Opinion
No. 908 C.D. 2012
03-12-2013
Commonwealth of Pennsylvania v. The Real Property and Improvements known as 1112 W. Nevada Street Philadelphia, PA 19133 and $6,401.00 ex rel Rasheem Young Property Receipt No. 2916671 Appeal of: Deniece Young
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Deniece Young (Ms. Young) appeals from two orders entered by the Court of Common Pleas of Philadelphia County (trial court) on January 11, 2012 (First Order), and January 12, 2012 (Second Order), granting the Commonwealth's forfeiture petitions under section 6801(a) of what is commonly referred to as the Controlled Substances Forfeiture Act (Forfeiture Act). In the First Order, the trial court ordered the forfeiture of drugs and $6,401.00 in United States currency. In the Second Order, the trial court ordered the forfeiture of property at 1112 West Nevada Street (Property). We affirm the First Order and reverse the Second Order.
Ms. Young owns the Property. Beginning in January 2010, Ms. Young allowed her son, Rasheem Young (Mr. Young), to live there rent-free. Brandi Evans (Ms. Evans) was Mr. Young's girlfriend.
Mr. Young had previously been convicted of possession with intent to deliver a controlled substance and could not have firearms in his residence. (N.T., 1/11/12, at 68.)
On May 4, 2010, Ms. Evans completed paperwork to buy a handgun from Delia's Gun Shop. On May 18, 2010, Ms. Evans returned to the gun shop to purchase the gun. Unbeknownst to Ms. Evans, Special Agent Joseph Hasara (Agent Hasara) of the Pennsylvania Office of Attorney General's Gun Violence Task Force and his partner (together, Agents) monitored the purchase, believing it to be a straw purchase. The Agents followed Ms. Evans to Class A Auto Detailing (Class A) and ended surveillance when she did not reappear for three hours.
On May 24, 2010, the Agents went to Ms. Evans' home to question her about the gun purchase. When asked to produce the weapon, Ms. Evans told the Agents that she did not have it. However, she offered to retrieve the weapon from the Property. En route, she told the Agents that she needed to retrieve keys to the Property from her boyfriend at Class A.
Agent Hasara later testified:
Q. And you asked her to go get the gun?(N.T., 1/11/12, at 72.)
A. She volunteered to go get the gun.
Q. But you were -
A. When we interviewed her at her residence on Chester Avenue, we asked her to inspect the gun. She said it's not here. It's at a friend's, a boyfriend's house on Nevada Street, and I'll take you there to show you the gun.
After getting the keys and arriving at the Property, Ms. Evans entered the house accompanied by Agent Hasara. Agent Hasara testified that he entered the house with Ms. Evans for "officer safety reasons" and did not perform a search therein. Ms. Evans surrendered the weapon to Agent Hasara. Agent Hasara's partner stayed outside the front door.
Agent Hasara applied for a search warrant because Mr. Young's probation conditions prohibited him from having a firearm in his residence. On May 27, 2010, the Agents executed the warrant at the Property. From the second-floor, front bedroom, inside a safe, the Agents found numerous blank prescription forms and one completed prescription form for Percocet. (N.T., 1/11/12, at 79.) On top of the safe, the Agents discovered 11 additional blank prescription forms. (Id.) Inside a night table in the second-floor, front bedroom, the Agents found two .22-caliber rounds of ammunition. (Id. at 83.) In the second-floor, middle bedroom, the Agents found an empty pill bottle marked Oxycodone, an empty bottle of Endocet, a bottle of codone syrup, and two snakes. (Id. at 83-84, 99.) In the kitchen and living area, the Agents found a digital scale, seven blank prescription forms, 3.27 grams of marijuana, 16 Xanax pills inside a kitchen drawer, and an alligator. (Id. at 77, 83, 98, and 100.) The Agents recovered $6,401.00 in cash from throughout the house, the majority coming from the safe in the second-floor, front bedroom. (Id. at 95.)
On July 20, 2010, the Commonwealth petitioned for forfeiture of the drugs and the recovered cash. On August 2, 2011, the Commonwealth petitioned for forfeiture of the Property. The trial court conducted a hearing at which Ms. Young presented a motion to suppress evidence derived from the search warrant. The trial court denied the motion and granted the forfeiture petitions, determining that Ms. Young was not an innocent owner of the Property or of $5,000.00 of the $6,401.00 found therein. This appeal followed.
