531 S.E.2d 373 | Ga. Ct. App. | 2000
After police discovered 450 marijuana plants, each three inches in height, growing in a shed attached to John Wesley Rabern’s house, the State instituted an in rem forfeiture proceeding against the residence and the 5.2 acres of land upon which it stood.
After a hearing, the trial court determined that
(1) the property was being used to grow marijuana, (2) the property’s use was extensive and sufficiently close to the crime involved to render the property “guilty,” and (3) the forfeiture’s harshness was not excessive in comparison with the gravity of the offense.
The trial court ordered the property forfeited in its entirety. Rabern appeals, contending, among other things, that the forfeiture amounted to an excessive fine within the meaning of the Eighth Amendment to the U. S. Constitution.
Thorp
1. The evidence, evaluated under the three-factor Thorp
(a) The inherent gravity prong of the first factor considers the culpability.
The second prong of the first factor evaluates the harshness of the penalty imposed. The trial court forfeited Rabern’s family residence, including the surrounding 5.2 acres. Consideration must be given not only to the monetary value of the property forfeited, but also to the intangible value of the type of property, particularly in the case of a home.
(c) The third factor considers whether the criminal activity involving the property was extensive in terms of time and/or spatial use. A confidential informant, who had been arrested in Troup County for involvement with an indoor marijuana grove, told a Georgia Bureau of Investigation agent that he had been assisting Rabern in a cloning operation involving approximately 1,000 plants. Within two days of receiving the information, the agent executed a search warrant and discovered Rabem’s 450 plants. The record contains no evidence which purports to show a period of time during which marijuana plants were cloned nor proof that cloning occurred on Rabern’s property, which he had owned since 1988.
GBI agents found all 450 plants growing inside the 10-foot by 12-foot shed. Although the shed was attached to the rear of the residence and a window between the shed and the residence provided “an opening from the ground level floor of the residence to [the shed],” the shed also had a separate outside entrance and was not a part of the living area of the home.
The land around the house was heavily wooded, and a GBI agent testified that the trend in illegal marijuana production was to plant no more than two or three plants in one particular plot and to widely scatter them out in a wooded area to conceal their locations. He further testified that Rabern’s acreage would have provided sufficient area for the plants to grow to maturity. A police officer, who was responsible for assisting in the search outside the house, noticed several trails leading into the wooded areas. He testified that it appeared that some livestock had lived on the property. However, the search of the wooded areas revealed no marijuana plants. The record contains no evidence that marijuana was found anywhere except inside the shed.
A finding that a portion of real property was used to facilitate drug activities does not make the entire tract of land contraband sub
2. Because of our holding in Division 1, we need not address Rabem’s remaining enumerations.
Judgment reversed.
See OCGA § 16-13-49.
264 Ga. 712 (450 SE2d 416) (1994).
See Rabern v. State of Ga., 221 Ga. App. 874, 878 (4) (473 SE2d 547) (1996); Rabern v. State of Ga., 231 Ga. App. 84-85 (1) (497 SE2d 631) (1998).
Supra, 264 Ga. at 714-718 (3).
845 FSupp. 725 (C. D. Cal. 1994).
Thorp, supra, 264 Ga. at 717-718 (3).
Id.
State of Ga. v. Evans, 225 Ga. App. 402, 403 (484 SE2d 70) (1997).
Id.
Supra, 264 Ga. at 714-718 (3).
6625 Zumirez Drive, supra, 845 FSupp. at 733.
See Rabern, supra, 221 Ga. App. at 877 (3) (court determined “the sheer number of marijuana plants, coupled with the other evidence, demonstrate [d] that the property was being used to facilitate a marijuana sale”) (emphasis omitted).
Thorp, supra, 264 Ga. at 717 (3).
Id.
See id. at 713-718 (2), (3) (the court notes particular importance in applying the proportionality analysis in forfeiture cases because the government stands to benefit from the revenue raised, and the court expressly refuses to adopt the “instrumentality test” as the only appropriate criterion for determining whether a civil forfeiture is excessive).
Id. at 713-714 (2), 717 (3).
See OCGA § 16-13-49 (d) (2).
Thorp, supra, 264 Ga. at 718 (3).