DeSantis v. State

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Case No.: 03-C-01-005484 Circuit Co urt for Baltim ore Cou nty IN THE COURT OF APPEALS OF MARYLAND No. 141 September Term, 2003 WILLIAM L. DESANTIS, JR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridge, Jo hn C. (Re tired, Specially Assigned), JJ. Opinion by Raker, J. Eldridge, J., dis sents Filed: January 19, 2005 The United States Attorney General has authorized the federal Drug Enforcement Agency (DEA) to adopt seizures of property made by state or local au thorities in the course of drug investigations, generally after the state or local authorities request the DEA to do so. See 21 U.S.C. § 873. After the DEA comp letes federal forfeiture proceedings on the prop erty, the DEA is further authorized to distribute a large percentage of the proceeds from the forfeited p roperty back to the state or local author ity that requ ested fe deral ad option . See 21 U.S .C. § 88 1(e)(1) (A). The question presented fo r our review is wh ethe r the Maryland Sta te Po lice m ay, consistent with Md. Code (1957, 1996 Repl. Vol., 1999 Cum. Supp.), Art. 27, § 297(e),1 deliver custo dy of such se ized prope rty to the DEA after the request for adoption has been granted but witho ut first obtainin g a formal order from a Maryland court permitting the transfer of th e pro perty. I. On September 10, 19 99, a Maryland State Po lice trooper stopped a car traveling northbound on I-95 in Cecil County for tailgating. After condu cting severa l sobriety tests on the vehicle s sole occupant, William DeSantis, Jr., the trooper determined that DeSa ntis had been driving while intoxicated and arrested him. Dur ing a search of the car, inc ident to 1 Unless otherwise indicate d, all future statutory references to § 297 will be to Md. Code (1957, 1996 Repl. Vo l., 1999 Cu m. Supp .), Art. 27, § 29 7. Art. 27 was repealed and recodified without substantive change as Md. Code (2001), § 12-101 through § 12-505 of the Criminal Procedure Article. Throughout this opinion, we will refer to the statute as it was designated at the time of the forfeiture. the arrest, the troop er discover ed a substa ntial amou nt of mariju ana as w ell as a tan suitcase containing $20,000 in cash. Th e trooper ch arged D eSantis w ith possession with intent to distribute, possession of marijuana, and possession of paraph ernalia. Pursu ant to authority granted the State Police in § 297( d) and ( e), the trooper seized the $20,000 as illicit drug proceeds. The money was then deposited into an account controlled by the State Police. On September 30, 1999, the Office of the Attorney General of Maryland sent a letter to the DEA advising the federal agency that the State of Ma ryland does n ot plan to initiate forfeiture action on [the $20,000 seized] and requesting that the Drug Enforcement Administration handle the forf eiture pr oceed ings co ncernin g the se izure of this curr ency. On October 8, 1999 , the DEA gra nted the State s request for federal adoption and instructed the State Police to send a certified check in the amount of $20,000 to its office in Washington, D.C. The State Police, without obtaining any court authorization, complied with the DEA s instruction. Upon receipt of the check in Washington, the DEA assigned the currency an identification and case number and initiated federal administrative forfeiture procee dings. On Novemb er 30, 1999, the DE A provided D eSantis with notice of the federal seizure of the p rope rty as required by federal law. DeSantis did not contest the federal forfeiture. On Marc h 14, 20 00, the m oney w as forf eited to th e Unite d States pursua nt to 21 U.S.C . § 881. On April 12, 2000, the DEA paid to the State Police an amount representing 80% of the am ount fo rfeited, m inus ad ministra tive exp enses. 2 Fourteen months after the federal forfeiture had been completed, on May 22, 2001, DeSantis filed a complaint against the S tate in the Circuit Court for B altimore County, alleging that the State Police unlawfu lly had deprive d him of $ 20,000. B efore the C ircuit Court, the parties stipulated to the facts and moved for summary judgment. Judge J. Norris Byrnes gran ted the State s motion fo r summa ry judgment. D eSantis no ted a timely appeal to the Court of Special Appeals, and we granted certiorari on our own initiative to consider whether the State Police may deliver custody of such seized property to the DEA without first obtaining an order from a Maryland court. 