Leonard L. Jones v. State
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SUPREME COURT OF WISCONSIN Case No.: 97-3306 Complete Title of Case: In re the Return of Property in: State of Wisconsin v. Leonard L. Jones: Leonard L. Jones, Appellant-Petitioner, v. State of Wisconsin, Respondent. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 217 Wis. 2d 293, 577 N.W.2d 389 (Ct. App. 1998, Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: June 3, 1999 January 7, 1999 Circuit Dane Jack F. Aulick Prosser, J. concurs (opinion filed) Bradley, J., dissents (opinion filed) Abrahamson, C.J., joins dissent Not Participating: ATTORNEYS: For the appellant-petitioner there were briefs by Colleen D. Ball and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee and oral argument by Colleen D. Ball. For the respondent there was a brief and oral argument by Kenneth M. Farmer, assistant district attorney. No. 97-3306 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-3306 STATE OF WISCONSIN : IN SUPREME COURT FILED In re the Return of Property in: State of Wisconsin v. Leonard L. Jones: JUN 3, 1999 Leonard L. Jones, Marilyn L. Graves Clerk of Supreme Court Madison, WI Appellant-Petitioner, v. State of Wisconsin, Respondent. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Affirmed. Leonard L. Jones seeks review of an unpublished court of appeals decision1 which affirmed the circuit court s order denying his request for return of $1,783 in cash which was seized, along with various drug paraphernalia under the Uniform Controlled Substance Act (UCSA),2 during a search incident to intoxicated his arrest (OWI). for This operating case a presents motor two vehicle issues while for our review: 1 Jones v. State, No. 97-3306, unpublished slip op. (Wis. Ct. App. Feb. 26, 1998), was decided by a one-judge panel pursuant to Wis. Stat. § 752.31(2)(g)(1995-96). 2 The Uniform Controlled Substances Act is contained in ch. 961 of the Wisconsin Statutes. All statutory references are to the 1995-96 version unless otherwise noted. 1 No. 97-3306 (1) If property is seized pursuant to a search that leads to a charge of a violation of the USCA, and the state has not initiated forfeiture proceedings, may an interested party seek return of the property under Wis. Stat. § 961.55. that the provision legislature in intended § 961.55(3) that can the only We conclude return be of property triggered unsuccessful forfeiture action brought by the state. by an In all other situations where the state has not initiated a forfeiture action, we conclude that a person claiming the right to property seized by the authorities is limited to the procedures set forth in Wis. Stat. § 968.20. (2) If the interested party brings an action for return of property under contraband Wis. within Stat. the § 968.20, meaning of is Wis. cash Stat. considered § 968.13(1), particularly when the charge arising out of the property seized during the search is ultimately dismissed? When the state has not instituted forfeiture proceedings and an interested party seeks return of seized property under § 968.20, we conclude that in order to retain the property, the state must establish that the property is either contraband or is needed as evidence in a case. For property alleged to be contraband, the state must establish a logical nexus between the seized property and illicit behavior on the part of the petitioning property owner. If the property is found to be contraband, then the property need not be returned whether criminal charges are ultimately filed or not. Even though the circuit court mistakenly placed the burden on the defendant to show whether the cash was or was 2 No. 97-3306 not contraband, we conclude that record, this error was harmless. based on the evidence of Accordingly, we affirm. I. ¶2 The facts are undisputed. According to the testimony of Madison Police Officer Kevin Linsmeier, he received a report of a vehicle parked curbside on Moland Street with its engine running. At the scene, he found an individual, later identified as Jones, seated in the driver s seat and non-responsive. After repeated knocking on the window, Jones eventually rolled the window down, testified but that intoxicants, would Jones and his not exit speech eyes was the vehicle. slurred, appeared he glassy Linsmeier smelled and of dilated. Linsmeier believed Jones was impaired and not free to leave, so he threatened to break the window if Jones would not exit the vehicle. Jones chose him to exit on the vehicle; in the process, vehicle to maintain Linsmeier observed balance. Jones refused Linsmeier s request to submit to several field sobriety tests. lean the his Consequently, Linsmeier placed him under arrest for OWI. ¶3 Linsmeier then conducted a search of Jones and the vehicle incident to that arrest. 3 Linsmeier uncovered $1,783 in No. 97-3306 cash on Jones3 and he uncovered a small scale, six cigarette lighters, and three pieces of charred Chore-boy scouring pads within the vehicle.4 According to Linsmeier, the Chore-boy is regularly used in a crack pipe for ingesting crack cocaine and a scale is a common tool that drug dealers use to measure their drugs for selling. Linsmeier indicated that he did not find any drugs, nor did he witness an actual drug transaction. ¶4 Linsmeier testified that based on his training experience, he believed the money was drug-related. and Linsmeier stated that crack cocaine is most often purchased as a 20 with a $20 purchase price. He further indicated that the wads of cash found on Jones are indicative of drug dealing: a lot of people that deal drugs will have their money in one part of their body, drug money in other parts, and then a lot of them want to know like exactly how much is on them so they will have it in set amounts like the thousand dollars in $20 bill[s]. Linsmeier confiscated the cash and property found in the search. 3 Linsmeier found five separate wads of money, three in Jones pants pocket and two in his fanny pack. Each wad consisted of evenly folded bills, all facing the same direction: three wads contained all $20 bills totaling $1,000, $180 and $60, respectively; another contained $414 in ones, fives, tens, twenties and one fifty; and one wad contained $129. When asked where the money came from, Jones responded that it was a refund. 4 The amended complaint also lists a crack pipe made out of a small liquor bottle and coated with a black filmy residue as being found in the vehicle. The crack pipe, however, is not referenced anywhere else in the record nor was it mentioned during Linsmeier s testimony. 4 No. 97-3306 ¶5 Jones was subsequently charged in Madison Municipal Court with operating while under the influence of an intoxicant or controlled substance. The court apparently entered a default judgment against Jones for that charge.5 ¶6 Jones was also charged in Dane County Circuit Court with possession of drug paraphernalia as a repeater in violation of Wis. Stat. §§ 961.573(1) handwritten motion for confiscated from him, paraphernalia charges on and return and the of for 939.62. all Jones money dismissal grounds that filed and of a property the Linsmeier drug lacked probable cause to conduct a search of the vehicle. ¶7 County Based on the undisputed testimony of Linsmeier, Dane Circuit Court Judge Jack F. Aulik denied the motion. After finding the arrest and search to be valid, the circuit court then addressed the seized money: Whether or not [the money] constitutes contraband depends on a finding that it is property that is either used in the commission of a crime or is the result of the commission of a crime. The court noted that the items found in the vehicle (the scale), and on Jones (the Chore-boys), distribution are of generally cocaine. used Because in either Jones the offered use nothing or in support of his burden to prove the money was not contraband, the 5 Jones municipal OWI conviction is not before this court on review. It is unclear from the record before us what transpired in municipal court other than the fact that the conviction was entered by default judgment. 