*1 COUNTY, BALTIMORE OFFICE OF FINANCE OF MARYLAND PREVITI v. GERALD Term, September 1982.]
[No. August Decided 1983. *2 Eldridge, Cole, before argued Smith, The cause was Rodowsky JJ., and W. and Couch, Albert Davidson, Special Appeals Judge of the Court Associate Menchine, (retired), specially assigned. Moran, County Attorney, J. with whom
Michael Assistant brief, Jacobson, Attorney, on the for County was Leonard S. appellant. Breschi, A. was Robert A. Breschi on
George with whom brief, for appellee. J., opinion of the Court. delivered Rodowsky, Eldridge J., JJ., filed a dissent. Davidson, Eldridge, infra, dissenting J., at opinion page 519 in which Davidson, III. concurs Part (1957,1982 Vol.), 27, § 264 deals with Repl.
Md. Code Art. cash in connection with an arrest forfeiture of seized gambling. In we shall hold that the instances this case may § lim- pursuant arise are not which forfeitures claimant of the cash is ited to situations where the ultimately gambling offense for which the convicted of claimant was arrested. April
On officers from the vice section of acting County under search Department, Baltimore Police warrants, on lounge conducted raid at a cocktail Pulaski a
Highway. The raid culminated investigation an undercover of suspected gambling premises. activities at the Gerald (Previti), appellee, Previti was arrested in the raid charged 27, § with violating Art. accepting wagers on sporting Among events. the articles seized from Previti $3,336 currency, nickles, were major league $5.50 in baseball "sport schedule and two A sheets.” stet was entered charge to the criminal Previti August on 1980.1 given After notice had been County to Previti requirements making "for claim for the (§ (d) moneys” (4)), return of Previti, seized on June County wrote to an Assistant Solicitor its requesting return.2 This letter was forwarded the District Court of Maryland County for Baltimore where it was treated as original pleading, and a civil case was opened on the docket. 23,1981 In July show cause order dated the District Court (the named the Baltimore County) Office Finance evidence, hearing defendant.3 After conflicting the Dis- *3 trict Court held that it "going was to order the forfeiture of $3,341.50.” Judgment in was entered favor of County, defendant. 1. At the explained that, trial of the instant action Previti at the time of April 18, arrest,
his awaiting 1980 he was trial on unrelated federal charges, subsequently on which he was convicted. The stet was entered expense because the State did transporting not wish to incur the Previti County, Maryland to Baltimore for trial from the federal correctional facil- ity serving where Previti was the federal sentence. 2. The letter reads: Mr. Michael Moran
Assistant Solicitor: your regards advising my rights In hearing letter me of for a my money judgment for was entered in and which was seized I do contend that the my money and contend favor that the is not contra- request band of law and therefore me should returned to and do hearing possible. a as soon as you advising Thank for my rights. me of truly, Yours [Signature] GERALD PREVITI 6 Fernsell Court Apt. 1-C Balto. Md 21237 "[Jjurisdiction subject 3. by irreg- over the matter a is not case ousted
515
Court
Circuit
to the
appealed
Previti
peti-
County’s
granted the
We then
reversed.
County which
single question:
raised
which
tion for certiorari
of defendant
of a conviction
the absence
Does
gambling laws
of the
with violations
charged
seized
ordering money
Court from
preclude the
County, after the
forfeit to the
Defendant
from the
that the
hearing
finds
conducts
Court
(d)]?
264
[§
pursuant
contraband
cross-petition.
no
There was
conditional
30,
It
1982.
