Doug Johnson, Washington County Attorney, Respondent, vs. One 1994 Honda Civic Serial #1HGEJ1124RL003666, License Plate #KND039, et al., Defendants (), One 1996 Chevrolet Blazer, Serial #1GNDT13W5T2170630, License Plate #LLP307, et al., Defendants (A07-255); Soua Vang, Appellant.

Doug Johnson, Washington County Attorney, Respondent, vs. One 1994 Honda Civic Serial #1HGEJ1124RL003666, License Plate #KND039, et al., Defendants (A06-2430), One 1996 Chevrolet Blazer, Serial #1GNDT13W5T2170630, License Plate #LLP307, et al., Defendants (A07-255); Soua Vang, Appellant. A06-2430, Court of Appeals Unpublished Decision, December 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-2430, A07-0255
 
Doug Johnson, Washington County Attorney,
Respondent,
 
vs.
 
One 1994 Honda Civic Serial #1HGEJ1124RL003666,
License Plate #KND039, et al.,
Defendants (A06-2430),
 
One 1996 Chevrolet Blazer, Serial #1GNDT13W5T2170630,
License Plate #LLP307, et al.,
Defendants (A07-255)
 
Soua Vang,
Appellant.

 

Filed December 24, 2007

Affirmed in part and remanded

Minge, Judge

 

Washington County District Court

File No. C5-04-7180

 

Doug Johnson, Washington County Attorney, James C. Zulegor, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)
 
Bradford Colbert, Legal Assistance to Minnesota Prisoners, Benjamin Loetscher, Certified Student Attorney, 875 Summit Avenue, room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

Minge, Judge

            In this consolidated appeal from the judicial forfeiture of a 1996 Chevrolet Blazer and a 1994 Honda Civic, appellant Soua Vang contends that because the mere presence of controlled substances in an automobile is not sufficient to associate a vehicle with criminal activity, the district court erred in granting respondent's summary judgment motion.  Because we conclude that the Blazer and Civic were used to transport controlled substances, in violation of Minn. Stat. § 609.5311, we affirm the forfeiture of the Civic and affirm the forfeiture of appellant's ownership interest in the Blazer.  But because the district court found that there may be another person with a partial ownership interest in the Blazer who has not been notified of the forfeiture of that vehicle, we remand the Blazer forfeiture.

FACTS

These are in rem proceedings to forfeit two vehicles for transporting methamphetamine.  The vehicle is denominated the defendant in each proceeding.

1996 Chevrolet Blazer

In August 2004, while appellant Soua Vang was driving the Blazer, he was stopped by Woodbury police for a routine traffic violation.  Before reaching the vehicle, the officer smelled a strong chemical odor consistent with methamphetamine emanating from the open driver's-side window.  Appellant claimed ownership of the Blazer, but was unable to produce proof of insurance, stating that he had just bought the vehicle.  Appellant and one other companion were removed from the Blazer and interviewed.  A search of the vehicle revealed about 14.82 grams of methamphetamine with a retail value of at least $100, ziplock bags often used to package drugssome containing methamphetamine residuea digital scale, a beaker and flask with a rubber stop, several inches of plastic tubing, and a pair of tube socks with $1,000 in cash rolled inside. 

Respondent Doug Johnson, Washington County Attorney, initiated a judicial-forfeiture action against the Blazer in September 2004.  More than a year later, appellant pleaded guilty to one count of felony controlled-substance crime in the second degree[1] for the events arising out of the stop of the Blazer.  A year after that, in October 2006 in this forfeiture proceeding, the district court found that the Blazer was property associated with a controlled-substance offense and granted the respondent's motion for summary judgment.  But because of uncertainty over ownership, the district court delayed entry of the forfeiture order on the Blazer until assurance was provided that the registered owner was notified of the action.

1994 Honda Civic

            In October 2004, Oak Park Heights police stopped appellant while he was driving the Honda Civic.  During questioning, the officers noticed that appellant appeared to be hiding something in his lap and under his coat.  Appellant was unable to produce identification or proof of insurance.  When the officer asked him to get out of the vehicle, appellant shoved the object he was hiding between the driver's seat and the center console.  The officer conducted a pat-down search of the appellant and found a methamphetamine pipe and digital scale.  The officer then searched the center console and found a black and orange vinyl bag containing approximately 24 grams of methamphetamine with a retail value of at least $100.

            After the stop of the Honda Civic, appellant was arrested and charged with one count of felony controlled-substance crime in the second degree.  Respondent initiated a judicial-forfeiture action against the Civic in late 2004, and the district court granted respondent's motion for summary judgment in October 2006.  

This appeal followed the entry of judgment on the summary judgment orders.  Because of appellant's identification with both vehicles and because appellant had the same objection to each forfeiture, the appeals were consolidated.

D E C I S I O N

The issue in this consolidated appeal is whether the district court erred in determining that both vehicles were property associated with controlled substances and subject to forfeiture pursuant to Minn. Stat. § 609.5311, subd. 2(a).  On an appeal from summary judgment, the court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.  Minn. Stat. § 645.16 (2006).  When interpreting a statute, this court first looks to see whether the statute's language, on its face, is clear or ambiguous, and a statute is ambiguous only when the language therein is subject to more than one reasonable interpretation.  Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).  In adopting the forfeiture law, the legislature included the following guidance regarding their application:

[S]ections 609.531 to 609.5318 must be liberally construed to carry out the following remedial purposes: (1) to enforce the law; (2) to deter crime; (3) to reduce the economic incentive to engage in criminal enterprise; (4) to increase the pecuniary loss resulting from the detection of criminal activity; and (5) to forfeit property unlawfully used or acquired and divert the property to law enforcement purposes.

