DocketNumber: No. 2012-K-1148
Citation Numbers: 104 So. 3d 394
Filed Date: 11/16/2012
Status: Precedential
Modified Date: 8/20/2021
| T Granted. The decision of the court of appeal is reversed and the district court’s judgment of forfeiture is reinstated.
Following a traffic stop during which the police recovered a plastic bag containing crack cocaine from the fuse box area of respondent’s 2002 Chevrolet Trail Blazer, the state initiated both criminal proceedings for possession of cocaine with intent to distribute, La.R.S. 40:967(A)(1), and in rem civil forfeiture proceedings against his vehicle seized pursuant to La.R.S. 40:2606. The criminal case ended in an acquittal but the forfeiture proceedings led to a judgment by the Magistrate Judge for the Orleans Parish Criminal District Court denying respondent’s claim for return of his vehicle and ordering the Trail Blazer forfeited.
Evidence presented in the forfeiture hearing established that several days before instigating the traffic stop of respondent’s vehicle, Detective Todd Durel acted on a tip from a confidential informant and orchestrated a controlled purchase of two rocks of cocaine made by the same informant from respondent in ^respondent’s residence. Durel applied for a search warrant and two days later, during a pre-warrant surveillance, observed a hand-to-hand exchange occurring outside of the residence involving respondent and an individual who arrived on the scene and departed riding a bicycle. In return for currency provided by the individual, respondent pulled a large plastic bag out of
The court initially deferred ruling on the forfeiture issue because it had doubts about the legality of the search of the vehicle. However, once the court satisfied itself that the search question had been resolved against respondent in the prior criminal case, it ordered the vehicle forfeited.
On appeal of the civil judgment, the Fourth Court took as its premise that respondent had timely filed a claim for his vehicle after the state filed a notice of forfeiture and therefore considered whether the state had proved by a preponderance of the evidence grounds for forfeiture. La.R.S. 40:2612(G) (“In a|sforfeiture case, wherein a claim is timely filed pursuant to the provisions of this Chapter, the burden of proof required to forfeit the defendant’s property shall be a preponder-anee of the evidence.”). The court of appeal further acknowledged that state may forfeit property “[ujsed or intended to be used in any manner to facilitate conduct giving rise to forfeiture,” La.R.S. 40:2604(2)(b), and that such conduct includes “[a]n act or omission punishable by confinement for more than one year under R.S. 40:961 et seq. [Uniform Controlled Dangerous Substances Law] whether or not there is a prosecution or conviction related to the act or omission.” La.R.S. 40:2603(1). The Fourth Circuit panel nevertheless concluded that the state had not carried its burden under La.R.S. 40:2604(2)(b) because it had “failed to establish that the vehicle was used or intended to be used in any manner to facilitate Mr. White selling narcotics.” State v.2002 Chevrolet Trail Blazer, 11-1088, p. 10 (La. App. 4 Cir. 4/25/12), 91 So.3d 487, 492. The court specifically observed that the police “did not see Mr. White make any furtive movements to indicate that he was hiding or retrieving narcotics in the vehicle after the alleged hand-to-hand narcotic transaction” and “never located the alleged customer to find out if in fact Mr. White sold him narcotics.” Id. The court of appeal also considered respondent’s acquittal in the criminal case as “further support[ ]” for its conclusion that “the forfeiture was improper.” Id. The court of appeal thereby ordered the seized vehicle returned to respondent and pretermitted his second assignment of error claiming that the forfeiture proceedings violated the Double Jeopardy Clauses of the United States and Louisiana Constitutions.
We agree with the court of appeal that the evidence adduced in the forfeiture hearing did not support a finding that, more probably than not, respondent used the Chevrolet Trail Blazer to facilitate his sale of the rocks of cocaine in his possession, either to the confidential informant
We therefore subscribe to the view of the state that respondent’s use of the vehicle to conceal and transport the drugs in his possession, using the fuse box area as a convenient hiding place to retain possession of the drugs while he went about his business that might, or might not, have included additional sales of cocaine, fell within the broad compass of R.S. 40:2604(2)(b), because possession of cocaine carries a sentence in excess of one year’s imprisonment, La.R.S. 40:967(C)(2) (imprisonment with or without hard labor for not more than five years), and thus |squalifies as conduct giving rise to forfeiture for purposes of R.S. dO^OSD).
. The broad language of La.R.S. 40:2604(2)(b) is subject only to the limitation that the violation of Louisiana's Controlled Substances Law carries a penalty in excess of one year's imprisonment, thereby precluding forfeiture of vehicles containing small amounts of marijuana. Compare United States v. One 1976 Porsche 911S, etc., 670 F.2d 810, 812 (9th Cir.1979) (Given that "[t]he courts have uniformly held that a vehicle is subject to forfeiture no matter how small the quantity of contraband found,” forfeiture of even an expensive Porsche sports car containing only .226 grams of marijuana in its trunk was permitted by 21 U.S.C. § 881).