380 M d. 617, 846 A.2d 401 (2004). II. The United States may adopt seizures of property initially seized by non-federal law enforcement agencies and declared by feder al statute subjec t to forf eiture. See Dodge v. United States, 272 U.S . 530, 47 S .Ct. 191, 71 L.Ed. 392 (192 6); United States v. One Ford Coupe Auto., 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926). Such adoptions cloak the initial seizure with federal authority, as if federal, not state, officials had made the seizure. See One Ford Coupe Auto., 272 U.S. at 325, 47 S.Ct. at 155; Madewell v. Downs, 68 F.3d 1030, 1039 (8th Cir. 1995). With respect to the illicit drug trade, the Attorney General of the United States is autho rized to coo perate with local a nd state polic e departm ents in combating the traffic of controlled substances and in suppressing drug ab use. See 21 U.S.C. § 873. To facilitate such cooperation, the United States Department of Justice has established so-called 3 equitable sharing programs whereby local or state officials request that the DEA adopt the seizure of and commence federal forfeiture proceedings against property subject to forfeiture under 21 U.S.C. § 881. After the federal forfeiture process has been completed and the property forfeited to the United States, the DEA disburses a large portion of the forfeited property back to the local or state law enforcement authority, minus administrative expenses. See 21 U.S.C . § 881(e)(1 )(A). This practice of pot-splitting between the federal and state law enforcement authorities is widespread and well-established.2 See, e.g., In re United States Currency, $844,520.00, 136 F .3d 581 , 583 (8 th Cir. 1 998) (p er curia m) (Lo ken, J., concurring); United States v. Winston-Salem/Fortsyth County Bd. of Educ., 902 F.2d 267, 269-70 (4th Cir. 199 0); Johnson v. Johnson, 849 P.2d 1361, 1362 (Alaska 1993); Franz J. von Kaen el, Misso uri Up s the An te in the D rug Fo rfeiture Race to the Res , 72 Wash. U.L.Q. 1469, 1473 (Fall 1994) (noting that [a]s of April 1993, over $1.1 billion had been distributed to more than 30 00 agencies throug h equitable sharing prog rams ). 2 In Cavaliere v. Town of North Beach, 101 Md. App. 319, 646 A.2d 1058 (1994), the Court of Special Appeals explained pot-splitting as follows: The pot-splitting noted in Johnson [v. Johnson, 849 P.2d 1361, 1362 (Alaska 1993)]is specifically allowed by 21 U.S.C. § 881(e)(1)(A), which authorizes the Attorney General, among other things, to transfer forfeited property to any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property. The ground rules for the splitting are set forth in the Department of Justice Guide cited above. The split is based on the net proceeds of the forfeiture, after deduction of Federal expenses, and the degree of pre-seizure activity performed by the State or local ag ency. 4 The legality of equitable sharing programs in the State of M aryland was addressed in Cavaliere v. Town of North Beach, 101 Md. App. 319, 646 A.2d 1058 (1994). In that case, the issue was whether a local police department had the authority to circ umvent th e state forfeiture procedure set forth in § 297 and opt instead for federal forfeiture procedures by requesting federal adoption of the lo cal off icer s se izure. The Co urt of Spe cial Appe als held that following the seizure of a motor vehicle pursuant to § 297 by a local police officer, the local police department had the auth ority either to proceed under the forfeiture proceedings set forth in § 297 or to request fe deral adop tion and ha ve the fed eral authorities initiate forfeiture proceedings under the federal forf eiture statute, 21 U.S.C. § 881.3 Id. at 330, 638 A.2d a t 1063. Petitioner does not challenge the holding of Cavaliere but presen ts the more s ubtle argument that the Department of State Police, after federal adoption has been duly authorized by the DEA and the Maryland Attorney General, is bound to abide by § 297(e), which, 3 The State forfeiture procedure for seized monies in § 297 is more burdensome than the federal forfeiture procedure found in 21 U.S.C. § 881. This is the obvious reason why the State Police might prefer, in