could warrant that no search result lead to the absurd would used money allegedly § for under 551 be issued is "property” The gambling. illegal connection with (c) (b)and for return under subsections of a motion subject a search subject which can be "property” is same (a). under subsection warrant (b) of

By unambiguous subsection plain language, Sub type § 551 made Cole. authorized the (b) by encompasses a search warrant section (a), money allegedly illegal § 551 used in under § certainly under 551 gambling can be seized warrant (a).8 (b) the criminal covers the situations where Subsection charges pros, acquittal; nol disposed were dismissal clearly applicable in the Cole case. the subsection is thus into Although majority attempts to read an exclusion money § 551 and which alleged which is be contraband (b) (a), § § expressly applies falls within 264 551 "all in fact property” except of the defendant that which is cont (b) away §of does expressly raband.9 Subsection 551 also necessity instituting "any with other defendant legal against having custody of the proceeding agency (b) § property.” majority’s of 551 cannot be construction that, squared repeated with this Court’s admonition where statutory unambiguous, should language give courts See, Rome, e.g., effect to the statute as written. Lowenthal v. denied, 281-282, 277, (1982), 294 Md. 449 A.2d 411 cert. , 1253, (1983);

U.S. 103 S.Ct. 75 481 Guardian L.Ed.2d Comm’r, 629, 642-643, Life 446 Ins. v. Ins. 293 Md. A.2d (1982); Co., 384, 389, Smelser v. Criterion Ins. 293 Md. scholarly opinion by Special Appeals, 8. in a recent In fact Court suggested Moylan, specifically Judge § 551 because has was enacted 228, 149, Md.App. Investigation Special In No. cases. Re ibid., (1983). 160, 820, opinion, pointed what out A.2d As "Gaming” previously § subtitle now 551 was codified under (1939), 27, Maryland Art. 306. Code. See Code conclusion, Judge majority attempts explain away his While expressly that the was Bowen in the Cole case not contraband. Even without this occasions found two conclusion, the first criminal case once prossed, nol criminal case was was dismissed and second (d) (2). longer presumptively no contraband. See (1982); Loscomb, 424, A.2d 1024 State v. 291 Md. (1981); County Executive, A.2d 764 Gietka v. 283 Md. 24, 27, (1978); Director, Guy 387 A.2d 291 v. 279 Md. (1977); Zitomer, 367 A.2d 946 v. 534, 539-540, Slate 275 Md. (1975), denied, 341 A.2d 789 cert. sub. nom. Gasperich v. (1976). Church, 423 U.S. 96 S.Ct. 47 L.Ed.2d 87 (e) (4) Section 264 fully The trial in was court’s order Cole also warranted (e) (4). majority § under Art. 264 The holds that "when the in gambling a case is con- presumptively (e) (4) § traband at the time of seizure no application 264 has judge and the in proceeding authority the criminal has no to (a)-(d) money.” only § order return of the 264 As relates to money, arrest, seized in connection with a seizure, is presumptively at the of contraband time the (e) (4) majority holding § 264 that has no by But, terms, § by very case covered 264. its subsection (e) (4) § only by § of 264 to a relates case covered 264. Sec- (e) (4) tion prohibit that provides "[t]his section does not the judge acquittal trial after an from ordering or dismissal added.) (Emphasis immediate return of all property seized.” By stating prohibit that this section does not the return of all by judge, Legislature the criminal trial the was § obviously referring to seized under and (c) (d). subject § of procedures and Subsection (e) (4) § solely § of 264 is parts addressed to the other of (a)-(d) obviously and was to designed insure that subsections §of 264 were applied not construed or prohibit alter- nate procedure of a return order the criminal case. As by shown its plain language, the sole of purpose subsection (e) (4) prevent majority was to like holding a that today. Unfortunately, Legislature totally unsuccessful. majority,

The apparently recognizing that its construction (e) (4) §of justified by cannot statutory language, (e) (4) ultimately § concludes that cannot be reconciled " [an] 'there is statute of the with the rest ” (e) (4) and the subsection between conflict’ inescapable manner, majority effects § In this remainder (e) principle violating the settled (4), § thus repeal given harmonized are to be of a statute parts that all find a conflict view, majority strains my In effect.10 (e) (4) There § 264. the remainder of subsection between no such conflict. simply is (e) (4) § 264 Ch. 720 of the Acts was added