5 No. 97-3306 court concluded that it was contraband and subject to forfeiture under Wis. Stat. § 968.20. ¶8 In a July 2, 1997, order, the circuit court denied Jones motion and ordered that the $1,783, which was found to be contraband, be needed evidence. as dismissed by forfeited the to the The State School drug Fund charges because Jones had when were no subsequently received prison sentence on another pending case. longer a 12-year Jones appealed the circuit court s order. ¶9 The court of appeals denial of Jones motion. affirmed the circuit court s The court reasoned that the money was seized as a result of a search incident to arrest and under Wis. Stat. § 968.20, established the property his contraband. right to must possession are returned and only that it if Jones was not The court looked to Wis. Stat. § 968.13(1) for the definition of contraband. § 968.13(1) be related to Because those items listed in the commission of a crime, and because the list is without limitation, the court determined that on this record, the $1,783 was so closely related to the commission of a crime that it may be considered contraband. Jones appeals. II. ¶10 The first issue presented in this case, whether the state must always bring forfeiture proceedings under Wis. Stat. § 961.55 for property seized due to an alleged UCSA violation, or whether Wis. Stat. § 968.20 provides an alternative means for retaining property, requires that we interpret the statutes and 6 No. 97-3306 their relationship. A question of statutory interpretation is a question of law that we review independent of the circuit court and the court of appeals. State v. Cardenas-Hernandez, 219 Wis. 2d 516, 538, 579 N.W.2d 678 (1998); Morris v. Juneau County, 219 Wis. 2d 544, 551, 579 N.W.2d 690 (1998). Our goal, in statutory interpretation, is to discern and to give effect to the intent of the legislature. Cardenas-Hernandez, 219 Wis. 2d at 538. To achieve this goal, we first look to the plain language of the statute. Id. If a statute is unambiguous, this court will apply the ordinary and accepted meaning of the language of the statute to the facts before it. Id.; Swatek v. County of Dane, 192 Wis. 2d 47, 57, 531 N.W.2d 45 (1995). If a statute does not clearly set forth the legislative intent, we then look to the scope, history, statute. context, subject matter, and object of the Cardenas-Hernandez, 219 Wis. 2d at 539; Swatek, 192 Wis. 2d at 58. ¶11 directly 6 Wisconsin or Stat. indirectly § 961.55(1)6 derived from or provides that realized money, through the Wisconsin Stat. § 961.55 provides in relevant part: 961.55 forfeiture: Forfeitures. The (1) following are subject to . . . . (f) All property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime under this chapter. (g) Any drug paraphernalia, as defined in s. 961.571, used in violation of this chapter. (2) . . . Seizure without process may be made if: 7 No. 97-3306 commission of any crime and any drug paraphernalia are subject to a state forfeiture action. Seizure without process may be made if the seizure is incident to arrest. § 961.55(2)(a). The statute forfeited further shall provides be that returned any to property its rightful seized but not owner, and any person claiming the right to possession of seized property may apply for its return to the circuit court for the county in which the property was seized. ¶12 claiming Wisconsin Stat. the to right § 961.55(3). § 968.20(1)7 possession of states property that any seized person with or (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant. . . . (3) In the event of seizure under sub. (2), proceedings under sub. (4) shall be instituted promptly. All dispositions and forfeitures under this section and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent persons under sub. (1)(d)1., 2. and 4. Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. . . . 7 Wisconsin Stat. § 968.20 provides: 968.20 Return of property seized. (1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court s satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) [dangerous weapon] or (1r) [firearms] or s. 951.165 [animal fighting], returned if: 8 No. 97-3306 without a search warrant may apply for its return to the circuit court for the county in which the property was seized. If the right to possession is proved to the court s satisfaction, it shall order property, other than contraband, returned if it is not needed as evidence or all proceedings have been completed. Id. ¶13 Wis. Jones argues Stat. §§ 961.55 that and because 968.20 the statutes involve overlap both property (criminal contraband) that is seized by the authorities with or without a search warrant this court should hold that § 961.55, the more specific of the two is the appropriate means by which a property owner may apply for return of property seized for an alleged connection to the USCA. ¶14 It is a cardinal rule of statutory construction that where two conflicting statutes apply to the same subject, the more specific controls. American Fed. of State, County & Mun. Employees Local 1901 v. Brown County, 146 Wis. 2d 728, 735, 432 N.W.2d 571 conflicts (1988). between However, different the rule statutes, also by states implication that or otherwise, are not favored and will not be held to exist if they may otherwise Aluminum be Casting reasonably Co., 34 construed. Wis. 2d 542, Moran 553, 150 v. Quality N.W.2d 137 (a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or (b) All proceedings in which it might be required have been completed. 9 No. 97-3306 (1967); see also Raisanen v. City of Milwaukee, 35 Wis. 2d 504, 516, 151 N.W.2d 129 (1967). manner that serves each The statutes must be construed in a statute s purpose. State v. Szulczewski, 216 Wis. 2d 495, 503, 574 N.W.2d 660 (1998). ¶15 Jones does not allege that the two statutes conflict. Rather, he seems to argue that both Wis. Stat. §§ 961.55(3) and 968.20(1) provide procedures for return of seized property and because he was charged with an alleged violation of the UCSA, he properly sought return under § 961.55(3).8 ¶16 Reading Wis. Stat. § 961.55(3) alone seemingly directs such a result. However, when read in conjunction with Wis. Stat. § 968.20(1), it becomes unclear whether § 961.55(3) or § 968.20(1) statute is the can statutes. be proper created by return provision. the interaction Ambiguity of two in a separate State v. Sweat, 208 Wis. 2d 409, 417, 561 N.W.2d 695 (1997)(harmonizing Wis. Stat. § 973.20 and 939.74). Because we conclude that it is ambiguous which return of property statute should have been employed, we look to the scope, history, context, subject matter, and object of the statutes to discern the legislative intent. Cardenas-Hernandez, 219 Wis. 2d at 539. We believe the statutes can be read together. 8 Jones, who represented himself before the court of appeals, actually brought the motion under Wis. Stat. § 161.55(3), the predecessor to Wis. Stat. § 961.55(3). Section 161.55 was renumbered by 1995 Wis. Act 448, § 297. Before this court, Jones, who is now represented by counsel, has corrected the mistake. 10 No. 97-3306 ¶17 is to The purpose of the forfeiture provisions of the UCSA deter drug trafficking by permitting confiscation and forfeiture of the means and mobility used to commit activities proscribed by the act. State v. Fouse, 120 Wis. 2d 471, 478, 355 N.W.2d 366 (Ct. App. 1984); State v. S & S Meats, Inc., 92 Wis. 2d 64, 70, 284 N.W.2d 712 (Ct. App. 1979). In contrast, the return of property statute, Wis. Stat. § 968.20, established a simplified procedure for obtaining the return of property seized with or without a warrant that is neither contraband nor needed as evidence in a case. Judicial Council Committee Note, 1969, Wis. Stat. Ann. § 968.20 (West 1998); State v. Benhoff, 185 Wis. 2d 600, 603, 518 N.W.2d 307 (Ct. App. 1994). ¶18 While both provisions permit any person claiming the right to possession of property seized to apply for its return, we note a key difference between the two provisions. Stat. § 961.55(3), only property that is seized Under Wis. but not forfeited shall be returned to its rightful owner ; Wis. Stat. § 968.20 contains no such limitation. The provision for return under § 961.55(3) was enacted by § 1, ch. 267, Laws of 1981. According to the legislative history, the § 961.55(3) return provision was taken directly from § 968.20 with a few changes, including the above quoted language. Legislative Bureau Analysis of 1981 Assembly Bill 606. Reference Because the seized but not forfeited language was not contained in the original provision, § 968.20, it is reasonable to conclude that the legislature intended a different meaning by including it within the forfeiture provision, § 961.55(3). 11 No. 97-3306 ¶19 We read the seized but not forfeited language of Wis. Stat. § 961.55(3) to mean that the return portion of sub. (3) is only triggered brought by the state. by an unsuccessful forfeiture action If the state decides, in its discretion, to initiate a forfeiture action, it has the burden of proving by the greater weight of the evidence that the property is subject Wis. Stat. § 961.555(3).9 to forfeiture under § 961.55. state fails to meet its burden and the property If the is not forfeited, then the provision for return under § 961.55(3) is triggered allowing a person who believes the seized but not forfeited property belongs to him or her to apply for its return and to have a hearing on the matter. the district action, then attorney a person chooses not claiming In those instances where to the initiate right to a forfeiture possession of property seized by authorities may apply for its return under § 968.20(1). We believe that this is a reasonable construction of both the forfeiture provisions and the return of property statute; such a construction provides meaning to both statutes and eliminates any potential conflict. ¶20 Our construction, which provides purpose to Wis. Stat. §§ 961.55 and 968.20, is further supported by the legislature s continued affirmation of both statutes. legislature enacts laws with 9 full We presume that the knowledge of existing Wisconsin Stat. § 961.555(3) provides: The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under s. 961.55. 