on June
made
court’s decision was
The circuit
in an
language appearing
entirely on certain
relied almost
been filed
which had
Special Appeals
of the Court
opinion
of Finance of Baltimore
3,1982
Bozman v. Office
June
on
aff'd,
(1982),
296 Md.
1,
We Legislature draw, think that meant to and did draw a sharp distinction between gambling forfeitures in cases and forfeitures in controlled dangerous substances matters. The requirement of a "conviction” gambling in a is case a recognization by Assembly that, the General gambling unlawful, while is it is such not a heinous offense as to dictate forfeiture absent conviction. On appeal, Previti’s the circuit court concluded that "in view holding case, in the Bozman supra, this Court must find that the District Court ordering erred in the forfeiture $3,341.50.” of the We agree. § do not Forfeitures under are exclusively limited to situations in which a criminal conviction the claimant has been obtained on the gambling charges. § The plain language produces of 264 forfeiture result in this case. (a),4
Under seized from Previti "deemed prima facie to be contraband of rights, law.... All (a)
4. Section 264 reads as follows: (a) — Deemed any money, contraband. currency, Whenever or captured by any cash is connection with police seized or officer in this State in any arrest playing operation for the or bookmaking, betting wagering events, on horses or athletic or any lottery, game, table, gaming device unlawful under the provisions deemed or article, currency, money, of this all such or cash shall be prima gambling facie to be contraband law a as device part gambling operation. title, rights, of a All and interest police money, currency, in and to such or cash seized government immediately local ments of govern- shall vest in and to the local county, municipality, City, or Baltimore or if seized *5 "immediately money to” the in and title, and interest (a) County. pro- in to” the Subsection further vest[ed] and any per- to be returned money ... shall vides that "no such in this section.” except provided as . .. claiming the same son can which factual variations then addresses The statute or other "If the trial seizure. following the initial occur of in record charges results "a disposition” of ultimate the seizing governmental conviction,” of the the financial officer of the of the record days from the date body "shall within 90 order to for an a court entry apply of such conviction” .5 (d) (c) § Subsection money forfeited. declaring the charge results the criminal treats situations where stet, probation or dismissal, prosequi, a a nolle "acquittal, dis type from of year one that [before Within judgment].” currency, money, State, or authorities, no and such to the State same, any claiming toor any person the be returned cash shall other police City Baltimore except provided The in this section. person, purposes of this authority for the department a is not State section. (c) portion § 264 reads: of 5. The text of the relevant — (c) upon If trial other ultimate the or Forfeiture conviction. indictments, charge charges, disposition results in record of conviction or or indictment of such person being entered money, arrested, persons which the in connection with or currency, so captured, may or the State been so seized or cash have county Treasurer, county or the director of of the treasurer days City, the date within 90 from in Baltimore shall finance record of appealed conviction, entry is unless case of such application appellate the District Court or to an make City county Baltimore circuit court ofthe or a law court ofthe or to District Court of City, Supreme for an order Bench of Baltimore declaring ordering money, currency or in the and that such cash Treasurer, county custody of director of finance or trea- the State State, county gain of the surer shall be forfeited to the sole use any application city. been directed or shall establish to its satisfaction that there undetermined suit or The court to which such has pending is no proceeding been filed in court which has competent jurisdiction, against the of finance or trea- director surer, money, currency seeking recovery or or cash a return custody, proceed shall so to order a so held before the court State, currency money, cash to the or forfeiture such or City. (d) § 6. The full text of 264 reads: — (d) (1) money. Upon Application of seized for return charges, disposition charge or indictment or
ultimate of such indictments, dismissal, stet, resulting acquittal, a nolle 641, any person prosequi, probation provisions under position, a person who claims money seized may contraband apply to a court for a determination that the property "is the of the claimant and for an order that *6 (d) (1). it § be returned.” That is what Previti did in this If by case. the petition finally filed the claimant "is decided against claimant, the moneys the seized ... shall be forfeited (d) to the § custodian without judicial further action.” (3). That is what the District Court did in this case. It was authorized the (c), dealing statute. Subsection pro with ceedings for forfeiture seizing initiated the government conviction, after a operation does not limit the of subsection (d). The circuit court in requiring erred that there first abe criminal conviction for a forfeiture to result in this case. day § limit the 90 time under argues
