Harris v. Mayfield Hts.Harris v. Mayfield Hts.
ATTORNEY FOR APPELLANT-CROSS-APPELLEE
James R. Willis 323 West Lakeside Avenue Lakeside Place, Suite 420 Cleveland, OH 44113
ATTORNEYS FOR APPELLEES-CROSS-APPELLANTS
Leonard F. Carr L. Bryan Carr The Carr Law Firm 1392 S.O.M. Center Road Mayfield Heights, OH 44124
MELODY J. STEWART, A.J.:
{¶1} When the
{¶2} Harris‘s appeal stands on principle: he concedes that the police could lawfully take possession of the money for safekeeping in light of his arrest for driving while under a license suspension, but argues that they had no basis for turning it over to the federal government for civil forfeiture proceedings under federal statutes, particularly when he was only charged with a misdemeanor offense that would not support forfeiture under Ohio law. We agree in principle that the police cannot simply seize personal property as contraband under the guise of drug enforcement. Nevertheless, Ohio law permits police departments that have seized suspected contraband to seek forfeiture under federal law. At trial there was competent, credible evidence offered by the city to show that the money taken from the vehicle was the fruit of the drug trade and hence, contraband that was not subject to replevin. For this reason, we have no basis to overturn the jury‘s verdict, and affirm the judgment.
I
{¶3} The evidence showed that the police believed that a new Range Rover owned by a suspected drug dealer was involved in drug trafficking within the city. That vehicle had earlier been stopped by a police officer for a traffic infraction and the driver (not the owner) was released with a verbal warning. The police officer who stopped the driver later determined that the driver had an outstanding warrant. The next day, that same officer was off-duty when he spotted the Range Rover. Thinking that the driver of the Range Rover was the same person who he had stopped the previous day and who had an outstanding warrant, the officer advised other officers that he located the vehicle.
{¶4} Harris gave the officer his social security number and a record check confirmed that he was driving under a license suspension. He identified the suspected drug dealer as the owner of the vehicle and said that $7,500 of the cash found in the car belonged to the owner of the Range Rover and was to be used as bail money for another individual. Harris said that he owned the rest of the money and intended to use it to purchase a car. When asked what he did for a living, Harris told the police that he managed a car wash. The officer asked Harris about the side air bags being removed, noting that there had been no evidence of any impact that would have activated the air bags. Harris said that the vehicle had been in an accident and repaired, but he could not explain why the repair shop had returned the vehicle without fixing the air bags.
{¶5} About five minutes into the stop, a male approached the police officer, said that he was the nephew of the man who owned the vehicle, and asked if he could take possession of it. The officer found this suspicious and refused to hand the vehicle over to him. A drug sniffing dog alerted to the presence of drugs on the cash and two areas of the vehicle, but no drugs were found. The police seized the cash and cited Harris for driving while under a license suspension.
{¶6} No drug charges were ever filed against Harris. The city turned the cash over to the DEA and a police officer testified that the federal government issued a notice of forfeiture. Harris filed this replevin action with the court of common pleas, but the court dismissed the complaint finding it lacked jurisdiction, presumably on grounds that it had no authority to act when the funds were in the possession of the federal government. On appeal, with two members of the panel concurring in judgment only, this court reversed the dismissal. See State v. Harris, 8th Dist. No. 95601, 2011-Ohio-1943.
{¶7} On remand, Harris filed a motion for summary judgment that he characterized as a motion for judgment on the pleadings. He did so because he offered no evidence of any kind in support of the motion. The motion rested on the proposition that we earlier noted — that the city had no basis for a forfeiture under Ohio law — and that without that basis for taking the money (apart from safekeeping) it could not turn it over to the federal government for forfeiture proceedings. The court denied the motion for summary judgment and the case proceeded to trial without Harris, who was imprisoned on a drug conviction and whose request for permission to attend the trial had been denied. Harris‘s attorney did not put on any evidence, apart from cross-examining the off-duty police officer who alerted the police to the Range Rover. Counsel relied essentially on the theory outlined in the motion for summary judgment. The jury found against Harris and in interrogatories made three findings: (1) “plaintiff is not the rightful owner of monies seized“; (2) “funds were the fruit of illegal activity“; and (3) “plaintiff has not established his claim of replevin.”