12 No. 97-3306 statutes. Faber v. Musser, 207 Wis. 2d 132, 138, 557 N.W.2d 808 (1997). When § 961.55 was enacted in 1971, the legislature did not modify, limit or eliminate § 968.20. Laws of 1971. See § 16, ch. 219, In subsequent terms, the legislature continued to amend both § 961.55 and § 968.20 as if they were compatible. See e.g., 1997 Wis. Act 192, § 32 (§ 968.20); 1997 Wis. Act 248, §§ 778, (§ 961.55). 779 (§ 968.20); 1997 Wis. Act 220, §§ 8, 10 Clearly, § 961.55 and § 968.20 should be read to compliment rather than conflict with one another. ¶21 insists Jones provides provides 968.20. an meaning alternative to both construction Wis. Stat. which §§ 961.55 he and He argues that when property is seized in connection with a potential violation of the UCSA, the state is limited to the forfeiture and return of property procedures prescribed in Wis. Stat. ch. 961. This approach, he contends, provides protections for the rights of property owners and it renders meaning to Wis. Stat. § 968.20 which is available to claimants seeking return of property seized for evidence in cases not involving the UCSA. ¶22 Jones interpretation fails to recognize that Wis. Stat. § 961.55 is not the only forfeiture statute contained in the Wisconsin criminal code. In 1981, the Wisconsin legislature created general forfeiture provisions, Wis. Stat. §§ 973.075 and 973.076.10 According to the legislative history, the general 10 The two provisions on point, Wis. Stat. §§ 973.075 and 973.076, provide in part: 13 No. 97-3306 forfeiture provisions allow for all property, including money, derived from or realized through the commission of any crime and any vehicle used to transport property or weapons used or to be used or received in the commission of a felony to be subject to 973.075. Forfeiture of property derived from crime and certain vehicles (1) The following are subject to seizure and forfeiture under ss. 973.075 to 973.077: (a) All property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime. (b) [vehicles used in felonies.] (c) All remote sensing equipment . . . and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47. (d) A tank vessel . . . . (5) All forfeitures under ss. 973.075 to 973.077 shall be made with due provision for the rights of innocent persons under sub. (1)(b)1 to 3 and (d). Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. . . . (6) Sections 973.075 to 973.077 do not apply to crimes committed under ch. 961. 973.076. Forfeiture proceedings (1) TYPE OF ACTION; WHERE BROUGHT. In an action brought to cause the forfeiture of any property specified in s. 320.30(4)(a) or s. 973.075(1), the court may render a judgment in rem or against a party personally, or both. . . . (2) COMMENCEMENT. (a) The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier . . . . 14 No. 97-3306 forfeiture. Legislative Assembly Bill 606. all crimes Bureau Analysis of 1981 The general forfeiture provisions apply to except § 973.075(6). Reference When those involving the general dangerous forfeiture drugs. Id.; provisions were enacted, the forfeiture provisions relating to dangerous drug violations, provisions § 961.55, contained were in revised the to general include most forfeiture of the provisions. Legislative Reference Bureau Analysis of 1981 Assembly Bill 606. ¶23 An examination of the general forfeiture provisions and the drug forfeiture provisions reveals very few differences beyond the property subject to forfeiture under each. Stat. 11 §§ 961.55(1) and 973.075(1) to § 961.55511 and Cf. Wis. 973.076. Wisconsin Stat. § 961.555 provides in part: 961.555 Forfeiture proceedings. (1) TYPE OF ACTION; WHERE In an action brought to cause the forfeiture of any property seized under s. 961.55, the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action. BROUGHT. (2) COMMENCEMENT. (a) The district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning the crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 60 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property. 15 No. 97-3306 The most notable § 961.55(3) and similarities § 973.075(5) are and the the return time provisions limitations of and procedures imposed on district attorneys under both § 961.555(2) and § 973.076(2). Although the general forfeiture provisions, § 973.075 and § 973.076, are not at issue in this case, to adopt Jones position would effectively require that the state bring a forfeiture action for all property derived from the commission of any crime, drug related or otherwise. Wis. Stat. § 968.20 would be superfluous. Under such a scheme, We cannot conclude that the legislature intended such a result. Wisconsin Elec. Power Co. v. Public Serv. Comm n, 110 Wis. 2d 530, 534, 329 N.W.2d 178 (1983). ¶24 We are also unpersuaded by Jones argument that the requirements of Wis. Stat. §§ 961.55 and 961.555 are mandatory and jurisdictional as stated in State v. Rosen, 72 Wis. 2d 200, 208-09, 240 N.W.2d 168 (1976). served vehicle police. with that documents belonged Id. at 203. In Rosen, the defendant was commencing to him and a forfeiture which had action been of seized a by The forfeiture hearing was not scheduled within the time limits; thus, the circuit court dismissed the action. Id. This court affirmed, concluding that Wis. Stat. § 161.555(2)(b)(1973), the predecessor to Wis. Stat. § 961.555, was mandatory and that failure to comply strictly with the time (b) Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause of upon stipulation of the parties. . . . 16 No. 97-3306 limitation imposed jurisdiction. ¶25 resulted in a loss of trial court before us. Rosen Rosen, 72 Wis. 2d at 208. Rosen is inapposite to the case stands for the proposition that once a forfeiture action has been commenced by the state, the state must comply with the time limits under Wis. Stat. § 961.555(2). In this case, a forfeiture action was never initiated; thus, the time limits were never triggered. ¶26 In addition, the court Rosen neither addressed nor considered Wis. Stat. § 968.20 or its relationship with Wis. Stat. §§ 961.55 or 961.555. Therefore, we conclude that Rosen is not controlling. ¶27 Moreover, we find nothing, nor does Jones direct us to anything, remotely in Wis. Stat. suggests that §§ 961.55, the state 961.555 is required or to Rosen which initiate a forfeiture action every time property is seized for a suspected violation exist of the because UCSA. district Presumably attorneys the requirement enjoy largely does unfettered discretion in the initiation of criminal proceedings. State v. Braunsdorf, 98 Wis. 2d 569, 572, 297 N.W.2d 808 (1980). follows then discretion that in a district determining attorney whether to may exercise initiate not It this forfeiture proceedings or not. ¶28 To conclude otherwise would which we are duty bound to avoid. lead to absurd results State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 108, 499 N.W.2d 657 (1993). Effectively we 17 would be concluding that No. 97-3306 while district attorneys have discretion in determining whether or not to prosecute and in selecting which of several related crimes he or she wishes to charge, he or she would have no discretion in deciding whether to initiate forfeiture actions. Cf. State v. Annala, 168 Wis. 2d 453, 473, 484 N.W.2d 138 (1992); Braunsdorf, 98 Wis. 2d at 577. ¶29 There are several reasons why district attorneys would not abandon their use of the forfeiture proceedings. First, a forfeiture action lies whether or not a criminal charge has been brought against the owner of the property seized. Hooper, 122 Wis. 2d 748, 751, 364 N.W.2d 175 State v. (Ct. App. 1985)(under Wis. Stat. § 161.55(1)(f)(1983-84) the state is only required to show that the seized property was derived from or realized through the commission of any crime under Wis. Stat. ch. 161 (1983-84), the predecessor to Wis. Stat. ch. 961). In contrast, the return of property statute, Wis. Stat. § 968.20, is more limited because it presupposes the existence of a case and the retention of property by the authorities for use as evidence. of See Benhoff, 185 Wis. 2d at 603 (requires the return seized property that is neither contraband nor needed as evidence in a case); § 968.20(1)(a) and (b)(court shall return property, other than contraband, if property is not needed