Opinion
No. 2251 C.D. 2012
01-03-2014
Commonwealth of Pennsylvania, Appellant v. 2001 Buick and Contents Seized From Saheem Lovelace
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The Commonwealth of Pennsylvania appeals the order of the Court of Common Pleas of Philadelphia County (trial court) denying its petition for forfeiture under the act commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802, seeking to terminate Saheem Lovelace's claims of right, title and interest in one 2001 Buick Sedan and its contents. We affirm.
Section 6801 of the Forfeiture Act states, in pertinent part:
(a) Forfeitures generally.—The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:42 Pa. C.S. §6801(a)(1), (2), (4).
(1) All drug paraphernalia, controlled substances or other drugs which have been manufactured, distributed, dispensed or acquired in violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act [(Drug Act)].
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance or other drug in violation of the [Drug Act].
* * *
(4) All conveyances, including ... vehicles ... which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of, property described in paragraph (1) or (2)....
On December 26, 2009, Philadelphia Police Officer Nosik (Nosik) was on patrol in the area of 200 East Haines Street in a patrol vehicle in which he was a passenger. He observed a 2001 Buick Sedan with dark tinted windows, Pennsylvania tags and the engine running. Nosik approached the vehicle and instructed the driver to put the windows down. The driver obliged, and before Nosik could say anything, the driver, Saheem Lovelace (Lovelace), told Nosik that he "had just rolled one." (Reproduced Record (R.R. at 37a). Nosik observed a brown cigarette sitting on the console in plain view. Nosik removed Lovelace from the vehicle and took him into custody, and Nosik grabbed the "blunt" which later tested positive for marijuana through a NIK test. (Id.)
The vehicle was also seized and taken to police headquarters where a search was conducted pursuant to a warrant. Recovered from the vehicle's center console was a blue cigarette lighter with a false bottom containing seven blue oval pills. Recovered from the vehicle's trunk were two cans with false bottoms containing 13.6 grams of a green leafy substance, 3.55 grams of an off-white chunk substance, and four clear jars with black tops containing 23 milliliters of a purple syrup. The pills tested positive as alprazolam, a Schedule IV controlled substance; the green leafy substance tested positive as marijuana, a Schedule I controlled substance; the off-white chunk substance tested positive as a cocaine base, a Schedule II controlled substance; and the purple syrup tested positive as codeine and promethazine, Schedule IV controlled substances. (R.R. at 22a-23a).
Lovelace was later convicted for possession with the intent to deliver controlled substances and was sentenced to a term of one to two years of confinement. He is the title owner of the 2001 Buick Sedan.
The Commonwealth filed a petition for forfeiture of the vehicle and Lovelace filed an answer with new matter requesting the return of his property. A hearing was conducted in the trial court. Lovelace did not appear, but was represented by counsel. His counsel stipulated to the police report and his pre-sentence investigation report. The Commonwealth introduced the seizure analyses showing that the seized items were controlled substances and Lovelace's certified criminal abstract showing his conviction. Lovelace wanted to present his mother to testify that, even though the vehicle was titled in his name, she was the true owner of the car. The trial court ruled that she had no standing in the proceedings.
Ultimately, the trial court denied the Commonwealth's petition, explaining:
In this case, the Commonwealth failed to demonstrate a nexus between the property and the alleged illegal behavior. Even though the record indicates that the Philadelphia Police Department conducted a highly invasive search, officers never recovered or found any evidence suggesting that the property was being used to facilitate the sale of illegal drugs or to produce such drugs. Officers did not find any of the usual "trappings" indicative of drug dealing activities in the instant case. Only a small amount of drugs were recovered from the vehicle. No scales, sales records or cutting agents were recovered from the vehicle. By the same token, no illegal weapons or hidden cash were discovered. In addition, police did not observe any illegal drug transactions take place in connection with the subject property. Nor did they enlist a criminal informant to conduct a controlled buy.(Trial Court 5/10/13 Opinion at 6-7). The Commonwealth then filed the instant appeal.,
Furthermore, this Court finds that the small quantity of drugs allegedly found is more indicative of personal use than drug sales. At most, the evidence indicates that Mr. Lovelace purchased or obtained the alleged drugs at some unknown location and that he was subsequently arrested on his property. This, in the absence of more, is insufficient to establish a nexus between the alleged offenses and the subject vehicle. Without further investigation or surveillance of Mr. Lovelace's behavior regarding the use of the property, the facts established here are insufficient to grant the Commonwealth's Petition for Forfeiture.
This Court's scope of review in an appeal from a forfeiture proceeding is limited to determining whether the trial court's findings were supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Real Property & Improvements Commonly Known as 5444 Spruce Street, Philadelphia, Pa., 574 Pa. 423, 427, 832 A.2d 396, 398 (2003); Commonwealth v. Funds in Merrill Lynch Account, 937 A.2d 595, 598 n.3 (Pa. Cmwlth. 2007), appeal denied, 598 Pa. 769, 956 A.2d 436 (2008).
