*1
MONTANA,
STATE OF
Appellant,
Plaintiff and
ERIK A. BRANAM,
Respondent.
Defendant
No. 05-553.
Argued April
2006.
2,May
Submitted
2006.
Decided November
2006.
For Respondent: Martin W. Judnich (argued), Law, Attorney at Missoula.
JUSTICE WARNER Opinion delivered the of the Court. appeals from ¶1 an order of the Fourth Judicial District Court, County, Missoula dismissing its to forfeit property. The (Branam) State seeks the forfeiture of Erik A. Branam’s Cadillac Escalade, $44,360.00, cash totaling and an AR-15 semi-automatic rifle (hereinafter together referred to as Property) under MCA. We reverse and remand. The issue on appeal
¶2 is: Did correctly the District Court dismiss the forfeiture on grounds the that at the time the State seized the it lacked 44-12-102-103, cause for seizure under §§ MCA?
FACTS AND PROCEDURAL HISTORY (Evenson) Sergeant County the Evenson of Missoula Sheriffs reported to a assault at Department responded approximately 3:00 of April alleged a.m. on 2005. One the victims told Evenson that perpetrators the of the assault in a Cadillac Escalade and were by. stopped identified Branam’s Escalade as it drove Evenson the shortly thereafter, in question Escalade near where the assault was Branam, All of was reported. occupants the fled the vehicle. who the driver, returned, again dispatch. he fled Evenson talked to but while occupant shortly officers another Escalade apprehended Other thereafter, and a search incident to his arrest revealed he a possessed marijuana. small amount fled, As all of occupants the Escalade or were under arrest, Evenson decided to leave vehicle on street Towing unattended. He called a business named Pro to take the facility. its storage yard, employee Escalade to unsecured An Towing called Sheriffs at about 10:00 a.m. that Department and that he morning dispatcher informed had looked large and a of cash a rifle. Missoula Escalade discovered amount (McNeal) Towing County Deputy Sheriff McNeal went to Pro possession inspected money and the McNeal took cash rifle. a them. receipt and the rifle and issued for He also sealed the it, Escalade, Towing Red’s placed a hold on and ordered moved to storage control Department. inside under the of the Sheriff's at Towing Officer waited Pro arrested McNeal came to the Escalade about noon. A search incident to he retrieve receipts person Branam’s arrest uncovered two U.P.S. Florida $1,460.00, Express receipts totaling Travelers totaling in amounts two $1,000.00, receipts and Credit LLC made Mortgage three Global person, totaling $1,753.00. out to another cash found employee An officer counted the the Pro Escalade, $32,580.00. he thought which The officer smelled totaled A canine marijuana emanating from two of cash bundles. odor of drug dog sniff. during alerted on the bundles When cash however, Escalade, failed to alert the vehicle. An taken to the he and saw what through the windows of the Escalade officer also looked console, magazine, needle on the a rifle appeared syringe caps to be *4 seat. passenger and a box under the back above, information warrant was Using the described search April 27, 2005. The search for the and executed on obtained Escalade bottles, receipts, numerous two medicine produced prescription rifle, ammunition for the and another containing box four bundles $11,780.00. totaling cash petition When the for question forfeiture in here May- was filed on
10, 2005, alleged following Escalade, that the search of the officers spoke multiple confidential informants who stated that Branam transported several pounds marijuana Escalade, in the large sold marijuana it, amounts of out of kept thousands dollars on hand to purchase large quantities marijuana. Branam moved to petition dismiss the for civil forfeiture of the
Property grounds on the that it referenced statutes that did not exist authority as the under which the State had seized the Property. Branam also moved for dismissal of the for forfeiture under M. 12(b) or, alternative, R. Civ. P. summary judgment under M. R. grounds Civ. P. 56 on the the State lacked the necessary probable cause to seize the Property under MCA, § McNeal sealed the Towing Escalade at Pro and ordered it moved to Red’s Towing. The District Court dismissed under M. R. 12(b)(6) P. grounds Civ. on the that the State lacked cause required by 44-12-103, MCA, to seize the on 21,2005. April The District Court also noted in its order that the State charged Branam with a drug-related offense. The State appeals.