as evidence or all proceedings have been completed); § 968.20(2)(property not required for evidence or use in further investigation may be returned without a hearing). ¶30 With some property, district attorneys have no choice but to initiate a forfeiture action under Wis. Stat. §§ 961.55 18 No. 97-3306 and 961.555. If the property subject to forfeiture cannot be located; been has transferred or conveyed to, sold to or deposited with a third party; is beyond the jurisdiction of the court; has been substantially diminished in value while not in the actual physical custody of the law enforcement agency; or has been commingled with other property that cannot be divided without difficulty, then a district attorney may only bring a forfeiture action against property of a defendant not otherwise subject to seizure. Wis. Stat. § 961.555(4)(a)-(e). ¶31 In other situations, the property may be subject to state and federal jurisdiction. time rule applies. In such a case, the first-in- The rule is that only one court may have jurisdiction over the res in an in rem proceeding, and therefore the first court to obtain in rem jurisdiction maintains it to the exclusion federal. of all others, whether the court is state or Penn Gen. Cas. v. Pennsylvania, 294 U.S. 189, 195 (1935); United States v. One Parcel Property Located at Lot 85, 100 F.3d 740, 742 (10th Cir. 1996), cert. denied, 520 U.S. 1253 (1997); United States v. $79,123.49 in United Currency, 830 F.2d 94, 95-96 (7th Cir. 1987). States Cash & Thus, when it is possible for two courts to have concurrent jurisdiction over the property, the state may be deprived of jurisdiction if it delays initiating a forfeiture action. ¶32 As we have previously explained, the district attorney is answerable to the people of the state and not to the courts or the legislature as to the manner in which he or she exercises prosecutorial discretion. 19 Annala, 168 Wis. 2d at No. 97-3306 473. Political sufficient to discretion. impair, ensure the through proper the electoral application of process authority decisions of or reason, whether is prosecutorial Id.; Braunsdorf, 98 Wis. 2d at 577. without discretionary review We will not district initiate to attorneys forfeiture proceedings or not. ¶33 Based on the foregoing, we see no conflict between Wis. Stat. §§ 961.55 and 968.20 which requires us to limit the language of either statute. Rather, we conclude that the legislature intended that the return provision of Wis. Stat. § 961.55(3) can only be triggered by a failed forfeiture action brought by the state. In those situations where the state has not initiated a forfeiture action, we conclude that a person claiming the right to property seized by the authorities is limited to the procedures set forth in § 968.20.12 III. ¶34 In this case, the State did not initiate a forfeiture action; thus, Jones was limited to the procedures provided under 12 The dissent fails to answer several issues raised in this case. The dissent does not address: the purpose of the seized but not forfeited language added to Wis. Stat. § 961.55(3); the legislature s affirmation of both Wis. Stat. § 961.55 and 968.20; the affect of its simple interpretation on the general forfeiture provisions, Wis. Stat. § 973.075 and 973.076, the return of property statute, § 968.20, or prosecutorial discretion. While the dissent pays lip service to its simple and straightforward interpretation of Wis. Stat. ch. 961 forfeiture procedures, it does so from a narrow viewpoint. Our interpretation addresses not only the statutes at issue, but also considers the implications of our decisions on other areas of the law. 20 No. 97-3306 Wis. Stat. § 968.20. This brings us to the second issue before this court: If the interested party brings an action for return of under property § 968.20, is cash considered contraband within the meaning of Wis. Stat. § 968.13(1), particularly when the charge arising out of the property seized during the search is ultimately dismissed. ¶35 Wisconsin Stat. § 968.20(1) provides: (1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court s satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or 1(r) or s. 951.165, returned if: (a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or (b) All proceedings in which it might be required have been completed. Pursuant to this statute, if the person seeking return has a right to possession of the property, if the property is not contraband, and if the property is not needed as evidence (or, if needed, arrangements can be made for its return, or all proceedings in which it might be required have been completed), then the court shall order the return of the property. 185 Wis. 2d at 603. 21 Benhoff, No. 97-3306 ¶36 The term contraband is not defined in Wis. Stat. § 968.20. However, we believe the Benhoff court looked to Wis. Stat. § 968.13(1) for the definition. correctly Section 968.13(1)(a) provides: (1) A search warrant may authorize the seizure of the following: (a) Contraband, which includes without limitation because of enumeration lottery tickets, gambling machines or other gambling devices, lewd, obscene or indecent written matter, pictures, sound recordings or motion picture films, forged money or written instruments and the tools, dies, machines or materials for making them, and controlled substances, as defined in s. 961.01(4), and controlled substance analogs, as defined in s. 961.01(4m), and the implements for smoking or injecting them. Gambling machines or other gambling devices possessed by a shipbuilding business that complies with s. 945.095 are not subject to this section. [Emphasis added.] Contraband need never be returned. Judicial Council Committee Note, 1969, § 968.20, Stats. ¶37 whether In construing Wis. Stat. § 968.13(1)(a), to determine cash may be included as contraband, effect to the intent of the legislature. we are to give State ex rel. Jacobus v. State, 208 Wis. 2d 39, 47-48, 559 N.W.2d 900 (1997). We must ascertain that intent by first looking to the language of the statute itself and giving the language its ordinary and accepted meaning. State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729 (1997). Only if the statutory language is ambiguous may we resort to outside sources to aid statutory construction. Marshall-Wisconsin Co. v. Juneau Square Corp., 139 Wis. 2d 112, 133, 406 N.W.2d 764 (1987). 22 No. 97-3306 ¶38 that We find no ambiguity in the legislature s provision contraband includes, among other things, money that is related to the commission of a crime or that represents illicit proceeds from an unlawful sale. contained in Wis. Stat. We construe the listed items § 968.13(1)(a), as required by its language, not as a limitation on what constitutes contraband, but rather as several examples of items that may be considered contraband statute (and therefore expressly subject covers items to seizure). the limitation without Because by enumeration, contraband cannot reasonably be read as limited to the class, type or nature of the items listed in subsec. (a). ¶39 Jones contends, however, that money should not be included as contraband under the without limitation clause of Wis. Stat. § 968.13(1)(a). Relying on the doctrine of ejusdum generis, which the State also looks to, Jones urges that all of the items listed in § 968.13(1)(a) are either inherently illegal to possess or were inherently legislature passed the law. illegal to possess when the As Jones defines it, contraband is limited to that which is per se illegal to possess. Because it is not illegal to possess money, Jones insists money does not fall under the purview of § 968.13(1)(a). ¶40 The doctrine of ejusdem generis is an attempt to reconcile an incompatibility between specific and general words. 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.17 (5th ed. 1992). To that end, the doctrine treats particular words as indicating the class and the general words as extending the provisions of the statute to everything embraced in that class, 23 No. 97-3306 though not specifically named by the particular words. also, State v. Engler, 80 Wis. 2d 402, 408, 259 Id. See N.W.2d 97 (1977). ¶41 We disagree with Jones proposed construction and the conclusion based upon it. have been illegal to While some of the items listed may possess in 1969, when the statute was enacted, they are no longer illegal to possess yet they are still contained in the statute. As the State points out, lottery tickets are now legal to possess, but may be used or acquired in an illicit manner bringing them under the purview of Wis. Stat. § 968.13(1)(a).13 ¶42 indecent It was matter also in illegal 1969,14 but to possess such lewd, possession is obscene now or legal unless the matter, for example, is exposed to a child pursuant to Wis. Stat. § 948.11, drawn or written in public or a public place under Wis. Stat. § 944.23, or if it is used, exhibited or transferred in a manner described in Wis. Stat. § 944.21(3) and (4). 