Opinion
Nos. C 90 CRB 41405, C 90 CRB 41366 A B and C 90 TRC 56392 A, B C.
Decided October 23, 1991.
William Al'Uqdah, for the state.
Timothy A. Smith, for the defendant.
On October 10, 1991 this matter came before this court on defendant's motion for the return of seized property. The defendant, Elbert England, seeks the return of his 1977 Chevrolet Corvette which was seized by the Terrace Park Police Department and held for the federal government for civil forfeiture pursuant to Section 881, Title 21, U.S. Code resulting from defendant's arrest on November 17, 1990 for: possession of marihuana; possession of prescription drugs; possession of drug abuse instruments; driving under the influence (DUI); as well as a citation for an illegal lane change. Defendant was found not guilty on all charges except for the illegal lane change. For purposes of this decision, the parties have stipulated to the following: (1) defendant has standing to bring this action; (2) the United States federal government, through the United States Attorney, has already commenced a civil forfeiture of the 1977 Chevrolet Corvette; and (3) the Terrace Park Police Department currently has physical possession of the 1977 Chevrolet Corvette and is constructively holding said vehicle for the federal government. For the reasons set forth in this decision, the motion by the defendant for the return of his property is overruled.
I
The first issue to be resolved in this analysis of defendant's motion for return of property is whether the state of Ohio had the power to seize the automobile.
R.C. 2925.42 (criminal action for forfeiture) and R.C. 2925.43 (civil action for forfeiture) provide for forfeiture of property "used or intended to be used in any manner to commit, or to facilitate the commission of, the felony drug abuse offense or act." R.C. 2925.42(A)(1)(b). These statutes require an indictment on a felony drug abuse offense. The defendant here was not indicted on any felony drug abuse offense so the state had no authority from these statutes to seek forfeiture.
Similarly, R.C. 2933.42, making possession or transfer of contraband illegal, and R.C. 2933.43, providing for forfeiture of contraband, does not apply even though "* * * [a]n item may be forfeited because the item itself is unlawful to possess, or an item may be forfeited because of its connection to unlawful activity." State v. Casalicchio (1991), 58 Ohio St.3d 178, 180, 569 N.E.2d 916, 919, rehearing denied (1991), 60 Ohio St.3d 705, 573 N.E.2d 673. Defendant's automobile falls within the meaning of contraband because R.C. 2901.01(M)(8) defines "contraband" as "[a]ny personal property that has been, is being, or is intended to be used in an attempt or conspiracy to commit, or in the commission of, any offense or in the transportation of the fruits of any offense[.]" (Emphasis added.)
However, R.C. 2933.43(A)(1) restricts the forfeiture of contraband to such offenses that are felonies, stating in part:
"* * * A law enforcement officer shall seize contraband that is a watercraft, motor vehicle, or aircraft and that has been, is being, or is intended to be used in violation of division (A) of section 2933.42 of the Revised Code only if the watercraft, motor vehicle, or aircraft is contraband because of its relationship to an underlying criminal offense that is a felony." (Emphasis added.)
In Casalicchio, where the defendant pleaded no contest to two felony drug offenses for drugs found in his automobile, the court stated at 182, 596 N.E.2d at 921, that, "* * * [f]orfeiture of R.C. 2933.43(B) contraband pursuant to R.C. 2933.43 * * * requires a conviction for a felony prior to forfeiture * * *."
Clearly the state of Ohio had no right to seize defendant's automobile. He was found not guilty of the drug abuse offenses and none of the charges were felonies: possession of less than one hundred grams of marihuana is a minor misdemeanor, R.C. 2925.11(C)(3); possession of marihuana drug abuse instruments (roach clips) is not a crime, R.C. 2925.12(A); and possession of diazepam (Valium) is a third degree misdemeanor, R.C. 2925.11(C)(2).
Had the state not constructively transferred custody of the 1977 Chevrolet Corvette to the United States federal government or had the federal government not initiated civil forfeiture proceedings, then this court would be required to grant defendant's motion. But, because of the federal forfeiture action initiated by the United States Attorney, this court must determine if the federal government has grounds for retaining custody of the vehicle.
II
Defendant has been acquitted of drug charges in Ohio. However, this is of no avail to him in the federal forfeiture action because Section 881, Title 21, U.S. Code does not require criminal conviction before forfeiture may be sought. Section 881(a)(1) states that all controlled substances are subject to forfeiture and Section 881(a)(4) states "[a]ll conveyances, including aircraft, vehicles, or vessels, 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)" shall be subject to forfeiture. Section 881(b) allows seizure without process issued if the seizure was incident to an arrest. Defendant's automobile was seized incident to his arrest upon probable cause for DUI. As a result of the defendant's arrest, said vehicle in question was constructively transferred to the United States government, thereby giving it authority to seek forfeiture.
Defendant's situation is similar to that in United States v. One 1977 Lincoln Mark V (S.D.N.Y. 1978), 453 F. Supp. 1388, where, although that defendant was acquitted of drug charges, the government made a showing that the automobile was used to facilitate the sale of heroin and as such was subject to forfeiture. Under Section 881, Title 21, U.S. Code, "the Government need only establish by a preponderance of the credible evidence that there was probable cause to seize the vehicle, and, therefore, to institute the forfeiture suit." Id. at 1391.
It is also irrelevant that defendant possessed only a small quantity of marihuana. The statute makes no mention of a minimum required amount of contraband before forfeiture may be sought. As United States v. One 1973 Dodge Van (E.D.Mich. 1976), 416 F. Supp. 43, 46, stated:
"Thus, in Associates Investment Co. v. U.S., 220 F.2d 885 (5th Cir. 1955), forfeiture was ordered when two partially smoked marihuana cigarettes were found in a vehicle. The Court of Appeals noted that so long as contraband was concealed or possessed in the vehicle, it was unnecessary to show anything more. The small amount involved and the fact that only one illegal incident took place were both irrelevant. In U.S. v. One 1957 Oldsmobile, 256 F.2d 931 (5th Cir. 1958), forfeiture was ordered although only 13 grams of marihuana were found. In U.S. v. One 1967 Buick Riviera, 2-Door, supra [(9th Cir. 1971) 439 F.2d 92], a single packet of heroin in possession of a passenger established probable cause. In U.S. v. One 1973 Volvo, supra [(1974) 377 F. Supp. 810], an automobile used to transport money to be paid for a shipment of marihuana and to be paid for the rental of an airplane was held to have `facilitated' violation of the narcotics laws."
Defendant's only hope is to assert innocent ownership as he did to avoid the criminal charges. However, "[t]he defense, if it is available at all, is available only in the most narrow circumstances. First, it may be available to an owner of forfeited property where the property was taken without his privity or consent, or, second, where the owner `was uninvolved in and unaware of the wrongful activity and had done all that reasonably could be expected to prevent the proscribed use of the property.' * * *" United States v. One 1976 Lincoln Continental Mark IV (C.A.8, 1978), 584 F.2d 266, 268.
From the foregoing analysis it seems unlikely that the defendant will prevail if the federal government seeks forfeiture by using Section 881, Title 21, U.S.Code. A constitutional analysis of the defendant's predicament also yields little hope of the return of his automobile.
The Double Jeopardy Clauses of both the Ohio Constitution and the federal Constitution forbid punishing a defendant twice for the same offense. Section 10, Article 1, Ohio Constitution; Fifth Amendment to the United States Constitution. See State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774; United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487. The question is whether forfeiture of an automobile for violation of R.C. 2933.42 in Ohio precludes the federal government from seeking forfeiture for the same act which is in violation of Section 881, Title 21, U.S.Code.
The dual sovereignty rule of Bartkus v. Illinois (1959), 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, addresses that question precisely. In Bartkus, the defendant robbed a bank and was subsequently tried and acquitted in federal court. Illinois than initiated its own trial for violation of state statute. The Supreme Court held that successive federal and state prosecutions for the same criminal acts were permissible under the "dual sovereignty" rule. State v. Fletcher (1971), 26 Ohio St.2d 221, 223, 227, 55 O.O.2d 464, 465, 467, 271 N.E.2d 567, 568-569, 570, was another bank robbery case in which the Ohio Supreme Court reiterated the dual sovereignty rule:
"`"Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. * * *" [Citation omitted.]
"`"That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. * * *"' [Citation omitted.]
"* * *
"We therefore hold that the conviction or acquittal of a defendant in a federal court on charges of violation of federal law is not a bar to criminal prosecution in Ohio courts for violation of Ohio penal statutes, where both prosecutions relate to and arise from the same criminal acts." See, also, State v. Brown (1981), 2 Ohio App.3d 321, 2 OBR 364, 441 N.E.2d 1126; State v. Smith (1991), 61 Ohio Misc.2d 165, 575 N.E.2d 1231.
It is apparent that the defendant has no claim of double jeopardy and that he is subject to both the Ohio and federal forfeiture statutes.
III
Another argument to avoid application of the federal forfeiture statute is worth exploring: Since Ohio had no right to seize the vehicle, any subsequent transfer of the vehicle to federal authorities may be illegal. However, the predominant view is that "where the United States, having possession of property, files a libel to enforce a forfeiture resulting from a violation of its laws, the fact that the possession was acquired by a wrongful act is immaterial," Cook v. United States (1933), 288 U.S. 102, 121, 53 S.Ct. 305, 312, 77 L.Ed. 641, 651, and that if the property was seized by one having no authority to do so the government may adopt the seizure with the same effect as though it had originally been made by one duly authorized. Dodge v. United States (1926), 272 U.S. 530, 47 S.Ct. 191, 71 L.Ed. 392.
Dodge is very similar to the issue involved in this motion. In Dodge, the police officers of the city of Providence, Rhode Island seized a liquor-laden motorboat and turned it over to the federal prohibition director. The federal statute used to seek forfeiture did not authorize municipal police officers to seize the vehicle. The Supreme Court held that "* * * [t]he owner of the property suffers nothing that he would not have suffered if the seizure had been authorized. * * *" Id. at 532, 47 S.Ct. at 191, 71 L.Ed. at 393. The only exception to this rule is if the search and seizure was done in violation of the Constitution as when no probable cause exists. Id. at 532, 47 S.Ct. at 192, 71 L.Ed. at 393. The taking of defendant's Corvette was based on probable cause so no violation of constitutional rights occurred. The federal Drug Enforcement Agency may, in effect, retroactively authorize Hamilton County's seizure of the Corvette under Section 881, Title 21, U.S.Code.
Finally, since R.C. 2933.43 requires the return of defendant's automobile and Section 881, Title 21, U.S. Code authorizes forfeiture, the statutes are incompatible. "Pursuant to Article VI of the United States Constitution, the federal Constitution and laws of the United States are made `the supreme law of the land.'" State, ex rel. Chandler, v. Butler (1991), 61 Ohio St.3d 592, 575 N.E.2d 833.
In Butler the Cincinnati Police Department seized money from Chandler when he was arrested for drug abuse. They then turned it over to the United States Drug Enforcement Agency. The DEA caused the money to be forfeited administratively according to Section 881, Title 21, U.S.Code. Chandler, claiming an absolute right under R.C. 2933.43, moved for the return of his money. However, the Ohio Supreme Court stated, "[s]ince the money was forfeited under federal law, it is immaterial what R.C. 2933.43 states about its return." Id.
Therefore, defendant's claim, if any exists, is against the federal government. This court has no authority to grant defendant's motion because we cannot order federal authorities to follow Ohio law when federal law supersedes state law.
Judgment accordingly.