STANDARD OF REVIEW We review de novo district ruling court’s on a motion to dismiss 12(b)(6). pursuant to M. R. Civ. State, P. ¶ Plouffe A 8. motion to dismiss under M. R. 12(b)(6) P. Civ. has the effect of admitting all well-pleaded allegations in the complaint. motion, In considering the complaint is construed light most favorable to plaintiff, and all allegations of fact (internal contained therein are taken as Plouffe, true. citations omitted). We will affirm a district court’s dismissal when we conclude plaintiff would not be entitled any to relief based on set of facts that proven could be to support Plouffe, the claim. 8. The determination of whether a complaint states a claim is a conclusion of law, and we review the district court’s conclusions of law for Plouffe, correctness. 8.
ISSUE Did the District correctly Court dismiss the petition forfeiture grounds that at the time the State seized the it lacked *5 44-12-102-103, probable MCA? cause seizure under §§ for
DISCUSSION argues Property, the State to it must that for forfeit ¶13 have cause that the had been used to probable Property to believe substance, keep, deposit, conceal a controlled at the time transport, or it was seized. argues lawfully is for property purposes The State seized forfeiture, lawfully
other than for and remains State’s petition may later forfeit the be maintained. possession, property a to posits Property The farther that when McNeal seized the at Pro State cause to it as Towing, probable he had sufficient seize evidence of Thus, the State it could to hold the argues, Property offense. continue investigation. by while a The State contends that it conducted further petition forfeiture, it filed the for further information had time cause gathered provided necessary probable been which to seize 44-12-103(2)(d), purposes for civil under Property forfeiture § MCA, subject under M. R. petition and thus its was not to dismissal 12(b); subject being petition Civ. nor was the dismissed P. P. 56. summary judgment agree. under M. R. Civ. We construing statute, legislature controlling, a intent of is In plain meaning and such intent must first be determined from State, 2006 MT Voerding the words used. interpret statutory language without 12. We omitting has been omitted or what has been inserted.
inserting what by viewing Additionally, interpret Section MCA. we a statute Voerding, resides. light statutory it in of the scheme which it (citations omitted). it is or subject is to forfeiture to the State if has been manufacture, connection or
used with the distribution sale 44-12-102(l)(b), (2)(a), (g), dangerous in violation of law. Section drugs declaring it may purpose MCA. for the forfeit seized a ... to believe that probable the State if an officer “has cause unlawfully intended to be used conveyance has been used or is substance, to believe that a probable or cause transport a controlled deposit, conceal a controlled keep, has been used to or conveyance 44-12-103(1), MCA. Section substance.” property that if State seizes agree with Branam We forfeiture, must solely State purpose without a warrant for the to believe that such have cause at the time of seizure drug activity, subject and is dangerous property is connected to 44-12-103(1), (2)(d), However, Section if property forfeiture. MCA. forfeiture, nothing than lawfully by purposes seized the State for other 44-12-103, MCA, a later to forfeit precludes property. such § contemplate lawfully if statutes seizes forfeiture, than property reasons other and while that in the State’s information is lawfully possession, developed which probable cause to believe it is to forfeiture under subject establishes 44-12-102, MCA, may then be filed have such property “[sjeizure MCA, 44-12-103(2)(a), adjudged provides forfeit. Section may without warrant be made if the seizure is incident to an arrest or a search under a search warrant for another purpose.” issued 46-5-103(2), MCA, concerning Section the introduction into evidence State, seized dovetails with forfeiture statutes *6 “[e]vidence, provides contraband, persons and or lawfully seized any prosecution are admissible as evidence in or proceeding whether prosecution or not the or proceeding for the offense in connection Thus, the originally with which search was a made.” we conclude that already forfeiture of that is property lawfully