Ms. Young appealed to the Superior Court, which transferred the matter to this court on March 14, 2012.
Ms. Young initially argues that the trial court erred by denying her motion to suppress the evidence presented in the Commonwealth's forfeiture petition as the fruit of an unconstitutional, warrantless search. We disagree.
In reviewing the ruling of the suppression court, we must determine whether the record supports the factual findings. We may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985).
The Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV; Pa. Const. art. I, § 8. This protection extends only to state action, and searches performed by private citizens do not violate the Fourth Amendment. Commonwealth v. Corley, 507 Pa. 540, 545, 491 A.2d 829, 831 (1985). Mere cooperation with law enforcement does not create state action. See Commonwealth v. Hawkins, 549 Pa. 352, 378, 701 A.2d 492, 505 (1997) ("Individual acts do not become imbued with the character of governmental action merely because they are later relied upon and used by the government in furtherance of governmental objectives").
In Corley, the Pennsylvania Supreme Court adopted the "fair attribution" test for determining whether conduct can be attributed to the state. Corley, 507 Pa. at 547-48, 491 A.2d at 832. Under the fair attribution test: 1) the deprivation must be caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible; and 2) the party charged with the deprivation must be a person who may fairly be said to be a state actor. Id.; see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).
Here, the Agents extended no right or privilege to Ms. Evans in exchange for her cooperation. Instead, in retrieving her gun, Ms. Evans acted upon a bailment to retrieve her property, a pre-existing privilege. Thus, Ms. Evans acted as a private citizen and her conduct cannot be fairly attributed to the state.
Additionally, Agent Hasara's entry into the Property, accompanying Ms. Evans, was constitutionally permissible for the limited purpose of protecting the Agents' safety. The Agents faced a dangerous situation in retrieving a possibly loaded weapon. The Agents did not know if other individuals lurked in the Property. Thus, given the totality of the circumstances, the danger created an exigency justifying Agent Hasara's limited intrusion.
Because Ms. Evans was a private actor and exigent circumstances permitted Agent Hasara to accompany her into the Property, no constitutional violation occurred. Therefore, the trial court appropriately denied the motion to suppress.
Ms. Young next argues that the trial court erred by denying her innocent owner defense regarding $5,000.00 of the $6,401.00 confiscated from the Property. We disagree.
Our review of a forfeiture order is limited to determining whether the trial court abused its discretion, committed an error of law, or made findings that are unsupported by competent evidence. Commonwealth v. Assorted Consumer Fireworks, 16 A.3d 554, 557 n.7 (Pa. Cmwlth.), appeal denied, 611 Pa. 671, 27 A.3d 225 (2011).
The Forfeiture Act permits the forfeiture of money exchanged for drugs or used to facilitate any violation of the Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substances Act). Commonwealth v. $26,556.00 Seized from Polidoro, 672 A.2d 389, 391 (Pa. Cmwlth. 1996). "In a forfeiture proceeding, the Commonwealth has the burden to establish by a preponderance of the evidence that a nexus between the property subject to forfeiture and an unlawful activity exists." Id. at 392. Where money is found in close proximity to illegal controlled substances, a rebuttable presumption exists that the money is related to drug trafficking. Section 6801(a)(6)(ii) of the Forfeiture Act, 42 Pa. C.S. §6801(a)(6)(ii). "Once the Commonwealth has sustained its burden of establishing such nexus, the burden of production then shifts to the owner of the property to disprove the Commonwealth's case or establish a statutory defense to avoid forfeiture." $26,556.00, 672 A.2d at 392.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144.
Ms. Young does not dispute that the Commonwealth met its burden. Rather, Ms. Young asserts the innocent owner defense. The innocent owner defense requires an owner to show:
(1) [t]hat the claimant is the owner of the property . . . .Section 6802(j) of the Forfeiture Act, 42 Pa. C.S. §6802(j).
(2) [t]hat the claimant lawfully acquired the property.
(3) [t]hat it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, the claimant then shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.