many instance s, federal adoption over S tate forfeiture proceedings. For ex ample , under § 297, forfeiture proceedings against money must be initiated by the Attorney General, or some other officer of appropriate jurisdiction, and cannot be delegated to another authority. § 297 (d)(2). A fo rmal com plaint must b e filed in the district or circuit co urt, accom panied by an affidavit, in accordance with the procedural formalities of Md . Rules 2-1 21 to 2-122 or 3-13 1(a) to (c ). Id. In contrast, under 21 U.S.C. § 881, forfeiture proceed ings are much less bu rdensome for am ounts under the statutory minimum, primarily because they are administrative in nature and do not require all the formal procedu res afford ed a judicia l forfeitu re proc eeding . See 21 C.F.R.§§ 1316.711316.81. 5 petitioner argues, requires a so-called judicial turnover order to v alidate the transfer. Petitioner s theory is not no vel, and oth er courts, bo th state and f ederal, have considered it. See, e.g., Madew ell, 68 F.3d at 1040-44; United States v. One 1987 Mercedes Benz Roadster, 2 F.3d 241, 243-45 (7th Cir. 1993); Scarabin v. DEA, 966 F.2d 989, 993 -94 (5th Cir. 1992); United States v. One 1986 Chevrolet Van, 927 F.2d 39, 44-45 (1st Cir. 199 1); United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120 , 122-23 (7 th Cir. 1991 ); Winston-Salem, 902 F.2d at 272; United States v. $490,920 in United States Currency, 911 F.Supp. 720, 724 (S.D.N.Y. 1996); In re $3,166,199, 987 S.W .2d 663, 66 8 (Ark. 19 99); Commonwealth v. Rufo, 708 N.E .2d 947, 94 9 (Mass . 1999); Johnson, 849 P.2d at 1364-65. Petitioner argues that the State Police could not d eliver custod y of the seized property to the federal government without complying with the statutory authority by which the property was seized.4 He contends that the Maryland statute authorizing the seizure of his prop erty, § 297, requ ires the seizing authority to obtain a c ourt ord er, a tur nover o rder, before relinqu ishing c ustody of the pro perty to the federa l gover nmen t. The State disagrees on two grounds. First, the State, relying on Cavaliere, argues that the State Police lawfully cou ld proceed under either Maryland or federal law when it decided to subject the property to forfeiture. Because the State Police decided ultimately to proceed under federal forfeiture law, § 297, according to the S tate, ne ver cam e in to pla y, and thus, 4 In the Circuit Court, petitioner also argued several other issues relating to the deprivation of the property, but those issues are, as conceded by petitioner s counsel at oral argument before this Court, either subsumed by the § 297 issue or abandoned. 6 the State Police was not required to comply with its provisions, including any requirement for a turnover o rder. Secon d, the State arg ues that eve n if the State Police were req uired to comply with the provisions in § 297(e) before delivering custody of the prop erty, the State Police did comp ly because the plain langu age of the statute indicates a turnover order is not required. III. We begin by con sidering the S tate s conten tion that the S tate Police ha d authority to circumvent § 297(e) entirely when it opted to pu rsue feder al adoption and allow the DEA to forfeit the money under federal law. The State s primary argument is that it is not bound by the strictures of § 297 because when the State Police opted for federal adoption and federal forfeitu re, the S tate statu te nev er cam e into pla y. We d isagree . The State Police is not free to circumvent State law altogether when it decides to forgo State forfeiture proceedings in favor of federal forfeiture proceedings. When the State Police seized the cash in petitioner s car, it was operating under State, not federal, law, because the State trooper seize d the prop erty pursuant to the statutory authority granted him under § 297. Furthermore, when th e State Polic e took cus tody of the pro perty, it did so pursuant to State law, without any federal involvement whatsoever. At the time of the seizure and during the State Police s custody of the property, the State Police was operating under § 297, not 21 U.S.C. § 881. There is no evidence that federal authorities were involved in, or even had 7 knowledge of, the seizure of petitioner s property. Thus, whatever authority the