13 Lottery does not include bingo or a raffle conducted under ch. 563, pari-mutuel wagering conducted under ch. 562 or the state lottery or any multijurisdictional lottery conducted under ch. 565. Wis. Stat. § 945.01(5)(am). Thus, lottery tickets employed or acquired in any other manner than the abovelisted exceptions would constitute contraband. 14 indecent could be jail for Section 1977. In 1969, whoever knowingly possessed a lewd, obscene or written matter or lewd, obscene or indecent picture fined not more than $1,000 or imprisoned in the county one year or less, or both. Wis. Stat. § 944.22 (1977). 944.22 was repealed in 1977. § 98, ch. 173, Laws of 24 No. 97-3306 ¶43 In addition, many of the items listed in Wis. Stat. § 968.13(1)(a) are not per se illegal today, and were not in 1969. For example, the tools, dies, machines or materials used to make forged money or written instruments have many legal uses; however, once they are used in an illegal manner, they become contraband. ¶44 Similarly, some of the items used to smoke or inject controlled substances, such as Chore-boys or syringes, have legal and useful purposes; however, when used as an implement to smoke or inject a controlled substance, they become contraband. If implements to smoke or inject controlled substances constitute contraband, certainly money which is used to purchase or is acquired through the sale of controlled substances falls under the purview of Wis. Stat. § 968.13(1)(a). ¶45 To narrowly interpret Wis. Stat. § 968.13(1)(a) as Jones suggests contraband includes only those items which are per se illegal would render these items superfluous. result to be avoided. ¶46 This is a Wisconsin Elec., 110 Wis. 2d at 534. Based on the enumerated items provided in Wis. Stat. § 968.13(1)(a), we conclude that contraband is not limited to materials which are per se illegal. contraband encompasses those items Rather, it is clear that that are not only per se illegal, such as controlled substances or forged money, but also those items which are used, acquired or transferred illicitly. Money which is established to have been acquired through the sale of or used to purchase controlled constitutes contraband under § 968.13(1)(a). 25 substances certainly No. 97-3306 ¶47 such as We also note that a rule of statutory construction, ejudem legislative generis, intent is behind employed an only ambiguous to determine statute. State Tollefson, 85 Wis. 2d 162, 167, 270 N.W.2d 201 (1978). impermissible to apply rules of statutory the v. It is construction to ascertain legislative intent when the legislation is clear on its face. Engler, 80 Wis. 2d at 406. We conclude that Wis. Stat. § 968.13(1)(a) is clear on its face; contraband consists of items which are per se illegal as well as those legal items which are put to an illegal use or acquired illicitly.15 ¶48 This court in State v. Voshart, 39 Wis. 2d 419, 159 N.W.2d 1 (1968), recognized the difference between items which are per se illegal, and those items which are put to an illegal use. One of the issues before the Voshart court was whether concededly obscene materials which were improperly seized had to be returned contraband. to the defendant Id. at 434. or could be destroyed as The court determined that it would frustrate the public policy of the state based on the nature of obscenity to return admittedly obscene materials. Id. In reaching its conclusion, the court distinguished obscenity from an article put to an illegal use, instead equating the former with those materials that should be destroyed because they are 15 Because we conclude that Wis. Stat. § 968.13(1)(a) is unambiguous, we need not resort to legislative history to discern legislative intent. Cynthia E. v. La Crosse County Human Serv. Dept., 172 Wis. 2d 218, 225, 493 N.W.2d 56 (1992); J.A.L. v. State, 162 Wis. 2d 940, 962, 471 N.W.2d 493 (1991). 26 No. 97-3306 illegal to possess, such as counterfeit money, diseased cattle and gambling devices. Id. at 435. this case is akin items to In contrast, the money in which may constitute contraband, under Wis. Stat. § 968.13(1)(a), if put to an illegal use, such as the tools, dies, machines or materials used to make forged money or written instruments. ¶49 While public policy may not dictate destruction of the money, it certainly does not require its return to the owner. The legislature has declared the abuse of controlled substances to be a serious problem for society, Wis. Stat. § 961.001, and that those constitute who a illicitly menace § 961.001(1r). to traffic the in controlled public health substances and safety, Accordingly, the public interest in the control, suppression and regulation of controlled substances and those who traffic in them dictates that money which is used to purchase or is acquired in the sale of controlled substances be designated as contraband. ¶50 Contrary to Jones assertion, our interpretation does not render Wis. Stat. § 968.13(1)(b) superfluous. He argues that under subsec. (b) anything which is the fruit of or has been used in the commission of any crime may be seized under a search warrant. Id. If an item is neither contraband nor needed as evidence, a person may seek return of the property, and the court § 968.20(1). shall order Benhoff, 185 its Wis. return 2d at under 603. Wis. Stat. Thus, while § 968.20(1)(b) authorizes the seizure of items which have been used in the commission of a crime, these items must be returned 27 No. 97-3306 to the rightful owner when they are no longer needed as evidence or when the proceedings have been completed. (b). § 968.20(1)(a) and Contraband, on the other hand, need never be returned. Judicial Council Committee Note, 1969, § 968.20, Stats. ¶51 Jones also contends that a broad interpretation of contraband would lead to absurd results because the potentially innocent owner of the money which is seized and later found to be contraband is out of luck. directs cities, towns, However, Wis. Stat. § 968.20(4) villages, and counties procedures for disposal of seized property. to adopt These procedures are to include a presumption that if the substance appears to be or is reported stolen, an attempt will be made to return the substance to the rightful owner. innocent property owner would § 968.20(4). have some Thus, a truly recourse under the statute. ¶52 We also reject Jones argument that if an item is the fruit of a crime, or used to commit a crime, then the criminal charges are critical. According to Jones, items which are per se illegal need never be returned, but those items which are legal to possess but have been used in an illicit manner must be proven to be contraband in a forfeiture action or be returned to its rightful owner. ¶53 As this This contention is untenable. court stated in Voshart, when determining whether seized property constitutes contraband, the underlying criminal charges are not before us for review. 2d at 436. found so Voshart, 39 Wis. Where the items were in fact contraband, properly to be by judicial 28 determination in adversary No. 97-3306 proceedings, timely conducted, offending no constitutional safeguards, they would be subject to confiscation rather than return. Id. Because contraband threatens the public health, safety and morals, the legislature has allowed for its seizure. Id. at 435. Similarly, controlled substances and those who traffic them are considered a substantial menace to the public health and safety. Wis. Stat. § 961.001(1r). Certainly money which is either the proceeds from or used for the purchase of controlled substances which has been found to be contraband in a judicial proceeding need not be returned simply because the charges have been dismissed. ¶54 In sum, we conclude that Wis. Stat. § 968.13(1)(a) is clear on its face, and that under this statute contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses those items that are not only per se illegal, such as controlled substances or forged money, but also those items which are put to an illegal use or acquired illicitly, such as the purchase or sale of controlled substances. IV. ¶55 Having determined that money may constitute contraband under Wis. Stat. § 968.13(1)(a), if it is established to have been acquired through the sale of or used to purchase controlled substances, the next question we are presented with is who has the burden of establishing this connection. In order to remove any incentive a prosecutor may have to never use Wis. Stat. § 961.55, the forfeiture statute, the State suggests, without 29 No. 97-3306 opposition from Jones, that this court place the same burden of proof on the state which exists under Wis. Stat. § 961.555(3) on the issue of whether the property in question is contraband. ¶56 This court, in Welter v. Sauk