in the State’s may possession investigation be maintained when develops probable cause property subject to believe such to forfeiture. case, In this lawfully the came into the State’s possession. Montana law that a and provides search seizure without may illegal a warrant not if any be held the defendant has “disclaimed or right place object evidence, interest or the searched or the seized,” or person right contraband or if “a the of defendant has infringed 46-5-103(l)(a), by (b), been the and search seizure.” Section MCA. The first lawful seizure of the occurred when officers contacted Pro to move the the its vehicle from street after all A occupants person abandoning thereby fled. property his abandons State his of with expectation privacy regard to that as well. v. 1993 Chevrolet 180, 10, 14, Pickup, 14, 2005 MT 328 Mont. 116 ¶ ¶ Hamilton, State v. 800, 14; 71, 26, 507, P.3d ¶ ¶ ¶ 871, 26, 67 relinquishment “[t]he P.3d 26. Abandonment is defined as ¶ 1993 of a one right; giving up something of to which is entitled.” Pickup, Mahoney, 296, Chevrolet Hawkins v. 14 MT (quoting 1999 ¶ ¶ 14). 14, 98, 776, 14, Mont. P.2d If no express 297 990 intent exists, may by abandon the intent inferred acts of Pickup, owner. 1993 Chevrolet act fleeing 15. Branam’s from law leaving enforcement and the Escalade and its contents on the street constitutes justify having abandonment sufficient officers Towing. Escalade moved to Pro
464 individual, Towing, then employee private An a and and law
discovered the cash the rifle Escalade contacted Montana privacy enforcement. The section Constitution contemplates by only. Long, state v. 216 privacy invasion action State (1985). 153, Therefore, Mont. 157 the warrantless discovery infringe by Towing employee of these items the Pro did not 71, privacy. Long, at P.2d at 157. right on Branam’s Mont. Property by The the State next seizure occurred rifle, money, and Deputy possession portion took of a ofthe McNeal mirrors Towing. a at Pro This case placed hold on Escalade Pierce, 15-18, 328 15-18, 116 MT P.3d ¶¶ ¶¶ 15-18, officers, a degree through impoundment, seized ¶¶ Pierce, seizing a search In pending vehicle the issuance of warrant. he placed pickup lawfully officer sealed and a hold on a after entered marijuana its odor of burnt and the owner strong cab smelled someone had committed the offense of pickup had admitted that Pierce, smoking 18. We held this was marijuana pickup. truck until a search warrant could be impound sufficient to case, Pierce, Deputy 19. In McNeal took obtained. this the time rifle, money on the possession placed of the and the hold Escalade, following had the information: he Evenson, resulted stopped Sgt.
The had been which Escalade occupants fleeing. in all of its returned, Branam, fled, driver, initially immediately but he again. fled then shortly apprehended occupant
Another of the Escalade was marijuana man possession. thereafter. This in his $30,000 rifle Approximately in cash an AR-15semi-automatic the street were in the Escalade after was removed from found *7 Pro Towing. and taken to and exists when the facts Probable cause to seize knowledge an are sufficient to warrant
circumstances within officer’s has an committed person person a reasonable to believe another 12, 60, 12, 293 490, Anderson, MT ¶ offense. State v. ¶ 220, 983, 12; ¶ Wakeford, P.2d State v. ¶ of an stopped, suspicions a vehicle is When occupants of all the connected with that vehicle arise when offense shortly captured occupants When of the immediately flee. one suspicions marijuana possession, in his further thereafter and has vehicle, $30,000 the in cash is then discovered in arise. When over all of rifle, semi-automatic the combination of assault along with a person are to cause a reasonable to these circumstances sufficient of an against that the is evidence offense law. See believe Pierce, instance, illegal gambling 19. In the offenses of particular this activity, burglary, trafficking drugs in robbery, dangerous come readily Pierce, to mind. Similar to we conclude that when McNeal took Property a hold possession placed of the on the Escalade probable Property, he had sufficient cause to seize the have it to facility Towing, moved the secure at Red’s and conduct a further investigation. Property lawfully warrant, As the was seized without a a to complete investigation.