Subsection provisions the other revised generally which also the notes majority points to opinion, in its 264. Earlier suggesting Proceedings Committee Judicial Senate num because of the procedure forfeiture need to streamline refers to City. majority then in Baltimore ber of cases (a), title is whereby §in conditional change made custodian, government immediately the local said to vest (d) including the re-writing of subsection complete and the 11Later, in discussing in civil actions. presumptions varius (e) hardly seems "It (4), states: majority subsection streamlining procedure] [of purpose logical the end served, however, tacking on a section at would be procedure the elaborate abrogate that would of 264 money absent a con- return of by allowing statute (1981); 33, 41, Lowenthal, See, e.g., 428 A.2d 75 290 Md. 10. Rome v. (1980); 666, 656, County, 421 A.2d 576 Brown Hope v. Md. 288 v. Baltimore (1980); Equitable Brown, 273, 285, Trust Co. v. 412 A.2d 396 287 Md. 89, (1980); Comm’n, 80, Owners A.2d Condominium Md. 411 86 State v. 287 Brewer, (1978); 29, 32, Schweitzer v. Supervisor, 388 A.2d 116 283 Md. Ct., 430, 438, (1977); 278 Clerk of Cir. Blumenthal v. Md. 374 A.2d 347 (1976); 398, 403, City United Five & Ten of Baltimore v. 365 A.2d 279 Md. (1968); 361, 368-369, Stores, Inc., Austin v. 243 A.2d 521 250 Md. Cent Buettner, (1956). 69-70, 61, 211 Md. 124 A.2d 793 Attorney’s pointed by court Office at the circuit 11. As out relating hearing Goldberg, changes particularly in made title, by vesting holding District a United States immediate were occasioned priority the claims of tax liens took over Court case Baltimore that federal City money United States v. in a arrest. (D.Md. 1976), Baltimore, F.Supp. Mayor City aff'd in & Council (4th 1977). part part, The federal court 564 F.2d 1066 Cir. reversed State, upon v. 264 Md. had relied the theories set forth Gatewood cases 301, Greer, (1971); (1972); Md. 284 A.2d 233 285 A.2d 623 State v. Cab, (1971), George’s Md. 284 A.2d 203 Pr. Blue Co. v. Bird relating Maryland statutory provisions which dealt with the earlier forfeiture. sideration of the prevailing presumptions and character of money.” course, Of the wisdom of a statutory provision is a matter for Legislature and not this Court. In addi- tion, permitting the judge criminal trial to order an immedi- ate return of seized property does not "abrogate” the statute; remainder of the merely provides an alternate procedure in the limited circumstances of acquittal Also, dismissal of the charges. criminal there was no need to guide the judge criminal trial statutory with presumptions, intimately as he would be familiar with the evidence con- (e) (4) Moreover, cerning property. the seized subsection entirely consistent with the purpose streamlining procedure backlog to reduce a City. of cases in Baltimore (e) (4)

Although purpose underlying subsection may be different from the purpose underlying the remainder of Ch. 720 of the Acts of such in purpose difference does not Moreover, create a conflict. the difference in purpose is explained by legislative history. originated Ch. 720 Senate Bill 566. The bill as introduced the chairman of City Baltimore Senate delegation, emerged as it from the Senate Proceedings Committee, Judicial passed and as it (e) (4). Senate, did not contain subsection Subsection (e) (4) was a Delegates House of proposed addition from the by Delegate Arnick, floor Delegates 1977 House of Journal at Therefore, 3725.12 necessarily one would not expect the (e) (4) purpose subsection to be reflected in provisions previously adopted by the Proceedings Senate Judicial Com- mittee.13 Delegate Arnick, along 12. Delegate Murphy, with had also been the sponsor year (c) before of House Bill which had added subsection 27, § to Art. majority suggests 13. The inapplicability one additional reason for the (e) (4). (e) (4) § opinion points out that authorizes a motion acquittal in the criminal acknowledging case after "an or dismissal.” While "dismissed,” majority that, the circuit court case was contends ordinarily equivalent

because a Maryland dismissal the State is under pros, law to a nol a dismissal on the State’s motion is not a "dismissal” (e) (4). meaning within the by without upon distinguishing totally of 264 unsupported This construction is (e) (4) statutory language. any "dismissal,” Section 264 covers distinguishing upon a dismissal the State’s motion from a dismissal by majority the defendant’s motion. No reason is advanced types between the two of dismissals.