County Clerk of Court, 53 Wis. 2d 178, 182 n.6, 184, 191 N.W.2d 852 (1971), addressed the burden of proof under Wis. Stat. superseded by Wis. Stat. § 968.20. § 963.04, which was The petitioner in Welter sought return of some 200 items involved in the killing of a law enforcement officer, and the wounding of another. Wis. 2d at 180. Welter, 53 The trial court denied the motion based on petitioner s failure to particularize the evidentiary usefulness of the requested items in case a new trial were to be ordered. Id. at 183-84. This court affirmed, concluding that the burden of proof rests with the moving party to support the motion by proof. Id. at 184. We stated, The burden of proof upon petitioner was, at the least, the responsibility to identify items which he claimed to be without evidentiary value, and his reason or basis for so claiming. ¶57 Id. at 185. In his motion for return of the monies seized, Jones identified his claim to the money, and he indicated the basis of his claim, in accordance with Welter. It was the State, however, who argued that the money was contraband and need not be returned to Jones. Wis. Stat. § 968.20. Because the burden rests with the moving party to support the motion by proof, Welter, 53 Wis. 2d at 184, it follows that the State should have the burden of establishing that 30 the property, in this case No. 97-3306 money, constitutes contraband as defined § 968.13(1)(a), and need not be returned, ¶58 However, by Wis. Stat. § 968.20. Wisconsin Stat. § 968.20 is silent on this question. actions in rem are civil and fall under the civil procedures of Wis. Stat. ch. 801. See Wis. Stat. § 801.01; State v. One 1973 Cadillac, 95 Wis. 2d 641, 644, 291 N.W.2d 626 (Ct. App. 1980). In addition, Wisconsin cases have applied middle burden in civil actions involving criminal acts. the Wangen v. Ford Motor Co., 97 Wis. 2d 260, 299, 294 N.W.2d 437, 457 (1980). While the return of property statute does not involve criminal acts, the state s contention that the contraband implies criminal or illicit activity. property is See Judicial Council Committee Note, 1969, § 968.20, Stats. (Contraband need never be returned). Thus, the appropriate burden of proof in this civil matter, as with other civil actions, is proof by the greater weight of the credible evidence. See Wis. JI-Civil 200 (1996); Kruse v. Horlamus Indus., Inc., 130 Wis. 2d 357, 362-63, 387 N.W.2d 64 (1986). We conclude that when the state contends that property need not be returned under § 968.20(1) because it constitutes contraband, the state must establish this by the greater weight of the credible evidence. V. ¶59 under In addressing whether money may constitute contraband Wis. Stat. § 968.13(1)(a), we have concluded that property, in this case money, which has been found to have a significant connection to items which are illegal to possess, such as controlled substances, or have been acquired illicitly, 31 No. 97-3306 may constitute contraband. found to be contraband We also have reaffirmed that an item need never be returned regardless of whether the underlying criminal charges are dismissed or not. Further, when the state has alleged property to be contraband, and therefore not subject to return, we have concluded that the state must establish that the property is contraband by the greater weight of the credible evidence. ¶60 We have yet to determine the effect of our holdings on the outcome of this case. At the hearing on Jones motion for return of the property, the circuit court placed the burden of establishing that the money was not contraband on Jones. was in error. This The proper question and the question before us now is whether the State established by the greater weight of the credible evidence that the money was drug-related and therefore contraband. ¶61 question circuit Whether a of which law court s party has we met its examine conclusion. Burg burden without v. of proof deference Miniature to is a the Precision Components, Inc., 111 Wis. 2d 1, 12, 330 N.W.2d 192 (1983). However, in doing so, we must accept the circuit court s assessment of the credibility of the witnesses and the weight to be given their testimony. See id. at 12-13; In re Estate of Glass, 85 Wis. 2d 126, 135, 270 N.W.2d 386 (1978). State established, by the greater weight of Because the the credible evidence, that the money was contraband, we conclude that the circuit court committed harmless error by placing the burden on the defendant. 32 No. 97-3306 ¶62 The harmless error test appears in Wis. Stat. § 805.18, which requires this court to disregard any error or defect in the pleadings or proceedings which shall not affect the substantial When a rights court has of the committed adverse a party. procedural § 805.18(1). error, § 805.18 precludes the court from reversing unless an examination of the entire proceeding reveals that the alleged error has affected the substantial § 805.18(2); State rights v. of the party 223 Armstrong, seeking reversal. 2d 368, Wis. 331, 588 N.W.2d 606 (1999). ¶63 When determining whether the circuit court error is harmless, this court must determine if there is a reasonable possibility that but for the error, the result of the proceeding would have been different. Armstrong, 223 Wis. 2d at 369. State, of as the beneficiary the error, has the The burden of showing that the error was harmless. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). ¶64 arrested The State has met its burden in this case. for OWI, and a search incident to that Jones was arrest conducted of Jones and the vehicle in which he was found. was Jones moved to suppress the evidence and sought return of the money and property seized during the search. At the motion hearing, Officer Linsmeier testified to the evidence he found: a small scale, six cigarette lighters, three pieces of charred Choreboy scouring pads and $1,783 in cash. Chore-boy pads are regularly used Linsmeier explained that in a crack pipe for ingesting crack cocaine and that a scale is a common tool that 33 No. 97-3306 drug dealers use to measure drugs for sale. were also significant: The wads of cash the number of twenties in set totals, the separation of the money on Jones body, and the lack of any alternative explanation for the large amount of cash indicated to Linsmeier that the money was drug-related. all Jones presented no evidence to the contrary. ¶65 credible The circuit court found Linsmeier s testimony to be in contraband. reaching its conclusion that the money was We accept the circuit court s findings as to the credibility of the testimony unless they are clearly erroneous. Burg, 111 Wis. 2d at 12; Wis. Stat. § 805.17(2). Based on the evidence presented at the hearing, we conclude that the State established, by the greater weight of the credible evidence, a logical nexus between the money and the drug paraphernalia in Jones possession such that the money falls under the purview of Wis. Stat. § 968.13(1)(a) and need not be returned.16 16 In the case of forfeiture proceedings, the federal courts have found that money, in combination with other persuasive circumstantial evidence, particularly the presence of drug paraphernalia, is sufficient to establish probable cause. United States v. $321,470.00, United States Currency, 874 F.2d 298, 305 (5th Cir. 1989); United States v. $93,685.61 in United States Currency, 730 F.2d 571, 572 (9th Cir. 1984); United States v. $22,287.00, United States Currency, 709 F.2d 442, 449 (6th Cir. 1983); United States v. $60,000, 763 F. Supp. 909, 915-16 (E.D. Mich. 1991); United States v. $111,980 in United States Currency, 660 F. Supp. 247, 249-50 (E.D. Wis. 1987). Money, standing alone, however, is not sufficient to establish probable cause. United States v. $506,231 in United States Currency, 125 F.3d 442, 452 (7th Cir. 1997); United States v. Baro, 15 F.3d 563, 568 (6th 1994); United States v. $7,850.00 in United States Currency, 7 F.3d 1355, 1358 (8th Cir. 1993). Although this case does not involve a forfeiture proceeding, the reasoning is certainly on point. 34 No. 97-3306 ¶66 We are unpersuaded that the cases cited by Jones dictate a different result. Jones concedes that the four cases he different cites all stem from a procedural posture, but insists these cases provide persuasive authority for this court to rule in his favor. ¶67 We do not agree. whether there was court s factual The result in each case turned on credible findings, evidence and in to three support cases, the the circuit reviewing court determined that there was credible evidence to support the See State v. Roberts, 657 N.E.2d 547, 550 court s findings. (Ohio Ct. App. 1995); State v. $7,000, 642 A.2d 967, 975 (N.J. 1994); and People v. United States Currency, $3,108, 579 N.E.2d 951, 956 (Ill. 1991). Similarly, in this case, we have concluded that there is credible evidence to support the circuit court s finding that the cash was contraband. ¶68 In the fourth cited case, United States v. $506,231 in United States Currency, 125 F.3d 442, 453-54 (7th Cir. 1997), the court of appeals reversed evidence tying the money to the district narcotics court pursuant finding to 21 no U.S.C. § 881(a)(6), which allows for forfeiture of proceeds traceable to drug trafficking. The court concluded that without the statutorily required nexus connecting the money to drugs, the money was not subject to forfeiture. $506,231 in United States Currency, 125 F.3d at 452. The court did not determine whether cash could be contraband. We do not view the cited cases as controlling. 