Previti also that (c) case, this applies a forfeiture action to for institution of right retain the seized County any so that has lost to the corollary money. simply position a argument This is a incorrectly that It assumes rejected which we have above. any always precedent a criminal conviction is condition § 264. forfeiture under claiming any money, currency, that all or of the seized cash or is (a) not contraband of law under and should be returned to the claimant, year judgment within one the after date the or order was entered or the action was taken which constituted the ultimate disposition, may notice to the State application giving days’prior make on ten written Treasurer, custodian, county treasurer, or direc- finance, appropriate tor of to the a court for that determination money, currency, property or cash is the of the claimant and for an order that it be returned. (2) proceeding upon application In a acquittal, that an a dismissal, prosequi respect or a gambling charges nolle with money, cash, or indictments involved in the of seizure currency prima is facie evidence that it is not A contraband. con- viction, plea guilty contendere, probation of or of nolo under provisions prima § of 641 is facie that evidence it contra- is presumption proceeding entry band. No stet. in the shall attach to an of (3) filed, timely properly If a finally is not or if it is claimant, disposed decided moneys the seized of judicial shall be forfeited to the custodian without further action. (4) Timely given by appro- notice must be certified ormail other
priate claimants, address, means to known their at last known requirements making of of this section for claim for the return moneys, moneys of seized or the seized shall not be forfeited as (3) provided by paragraph of section. that, because a taek, Previti contends Taking a different equated guilty, a stet should disposition stet is not of here, where, especially disposition of not guilty, with a (d) (2), Under County has to seek forfeiture. failed money is not that the seized prima facie evidence acquittal for application on a claimant’s hearing contraband in a Previti, follows, says that the money. It return of the proof needed to burden failed to meet the "severe” presumption But there no presumption. overcome the (d) (2) states way or in this case. Section one the other to an shall attach proceeding presumption in the "[n]o entry of stet.” Court for the Circuit
Judgment County reversed. to that Case remanded Court affirming entry judgment the District Court judgment of *7 County. Maryland for Baltimore paid by Gerald Previti. Costs to J., dissenting: Eldridge, I court should have
Because conclude that the district I from controversy, the dissent the decided merits I of certio- would either dismiss the writ majority’s decision. granted judgments the the improvidently rari as vacate case directions that it be courts below and remand the with the Alternatively, I would affirm circuit court’s dismissed. order because the reversal of the District Court forfeiture premised patently on a incorrect District Court order was exclusionary rule. application of 1980, April 18, County police officers exe-
On Baltimore lounge a on Pulaski cuted a search warrant at cocktail charged was arrested and with Highway. Gerald Previti (1957, Vol.), 27, Art. violating Maryland Repl. Code 240, by sporting accepting wagers on events. Pursuant to warrant, money seized in the amount police the search 23, 1980, $3,341.50 August person. from Previti’s On charge against Previti was stetted.
On June Previti a letter to wrote the Assistant County County, Solicitor for stating Baltimore money seized was not contraband and should be returned to him. The Attorney sent this along letter with a cover read, letter that "Please set attached for matter in hearing your on the return of money seized usual per proce- dure,” Maryland, to the District Court of sitting in County. Baltimore original Previti’s letter was treated anas pleading, and the case was A docketed. show cause order was July issued on naming plaintiff Previti as and the County as defendant.
Trial trial, was held on During October 1981. judge trial leading ruled that the search warrant to Previti’s Nevertheless, arrest was invalid. judge concluded that he did not have to exclude evidence seized incident to the execution of the search "exclusionary warrant because the rule is a rule is just which set for criminal law.” Based on the evidence pursuant warrant, seized to the search the trial judge money held that directly the seized associated with gambling and was contraband. He ordered the forfeited County. to Baltimore appealed
Previti the forfeiture order to the Circuit Court for County. The circuit judg- court reversed the ment of the District after concluding Court that no presump- tion from arises a stet in a forfeiture proceeding and that a necessary conviction is (1957, forfeiture under Code Repl. Vol.), 27, § Art. granted County’s 264. We petition for a writ certiorari.
I. Maryland District Rule 1100 "[a]n states that action shall *8 be by filing commenced with the court a statement claim.” by, This rule supplemented alia, is inter M.D.R. 103 h which provides in part action, "[i]n that commencing an the plain- tiff shall furnish the copy original clerk with one of his pleading each for defendant.” prescribes M.D.R. 301 a requisite content of a statement of claim as follows: 1. Hereafter the District will Rules to referred Maryland "M.D.R.” Original pleading
2. is defined M.D.R. 5 as follows: suffi- of claim shall be statement plaintiffs "The following: if it contains the cient (i) of facts sufficient statement a concise includ- plaintiffs claim inform the defendant of the alleged actions, place and of the ing, in tort the date tort.