The trial court determined that Ms. Young produced withdrawal slips totaling $14,000.00 and indicated that she left $5,000.00 with Mr. Young to pay contractors. Ms. Young also demonstrated that she received $81,000.00 from a workers' compensation settlement. However, Ms. Young's testimony was, at times, ambiguous and unclear, and she admitted at trial that the $5,000.00 found at the Property did not derive from the $14,000.00 for which she provided withdrawal slips. (N.T., 1/11/12, at 166-67.) Given the conflicting evidence, the trial court found that Ms. Young did not prove that she owned $5,000.00 of the $6,401.00 at issue. Questions of credibility are exclusively for the fact-finder. Armbruster v. Horowitz, 572 Pa. 1, 9, 813 A.2d 698, 702-03 (2002). Because competent evidence supports this determination, the trial court did not err in issuing the First Order.
Finally, Ms. Young argues that the trial court erred by denying Ms. Young's defense that she was an innocent owner of the Property. We agree.
To reiterate, under section 6802(j) of the Forfeiture Act, an innocent owner needs to show that the unlawful use occurred without the owner's knowledge or consent. Commonwealth v. Real Property and Improvements Commonly Known 648 West Mayfield Street, 819 A.2d 1226, 1229 (Pa. Cmwlth. 2003). Further, the absence of knowledge or consent must be reasonable under the circumstances. Id. at 1228 (citation omitted).
Here, the trial court determined that Ms. Young's lack of knowledge was unreasonable based on this court's decision in 648 West Mayfield Street. (Trial Ct. Op., 1/11/12, at 11-12.) In 648 West Mayfield Street, the owner's stepdaughter lived on the property. 648 West Mayfield Street, 819 A.2d at 1227. On two separate occasions, police purchased crack cocaine from the owner's stepdaughter at the subject property. Id. Police arrested the stepdaughter and eventually filed a petition for forfeiture. Id. While the petition was pending, the police again purchased crack cocaine from the stepdaughter at the property. Id. At the forfeiture hearing, the owner admitted that she knew of the illegal activity on the property but did nothing to stop it, hoping that her stepdaughter would take care of the problem. Id. This court agreed with the trial court that the owner's inattention to the property amounted to turning a blind eye to the illegal activity and, thus, her lack of knowledge was unreasonable. Id. at 1229-30.
Here, the trial court acknowledged that Ms. Young exercised more supervision over her property than the owner in 648 West Mayfield Street. The trial court concluded, however, that the supervision was inadequate given her son's extensive criminal history. (Trial Ct. Op., 1/11/12, at 13.) However, contrary to the trial court's determination, the innocent owner defense does not require an owner to prevent conduct about which the owner has no knowledge. Here, unlike 648 West Mayfield Street, there was no prior illegal drug activity at the Property, no evidence of drugs being purchased at the Property, and nothing approaching the evidence of patent and flagrant drug distribution as in 648 West Mayfield Street. Moreover, unlike the owner in 648 West Mayfield Street, Ms. Young did not admit that she knew of any illegal activity. Instead, she steadfastly denied seeing any evidence of criminal activity in the mere five months that Mr. Young resided there. (N.T., 1/11/12, at 150-51.)
Ms. Young knew only that Mr. Young had trouble in the past with personal use of marijuana and told him that she would be checking on him. (N.T., 1/11/12, at 152.) Given the extent of her knowledge, this was not unreasonable. The trial court erred in attributing to Ms. Young a further duty to prevent against illegal activities on the Property where none had previously occurred. See 648 West Mayfield Street, 819 A.2d at 1229 ("We refuse to require that a property owner become an adjunct to the law enforcement community . . . in preventing the illegal activity of third parties. [Her] actions to prevent illegal drug activity once [she] becomes aware of it must only be reasonable considering the circumstances."). Therefore, the trial court erred in denying Ms. Young's innocent owner defense regarding the Property.
Ms. Young testified that she did not know details about Mr. Young's prior arrest history. Even if Ms. Young knew that Mr. Young continued to use marijuana or had been arrested previously for possession of marijuana, this fact does not imply knowledge of prescription drug distribution from the Property. --------
Accordingly, we affirm the First Order and reverse the Second Order of the trial court.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 12th day of March, 2013, we affirm the January 11, 2012, order of the Court of Common Pleas of Philadelphia County, granting the Commonwealth of Pennsylvania's petition for forfeiture of drugs and $6,401.00 in United States currency. We reverse the January 12, 2012, order of the Court of Common Pleas of Philadelphia County, granting the Commonwealth of Pennsylvania's petition for forfeiture of property at 1112 West Nevada Street.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge