In Re: $300,000 in U.S. Currency -- Appeal of: Z. Xu

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: $300,000 in U.S. Currency :
: No. 906 C.D. 2020
Appeal of: Zhi Xiong Xu : Argued: April 14, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: July 16, 2021
Zhi Xiong Xu (Appellant) appeals from the Court of Common Pleas of the
17th Judicial District, Union County Branch’s (common pleas) July 31, 2020 Order
denying as premature Appellant’s Motion to Suppress Evidence, which was filed in
Appellant’s Motion for Return of Property action (return of property action) brought
pursuant to Pennsylvania Rule of Criminal Procedure 588 (Rule 588), Pa.R.Crim.P.
588,1 after Appellant had property seized by law enforcement during a traffic stop.
1
Rule 588 states:
(A) A person aggrieved by a search and seizure, whether or not executed pursuant
to a warrant, may move for the return of the property on the ground that he or she
is entitled to lawful possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact
necessary to the decision thereon. If the motion is granted, the property shall be
restored unless the court determines that such property is contraband, in which case
the court may order the property to be forfeited.
(Footnote continued on next page…)
Also pending before the Court is the Commonwealth of Pennsylvania’s
(Commonwealth) Motion to Dismiss Appeal for Mootness (Application), in which
the Commonwealth argues that this matter is now moot as a result of the
Commonwealth’s commencing of a forfeiture action concerning the same property
that Appellant seeks returned. In response to the Application, Appellant argues that
this matter is not moot because the conduct complained of is one capable of
repetition yet likely to evade review and is one of great public importance. As to the
merits of this appeal, Appellant argues that a Pennsylvania Rule of Criminal
Procedure 581 (Rule 581), Pa.R.Crim.P. 581,2 motion to suppress may be brought in
a return of property action under Rule 588 even where the Commonwealth has not
yet filed criminal charges or a forfeiture action. After review, we agree that this
matter is not moot, as it is capable of repetition yet evading review and involves an
(C) A motion to suppress evidence under Rule 581 may be joined with a motion
under this rule.
Pa.R.Crim.P. 588.
2
Rule 581 provides, in relevant part:
(A) The defendant’s attorney, or the defendant if unrepresented, may make a
motion to the court to suppress any evidence alleged to have been obtained in
violation of the defendant’s rights.
(B) Unless the opportunity did not previously exist, or the interests of justice
otherwise require, such motion shall be made only after a case has been returned to
court and shall be contained in the omnibus pretrial motion set forth in Rule 578
[(relating to the types of relief appropriate to include in omnibus pretrial motions)].
If timely motion is not made hereunder, the issue of suppression of such evidence
shall be deemed to be waived.
(C) Such motion shall be made to the court of the county in which the prosecution
is pending.
Pa.R.Crim.P. 581(A)-(C).
2
issue of great public importance. On the merits, because we interpret the language
of Rule 588 to permit the filing of a motion to suppress by any person who has had
their property seized, and not only a criminal defendant, we hold that a motion to
suppress may be brought in a Rule 588 return of property action, regardless of
whether the Commonwealth has filed criminal charges or a forfeiture action.
Accordingly, we deny the Commonwealth’s Application to Dismiss, vacate common
pleas’ July 31, 2020 Order denying Appellant’s Motion to Suppress as premature,
and remand this matter for further proceedings.
I. BACKGROUND
This matter is an in rem proceeding regarding the seizure of assets. On
January 23, 2020, a Pennsylvania State Police Trooper stopped Appellant’s vehicle
and seized approximately $300,000 in cash (Property). As of the filing of the instant
appeal, no criminal action had been initiated against Appellant. On February 4,
2020, Appellant brought a stand-alone return of property action in common pleas
seeking the return of the Property. On February 28, 2020, Appellant filed a Motion
to Suppress, seeking suppression of the Property, Appellant’s iPhone, which was
also seized, and all statements made by Appellant to law enforcement. (Reproduced
Record (R.R.) at 50a.) The Commonwealth opposed the Motion to Suppress,
maintaining that Appellant could not bring a stand-alone motion to suppress in a
return of property action prior to the Commonwealth filing criminal charges or
initiating a forfeiture action. (R.R. at 83a.) After the Commonwealth filed its
Answer and New Matter to the Motion to Suppress, a hearing, and briefing from the
parties, common pleas denied the Motion to Suppress in its July 31, 2020 Order.
Common pleas’ Order did not provide a detailed explanation as to its reasoning but
stated only that “[a]fter review of 42 Pa.C.S. § 5806, and [Pennsylvania Rules of
3
Criminal Procedure 100, 581, and 586,] Pa.R.Crim.P. 100, 581, and 586, [common
pleas] determines that a Motion to Suppress is premature.” (Common Pleas’ July
31, 2020 Order at n.1, R.R. at 138a.)3
Appellant filed a Petition for Permission to Appeal with this Court. We
granted the Petition and issued an order describing the issue as the following:
Whether Pennsylvania law permits an individual aggrieved by the
seizure of property to raise a motion to suppress evidence pursuant to
[Rule] 581 in conjunction with a motion for return of property pursuant
to [Rule] 588, where the Commonwealth has not filed a forfeiture
petition and no criminal charges have been filed against the property
owner.
(October 27, 2020 Order.)
On January 14, 2021, the Commonwealth filed a forfeiture petition in
common pleas (forfeiture action). Thereafter, the Commonwealth filed its
Application, arguing that this matter is now moot because the relief that Appellant
seeks – the ability to file a motion to suppress evidence – is now available before
common pleas in the forfeiture action. We then listed the Application for disposition
with the merits of this appeal.4 (February 9, 2021 Order.)
3
Appellant also filed an Omnibus Request for Relief in Response to the July 31, 2020
Order Denying the Motion to Suppress Evidence, in which Appellant requested clarification of the
Order, reconsideration, and permission to appeal. (R.R. at 139a-53a.) Common pleas issued a
Rule to Show Cause on August 18, 2020, (id. at 154a), and the Commonwealth filed its Answer in
opposition to the Omnibus Request, (id. at 155a-63a). However, it appears that common pleas did
not otherwise act on the Omnibus Request.
4
“Our review of [common pleas’] decision on a petition for the return of property is limited
to examining whether the findings of fact made by [common pleas] are supported by competent
evidence and whether [common pleas] abused its discretion or committed an error of law.”
Singleton v. Johnson, 929 A.2d 1224, 1227 n.5 (Pa. Cmwlth. 2007).
4
II. DISCUSSION
A. Whether this matter is moot because the Commonwealth commenced a
forfeiture action in which Appellant can file a motion to suppress.
The Commonwealth argues that this matter is now moot, as the relief
Appellant seeks is the ability to file a motion to suppress, which is now available to
him in the forfeiture action. The Commonwealth posits that there is no live case or
controversy as a result. Further, the Commonwealth asserts that this matter is not
within any of the exceptions to mootness, as the Commonwealth argues that “it is
unlikely that the instant scenario is capable of repetition yet likely to evade
review[,]” crediting any delay in the criminal investigation to the coronavirus
pandemic. (Commonwealth’s Brief (Br.) at 14.) As such, the Commonwealth
contends that “[i]t is highly unlikely that such a combination of circumstances will
occur in the future that would delay law enforcement action.” (Id.) Further, the
Commonwealth contends that this case likewise does not meet the public interest
exception to mootness either. Accordingly, the Commonwealth argues that
Appellant would not suffer any detriment if this Court deems the appeal moot, as he
can file the same motion to suppress before common pleas in the forfeiture action.
Appellant responds that this matter is not moot because “the conduct
complained of is capable of repetition yet likely to evade review” and “involves
issues important to the public interest” under Sierra Club v. Pennsylvania Public
Utility Commission, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997). Appellant points to
the Commonwealth’s position that a motion to suppress is available now that there
is a forfeiture action as evidence as to how this is an issue capable of evading review,
in that finding this issue moot now would leave this procedural question unresolved.
Appellant views this result as permitting the Commonwealth to “sit” on evidence it
seizes “until the Commonwealth decides to provide . . . an opportunity” to the
5
aggrieved individual to suppress evidence. (Appellant’s Answer to Application
¶ 40.) Appellant asserts that this would leave similarly situated individuals without
any mechanism to challenge the seizure of their property. Appellant compares this
matter to that in Warrington Township v. Powell, 796 A.2d 1061, 1065 (Pa. Cmwlth.
2002), in which this Court held that the issue of whether a township could enter two
business owners’ property to conduct a fire inspection was not moot after the
inspection had been concluded, as that issue was likely to be repeated and would
avoid appellate review if not decided. Moreover, Appellant asserts that this is a
matter of public interest as it concerns property seized from those who have not been
charged with any crime.
Generally, we “will dismiss an appeal as moot unless an actual case or
controversy exists at all stages of the judicial or administrative process.” Sierra
Club, 702 A.2d at 1134 (citing Cytemp Specialty Steel Div., Cylcops Corp. v. Pa.
Pub. Util. Comm’n, 563 A.2d 593, 596 (Pa. Cmwlth. 1989)). The Pennsylvania
Supreme Court has explained:
The cases presenting mootness problems involve litigants
who clearly had standing to sue at the outset of the
litigation. The problems arise from events occurring after
the lawsuit has gotten under way [resulting in] changes in
the facts or in the law which allegedly deprive the
litigant[s] of the necessary stake in the outcome. The
mootness doctrine requires that an actual controversy must
be extant at all stages of review, not merely at the time the
complaint is filed.