35 No. 97-3306 ¶69 In summary, we hold that property, in this case money, which has been found in a judicial proceeding to have a logical nexus to items which are illegal to possess, such as controlled substances, or have been acquired through illicit means, may constitute contraband as defined in Wis. Stat. § 968.13(1)(a). If property is found to be contraband under § 968.13(1)(a), the property need not be returned charges are filed or not. to the owner whether Wis. Stat. § 968.20. criminal We also hold that the state is required to establish, by the greater weight of the credible contraband. Even evidence, though that the the circuit property court in constitutes this case mistakenly placed the burden on the defendant to show whether the cash was or was not contraband, we conclude that based on the evidence presented at the hearing, this error was harmless. Accordingly, we affirm the decision of the court of appeals. By the Court. The decision affirmed. 36 of the court of appeals is 97-3306.dtp ¶70 be DAVID T. PROSSER, J. decided without the (Concurring). extensive statutory contained in Part II of the majority opinion. This case can interpretation Because I have reservations about that interpretation, I am not prepared to join Part II of the opinion. I do join Parts I, III, IV, and V, as well as the mandate of the court. ¶71 This case starts with a traffic arrest. Shortly before 5:00 a.m. on February 1, 1997, Madison police officer Kevin Linsmeier investigated Moland Street in Madison. a car parked in front of 2841 Linsmeier had been called to the scene by a city parking monitor. He found a parked vehicle in the street with its engine running and saw Leonard Jones sitting alone in the driver's seat. Jones appeared to be asleep or unconscious. ¶72 Concerned about the man's condition, Linsmeier knocked on the window attempting to get Jones' attention. Twice Jones responded to the knocking by hitting the accelerator with his foot causing the engine to rev loudly. pounded on the window and yelled. Eventually, Linsmeier He was about to break the glass when Jones awoke and rolled down the window. ¶73 breath. Immediately, the officer smelled intoxicants on Jones' He observed that Jones' eyes were glassy and dilated. He noticed that his speech was slurred. When Jones finally got out of the car, he leaned against the vehicle to maintain his balance. He refused to answer a question about whether he had been drinking and he refused to submit to field sobriety tests. 1 97-3306.dtp At that point, Officer Linsmeier arrested Jones for operating a motor vehicle while intoxicated. ¶74 person Thereafter, as well as Linsmeier his conducted vehicle. parked a search He of Jones' made the search incident to an arrest for operating a vehicle while intoxicated, and he seized cash, drug paraphernalia, and other items found during the search. ¶75 On February 5, 1997, Jones was charged with possessing drug paraphernalia in violation of Wis. Stat. § 961.573(1). In mid-March he responded by moving to suppress the evidence seized and asking for its return. He cited former Wis. Stat. § 161.55(2) in seeking return of the evidence. ¶76 hearing On May 29, 1997, Circuit Judge Jack Aulik conducted a on Jones' two-part motion. He found that Officer Linsmeier had probable cause for his search of the vehicle. He also on denied Jones' motion to return the grounds that the property was contraband. seized property He then set a jury trial on the pending drug paraphernalia charge. Sixty-seven days later, the drug paraphernalia charge was dismissed because Jones had been sent to prison for other offenses. ¶77 Although contraband, he was Judge Aulik reminded ruled during the that the cash was suppression/forfeiture hearing that there was an ongoing criminal case and that Wis. Stat. § 968.20(2) provides: "Property not required for evidence or use in further investigation, unless contraband . . . may be returned by the officer to the person from whom it was seized without the requirement of a hearing." 2 At the time of the 97-3306.dtp hearing, Judge Aulik could not have found that the property was not needed as evidence or that all proceedings in which it might be required had been completed. Wis. Stat. § 968.20(1)(a) and (b). ¶78 As I see it, the evidence at issue here was seized incident to a lawful arrest that had nothing to do with the Uniform Controlled Substance Act. There was forfeiture no of obligation this on evidence Wis. Stat. ch. 961 (1995-96). the under part Wis. of the Stat. State to § 961.555, seek and there was no authority for Jones to seek return of the seized property under Wis. Stat. § 961.55(3), particularly when a drug case supported by the evidence was still pending. ¶79 The majority acknowledges that the evidence was seized incident to an arrest for OWI. Majority op. at 3. The dissent, in asserting that Jones "had had property seized under Chapter 961," is factually mistaken. Dissent at 1. The case should have been decided without all the troublesome interpretation in Part II of the opinion. 3 97-3306.awb ¶80 ANN WALSH BRADLEY, J. (Dissenting). Since Jones was criminally charged under chapter 961 and had his property seized under chapter legislature events 961, intended should proceedings. ¶81 also is that be reasonable the to forfeiture governed by conclude stemming chapter 961 that from the those forfeiture The majority concludes otherwise. Instead proceedings relatively it of the majority chapter simple 968 statutory and applies the unnecessarily procedure. forfeiture complicates Because the a majority fails to acknowledge a conflict between those statutory schemes, disregards the mandatory language of chapter 961, and in the process renders chapter 961 forfeiture procedure practically meaningless, I respectfully dissent. ¶82 Chapter The statutory 961 guided symmetry this case in until this the case is prosecutor striking. failed to commence a forfeiture action within 30 days of the seizure of the property. Jones was charged with paraphernalia under Wis. Stat. § 961.573. possession of drug The police seized Jones property pursuant to Wis. Stat. § 961.55(2). After the charges were dropped, Jones sought the return of his property under Wis. Stat. § 961.55(3). All he now seeks is a ruling 1 97-3306.awb that, like the other parts of this matter, the forfeiture proceedings also be governed by chapter 961.17 ¶83 statute It is well established that when we compare a general and precedence. a specific statute, the specific statute takes City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 185, 532 N.W.2d 690 (1995). There can be little doubt that the forfeiture proceedings outlined in chapter 961 are more specific provisions than those contained at Wis. Stat. § 968.20. majority recognizes this fact, but circumvents this The long- standing rule of statutory construction by concluding that such a rule is inapplicable because no conflict exists between Wis. Stat. § 961.55 and § 968.20. ¶84 I conflict. fail to see Majority op. at 9-10. how the two the are not in Take, for example, something as rudimentary as which party must initiate the proceedings. places provisions burden to initiate Wisconsin Stat. § 961.555 forfeiture proceedings on the 17 Of course, Jones interest is not academic. If the forfeiture proceedings of chapter 961 are the required procedure in this case, he is automatically entitled to the return of his seized property. Wisconsin Stat. § 961.555 requires a prosecutor to commence a forfeiture action 30 days from the seizure of the property. It is undisputed that the prosecutor in this case failed to do so. This court has previously determined that any failure to follow these mandatory time limits causes the circuit court to lose jurisdiction, requires the proceeding to be dismissed, and obligates the State to return Jones property. State v. Rosen, 72 Wis. 2d 200, 204-09, 240 N.W.2d 168 (1976). Thus, if Jones is correct that the forfeiture proceedings in chapter 961 are the procedures to be followed, he is entitled to the recovery of his property. 2 97-3306.awb State; section 968.20 places the burden to initiate recovery proceedings on the person whose property was seized. The majority sidesteps this conflict stating that the language in § 961.55(3) requiring property seized but not forfeited shall be returned to its rightful owner is only triggered by an unsuccessful forfeiture action brought by the [S]tate. Majority op. at 12 (quoting § 961.55(3)). ¶85 Similarly, procedural the requirements recovery proceedings. days in ability which to to seek § 961.555(2)(a). the statutes initiation necessary also to conflict initiate in the forfeiture or Under chapter 961, a prosecutor has 30 begin forfeiture forfeiture of proceedings the property. or lose Wis. the Stat. Section 968.20 places no time limitation on of proceedings. To commence a Chapter 961 forfeiture proceeding, a summons, complaint, and affidavit must be filed with the clerk of the circuit court and served on the property owner within 60 days. Wis. Stat. § 961.555(2)(a). In contrast, to commence a § 968.20 proceeding, an application must be made with the circuit court who then provides the prosecutor with notice as it deems adequate. ¶86 Aside from its failure to recognize the existence of a statutory conflict, the majority s interpretation of Wis. Stat. § 961.55 and § 961.555 fails to recognize that the forfeiture procedures terms. in chapter 961 are stated in mandatory For example, Wis. Stat. § 961.55(3) states that after property under outlined is seized [§ 961.55(4)] under shall § 961.55(2), be forfeiture instituted 3 proceedings promptly (emphasis 97-3306.awb added). Similarly, § 961.555 declares that a prosecutor shall commence the forfeiture action within 30 days after the seizure of the property (emphasis added). Where the word shall is used, be we presume legislature the action to indicates otherwise. mandatory Walworth County 111 Wis. 2d 19, 24, 329 N.W.2d 925 (1983). unless v. the Spalding, Indeed, this court has already determined that the use of shall in chapter 961 forfeiture proceedings creates mandatory obligations. Rosen, 72 Wis. 2d 200, 240 N.W.2d 168 (1976). State v. In short, I see nothing in these statutes indicating that when the State seizes property under Wis. Stat. § 961.55(2) it may elect to initiate forfeiture proceedings under chapter 961or it may elect not to. The statutory language makes that act mandatory. ¶87 making Additionally, the majority opinion has the effect of the meaningless. chapter I 961 cannot forfeiture imagine why provisions a practically prosecutor would ever choose to proceed with forfeiture proceedings under chapter 961. Under such proceedings the prosecutor is required to file the action within 30 days of the seizure and face other imposed time limits relating to the initiation and prosecution of the action. See Wis. Stat. § 961.555. Conversely, under Wis. Stat. § 968.20, the prosecutor does not need to take any affirmative steps to retain the property; the burden to initiate the proceeding is on the person whose property has been seized. ¶88 The case of State v. Rosen, 72 Wis. 2d 200, 240 N.W.2d 168 (1976), illustrates this point. The Rosen court concluded that when the State commenced forfeiture proceedings under the 4 97-3306.awb predecessor to Wis. Stat. § 961.555, the time limits contained in that statute were mandatory. Id. at 208. Thus when a prosecutor failed to adhere to those time limits the circuit court lost jurisdiction and the proceeding had to be dismissed. Id. Why would prosecutors willingly proceed under § 961.555 and be saddled with initiation and prosecution burdens if they had a choice? The answer is that prosecutors would not if given the choice. ¶89 Recognizing that this chapter 961 forfeiture option is one that no prosecutor would normally choose, the majority seeks to avoid the conclusion that its interpretation would make chapter 961 forfeiture special circumstances provisions in which a superfluous prosecutor initiate chapter 961 forfeiture proceedings. by advancing would choose to Majority op. at 18-19. ¶90 The majority s first contention is that chapter 961 forfeiture charge seized proceedings has been can brought juxtaposing occur against that with whether the or owner Wis. not of a criminal the property Stat. § 968.20 s presuppos[ition] of the existence of a case. Id. This is not only a distinction without a difference, it is not a distinction at all. Both provisions have the identical language in this regard: [The seized property shall be returned if:] (a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or 5 97-3306.awb (b) All proceedings in which it might be required have been completed. Wis. Stat. § 961.55(3)(a), (b); Wis. Stat. § 968.20(1)(a), (b). Notwithstanding the majority s contentions to the contrary, it appears that forfeiture the presuppositions proceedings and Wis. underlying Stat. chapter § 968.20 961 forfeiture proceedings are identical. ¶91 a Though the majority s second and third rationales for prosecutor s continued use of chapter 961 forfeiture proceedings are more plausible than its first, they are still unpersuasive. The majority contends that the entirety of Wis. Stat. § 961.55 and § 961.555 is for the purpose of obtaining property otherwise unattainable. Majority op. at 19-20. Yet, a solitary subsection, § 961.555(4), accomplishes that act. The majority further asserts that these extensive statutes exist for the relatively obscure circumstance of obtaining property subject to concurrent jurisdiction with a foreign court. Id. Yet, they do not in any way reference such a purpose. ¶92 These majority s second overall and third interpretation forfeiture proceedings superfluous. rationales from may rendering save the chapter 961 Even though such rationales are arguably plausible, when considered in conjunction with the majority s dismissal of the chapter s symmetry and mandatory language, it is unlikely that the legislature intended such a strained interpretation. ¶93 Instead of engaging in these interpretive gymnastics, I would construe the statute in a simple and straightforward 6 97-3306.awb manner: when the State seizes property under chapter 961, the State must seek to have the owner forfeit that property under chapter 961.18 This means that the forfeiture procedures outlined in chapter 961 are the sole procedures to be used in such cases. Such an interpretation promotes the harmonious interaction between subsections of the same statute and between statutes in the same chapter. Such an interpretation gives 18 The concurrence is incorrect when it states that Jones cash was seized incident to a lawful arrest that had nothing to do with [chapter 961]. Concurrence at 3. The circuit court specifically determined that the officer was authorized to seize Jones cash because of chapter 961 and not merely because he had been arrested for operating a vehicle while intoxicated: QUESTION: Did you feel you had any probable cause to take that money, and, if so, under what statute did you have any probable cause to take that money? [objection omitted] THE COURT: I ll make that decision. number is 961.55. The statute The circuit court s conclusion was based, at least in part, on the testimony of the officer: QUESTION: Based upon your training and experience do you have an opinion as to what the source was of the money that was found on Mr. Jones person? WITNESS: money. It s my opinion it was drug-related Simply stated, without the discovery of the drug paraphernalia the officer could not have seized the cash. One cannot get from an arrest for OWI to seizing Jones cash without the intermediate step of discovering the drug paraphernalia. However, by including the necessary intermediate step of discovering the drug paraphernalia, the seizure of the cash falls under chapter 961. Wis. Stat. § 961.55(2)(a). 7 97-3306.awb effect to the mandatory forfeiture provisions. words contained in the chapter s Such an interpretation avoids relegating chapter 961 forfeiture provisions to the most exceptional of circumstances. ¶94 In sum, while Wis. Stat. § 968.20 dictates the procedures to be followed in many forfeiture situations, it does not apply to forfeiture proceedings arising out of chapter 961 seizures. Rather, when a crime is charged under chapter 961 and when the seizure occurs under chapter 961, the forfeiture must also occur under chapter 961. ¶95 This straightforward interpretation is consistent with the statutory language of § 961.55 and § 961.555 and avoids the special circumstances construction necessary to agree with the majority s interpretation. The State did not comply with the chapter 961 forfeiture procedures; Jones is therefore entitled to the return of his property. otherwise, and in the Because the majority concludes process unnecessarily complicates a relatively simple statutory scheme, I respectfully dissent. ¶96 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this opinion. 8 97-3306.awb 1
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