651 27, 551, § and Art. of Art. majority’s interpretations The (e) 27, (4), of those sec- clearly purpose § frustrate the 264 (c) (b), 1977, §§ 551 1975, tions. Enacted in 1976 and (e) (4) overcome, intended to to a obviously and 264 were State, v. extent, in Gatewood large opinions this Court’s (1972); Greer, Md. v. Md. 285 A.2d 623 State Cab, (1971); George’s Co. v. Blue Bird 284 A.2d 233 and Pr. (1971). majority proceeds A.2d 203 Md. present statu- fully applicable if opinions those were (e) (4) were never scheme, §§ if 551 and 264 tory and as passed. (c) (b) authorizing motions by §

In subsections warrant to under a search property for the return of court, by the condi- specifying be made to the criminal made, can be tions under which return such judge criminal trial certainly intended that the Legislature Fur- for return are met. the conditions determine whether hearing on the thermore, judge to hold by requiring not served, anyone requiring that application, of the Attorney copy receive a requiring State’s "oral,” the for return was only return order if the an informal or Assembly clearly contemplated General judge court the criminal summary proceeding at which criminal case as rely upon prior proceedings would applica- in connection with anything well as submitted (e) (4), contemplates the same tion for return. Art. done, was with precisely In what type of action.14 Cole this making a deter- judge the same who heard the criminal case statutory conditions for return mination that applicable § 264 Assuming were met. overturning his I reason for place, perceive first no sound decision.15 (e) (4), falling only preserve motions 14. Whether was intended (e) (4) (b) (c), § 264 also

within statutes such as 551 or 551 or whether basis, applies statutory question need not is a when there is no other be answered this case. judgment Presumably majority’s opinion and the the result of the Judge Davidson has authorized me to state that she con- expressed curs with the views herein. (d) (3). money

that Mr. Cole’s finally forfeited to the under so, presents If this is questions. kept serious constitutional It must be dealing mind that here we are with the forfeiture of Cole’s because him, allegedly thus, regardless offenses committed of state law labels, form or States Coin and 434 forfeiture inal law.”). the matter is criminal in nature. United States v. United Currency, 715, 718, 720, 401 U.S. 91 S.Ct. 28 L.Ed.2d (1971); ("a Plymouth Pennsylvania, supra, Sedan v. 380 U.S. at 700 proceeding quasi-criminal object, in character. Its like a crim proceeding, penalize against is to for the commission of an offense anyone There has been no criminal conviction of Cole or else in con- (either property, nection proceeding with the seized part and no civil or as case) of the contraband. The property adjudicated criminal at which the seized has been property se; rather, per entirely is not contraband it is possess Moreover, money. lawful supra, p. majority opinion points out, as the "[ojnce disposition pros an ultimate of nol was reached there prima facie evidence that the was not contraband.” circumstances, decision, Under these I do not believe that a that Cole’s finally government, has been comports forfeited to with the process due clauses of the Fourteenth Amendment and Article 24 of the Maryland (which Rights. Moreover, majority’s holding Declaration of goes beyond any aware), forfeiture case of which I am contravenes the principles Ill, just compensation of the clause of the Fifth Amendment and Art. Maryland Constitution.

Case Details

Case Name: Director of Fin., Pr. Geo's Co. v. Cole

Court Name: Court of Appeals of Maryland

Date Published: Oct 3, 1983

Citation: 465 A.2d 450

Docket Number: [No. 107, September Term, 1981.] [No. 108, September Term, 1981.]

Court Abbreviation: Md.