In re Gross, 382 A.2d 116, 119 (Pa. 1978) (quoting G. Gunther, Constitutional Law
1578 (9th ed. 1975)) (internal quotations omitted). Thus, it is well settled that
Pennsylvania courts “do not render decisions in the abstract or offer purely advisory
opinions[,]” Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659
6
(Pa. 2005), and “that judicial intervention is appropriate only where the underlying
controversy is real and concrete, rather than abstract[,]” City of Philadelphia v.
Commonwealth, 838 A.2d 566, 577 (Pa. 2003). Here, while it is undisputed that
Appellant had standing to sue at the outset of this action, there was a change in fact
that has arguably deprived Appellant “of the necessary stake in the outcome[]”—the
ability to file a motion to suppress. In re Gross, 382 A.2d at 119. Accordingly, it
appears that, as a result of the Commonwealth’s commencement of the forfeiture
action, there is no real and concrete controversy at stake in the present action.
However, even where an appeal is technically moot, there exist exceptions to
the mootness doctrine. For instance, we will hear a technically moot case “where
the conduct complained of is capable of repetition yet likely to evade review, where
the case involves issues important to the public interest[,] or where a party will suffer
some detriment without the court’s decision.” Sierra Club, 702 A.2d at 1134.
Appellant argues that we should find this matter not moot under the exceptions for
conduct capable of repetition yet likely to evade review and for issues important to
the public interest, comparing the facts here to those in Warrington Township. In
Warrington Township, two business owners challenged a township’s annual,
warrantless fire safety inspections of their premise. The township sought a court
ruling because the owners refused to allow the inspection absent a ruling in the
township’s favor. However, after the appeal was filed, the township performed the
inspection based on a warrant it previously acquired. The township thus argued that
the matter before this Court was moot because the inspection had already been
conducted with a warrant. Though, we considered the nature of the claim—that the
business owners were challenging the township’s annual inspection, not just a
singular inspection. With this in mind, we held that the issue was not moot because
7
“the issue of access to [the business owners’] premises is one likely to be repeated,
yet evade appellate review, and the question . . . is one concerning important public
interests.” Warrington Township, 796 A.2d at 1065.
The case before us presents a similar issue, in that it is one capable of
repetition yet would escape review if it were not considered now and involves a
question concerning important public interests. While it is true that Appellant
technically has the ability to now file his motion to suppress in the forfeiture action,
there remains an important issue unresolved. As civil asset forfeiture is a prevalent
practice in this Commonwealth, it is likely that this situation is capable of repetition,
regardless of any delay that occurred in this case as a result of the coronavirus
pandemic. Further, should we hold that this issue is moot in all cases in which the
Commonwealth files a forfeiture action after an individual seeks suppression in a
Rule 588 return of property action, the issue would evade review in each instance
that it arises.
Moreover, the issue of whether an individual is able to seek suppression of
such evidence in a return of property action where that individual has not been
charged with a crime but has had their property seized in an allegedly
unconstitutional manner by the government is undoubtedly one concerning
important public interests. Accordingly, we hold that this issue is not moot and deny
the Commonwealth’s Application.
B. Whether a motion to suppress may be brought in a return of property
action prior to the Commonwealth’s filing of criminal charges or a
forfeiture petition.
Appellant argues that a motion to suppress under Rule 581 may be filed in a
return of property action brought pursuant to Rule 588 even where the
Commonwealth has not filed criminal charges or a forfeiture petition. Relying on
8
Boniella v. Commonwealth, 958 A.2d 1069, 1073 (Pa. Cmwlth. 2008), and In re One
1988 Toyota Corolla (Blue Two-Door Sedan) Pa. License TPV 291, 675 A.2d 1290,
1294-95 (Pa. Cmwlth. 1996), Appellant contends “that a proceeding for return of
property under [Rule] 588 is simply a mirror image of a forfeiture action under the
[Controlled Substances] Forfeiture Act”5 and that, while the nature of such
proceedings are in rem and, therefore, civil, they have been consistently described
as “civil in form but quasi-criminal in character.” (Appellant’s Br. at 22 (internal
quotation marks omitted).) Appellant next asserts that “it is a well[-]settled
proposition of law that the Commonwealth may not permanently acquire derivative
contraband [that] it has initially seized unconstitutionally” and that the exclusionary
rule extends to forfeiture proceedings. (Id. at 23 (quoting Commonwealth v.
Anthony, 613 A.2d 581, 584 (Pa. Super. 1992))6 (citing Commonwealth v. All That
Certain Lot or Parcel of Land Located at 605 Univ. Drive, 104 A.3d 411, 424 (Pa.
