State v. EdwardsState v. Edwards
JOHNSON, J.*
Norman Edwards was convicted in the 19th Judicial District Court, Parish of East Baton Rouge, of driving while intoxicated (DWI), third offense, and he appealed. The Court of Appeal, First Circuit, held that the statutory provision permitting seizure and sale of a vehicle when the defendant was convicted of DWI, third offense, was constitutional. After considered review of the record, applicable law and jurisprudence, we affirm the decisions of the lower courts and find that
FACTS AND PROCEDURAL HISTORY
On April 12, 1998, in East Baton Rouge Parish, a Louisiana state trooper was dispatched to an accident scene involving three vehicles. Norman Edwards (Edwards), who was sitting in his vehicle when the trooper assigned to investigate arrived, told the trooper that he was not paying attention and did not see that the other cars had stopped. Edwards stated he hit
During his conversation with Edwards, the trooper smelled alcohol and conducted a field sobriety test that showed additional signs of intoxication. Edwards was transported to a police station, where he subsequently registered .114 on the intoxilyzer machine. On two previous occasions Edwards was convicted of driving while intoxicated. On January 14, 1998, he was convicted in Baton Rouge City Court of the first offense, and on April 13, 1998, he was convicted of a second offense in the City Court of Denham Springs.
On May 13, 1998, Edwards was charged with operating a vehicle while intoxicated, third offense, a violation of
The trial court sentenced Edwards to serve two years with the Department of Corrections, but suspended the entire sentence and placed numerous conditions on the defendant, including house arrest.2 Additionally, the court imposed a $2,000 fine and ordered that Edward‘s vehicle be forfeited. Subsequently, the defendant moved for an appeal of the trial court‘s decision upholding the constitutionality of the forfeiture provision of
The First Circuit Court of Appeal determined that the statute was constitutional when examined under the due process clauses of both the United States and Louisiana constitutions. See State v. Edwards, 99-0885 (La.App. 1st Cir. 2/18/00), 752 So.2d 395, reh‘g. den. (La.App. 1st Cir. 3/30/00) (Parro, J., dissenting).
ASSIGNMENT OF ERROR
In his sole assignment of error, Edwards contends the trial court and court of appeal erred in upholding the constitutionality of
LAW AND DISCUSSION
The case before us presents the first opportunity for this Court to review
In his brief to this court, Edwards argues that the seizure and sale of his automobile violates his right to property and the provisions of
The fourth amendment to the U.S. Constitution requires that searches and seizures must be reasonable3. The purpose of this protection against unreasonable searches and seizures is to safeguard the privacy and security of individual citizens against arbitrary invasions by government authorities. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (citing Marshall v. Barlow‘s, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). In general, courts assess the reasonableness of a fourth amendment seizure by balancing the interest served by the intrusion against the privacy rights of the individual subjected to the seizure. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). With the exception of a few well-delineated situations, officers must obtain a warrant from a neutral and detached magistrate prior to conducting either an arrest or a search.4 The warrant requirement limits police discretion in determining which persons to search or seize. When a warrant is not necessary, the fourth amendment requires that searches and seizures be justified by some quantum of individualized suspicion. See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (investigatory stop must be justified by objective manifestation that the person stopped is, or is about to be, engaged in criminal activity); Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (officer must have probable cause for warrantless vehicle search).
However, the fourth amendment only protects reasonable expectations of privacy. See Katz v. United States, 389 U.S. 347, 351-53, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The public nature of vehicles and the state
Moreover,
The warrant safeguard is equally applicable to the seizure of an automobile for the purpose of forfeiture, since the warrantless seizure of an automobile as contraband is subject to the same potential for abuse as the seizure of articles for evidentiary purposes without prior judicial approval. U.S. v. McCormick, 502 F.2d 281 (9 Cir.1974); LaFave, Search and Seizure, A Treatise on the Fourth Amendment, 1996, § 7.3.
In the instant case, Edwards was arrested and charged with DWI. Subsequently, his automobile was seized and impounded pending a conviction. Although the police did not have a warrant to seize his automobile, the seizure is permissible when incidental to a lawful arrest. Before being convicted of DWI, third offense, a defendant is either tried in a court of law or he pleads guilty after a Boykin5 hearing. In either scenario, an owner has sufficient opportunity to limit the negative consequences of his vehicle being erroneously seized. Under
DEVELOPMENT OF CONTRABAND FORFEITURE LAW
Edwards argues that the forfeiture statute at issue conflicts with the 1989 amendment of the Louisiana Constitution which provides that “personal effects” shall never be taken.
PRE-1989 AMENDMENT
Prior to the 1989 amendment,
Section 4: Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of police power.
Property shall never be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit....Personal effects, other than contraband, shall never be taken.
With respect to contraband as presented in the 1974 Louisiana Constitution, Professor Hargrave noted:
Property considered as ‘contraband’ is exempted from the requirement that personal effects can never be taken. The record provides no special definition of contraband. The term is used in the ordinary sense of property the possession of which is forbidden by law. The historical evolution of the term indicates that no compensation need be given when goods classed as contraband are taken. The government‘s power to classify items as contraband and to take them without compensation is subject to ‘reasonable’ restrictions and that property cannot be taken without due process. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. Law Review 1, 19-20 (1974).
The first significant case dealing with forfeiture after the convention is State v. 1971 Green GMC Van, 354 So.2d 479 (La.1977). In this case we recognized that Louisiana traditionally looked with disfavor upon forfeitures. Id. at 484. This court held that the forfeiture statute was unconstitutional. In making this determination, we determined that forfeiture statutes are penal in nature and thus must be decided under criminal law precepts. Id. at 484-487.
In State v. Manuel, 426 So.2d 140 (La.1983), this Court upheld the constitutionality of the drug forfeiture statute in place at the time,
Following Manuel, this court decided State v. Spooner, 520 So.2d 336 (La.1988). In that case, the central issue was whether the property owner could be required to prove in a forfeiture proceeding that money
In Spooner this court reviewed another forfeiture statute,
In concluding that the property owner could not be required to disprove a presumption that his property was contraband, but that, instead, the state had to bear the burden of proving that the seized property was contraband, we relied on the protections which the
Therefore, defining a forfeiture proceeding as “by nature an attempt to deprive the defendant of his property as a punishment,” we have held that the property owner is entitled in that proceeding to substantially the same protection as an accused is afforded in any criminal case. The burden of proving that the defendant‘s property was derivative contraband must be on the state. As this court said in State v. 77,014.00 Dollars, 607 So.2d 576 (La. App. 3 Cir.1992), writ denied, 612 So.2d 61 (La.1993), the legislature‘s response to Spooner was the enactment of Louisiana‘s present forfeiture law.
POST 1989 AMENDMENT
The Spooner decision led to the 1989 amendment to
Personal effects shall never be taken. But the following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole or in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above described property has been rendered unavailable.
This section shall not apply to appropriation of property necessary for levee or levee drainage purposes. Article I Section 4.
This amendment was intended to overrule Spooner, which examined forfeiture laws in the context of criminal proceedings and placed a heavy onus on the state in proving that property should be forfeited. See State v. Lamb, 31-919, p.4 (La.App. 2nd Cir. 5/7/99), 732 So.2d 1270, 1273; State v. Clark, 94-598, p.7 (La.App. 3rd Cir. 2/21/96), 670 So.2d 493, 500. The amendment did this by allowing forfeiture of contraband drug property by means of a civil proceeding. Furthermore, the amendment suppressed the traditional rationale employed in Spooner, that the forfeiture of drug tainted property was disfavored and that the defendant in the forfeiture proceeding must receive the same due process considerations as in a criminal proceeding. In keeping with this intent, the legislature also passed new forfeiture provisions,
The effect of the 1989 amendment is that there are now three classifications of proceedings for the permanent taking of property given constitutional status: criminal and quasi-criminal proceedings, which are governed by the first paragraph of
CIVIL FORFEITURE V. CRIMINAL FORFEITURE
Edwards argues that under the
Civil forfeiture is the process by which governments seize property without compensating its owner, based on its connection with the commission of crime. See Leonard Levy, A License to Steal: The Forfeiture of Property ix (1996). There is no prerequisite that a crime be proved before property is subject to confiscation. See Kirk W. Munroe, Surviving the Solution: The Extraterritorial Reach of the United States, 14 Dick. J. Int‘l L. 505, 515 (1996) (“Where this is a civil forfeiture action, the U.S. government need not bring criminal charges, either before or after the forfeiture. [It can seize] assets without ever bringing a criminal charge against anyone involved with the asset.“). In fact, the government not only has no duty to prove beyond a reasonable doubt that a crime was committed, it also has no duty to prove a crime by clear and convincing evidence or even by a preponderance of the evidence. The government must only prove that there was probable cause to believe that the property was used in connection with a crime. This burden of proof is made possible by the legal fiction that the property itself is guilty. See U.S. v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); State v. Giles, 29,695 (La.App. 2nd Cir. 6/18/97), 697 So.2d 699 citing this court‘s opinion in State v. Johnson, 94-0595 (La.1/16/96), 667 So.2d 510.
In contrast to civil forfeiture laws, criminal forfeitures are premised on a punitive theory, whereby forfeiture serves the important penal interests associated with the criminal process. See United States v. Kravitz, 738 F.2d 102, 106 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985). As the Fifth Circuit observed in upholding a substantial criminal forfeiture: “property forfeited under RICO need not be guilty.” U.S. v. Cauble, 706 F.2d 1322, 1350 (5th Cir. 1983). Rather, the scope of criminal forfeiture is measured by the penal objectives of the legislature. See U.S. v. U.S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); State v. Billiot, 254 La. 988, 229 So.2d 72 (1969); Cornman v. Conway, 178 La. 357, 151 So. 620 (1933). Thus, in many respects, criminal forfeiture is broader in scope than civil forfeiture because law enforcement can reach property that was legitimately acquired or lawfully used.