{¶8} Harris sought judgment notwithstanding the verdict on grounds that the defense verdict was unsupported by the
II
{¶9} We first consider Harris‘s claim that the court erred by denying his motion for summary judgment and his motion for judgment notwithstanding the verdict. Both arguments are identical and premised on the idea that it makes no difference whether the money seized from the vehicle was ultimately forfeited to the federal government. Harris argues that the city had no basis for seeking forfeiture under Ohio law because he did not commit a chargeable criminal offense under state drug laws. With no demonstrable basis for thinking that the money itself was contraband, Harris argues that the city could not have transferred that money to the federal government for forfeiture proceedings and is thus accountable to him.
{¶10} This case involves a procedure known as an “adoptive forfeiture.” “Under the adoptive-forfeiture framework, a state agency — having fully completed an investigation, arrest, and seizure — can turn both the case and the seized assets over to an appropriate federal agency.” Sucoff, Note, From the Courthouse to the Police Station: Combating the Dual Biases That Surround Federal Money-Laundering Asset Forfeiture, 46 New Eng.L.Rev. 93, 110 (2011). In essence, the state agency that seized the assets requests a federal agency to “adopt” the seizure and proceed with federal forfeiture as though it was the federal agency, not the state agency, that made the seizure. United States v. One Ford Coupe Auto., 272 U.S. 321, 325 (1926). When the federal government takes possession of state-seized assets to seek forfeiture, the federal government‘s subsequent seizure of the property relates back to the moment when the state authorities initially seized it. United States v. Alston, 717 F. Supp. 378, 380 (M.D.N.C. 1989).
{¶11} Federal adoptive forfeitures are typically uncontested, administrative forfeitures — if a party does not contest the forfeiture, the assets are automatically forfeited to the government. See
{¶12} Adoptive forfeitures are civil in nature and independent of any criminal case; indeed, civil forfeiture proceedings may be brought against any assets “even if its owner is acquitted of or never called to defend against criminal charges.” See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-363 (1984) (holding that a claimant‘s assets were subject to forfeiture even though claimant was acquitted on federal criminal charges); United States v. Property Identified as 3120 Banneker Dr., N.E., Washington, D.C., 691 F. Supp. 497, 499 (D.D.C. 1988). And being civil in nature, adoptive forfeitures proceed in rem (against the asset, not the person). This means that the federal government need only prove by a preponderance of the evidence that the property was derived from, or was used to commit, a crime. See
{¶13} The virtue of an adoptive forfeiture, at least from the city‘s perspective, is that the city had no likelihood of obtaining forfeiture under Ohio‘s strict forfeiture laws, but a far greater success of obtaining forfeiture under less strict federal law. The city could not bring a criminal forfeiture action under
{¶14} The incentive for a state agency like the city to seek federal forfeiture is that it stands to recover up to 80 percent of any assets forfeited to the federal government depending on its degree of participation “in the law enforcement effort resulting in the forfeiture.”
{¶15} The use of the adoptive forfeiture procedure has been both praised and criticized. See generally Worrall, Asset Forfeiture, Problem-Oriented Guides for Police Response, Guides Series No. 7 (2008) http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeiture.pdf (last visited May 29, 2013). The primary criticism of adoptive forfeitures is that they allow the police to circumvent state forfeiture laws and unduly influence police operations by incentivizing the seizure of contraband for police funding purposes. See, e.g., Holcomb, Kovandzic, and Williams, Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States, 39 J. Crim. Justice 273 (2011).
{¶16} Nevertheless, the doctrine of adoptive forfeitures was well-established at common law and has been incorporated into American jurisprudence in Taylor v. United States, 44 U.S. 197, 205 (1845):
At the common law any person may, at his peril, seize for a forfeiture to the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he will be completely justified. So that it is wholly immaterial in such a case who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation takes place, provided the adjudication is for a sufficient cause.
See also One Ford Coupe Auto., 272 U.S. at 325 (holding that the United States may adopt seizure of property forfeitable under federal law even if seized by local official or one with no authority to make seizure).
III
{¶17} That a federal agency could lawfully seek forfeiture of assets seized from Harris does not settle the issue of whether the city could lawfully seize the cash taken from Harris and hand it over to a federal agency for an adoptive forfeiture.
{¶18} During trial, Harris “conceded that the stop was lawful for whatever reason.” Tr. 63. He also conceded that there was a “lawful seizure.” Tr. 66. These concessions were compelled by the facts of the case.
{¶19} Once the police seized the cash from Harris, they could turn it over to the federal government for an adoptive forfeiture. This process is expressly authorized by
{¶20}
IV
{¶21} We next address the substance of the replevin action in which the jury found that the cash seized from Harris was contraband because it was the product of illegal drug trafficking.
{¶22} In Whittington v. City of Cleveland Police Dept., 8th Dist. No. 91559, 2009-Ohio-1604, we stated:
A replevin action is essentially a claim of ownership in which a person with the right to immediate possession of property seeks to recover possession of that property. Superior Piping Contrs., Inc. v. Reilly Industries, Inc., Cuyahoga App. No. 90751, 2008-Ohio-4858, ¶ 37. “The right of possession of the property because of title or interest in it is an essential element in a Replevin action.” J & J Truck and Trailer Repair v. Cyphers, (Dec. 12, 1980), Montgomery App. No. 6625, 1980 Ohio App. LEXIS 10704, at *3. Id. at ¶ 3.
Thus, there are two elements to a replevin action: “(1) that the plaintiff is the owner of the property in question and (2) that he is entitled to possession of the property in question.” Brown v. Rowlen, 5th Dist. No. CA G 08 025, 1994 Ohio App. LEXIS 2174 (May 12, 1994).
{¶23} It is at this point that we question whether Harris had any basis for a replevin action against the city in light of the adoptive forfeiture by the federal government. As we understand Harris‘s argument, he does not contest the validity of the federal government‘s adoptive forfeiture — indeed, the city represented to the trial court that neither Harris nor the owner of the vehicle appeared to contest the federal forfeiture proceedings. What Harris does contest is the right of the police to take the cash from him and turn it over to the federal government when he
{¶24} The premise of Harris‘s argument is demonstrably wrong given that he conceded the validity of the seizure, and that
{¶25} It is true that our earlier opinion in this case determined that the trial court erred by finding that it lacked jurisdiction to hear the replevin action because the funds had been forfeited to the federal government. We reached that decision by noting that “based on the record before this court, it is unclear whether the federal government now possesses the funds at issue.” Harris, supra, at ¶ 11. With it being unclear whether the funds had been turned over to the federal government, the trial court did not plainly lack jurisdiction to hear a replevin action so the trial court‘s earlier dismissal of this case was done in error. By the time of trial, however, there was no doubt between the parties that the cash had been forfeited to the federal government. With the federal government in possession of the money,
{¶26} Finally, to the extent our earlier opinion in Harris questioned whether the police lawfully seized the money from Harris, that decision was not binding for two reasons. First, Harris was decided with two judges concurring in judgment only and one of those judges expressly agreed only that dismissal was improper given the lack of evidence of any forfeiture. Id. at ¶ 39-40. The lead opinion‘s statements questioning whether the seizure of the cash was lawful was therefore dicta. Second, to the extent the lawfulness of the seizure was at issue in the first appeal, that issue was settled when Harris later conceded that the seizure was lawful. Our decision in Harris should be read only as holding that a state court dismissal of a replevin action for want of jurisdiction is justified when there is evidence that seized assets have been forfeited to the federal government.
{¶27} We therefore find that Harris presented no viable claim for seeking replevin against the city in this case. Once the court learned that the funds had been forfeited to the federal government, it should have granted the city‘s motion for summary judgment and not have allowed a trial on Harris‘s replevin action. The error in holding a trial was ultimately harmless, however, given that the jury found the funds were the fruit of illegal activity and presumably properly forfeited on that basis.
{¶29} Judgment affirmed.
It is ordered that appellees-cross-appellants recover of appellant-cross-appellee its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, SR., J., CONCUR