State Police exercised in seizing and detaining the proper ty emana ted from State law , see § 297(d)(iv), 5 and not from the auspices of federal authority. Because the property was taken or detained under [§ 297], § 297(e) is applicable to the State P olice. Indeed, almost all of the cases having considered this issue hav e assume d that state authorities cannot avoid their own state laws when they trans fer the p roperty to federa l officia ls. See, e.g., In re United States Currency, $844,520.00, 136 F.3d at 583-84 (Loken, J., concurring); One 1987 Mercedes Benz Roadster, 2 F.3d at 243-44; One 1979 Chevrolet C-20 Van, 924 F.2d at 122-23; Johnson, 849 P.2d at 136 3; In re $3,166,199, 987 S .W.2d at 667. But see Madew ell, 68 F.3d at 1040-4 3; Winston-Salem, 902 F.2d at 272-73. The U.S. Department of Justice has also urged deferenc e to state law in this area. See In re United States Currency, $844,520.00, 136 F.3d at 583- 84; Un ited Stat es Dep artmen t of Justi ce, Asset Forfeiture Law and Practice Manual, 2-21 to 2-22 (June 1998). We are in accord with these cases, and hold that the State Police cannot avoid the strictures of § 297(e) merely by asserting its right to request federal 5 Section 29 7(d) provid es, in relevan t part: Seizure of property subject to forfeiture. (1) A ny property subject to forfeiture under this subheading may be seized upon process issued by any co urt having ju risdiction ove r the proper ty except that seizure without such process my be made when: *** (iv) There is probable cause to believe that the property has been used or inte nded to be used in violation of this subheading [Health Controlled Dang erous S ubstan ces]. 8 adoption and forf eiture under Cavaliere. IV. Petitioner maintains that § 297(e) requires the State Police to obtain a turnover order from a Maryland court before it delivers custody of seized property to the federal government. Petitioner claims that the section, by its plain language, grants to a Maryland court exclusive authority to dispose of any seized property. We disagree. Section 297(e) of Article 27 provides as follows: Seized property not repleviable; sealing and removal of seized property. Property taken or detained under this se ction shall not be repleviable, but shall be deemed to be in the custody of the seizing agency subject only to the orders, judgments, and decrees of the cou rt or the offic ial having jurisdiction thereof. Whenever property is seized under the p rovisions of this subh eadi ng, th e seizing agen cy ma y: (1) Place the property under seal; and (2) Remove the property to a place designated by the cou rt. Two initial observa tions can be made fro m a readin g of this sec tion. First, § 297(e ) limits the seizing agency s options for disposal of the property. It may either place it under seal or remove it to a place designated by the court in whose jurisdiction the property resides. Those actions appear fro m the statute to be the only ones a seizing age ncy may execu te on prop erty seized pursuant to § 297. While the seizing agency has limited powers over the seized prop erty, other officials are not so limited. Section 297(e) s plain language indicates, contrary to petitioner s assertion, that a court is not the only entity to wh om the pro perty is 9 subject. Section 297(e) states that the seized property shall stay within the custody of the seizing agenc y he re, the S tate Poli ce, see § 297(a)(13) subje ct on ly to the orders, judgments, and decre es of the co urt or the official having jurisdiction thereof. The official having juris diction thereo f obviou sly refers to someone other than a judge on a Maryland court. Although § 297(e) does not explicitly state who this official is, a careful reading of the statute leads to the conclusion that the official is a person who has direct authority over the seizing agency and who is granted authority to dispose of the property in other provisions of the statute. For example, § 297(j) provides that t he f orfe iting auth ority 6 may determine, independent of the seizin g agency, that a motor vehicle was w rongfully seize d and that it should be returned to the owner. This determination operates independent of any judicial auth ority, and no court order is required to surrender the property back to the owner. Indeed, it is arguable that a