could retained for sufficient time 46-5-311(1), MCA. counting employee Section When the cash the vehicle, marijuana secured from the an officer and a drug dog smelled money during alerted on the a syringe sniff. Officers observed needle on caps Escalade, magazine, the console of the as well aas rifle appeared passenger Then, what to be box under the back upon seat. application, magistrate determined sufficient cause existed issue a search warrant for the Escalade. Further evidence was found when officers searched Escalade as noted in 7 Branam above. has challenged validity of the search warrant. Nor did Branam for apply Property by return of the provided as MCA. We § lawfully conclude that the in possession was of the State by virtue of a seizure by petition authorized a search warrant for forfeiture filed on May 2005. It is thus admissible as 46-5-103(2), proceeding pursuant MCA, evidence the forfeiture to § and, pursuant 46-5-312(2)(a), MCA, did not have to § be returned to Branam. petition gathered by for forfeiture listed in detail the evidence Significantly,
the State. addition to circumstantial evidence of Property’s drug large use in the trade as evidenced amount rifle, cash alleged petition and the assault the State in the for multiple forfeiture that confidential sources revealed transported Escalade, pounds marijuana large in the sold amounts it, marijuana kept out of thousands of dollars hand to purchase large marijuana. quantities dismiss, considering petition In a motion we construe light allegations most to the take favorable State and factual in the Plouffe, alleged petition as true. 8. The facts
forfeiture, true, satisfy when considered are sufficient Thus, 44-12-103(2)(a), requirements MCA. sufficient 12(b)(6) to withstand Branam’s M. R. Civ. motion dismiss. P. *8 466 dismissing summary judgment Nor Branam entitled to is only Summary judgment may granted party
petition. be a matter of law. M. R. Civ. moving judgment therefore is entitled to as Garden, L.L.C., 4, 56; 115, v. MT 327 Valley P. Cole Ice Mont. ¶ 4, 113 275, that, determined 99, have as a matter of P.3d As we ¶ seized, law, lawfully and cause existed to was MCA, 44-12-103(2)(d), institute proceedings under Branam § forfeiture summary judgment. question of whether the is not entitled to to establish present State can sufficient admissible evidence trial 44-12-102, MCA, subject is that the is to forfeiture under us, admissibility we make no comment on of evidence not before strength or the of the State’s case. argues that the for forfeiture must petition Branam also drug charges no criminal have dangerous
dismissed because related However, him. statutory filed cites neither against Branam been file authority, precedent, requires criminal nor against the owner to have declared forfeit. charges seeks sought A that the owner of the to be forfeited be requirement statutes, in is not charged with a criminal offense contained one. MCA. we decline insert Section Finally, argues response for the first time in his brief that declining in because the the District Court erred dismiss petition as in statutory erroneous citations in its noted State included appealed from the issue separate 10 above. This issue distinct Thus, if Branam State. desired have this Court address this by the He do so issue, he to file a did not required cross-appeal. appeal. we not this issue on Colemore therefore do consider Fund, Employers’ Uninsured (citation omitted). Further, in the State’s 39¶ the desired forfeiture forfeiture, accomplish the correct statute in no also make it clear that he was
is referred to. Branam’s motions prejudiced nor was he petition, mislead the citation error way citation, District that this error any way. agree with the Court We harm, justify no is insufficient to no one and caused which mislead minimus, It and will not be considered. dismissing is de petition. 1-3-224, MCA. Section
CONCLUSION consistent with proceedings for further Reversed and remanded Opinion. this LEAPHART, RICE concur. MORRIS and
