State v. MatheasonState v. Matheason
— Gеrald Matheason appeals from an order forfeiting his automobile pursuant to
On or about January 8, 1972, a special agent for the *131 United States Treasury Department purchased one lid of marijuana from appellant at the latter’s residence. On January 12, the agent аrranged a second purchase of 20 lids to take place at appellant’s home the next evening. At 10:45 p.m., January 13, the agent and two Tacoma police officers took up surveillance of appellant’s home. Sometime thereafter appellant drove up in the autоmobile which is the subject of the forfeiture action. He parked the car in the driveway and went into his house.
The officers, armed with an arrest warrant аnd a search warrant for the residence, went to the house, arrested appellant and searched the home. After finding only a “very small quantity of mаrijuana” in the house, one of the officers went outside and searched appellant’s automobile. He found a brown paper sack cоntaining 20 lids of marijuana in the rear of the car on the floor. Appellant was taken to jail and the automobile was seized.
An amended information was filed January 18, 1972. Count 1 charged appellant with unlawful delivery of a controlled substance on or about January 8. This count related to the original sale of marijuana. Count 2 charged him with unlawful possession of a controlled substance with intent to deliver, on or about January 13, 1972. The latter count related tо the 20 lids of marijuana found in appellant’s automobile. Appellant entered a plea of not guilty to both counts. Thereafter, he entered a plea of guilty to Count 1 whereupon Count 2 was dismissed by an order dated April 5. Appellant received a “deferred sentence” and was placed on probation June 22,1972.
On March 8, 1972, appellant began a fruitless effort to regain possession of his automobile, originally seized pursuant to
Appellant contends that
The record does not specifically disclose the section of
Without question the seizure was not made pursuant to subsection (b) (1). Subsection (b) (1) provides that seizure may be made without process if “the seizure is
incident to an arrest
or
a search under a search warrant
or an inspection under an administrative inspection warrant.” (Italics ours.) Clearly, the seizure of the car was not made pursuant to a search warrant of any kind. The search warrant held by the police authorized a search of appellant’s house, not the search of his automobile. Further, no one has argued seriously thаt the seizure was “incidental to his arrest” as that phrase has been interpreted in
Chimel v.
California,
There is no evidence that the seizure was based either upon subsection (b) (2) or (b) (3). Thus, we shall not discuss them further.
The officer’s testimony that the search was based upon “probable cause to believe” that the car would be used to deliver a controlled substance places the instant sеizure within the purview of subsection (b)(4). That subsection authorizes seizures without process if “the ; . . law enforcement officer has probable cause to be *133 Heve that the property was used or is intended to be used in violation of this chapter.” (Italics ours.)
In
Everett v. Slade,
First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property аnd in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized — as here, a yacht — will often lie of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of сonfiscation were given. And finally, unlike the situation in Fuentes [Fuentes v. Shevin,407 U.S. 67 , 32 L. Ed 2d 556,92 S. Ct. 1983 (1972) ], seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whethеr seizure is appropriate under the provisions of the Puerto Rican statutes. In these circumstances, we hold that this case presents an “extraordinary” situation in which postponement of notice and hearing until after seizure did not deny due process.
(Footnotes omitted.)
A comparison of our statute with the Puerto Rican statutes upheld in
Calero
compels a finding that subsection (b) (4) still cannot be allowed to stand. Seizure of appellant’s property in
Calero
was accomplished pursuant to Puerto Rico Laws Ann., Title 34, § 1722. As required by that statute, the lessee of the yacht was given notice within 10 days of the seizure. When a challenge to the seizure was not made within 15 days after service of the notice, the
*134
yacht was forfeited pursuant to § 1722(c). By contrast,
Inasmuch as subsection (b) (4) does not provide for notice and hearing even after sеizure it is violative of due process even under the holding in Calero. Accordingly, the trial court is reversed and the order of forfeiture is dismissed. 2
Hale, C.J., and Finley, Rosellini, Huntеr, Hamilton, Wright, Utter, and Brachtenbach, JJ., concur.
Petition for rehearing denied October 15, 1974.
Notes
We note that a motion to forfeit was not made until more than 2 months after the seizure, and then only in response to appellant’s attempts to regain possession of his automobile. However, because of our holding today, we do not decide whether this satisfied the statutory requirement of prompt action.
In the instant case there is no suggestion that defendant’s automobile was originally seized for evidentiary purposes or later held for that reason. Indeed, after dismissal of Count 2 of the information, the car lost whatever evidentiary value it might havе had. Thus, our decision should not be interpreted as precluding law enforcement officers from lawfully seizing property for evidentiary purposes. That issue is not before us.