forfeiting authority s decision to return seized prop erty is not review able 6 Section 297(a)(5) defines forfeiting authority as follows: (i) For feiting autho rity means the office or person designated, from time to time, by agreement between the State s Attorney for a county and the chief executive officer of the governing body having jurisdiction over the assets subject to forfeiture. (ii) The Atto rney G ener al or the A ttorn ey General s designee when the seizing a gency is an instrumentality of the State, ma y, by agreeme nt with any State s Attorney, or county or municipal attor ney, designate an office or person as f orfeiting au thority to act on b ehal f of the S tate r egar ding any assets subject to forfeitu re by the S tate. 10 at all by a cou rt. Cf. § 297(k)(1 ) (providing for judicial rev iew over forfeiting author ity s refusal to surrende r vehicle to owner or decision to pursue forfeiture proceedings, but silent on judicial review over decisio n to return v ehicle); State v. 198 2 Plymo uth, 67 Md. App. 310, 319-20, 507 A.2d 633, 637-38 (1986) (rejecting de novo review over police officer s determination to seize auto mobile an d recomm end forfe iture pursua nt to statute). Thus, in § 297(j), we have an example of an official w ho may surre nder prop erty seized, and ta ke it out of the custody of the seizing agency, without receiving per mission from a court. A similar example occurs in § 297(d)(3)(i), which requires surrender of seized currency back to the owner when forfeiture proceedings are not in stituted w ithin 90 days. There is ag ain no mention of a court order to validate the surrender of the p rope rty. 7 These provisions would seem to defy petitioner s contention that a court order is necessary for the seizing agen cy to la wfu lly reli nquish custo dy of the p rope rty. These examples show that §297(e), read in context, limits th e seizing ag ency s ability to deliver custo dy of seized p roperty, but doe s not speak to the autho rity of other offic ials with juris dicti on over the prope rty. Indeed , that is the only logical understanding of the qualification that the property shall be subject to the orders, judgments, and decrees . . . of 7 Although § 29 7(d)(3)(i) requires the owne r to petition for return of the mo ney, it is clear that this does not mean a formal petition, as in a court filing. Compare the current statutory codification of § 297 (d)(3)(i) in Md. Code (2001, 2003 Cum. Supp.), § 12-304(c)(2) of the Criminal Procedu re Article ( If the State or p olitical subdiv ision does n ot file proceedin gs about money within the 90-day period, the money seized under this title shall be returned to the owner on request by the owner (emp hasis added)). 11 the official having jurisdiction thereof. Were we to accept petitioner s contention that the only way to deprive the seizing agency of custody is to get a court o rder, then § 297(e) essentially would serve to ha mper a forfeiting autho rity s ability to obey § 297(j). As explained infra, § 297(j) clearly contemplates no judicial intervention over the forfeiting authority s ability to return mistakenly seized vehicles. It would make no sense to read § 297(e) as creating su ch an imp licit restriction on th e forfeiting authority, and we do not interpret § 297(e) to restrict entities, other than the seizing agency, to whom § 297 gra nts authority over the property and forfeiture proceedings.8 See § 297(a)(2), (a)(5) and (a)(6); cf. § 297( b)(6) (v esting a ll rights, title and interest in and to the money . . . in and to Baltimore City or the cou nty in which it was seized if it was seized b y a county or Baltimore City law enforceme nt agency, . . . the m unicipal co rporation, if se ized by mun icipal author ities, or, if it w as seize d by State law en forcem ent auth orities, the State ). Under § 297(d)(2)(ii), the State Attorney General has the authority to initiate forfeiture proceedings agai nst p rope rty seized b y the S tate P olice in the for m of mon ey. 9 This autho rity 8 Nor do we accept the a rgumen t that although the forfeiting authority or the Attorney General is not bound by § 297(e), the State Police is so boun d, and that the refore, the S tate Police was re quired to obtain the cou rt order, notwithstanding the Attorney Gen eral s authorization of the transfer. Such