 

Minn. Stat. § 609.531, subd. 1a.  However, we also recognize that, to the extent that forfeiture laws are, in part, punishment, statutes must be strictly construed.  Riley v. 1987 Station Wagon, 650 N.W.2d 441, 443 (Minn. 2002). 

In providing for the judicial forfeiture of property associated with controlled substances, the legislature drafted with a broad pen: "All property, real and personal, that has been used, or is intended for use, or has in any way facilitated, in whole or in part, the . . . delivering . . . transporting, or exchanging of contraband or a controlled substance . . . is subject to forfeiture under this section . . . . "  Minn. Stat. § 609.5311, subd. 2(a) (2006) (emphasis added). [2] A motor vehicle is subject to forfeiture under section 609.5311 if the retail value of the controlled substance is $25 or more and the vehicle is "associated with" a felony-level controlled-substance crime.  Id., subd. 3(a).  

A separate section of the statutes establishes a presumption of forfeiture for a motor vehicle "containing controlled substances with a retail value of $100 or more if possession or sale of the controlled substance would be a felony under [Minn. Stat.] chapter 152."  Minn. Stat. § 609.5314, subd. 1(a)(2) (emphasis added).  Although the presumption is found in the administrative-forfeiture statute, an appropriate agency seeking judicial forfeiture under section 609.5311 is entitled to the presumption as well.  Id., § 609.531, subd. 6a(a).  A claimant of the property bears the burden of rebutting the presumption (Minn. Stat. § 609.5314, subd. 1(b)), but the agency must otherwise prove the act giving rise to the forfeiture by clear and convincing evidence.  Id., § 609.531, subd. 6a(a). 

Appellant complains that the methamphetamine was simply passively present in the vehicle while the vehicles were being driven for innocent, legal purposes.  Appellant claims there is no evidence that the vehicles were "associated with" the methamphetamine crimes as required by Minn. Stat. § 609.5311, subd. 3(a).  Because the forfeiture of property is also pursuant to Minn. Stat. § 609.5311, subd. 2(a), the question is whether the defendant vehicles "in any way facilitated, in whole or in part, the . . . transporting" of methamphetamine.  Id. (emphasis added).  The verb "facilitate" means to "make easy or easier," and the verb "transport" means "[t]o carry from one place to another; convey."  The American Heritage College Dictionary 498; 1461 (4th ed. 2002).  Forfeiture is appropriate if the defendant vehicles made it easier, in any way, to carry or convey controlled substances from one place to another. 

Here, the officers involved with the vehicle stops provided affidavits stating that the Blazer and Civic carried 14 and 24 grams of methamphetamine, respectively, and both of those amounts had a retail value of at least $100.  Furthermore, appellant pleaded guilty to a felony violation of Minn. ch. 152 following the recovery of drugs from the Blazer.  Also, the sale or possession of the 24 grams of methamphetamine found in the Civic constituted a felony under Minn. ch. 152.[3]  Appellant did not provide anything more than a bald assertion that the vehicles were innocent conveyances. 

Appellant cites Riley, 650 N.W.2d at 445, for the proposition that neither the Blazer nor the Civic was directly and substantially connected with appellant's felony drug-possession offenses.  Appellant's claims would be more persuasive if, like the court in Riley, we were considering the forfeiture of a vehicle for its role in the commission of certain "designated offenses" pursuant toMinn. Stat. § 609.5312, subd. 1.  But we are not.  Controlled-substance crimes are not encompassed in the definition of the phrase "designated offense."  See Minn. Stat. § 609.531, subd. 1(f).  The Riley court held that "the term ‘facilitate,' as used in section 609.5312, subdivision 1," requires a direct and substantial connection between the vehicle and the designated offense.  Riley, 650 N.W.2d at 445 (emphasis added).  But the supreme court carefully noted that the "legislature did not precede the term ‘facilitate' . . . with phrases such as ‘in any way' or ‘in whole or in part' as it did in section 609.5311."  Id. at 444. 

We are cognizant of appellant's argument that forfeiture statutes must be strictly construed.  However, based on our careful reading of Minn. Stat. §§ 609.531, .5311, .5312, and .5314, because the plain language of the applicable statutes requires only that the controlled substance be transported, because there is a presumption of forfeiture, and because appellant has not overcome the presumption; we conclude that the Blazer and the Civic facilitated such transport here and that the district court did not err in granting respondent's motions for summary judgment. 

The district court stated that further proceedings were necessary to determine whether there were persons in addition to appellant with an interest in the Blazer.  Accordingly, that proceeding is remanded.

Affirmed in part and remanded.

 

Dated:

[1] Minn. Stat. § 152.022, subd. 2(1), (3) (2004).

[2] Because it does not appear that any of the amendments to sections 609.531-.5318, effective in 2005, changes the analysis in these appeals, all references to the forfeiture statutes are to the 2006 edition of the Minnesota statutes.

[3] We note that at the time of the district court action, appellant had apparently not pleaded guilty or been convicted of a felony controlled-substance offense for the events arising out of the search of the Civic.  Forfeiture of the Civic may therefore have been premature under Minn. Stat. § 609.531, subd. 6a(b) (2006).  Neither of the parties raised this issue before the district court or in this appeal, and we therefore decline to address the issue.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally not consider matters not argued and considered in the district court); see also Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived).