Opinion
C.A. No. 98M-02-021 HDR.
June 30, 2000.
Upon Petition for Return of Property
James A. Rambo, Esq., Deputy Attorney General, Wilmington, Delaware, for the State of Delaware.
Doris Pettyjohn, pro se.
Doris Pettyjohn ("Petitioner") has filed a Petition for Return of Property pursuant to 16 Del. C. § 4784 and Superior Court Civil Rule 71.3. The property sought to be returned is one 1984 Chevrolet Blazer ("the Blazer") seized by the Felton Police Department on December 19, 1997. The Petition was referred to the Court Commissioner pursuant to Superior Court Civil Rule 132(a)(3). For the reasons below, the Court Commissioner recommends the Petition be denied.
I. FACTS
At the hearing the State offered the testimony of two police officers. First Qfficer John Warmuth of the Felton Police Department testified that on December 19, 1997 he was involved in an undercover drug investigation of drug sales at the Felton Apartments. The officer testified that he contacted a confidential informant to assist in the purchase of cocaine. The informant spoke with the target of the investigation who proceeded to send the Petitioner's son, Terrence Parker, ("Parker") to deliver the cocaine. Officer Warmuth observed the Blazer, claimed by Pettyjohn, pull up to the apartment. He then observed Parker go up to the apartment and depart quickly. Thereafter, Parker drove the Blazer to the Felton Coin Laundry where the confidential informant gave Parker a marked twenty dollar bill in exchange for some cocaine. Corporal Phillips of the Harrington Police Department testified that he witnessed the sale of the cocaine between Parker and the confidential informant. A search warrant was obtained for Parker's residence where the marked twenty dollar bill was located. Additionally, the confidential informant identified Parker as the seller of the cocaine. Parker eventually plead guilty to Delivery of Cocaine in regards to the drug transaction in which the Blazer was used.
The Petitioner testified on her own behalf and stated that she had no idea that her son had been using the vehicle to sell drugs. She stated she had given her son permission to use the Blazer to go to work. Concerning her ownership of the vehicle she claimed that she has purchased the Blazer four or five months prior to its seizure. She intended it to be a "back up" car. She also owns a new Hyundai Elantra which she was financing. Petitioner stated that she purchased the Blazer from the Used Car Factory and had made a $2,000 cash down payment on the Blazer and that she still owes $1,092 on the Blazer for which she claimed to be making payments every two weeks. In addition, in her written submission to the Court, Petitioner claimed to have invested $800 for a new transmission a few weeks before the seizure. Petitioner claimed these actions rebutted the State's argument that she had abandoned ownership to her son, Parker. In the interest of justice, the Court granted the Petitioner two weeks to supply the Court documentation from the seller of the vehicle and the transmission shop to support her claims or to show good cause for inability to provide such documentation. The Petitioner failed to provide the Court with any documentation or any explanation for her inability to do so.
Finally, the testimony established that the Petitioner was on notice of her son's drug dealings since he had plead guilty to Trafficking in Cocaine prior to the Blazer's seizure. She clearly had notice that her son to whom she had "loaned" the Blazer had contacts with drug possession and sales.
II. ANALYSIS
The Delaware Forfeiture of Drug Profits Act authorizes the State to seize and forfeit various property associated with the trade in illegal drugs for the purpose of crippling the trafficking and sale of such drugs. In a forfeiture proceeding, the State has the initial burden of proving that probable cause exists for the institution of a forfeiture. "Once the government has met its burden of showing probable cause, the burden shifts to the claimant to show by a preponderance of the evidence that the property was not subject to forfeiture."
In the Matter of One 1987 Toyota, Del. Super., 621 A.2d 796 (1992).
In the Matter of One 1985 Mercedes Benz Automobile, Del. Super., 644 A .2d 423 (1992).
In the Matter of One 1987 Toyota, 621 A.2d at 799.
Concerning the seizure of automobiles the statute, 16 Del. C. § 4784 (a), reads as follows:
(a) The following shall be subject to forfeiture to the State and no property rights shall exist in them:
(1) All controlled substances . . . distributed . . . in violation of this chapter;
(4) Any conveyances, including . . . vehicles . . . which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, trafficking in or possession with intent to deliver property described in paragraph (1). . . .
In this case the State presented undisputed testimony that on December 19, 1997 the Petitioner's son Terrence Parker used the Chevrolet Blazer to facilitate the delivery of crack cocaine to the police informant. These facts are sufficient to support the forfeiture of the Blazer.
See In the Matter of One 1987 Toyota, 621 A.2d at 800.
"Once the government has met its burden of showing probable cause, the burden shifts to the claimant to show by a preponderance of the evidence that the property was not subject to forfeiture." This means the Petitioner must show by a preponderance of the evidence:
In re One 1987 Toyota, 621 A.2d at 799.
1) That they have the lawful possessory interest in the seized property; and
(2) The property was unlawfully seized or not subject to forfeiture pursuant to . . . [the forfeiture statute].
With regard to the ownership issue, the Petitioner must prove by a preponderance of the evidence that she has an "ownership interest in the res with the attendant characteristics of dominion and control." Petitioner has failed to meet her burden. I find that she abandoned ownership of the vehicle to her son and as such has not satisfied her burden of establishing innocent ownership of the Blazer.
Matter of One 1985 Mercedes Benz Automobile, 644 A.2d at 430.
In addition, Petitioner was "on notice" that her son was part of the drug sub culture. Proof of knowledge of illegal activity "can imply consent in the appropriate circumstances." Additionally, an innocent owner must do "all that can reasonably be expected to prevent the proscribed use of his property." The evidence in this case demonstrates that the Petitioner failed to inquire, investigate or even warn Mr. Parker that drug possession, etc., would not be tolerated around the vehicle. In other words, she failed to take any reasonable steps, given her knowledge of her son's drug-related history, to prevent the illegal use of the Blazer.
U.S. Property known as 6109 Grubb Road, 886 F.2d 618, 627 (3d Cir. 1989).
Id. (Quoting Calero-Toledo v. Pearson Yacht Co., 416 U.S. 663, 689 (1974).
United States v. One 1980 Bertam 58' Motor Yacht, 876 F.2d 884 (11th Cir. 1989).
III. CONCLUSION
After the hearing testimony and reviewing the applicable authority, it is the Commissioner's recommendation that the Court find the State has established probable cause to have initiated the forfeiture proceeding, and that the Petitioner has not met her burden to rebut the presumption that the 1984 Chevrolet Blazer in question is forfeitable. Therefore, it is recommended that the Court deny Claimant's Petition for Return of Property.