a strained interpretation would serve only as a back-door equivalent to restraining the p owers of the Attorne y General in a manner n ot at all contemplated by § 297(e). It would, in effect, nullify the language or the official having jurisdicti on ther eof, a result hig hly disfav ored by th e cano ns of sta tutory inter pretatio n. 9 While § 29 7(a)(5)(i i) permits the A ttorn ey Ge nera l, by agreement with local officials, to designate a forfeiting authority to act on his behalf w ith respect to seized property other than money, when the property seized is money, that authority cannot be so d elegate d. See (contin ued...) 12 includes the discretion not to institute forfeiture proceedings, and, under the holding of Cavaliere, it also include s the author ity to request fed eral adoptio n. None of this autho rity is circumscrib ed by the restrictio ns of § 297(e) regarding the custodial placement of the prop erty, w hich apply only to the seizing agen cy. Our holding is in accord with a similar case from a federal district court in Illinois. In United States v. $62,600.00, 899 F. Supp. 378 (N.D.Ill. 1995), the district court considered the same argument presented by petitioner in light of two earlier cases, One 1987 Mercedes Benz Roadster, 2 F.3d at 243, and One 1979 Chevrolet C-20 Van, 924 F.2d at 122-23, which held that the Illinois statu te required a turnover o rder from a court prio r to transferring custody to the federal govern ment for adoptive f orfeiture proceedings. T he district court noted that those c ases were grounde d in the lack of authority for such a transfer und er state law, and since then the Illinois General Assemb ly has amend ed the relev ant statutes . . . to give State s Atto rneys the pow er, (concurre ntly with the state circuit courts) to dispose of the contraband. $62,600.00, 899 F . Supp at 379. The version of the statute considered by One 1987 Mercedes Benz Roadster and One 1979 Chevrolet C-20 Van had prov ided: Prop erty taken or detained under this S ection shall not be subject to replevin, but is deemed to be in the custody of the Director subject only to the order and judgments of the circuit court having jurisdiction over the fo rfeiture 9 (...continued) § 297( d)(2)(ii); § 297(h )(1). 13 procee dings. One 1979 Chevrolet C-20 Van, 924 F.2d at 122 (em phasis om itted); see One 1987 Mercedes Benz Roadster, 2 F.3d at 244. This p rovision w as amend ed to conf orm to its current version by inserting and the decisions of the State s Attorney under the Drug Asset Forfeiture Procedure Act at the en d of the senten ce. See 720 Ill. Com p. Stat. 570/505(d) (2003); Illino is Public Act 86-614, § 4 (1991). The amended version was deemed by the district court to permit transfer of the property without a cou rt order. $62,600.00, 899 F. Supp. at 379. We think § 297(e), which substantively is identical to the amended version of the Illinois statute, also permits such a transfer w ithout a turnover order. In the case sub judice, the Attorney General declined to pursue forfeiture proceedings under § 297. It had authority to do so under § 297(d)(2)(ii). The Attorney General also had the authority to request for federal adop tion of the seizure. Finally, because the A ttorney General was not bound by § 297(e) in transferring the pro perty, he had th e authority to deliver custody of currency to the DEA, through th e State Police, without obtaining a c ourt order. A ll of thes e action s were permitte d by the S tate forf eiture sta tute. Because § 297(e) does not, contrary to petitioner s assertion, require a turnover order when an official having jurisdiction over the property has ordered a transfer of the mone y to the D EA, the S tate P olice acted law fully. JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONER. 14 IN THE COURT OF APPEALS OF MARYLAND No. 141 September Term, 2003 _________________________________________ WILLIAM L. DESANTIS, JR. v. STATE OF MARYLAND __________________________________________ Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridge, John C. (retired, specially assigned), JJ. ________________________________________ Dissenting Opinion by Eldridge, J. _________________________________________ Filed: January 19, 2005 Eldridge, J., dissenting: I dissent.

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