(ii) damages or other judgment for a demand relief;
(iii)
court;
of the
the name and location
the address and
parties;
of all
names
addresses
attorney,
any,
if
telephone
plaintiffs
number of the
number,
none,
any,
if
of the
telephone
and if
plaintiff
or his attor-
plaintiff;
signature
or rule.”
ney;
any
required
law
verification
require
the technical
Although
provides
M.D.R. 300 a
Court, the
in the District
pleading
apply
ments of
shall
of claim”
goes
plaintiffs
rule
on to list "the
statement
same
mandatory pleadings.
as one of the
Moreover,
filing by plaintiff
original
pleading
such as a statement of claim in the District Court
law,
or a declaration in a
necessary
circuit court action at
to give
jurisdiction
the court
subject
over the
matter.
Montgomery
Corp.,
Co. v. Ian
282 Md.
first filed in an action (Third (or subsequent) party M.D.R. 315 a third claim under Practice).” Party 3. M.D.R. 300 a states: Pleadings "a. Allowed. Pleadings apply. requirements pleading shall not Technical claim, plaintiffs the defen- shall be limited to the statement of cross-claims, defend, counterclaims,
dant’s notice of intention to
third-party claims,
claims,
third-party
notices to defend
and motions.”
*9
equity”);
Hillman, Adm’x,
in
Bertonazzi v.
361, 365-366,
jurisdictional,
Md.
In this Previti nothing sent to a court and demanded Instead, nothing of a court. letter public corporation, to a sought he County satisfaction from the latter. Baltimore adversary, agent, Previti’s in dispute his which had not Moreover, 27, § reached the (c), courts. under Art. had no right judicial pro- to institute matter, in ceedings as there had been no criminal con- Nevertheless, majority viction. County’s treats the action, forwarding to the court the letter from Previti to the County, filing as the of a statement of claim Previti suffi- jurisdiction cient to confer upon the court. This transcends upon informality reasonable limits in District Court pleading.
The holding Virginia Supreme West Court in Nield Nield, v. (1944), 126 W. Va. 28 S.E.2d quite pertinent. case, In that receiving a former wife child support under a divorce husband, decree sent a notice to her former setting forth her intention of applying for an increase child support. The former husband apparently forwarded this notice to the along paper with a which he desig- notice, nated as a demurrer to the although he did not chal- lenge sufficiency of the notice as an initial In pleading. reversing an order for an support, increase child (126 Supreme Court of West Virginia stated W.Va. at added): emphasis
"The
appellant
notice served on
states a fact and
forty
conclusion: That
dollars a month was being
paid for the
support
children’s
and that the amount
was inadequate. The notice was not addressed to
the court and
prayer
contained no
for relief. The
liberal rule that
pleading
substance of a
filed in a
suit rather than its form determines its effect has
jurisdiction
....
accepted
applied
been
cannot
appellant
the notice served on
Nevertheless
any kind
petition or
and treated as a
be considered
of pleading.”
*10
Company,
Company v. Glenwal
Sears Roebuck and
(S.D.N.Y.
aff'd,
1970),
upon Sears a notice Sears dispute their to arbi- agreement with its submit — initiate, thereby or become a tration did not to, proceeding. plaintiff petitioner or arbitration To the intervention of a proceeding, constitute a court is required.” Columbus, 1, 5, City 101 Ohio St.
See also Martin v. of (1920) ("A N.E. 411 is the one that initiates party plaintiff filing by making application the action or its or proceeding jurisdiction”). competent its in a court of my jurisdiction In no opinion, acquired the District Court controversy. subject over the matter of this existing which action over divorce filed 4. The notice in Nield was (126 432-433), pre- statutory jurisdiction W.Va. at the trial court had Supreme that the Virginia observed sumably "question to 433). Court the West for this reason jurisdiction but to the involved does not relate here (Id. attempted at jurisdiction to be exercised.” the manner in which by with to be dealt as a matter court treated the issue The parties. by though Supreme sponte not raised even Court sua
II.
if
by
Even
the absence of a statement
plaintiff
of claim a
were
jurisdictional,
technically
and if the
Court
District
subject
had
jurisdiction,
matter
the court’s exercise of such
jurisdiction
legislative policy.
contravened established
As
such, it should
by
regardless
not be sanctioned
this Court
the "plaintiffs”
objection.
lack of
Joseph
See
Munson Co. v.