JUSTICES NELSON, specially concurring. JUSTICE Opinion, I result of not in all that concur in the the Court’s but said. In I do with the “abandonment” particular, agree Court’s First, analysis there that Branam at 19. is no evidence the record *9 right any “disclaimed or interest” in Escalade automobile. He did over; however, at police they pulled flee from the the time his vehicle once, he again. day up returned then ran The next he showed Towing justification to his an simply reclaim vehicle. It is after-the-fact for the search to reason from this chain of that Branam events right any Obviously, disclaimed or interest in his car. he did not. Moreover, factually 19 legally the cases cited in are distinguishable First, and do not support Court’s decision. Mahoney, 296, 98, 776, Hawkins v. 1999 MT 297 990 P.2d involved question of whether inmate escaped an who the Montana State Prison had abandoned his he personal property which left at the prison when he absconded. Our defined opinion “abandonment” in the following terms: being abandoned,
Personal property, upon to ceases be the property any person, of unless until it is reduced to to, possession acquire with the ownership intent to title or of, it. may, Such property accordingly, appropriated by anyone, if has not been reclaimed owner .... former (first Hawkins, added, emphasis 13 emphasis original) second in (1985)). (quoting 1C. J.S. Abandonment 12 We also observed intent of person property who “requisite “abandons” is a element” Hawkins, of abandonment. though 16. We determined that even there may been a presumption” have “rebuttable that Hawkins intended property to abandon his he escaped prison, there was no prison acquire evidence that the authorities intended title to his property, instead they containing as had labeled the box the property Hawkins, 3, with and put storage Hawkins’ name it in a room. 19. ¶¶ same is true here. Even if there arose rebuttable presumption that Branam intended to abandon a worth many vehicle thousands any of dollars-a stretch of common sense under test-that presumption sought rebutted when he to reclaim vehicle at Hawkins, Moreover, Pro day. the next See 19. there is no sought acquire evidence in the record that the police title to or Indeed, ownership Hawkins, of the Escalade. as in the authorities simply impounded the vehicle and until up waited Branam showed reclaim it. Hamilton, Likewise, 71, 507, State v. MT in 2003 314 Mont. 67 871, the involved a wallet object police
P.3d search had subsequently Hamilton lost and that was turned over identity opened authorities. The the wallet to determine the police owner; however, they also search. In inventory conducted so they opened the coin in the wallet and discovered a doing, purse Hamilton, 6-10. We controlled substance there. concluded that ¶¶ but, rather, her had “lost” it property Hamilton not “abandoned” therefore, and, expectation privacy had retained a reasonable Hamilton, Again, focused on the contents of her wallet. 25-26. we ¶¶ intentionally voluntarily Did intent of owner: she Hamilton, expectation privacy property? surrender her her case, vehicle, In the Branam did not his so instant lose Hamilton Furthermore, factually distinguishable from that there standpoint. intentionally is no evidence at all that Branam surrendered his sought car. In fact the true-he expectation privacy opposite his day. his following reclaim Finally, v. 1993 Pickup, Chevrolet did Pickup P.3d also is Chevrolet point. not on Rather, do the abandonment of a this case had to with involve vehicle. placing garbage evidence of criminal conduct with his person’s *10 alley public in a in a with the intent that depositing same trash can up disposed parties. Pickup, third 1993 Chevrolet picked 3-4, garbage In had abandoned his 15. our determination he ¶¶ inquiry.” again “paramount we focused on intent as the 1993 Chevrolet Pickup, garbage placed by The case does involve its owner in a at bar but, rather, an evidence expensive can valuable vehicle. No
trash knowingly determined to abandon his presented words, ownership title and to someone relinquish vehicle-in other Furthermore, police in the record that the there no evidence else. ownership. title acquire the vehicle with the intent seized Indeed, working precisely contrary premise-that police were And, to reclaim his car. that is Branam would come precisely what he did. short, “abandoned” his vehicle. In I conclude that Branam cannot has not contrary, but Court only is the evidence to
Not
case
analysis
that our
law
sort of “intent-focused”
conducted
may
There
reach
a conclusion.
necessary
and that is
such
requires
police’s
supported
that would have
legal
have
other
theories
been
Sawyer,
contents-see, e.g.,
its
securing Branam’s vehicle and
(1977),
part
on other
512,
Opinion, agree I with the result.
CHIEF JUSTICE GRAY and JUSTICE join COTTER Special Concurrence of JUSTICE NELSON.