Just as civil and criminal forfeitures have distinct legal purposes, the procedures used to perfect each type of forfeiture are dramatically different. The most obvious difference, of course, is that criminal forfeitures are considered a part of a criminal prosecution and thus are subject to criminal procedural rules, whereas civil forfeitures are prosecuted in independent civil actions directly against the offending property.
Civil forfeitures are considered in rem proceedings, and a court must take possession of property through an act of seizure by the government before it can assert in rem jurisdiction. The seizure of the property, either actual or constructive, confers in rem jurisdiction upon the court. See, e.g., United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 503, 126 L.Ed.2d 490 (1993); State v. Mart, 96-1584 (La.App. 1 Cir. 6/20/97); 697 So.2d 1055; State v. Baynes, 96-0292 (La.App. 4 Cir. 7/31/96); 678 So.2d 959, 962 n. 2. The typical civil forfeiture action begins with a seizure of property and is followed by the filing of a forfeiture complaint and the prosecution of the government‘s claim. In many senses, the raison d‘etre of civil forfeitures lies in their reduction of the government‘s burden for a successful prosecution. See also David B. Smith, Prosecution and Defense of Forfeiture Cases (1994).
Criminal forfeitures, on the other hand, are in personam actions against a criminal defendant. Thus, the only prerequisite to court jurisdiction is obtaining jurisdiction over the person of the defendant. The burden of proof in a criminal forfeiture case is allocated to the government. As such, a criminal conviction is a necessary predicate for any criminal forfeiture. See, e.g.,
Applying these precepts to the DWI forfeiture statute,
Furthermore, the third paragraph of
EXERCISE OF LEGISLATIVE POLICE POWERS
The State argues that the forfeiture of a vehicle used in the commission of a third offense DWI is a reasonable statutory restriction and a reasonable exercise of police power. We agree.
Police power is inherent in the state. Under that power the state may enact laws to protect and preserve social order, to restrict and punish crime, to preserve the public peace, to safeguard and protect the health and morals of the people, even though the effect of such laws is to strike down private contracts, to deprive the citizen of his liberty to contract and to take from him or destroy his property. But the legislature is prohibited from enacting such laws except for adequate reasons. If the reasons are not adequate, such legislation violates the due process clauses of the federal and state Constitutions. See Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515 (La. 1983).
The federal and state constitutions provide that no person shall be deprived of property without due process of law.
Professor Hargrave, in “The Declaration of Rights of the Louisiana Constitution of 1974,” 35 La.L.Rev. 1 at 12 (1974) notes: “The background of [this] provision indicates an understanding that the statutory limitations and police power regulations are to be given a broad ambit.” See, e.g. Brown v. State, Through Dept. of Public Safety, Division of Louisiana State Police, 392 So.2d 415 (La.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3085, 69 L.Ed.2d 955, (1981) (wherein
We have already determined that the right to operate a motor vehicle in Louisiana is a privilege granted by the state and not a constitutional right. Consequently, the state has and can enact numerous conditions on that privilege6. Fields v. State, 98-0611, (La.7/8/98), 714 So.2d 1244; Progressive Security Ins. Co. v. Foster, 97-2985, p.4 (La.4/23/98), 711 So.2d 675, 682.
Our constitution wisely provides for separation of powers, and authorizes the legislature to make public policy determinations of controversial issues. State v. Smith, 99-0606, (La.07/6/00), 766 So.2d 501. Therefore, under our constitution, the legislature has determined that the public policy of Louisiana is to keep drunk drivers off the state highways. A public policy that should not be determined by this court.
Moreover, the state‘s interests are immediately apparent: (1) the lack of compliance with the law as set forth in
The danger that an innocent owner will be deprived of his property is minimal. The statute also provides that a vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated. Additionally, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.
Therefore, the sentencing provision of
CONCLUSION
Accordingly, we find that the lower courts did not err in determining
CALOGERO, J., dissents and assigns reasons.
KNOLL, J., concurs.
CALOGERO, Chief Justice, dissenting.
Our constitution sets out mechanisms for its amendment in
While I appreciate the desire of the legislature and this court‘s majority to reduce the dangers posed by intoxicated drivers, and while I appreciate the efficacy a statute like the one at issue here may have in this regard, the proper procedure for allowing the state to take an automobile used by an intoxicated driver is constitutional amendment followed by appropriate legislation, not unconstitutional legislation followed by de facto judicial constitutional amendment. Accordingly, I respectfully dissent.