By order dated November 22, 2013, Lovelace was precluded from filing a brief. --------
In this appeal, the Commonwealth claims that the trial court erred in denying the forfeiture petition on the basis that no nexus was established because it was not required to prove a nexus between Lovelace's vehicle and his criminal offense. Specifically, the Commonwealth argues that Section 6801(a)(4) does not require such a nexus, and merely requires the Commonwealth to show that the vehicle facilitated Lovelace's mere concealment or possession of the controlled substances.
We initially note that a trial court has the discretion to grant or deny a forfeiture petition. Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207 (Pa. Cmwlth.), appeal denied, 588 Pa. 766, 903 A.2d 1234 (2006). We will not disturb the trial court's decision absent an abuse of that discretion. Id. Moreover, a trial court's findings of fact are entitled to the same deference as those of a jury and as fact-finder, it is the trial court's function to decide what evidence is credible and to draw any reasonable inferences therefrom. Commonwealth v. $23,320.00 U.S. Currency, 733 A.2d 693, 696-97 n.1 (Pa. Cmwlth. 1999).
There are two distinct types of contraband: contraband per se and derivative contraband. In re Koenig, 663 A.2d 725, 726 (Pa. Super. 1995). Contraband per se is property whose mere possession is unlawful; heroin is an example of contraband per se. Id.; Commonwealth v. Fassnacht, 369 A.2d 800, 802 (Pa. Super. 1977), cert. denied, 439 U.S. 911 (1978). Derivative contraband is property that is innocent in itself but has been used in the commission of an unlawful act; a truck used to transport illicit goods is an example of derivative contraband. Id. If the 2001 Buick Sedan in this case was found to be contraband, it would fall in the latter category.
For property to be classified as derivative contraband, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity. In re Koenig, 663 A.2d at 726. Property is not considered derivative contraband merely because it is owned or used by someone who has engaged in criminal conduct. Id. Specifically,
[t]he Commonwealth cannot deprive a person of his or her property and thereby impose a penalty upon him by seizing his property without showing that the property was derived from or was used to further criminal activity. The requirement that a sufficient nexus exist between the property and the prohibited criminal activity serves to mitigate the potentially harsh results of permitting the Commonwealth to penalize a citizen by a civil action against his property rather than a criminal action against his person.Commonwealth v. One 1985 Dark Blue Mercedes, 571 A.2d 482, 485 (Pa. Super.), appeal denied, 526 Pa. 654, 586 A.2d 922 (1990) (citation omitted).
It is undisputed that the prohibited criminal activity in this case was Lovelace's possession of a controlled substance with the intent to deliver. As this Court has explained:
Section 6801(a)(4) of the Forfeiture Act requires forfeiture of a conveyance, including aircraft, vehicle and vessel, which is used or intended for use in any manner to facilitate the transportation, sale, receipt possession or concealment of controlled substances. In a forfeiture proceeding, the Commonwealth has the burden to prove by a preponderance of the evidence that a party used or intended to use a vehicle in furtherance of a drug transaction. The term "facilitate" has been construed to include any use or intended use which makes trafficking in contraband less difficult and laborious. Orders granting a forfeiture of a vehicle have been upheld when a drug transaction took place in the vehicle.1977 GMC Pick Up Truck Van TKL247F740755 v. Commonwealth, 607 A.2d 837, 838-39 (Pa. Cmwlth. 1992) (citations and footnote omitted).
In the matter sub judice, the Commonwealth failed to establish that the vehicle was used to facilitate a drug transaction. The only transaction which actually occurred took place at a location that was one-half block from where the vehicle was parked. Since [the owner] drove to the lot for the purpose of making contact with a prostitute and not to acquire drugs, the Commonwealth did not establish that [the owner's] vehicle made the sale, receipt or possession of cocaine any less difficult or laborious. Further, the transaction between [the owner] and the prostitute had not yet materialized and cannot constitute a sale or receipt because the cocaine remained in the owner's coat pocket and was not transferred from the owner to the prostitute.
Likewise, in the instant case, the Commonwealth failed to establish a nexus between Lovelace's criminal conduct, possession with the intent to deliver, and the presence of the controlled substances in the 2001 Buick Sedan. To satisfy its burden of proof in this matter, the Commonwealth could have presented evidence demonstrating how the vehicle facilitated the criminal conduct for which Lovelace was convicted. However, in the absence of such evidence establishing such a nexus, the trial court did not err as a matter of law or abuse its discretion in denying the Commonwealth's forfeiture petition. Id.
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 3rd day of January, 2014, the order of the Court of Common Pleas of Philadelphia County dated September 25, 2012, at No. CP-51-MD-0004589-2010, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge