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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Rufo, 429
Supreme Judicial Court of Massachusetts,
Argued
Decided
Gregory I. Massing, Assistant Attorney General, for
the Commonwealth & another.
Jeffrey A. Gorlick,
The following submitted briefs for amici curiae:
Donald K. Stern, United States Attorney, &
Richard L. Hoffman, Assistant United States Attorney, for the United States.
Eva S. Nilsen, Scott A. Weseley, & Andrew H. Good,
Present: WILKINS, C.J.,
ABRAMS, LYNCH, GREANEY, FRIED,
WILKINS, C.J.
On
On
All this
would be an unexceptionable process but for the fact that, unbeknownst to the
judge who ordered the property to be returned, approximately five weeks after
the defendant's arrest, the State police had submitted a forfeiture report and
delivered the currency to the Drug Enforcement Administration (DEA) of the Federal government. DEA promptly
initiated administrative forfeiture proceedings. (FN3)
See 19 U.S.C. §§ 1602 et seq. (1994 & Supp. III 1997);
21 U.S.C. § 881 (1994 & Supp. III 1997).
On
[429
[1][2] If
the issue in this case is whether the Federal forfeiture or the Boston
Municipal Court order to return the money takes precedence, the applicable rule
of law is clear. When a State and a
Federal court each proceeds against the same res,
"the court first assuming jurisdiction over the property may maintain and
exercise that jurisdiction to the exclusion of the other." Penn Gen. Cas.
[3] If the
funds in dispute had been seized pursuant to a search warrant, a strong
argument could be made that the State courts first exercised jurisdiction over
the property. Property seized pursuant
to a search warrant in Massachusetts is held "under the direction of the
court" and all property (other than stolen property) "seized in
execution of a search warrant shall be disposed of as the court or justice
orders." G.L.
c. 276, § 3. Better reasoned opinions
recognize that a State statute of that character provides a proper basis for
jurisdiction over property seized pursuant to a search warrant. See Scarabin v. Drug Enforcement Admin., 966 F.2d 989, 993
(5th Cir.1992) ("From the moment of seizure the state district court had
exclusive control over the res by virtue of issuing the search warrant that
procured the seized funds ..."); United States v. One 1979 Chevrolet C‑20
Van, 924 F.2d 120, 122 (7th Cir.1991)[429
Mass. 383] ("A local police department may not take
seized property and just pass it on as it pleases to the FBI in flagrant
disregard of state laws mandating judicial authority for such turnovers");
United States v. $490,920 in U.S. Currency, 911 F.Supp.
720, 725‑728 (S.D.N.Y.1996); Johnson v. Johnson, 849 P.2d 1361, 1364
(Alaska 1993). (FN4) On the other hand, in the absence of a State
statute providing for judicial control over seized property, courts have held
that the seizure of property by State authorities does not alone confer in rem jurisdiction on a State court. See Madewell v. Downs, 68 F.3d 1030, 1042 (8th Cir.1995);
United States v. 566 Hendrickson Blvd., 986 F.2d 990, 994‑995
(6th Cir.1993); United States v. One 1985 Cadillac Seville,
866 F.2d 1142, 1146 (9th Cir.1989); United States v. $639,470.00 U.S. Currency,
919 F.Supp. 1405, 1410‑1412 (C.D.Cal.1996).
In the
case before us, the property in dispute was not seized pursuant to a
warrant. No Massachusetts statute
prescribes judicial control over property that was not seized pursuant to a
warrant. (FN5) The Commonwealth argues that the Boston
Municipal Court did not have in rem jurisdiction over
the money until the defendant moved for its return, an event which occurred many
months after the Federal forfeiture proceedings commenced. (FN6)
In the absence of a State statute like G.L. c.
276, § 3, applicable to warrantless seizures of
property, the Federal government [429
Mass. 384] established in rem jurisdiction first, and thus the Boston Municipal Court
lacked jurisdiction over the money seized from the defendant. (FN7)
See Penn Gen. Cas.
Co. v. Pennsylvania ex rel. Schnader,
294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935); Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 413, 597 N.E.2d 430
(1992). Obviously, there must be a
process for returning to its owner property unlawfully seized without a warrant
(see Commonwealth v. Sacco,
401 Mass. 204, 207 n. 3, 515 N.E.2d 1185 [1987] ), but there is no basis
for extending the reach of G.L. c. 276, § 3, beyond
its terms to justify an assertion of in rem
jurisdiction over property not seized pursuant to a warrant.
[4] The
defendant contends that, even if the Federal forfeiture procedure controls the
disposition of the money, the Boston Municipal Court in this case, as a matter
of equity and relying on Commonwealth v. Sacco, 401 Mass. 204, 515 N.E.2d 1185 (1987), could
order the State police to pay him an equivalent amount. He points out that the money was seized in
violation of his constitutional rights and promptly turned over to the DEA with the prospect that, if declared forfeit, eighty‑five
per cent of it would be returned to the State police to pay salaries and to
purchase vehicles and equipment. On the
other hand, assuming that weighing equities is appropriate, we would give no
weight to claimed improprieties in the Federal forfeiture proceeding, a dispute
between the defendant and the Federal authorities that the defendant lost. (FN8)
In this case the police did not violate any law in submitting the money
to be forfeited by the Federal government.
(FN9) The deterrent purpose of
the suppression of evidence was served, to the defendant's benefit, when
various charges against him were dismissed.
In Commonwealth v. Sacco,
supra, the Somerville police made an unlawful, warrantless
seizure of the defendant's funds. They
then lost the money. The defendant moved
for the return of his property. A judge
ordered that the equivalent amount be [429
Mass. 385] paid to the
defendant. We held, on the
Commonwealth's appeal, that where evidence was unlawfully seized and no third
person had a claim against it (e.g., there had been no forfeiture proceeding),
an order against Somerville to pay the amount of money that was lost provided a
fair, prompt, and efficient means of resolving the defendant's claim as part of
the criminal proceeding. Id. at 208, 515 N.E.2d 1185.
The Sacco opinion
provides no answer to the question whether, in this case, an order against the
State police to pay money to the defendant would be appropriate. In the case before us, the Boston Municipal
Court never had in rem jurisdiction over the funds,
whereas the court in the Sacco case had in rem
jurisdiction over the property when Sacco moved for
its return. In the Sacco case the police wrongfully lost
the defendant's money, which would have been returned to him in the normal
course but for the police misstep. Here,
in tendering the property to the DEA for forfeiture,
the police violated no law nor did they deprive the defendant of his right to
the funds. The question of the
defendant's right to the funds was transferred to the Federal forum, where,
rightly or wrongly, the defendant lost.
An order against the State police to pay the equivalent of the forfeited
funds to the defendant would not be appropriate in this case.
We do,
however, share with the motion judge a concern about the process, however
lawful, by which the State police benefited from its conduct. The police seized the money in violation of
the defendant's constitutional rights.
They then put the money into a Federal forfeiture process that returns
to the State police a larger proportion of any forfeited funds (85%) than would
the State forfeiture procedure (50%) (see G.L. c.
94C, § 47[d ] ). Perhaps the Legislature will conclude that
fairness calls for legislation asserting State court control over all property
seized by State and local law enforcement officials and, where Federal
supremacy principles permit, for the use by the police of State, and not
Federal, forfeiture procedures.
The
portion of the December 3, 1996, order directing the payment of $38,692 to the
defendant and all prior orders directing the payment of money to the
defendant are vacated.
So ordered.
FRIED,
J. (concurring, with whom LYNCH, J.,
joins).
I join the [429 Mass. 386] judgment of the court and all of its opinion except the next‑to‑last
paragraph. The court suggests to the
Legislature that it revise the law so as to avoid what the court finds is the
unfairness of the result that it concludes the present state of the law forces
it to reach. The result here is not the
least bit unfair, and it reveals nothing that should be changed. The brief explanation the court offers for
its sentiment that something untoward‑‑although perfectly lawful‑‑has
happened depends on premises and reasoning that I cannot join.
To begin
with, it should be noted that the premise that there was a violation of the
defendant's constitutional rights is valid only arguendo. The judge below found that the search that
uncovered the packet of cocaine was not a proper inventory search. This is an arguable proposition, but one that
is not before us because the Commonwealth chose not to appeal from the decision
suppressing the evidence of the cocaine.
Second, although no one even suggests this, we should reject any thought
that there has been unfairness of a different kind: that a minor peccadillo may cause the
defendant to lose $38,000 in cash in the Federal forfeiture procedure. The laws of this country do not consider the
possession of cocaine (even a "small" quantity for "personal
use") a peccadillo, and the forfeiture that they may authorize here
strikes me as not obviously disproportionate to the offense. And, if the forfeiture is disproportionate,
there is a constitutional avenue open for making that very argument. See
Austin v. United States, 509 U.S. 602, 113 S.Ct.
2801, 125 L.Ed.2d 488 (1993). Once the
air is cleared of this suggestion, what we are left with is the possibility of
a substantial forfeiture of the instrumentality of a very serious crime‑‑in
itself a good thing, not a bad thing.
Where, then, is the unfairness?
It is, we are told, that "the State police benefited" from the
"violation of the defendant's constitutional rights." Ante
at 950. But it is not the police who
have benefited. The police officers
would not divide up the cash and take a vacation with it. If forfeited, the money would go to the
police budget, where presumably it would be used to assist law
enforcement. It is the public which
benefits from this forfeiture, and that illicitly possessed funds (for that
would be the premise if there is forfeiture) should benefit the public by
providing it with more law enforcement is a good thing, not a bad thing.
So,
finally, we are left with the unexpressed conclusion that the public should not
derive a benefit to which, by hypothesis, it [429 Mass. 387] is
otherwise entitled because somewhere down the line there has been (arguably) a
violation of the defendant's rights under the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration of
Rights. This is the logic of the
exclusionary rule (which the Supreme Court imposed on us in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ), but carried to its
limit. Subsequent decisions of the
Supreme Court, see, e.g., United States
v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d
677 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Stone v. Powell, 428 U.S.
465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), have
disciplined the tendency of the exclusionary rule to blossom out of all
proportion and out of all sensible balance.
In my view, the defendant has had all the benefit he is due from the
violation of his constitutional rights, if there was one: the evidence of the cocaine has been
suppressed and this has caused the charges against him to be dropped. He also has available to him a civil action
for damages in our courts or under 42 U.S.C. § 1983
(1994), for whatever violation of his constitutional rights has taken
place. It carries the argument to the
limit of its logic and beyond to suggest that fairness requires his forfeiture
of the instrumentality of his crime should also be vacated.
(FN1.) On June 23, 1997, long after the
decision of the Boston Municipal Court from which this appeal has been taken,
the Massachusetts Department of State Police moved to intervene in this case. Timely intervention by a governmental unit
against which an order to return property might be entered is appropriate. See
Commonwealth v. Sacco, 401 Mass. 204, 209 n. 5,
515 N.E.2d 1185 (1987). The parties have
treated the department as an intervener, although there is no record indication
that intervention was allowed.
(FN2.)
See St.1991, c. 412, § 1.
(FN3.)
When the defendant moved for the return of his property, he knew of the Federal
forfeiture proceeding, but did not advise the Boston Municipal Court judge of
it.
(FN4.) The unexplained assertion in United States v. One 1986 Chevrolet Van,
927 F.2d 39, 44‑45 (1st Cir.1991), that State control begins only with
the commencement of a State forfeiture proceeding, rather than with the
issuance of a search warrant, fails to recognize the State court's statutory
control over property seized pursuant to a warrant and has been criticized and
rejected. See Scarabin v. Drug Enforcement Admin., 966
F.2d 989, 994 (5th Cir.1992); United States v. $490,920 in U.S. Currency,
911 F.Supp. 720, 727 (S.D.N.Y.1996).
We
also disagree with the analysis in United
States v. Winston‑Salem/Forsyth County Bd. of Educ.,
902 F.2d 267, 272 (4th Cir.1990), because it ignores the principle of in rem jurisdiction expressed in Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189,
195, 55 S.Ct. 386, 79 L.Ed.
850 (1935).
(FN5.) Cf. Alaska Stat. § 17.30.114(b) (1998) (under search warrant
or incident to arrest); Ind.Code Ann. § 35‑33‑5‑5
(Michie 1998) (pursuant to arrest, search warrant, or
warrantless search);
Minn.Stat. Ann. § 626.04 (West 1983 & Supp.1999) (with or
without warrant).
(FN6.) It is doubtful that either the filing
or the allowance of a motion to suppress seized evidence confers in rem jurisdiction on a State court. See
Commonwealth v. Santoro, 406 Mass. 421, 422, 548 N.E.2d 862 (1990). In any event, the suppression motion was
filed and allowed long after the Federal forfeiture proceedings began.
(FN7.) It is, of course, not for a State court
to analyze the quality and fairness of a Federal forfeiture proceeding, to find
it wanting, and then to treat it as a nullity.
(FN8.) The judge in the Boston Municipal Court
appears to have been moved to rule in the defendant's favor because of his
sense that the Federal forfeiture proceeding was unfair (inadequate
notice; the tenuous connection between
the money and any drug activity; and the
limited nature of the hearing given the defendant).
(FN9.) Such actions in other situations could,
however, permit a valid argument that the government lost exculpatory evidence.