(1982) ("cer
State,
Sec. Of
294 Md.
The allowing County to effect instigate case, a forfeiture action as was done in the present ignored legislative policy 27, § has the embodied Art. (c). today’s jurisdictions Furthermore decision seizing shows legislative how this policy may easily be in the circumvented future. merits,
Instead reaching I would either order that judgments of the Circuit Court for Baltimore the District Court be purported vacated and that the action dismissed, or dismiss the writ of certiorari improv- as idently granted.
III. If appropriate it were to the merits of this reach controversy, I would affirm the circuit court’s reversal order, on different although District Court’s forfeiture grounds upon by than those relied the circuit court. Court,
In argued the District that the counsel for Previti invalid, search warrant this case was that the warrant inadmissible, was therefore evidence seized as and that the a result of the search warrant should be excluded. After hearing testimony, judge the trial held that the warrant was Although judge invalid. refused to allow the warrant in evidence, testify he permitted the detectives to as to the exclusionary seized items because "the apply rule does not to civil proceedings.” objected Previti’s to specifically counsel ruling.
In Plymouth
Pennsylvania,
Sedan v.
380 U.S.
S.Ct.
(1965),
L.Ed.2d
Supreme
Court held
that the exclusionary rule
to civil
applicable
forfeiture
proceedings.
proceedings
That case involved state
to forfeit
an
allegedly
automobile because it
had been
used
transport illegal liquor.
sought
prove
illegal
The State
use through evidence
during
taken from the car
order,
unconstitutional
reversing
search.5 In
the forfeiture
the Court distinguished between derivative contraband and
se,
more,
which,
contraband
per
possession of
without
crime,
constitutes a
In the bar, property case at seized was more, is is derivative contraband: without possession, its *12 only warranted, prove lawful. To that forfeiture was illegal use not establish 5. The State had conceded that it "could fwajs using resulting chal- the search which without lenged the evidence from Plymouth Sedan v. having been in violation of the Constitution.” 1246, Pennsylvania, L.Ed.2d 170 14 380 U.S. 85 S. Ct. 526
evidence that the County introduced was obtained virtue of the unconstitutional Plymouth Sedan, search. Under that evidence should have been suppressed. Finally, the return of money would not frustrate public policy. According to Professor LaFave: remains,
"the
fact
which has been deemed
courts,13
determinative
gambling
most
that
money
Plymouth
is more like the auto in
Sedan
than the narcotics in [United
v.]
[342
States
Jeffers
(1951)]
48,
93,
U.S.
72 S.Ct.
13 States, Silbert v. United F.Supp. 289 318
(D.Md. 1968);
$125,882
United States v.
in U.S.
(S.D.N.Y.
Currency,
1968);
F.Supp.
People
Zimmerman,
v.
44 Ill.App.3d
(1976);
Mota,
N.E.2d
People
v.
(1975);
Ill.App.3d
1 W. Search And Seizure: A Treatise on the Fourth (1978) (some Amendment, omitted). § 1.5 at 86 footnotes Although Previti on numerous challenged occasions below ruling court’s that the exclusionary rule apply does not to a civil forfeiture proceeding, he did petition not file a cross for a writ of certiorari raising Moreover, this issue. the issue was directly raised in County’s petition for a certiorari, writ of although the question presented in premised is upon the trial finding court’s "that the contraband,” and this finding dependent upon
527 exclusionary the trial rule was holding court’s inapplicable. a, "ordinarily”
Under Rule 813
Court
will not decide
this
questions
petition
or a cross
encompassed
petition
885,
for certiorari.
analogous
Rule 813 a is
to Rule
under
"ordinarily”
which this
limited to
scope
Court’s
review is
questions raised and decided in the trial court. As both rules
employ
"ordinarily,” they
exceptions.
the term
permit
both
Consequently, we have on a few occasions decided cases on
issues other than
those raised
the certiorari
or a
petition. See,
State,
155, 161,
cross
e.g., Ayre v.
291 Md.
433
(1981);
A.2d
State,
Scott v.
289 Md.
426 A.2d
State,
145,
(1981);
Md.
A.2d 264
reviewed cases on issues
we have
State,
See, e.g.,
supra;
not raised in the trial court.
Scott v.
(1977);
State,
132,
Squire v.
280 Md.
L.Ed.2d 759 Martin Deegan, G. Inc. v.
Md.