2014)).) Further, Appellant maintains that there is a “litany of case law that
specifically authorizes evidentiary suppression in cases involving asset forfeiture”
and that “neither criminal prosecution nor a conviction is required for property to be
deemed forfeitable pursuant to the [Controlled Substances] Forfeiture Act.” (Id. at
25-26.) Appellant points to Commonwealth v. One 1955 Buick Sedan, 182 A.2d 280(Pa. Super. 1962), Commonwealth v. McJett, 811 A.2d 104 (Pa. Cmwlth. 2002), and
Commonwealth v. $16,208.38 U.S. Currency Seized from Holt, 635 A.2d 233 (Pa.
Cmwlth. 1993), to show that our courts have consistently held that the remedy of
suppression is available to litigants in forfeiture actions.
5
42 Pa.C.S. §§ 5801-5808.
6
We are “not bound by the Superior Court’s precedents[;] although, where persuasive, we
are free to adopt the Superior Court’s reasoning.” Wertz v. Chapman Township, 709 A.2d 428,
433 n.8 (Pa. Cmwlth. 1998).
9
With these legal maxims in mind, Appellant asserts that Rule 588 “specifically
and unequivocally” provides that a motion to suppress under Rule 581 may be
brought in a return of property action. (Appellant’s Br. at 24 (emphasis in original).)
Further, Appellant maintains that “it is well settled that evidentiary suppression is
an available remedy in civil asset forfeiture proceedings[,]” which necessarily
includes return of property actions under Rule 588. (Id. at 26-27 (emphasis
omitted).) Further, Appellant argues the Commonwealth’s interpretation of Rule
581’s statement that a suppression motion “shall be made only after a case has been
returned to the court,” Pa.R.Crim.P. 581, to be inapplicable to such a motion brought
in a Rule 588 return of property proceeding because “such an interpretation would
have bizarre consequences.” (Id. at 28.) For instance, Appellant points to a situation
in which a criminal defendant who has their charges dismissed at a preliminary
hearing would be unable to pursue suppression in any subsequent forfeiture
proceedings because no charges had “been returned to court” under Rule 581.
Pa.R.Crim.P. 581. Or, as in the present case, Appellant argues that “an individual
who is not charged with a crime at all would be unable to seek suppression of
evidence illegally obtained because no charges have been filed[,]” and, therefore, no
case has been returned to court. (Id. at 28-29.) Thus, Appellant posits that Rule 588
permits a Rule 581 suppression motion regardless of “whether . . . there is a
concurrent criminal prosecution” or forfeiture proceeding. (Id. at 31.)
The Commonwealth responds that Rule 588 does not permit an individual to
file a motion to suppress where the Commonwealth has not filed a forfeiture petition
or criminal charges. (Commonwealth’s Br. at 15.) The Commonwealth first looks
to Rule 581, focusing on the language providing that the “defendant’s attorney” or
the “defendant” “may make a motion to the court to suppress any evidence,” and
10
that, “[u]nless the opportunity did not previously exist, or the interests of justice
otherwise require, such motion [to suppress evidence] shall be made only after a
case has been returned to court.” (Id. (emphasis in original) (quoting Pa.R.Crim.P.
581).) In light of this language, the Commonwealth asserts that “a motion to
suppress should not be filed until after a case has been returned to court[,]” i.e., the
filing of criminal charges, “unless [Appellant] can meet the interests of justice
exception to Rule 581.” (Id. at 17.) Moreover, the Commonwealth avers that
because a motion to suppress is not among the types of pleadings allowed in a civil
case under the Pennsylvania Rules of Civil Procedure, it is not properly brought in
a stand-alone return of property action.
Looking to the interplay between Rule 588 and Rule 581, the Commonwealth
argues that “Rule 588 is permissive,” in that it “provides that a motion may be joined
in a motion for return of property.” (Id. (emphasis in original).) “On the other hand,”
the Commonwealth asserts that “Rule 581 is unequivocal and mandatory; it provides
that a motion to suppress shall be made only after a case has been returned to court.”
(Id. (emphasis in original).) The Commonwealth further contends that Rule 581’s
specific reference to a motion to suppress filed “under Rule 581” requires that all of
the specific, mandatory requirements of Rule 581 be met, i.e., that the case has been
returned to court or the interests of justice so require. (Id. (quoting Pa.R.Crim.P.
588).) With regard to the interests of justice requirement, the Commonwealth argues
that it cannot be met because the exception focuses on the timeliness of suppression
motions. (Id. at 18.) The Commonwealth further maintains that, while permitting a
motion to suppress in a forfeiture action “comports with the purpose of a motion to
suppress evidence[,]” “[i]n a stand-alone motion for return of property action[,] there
simply is no government evidence to suppress” because there is no criminal case or
11
forfeiture action in which incriminating evidence is available. (Id. at 19-20.) We
now turn to the merits of this appeal.
It is well settled “that a proceeding for return of property under [Rule] 588 is
simply a mirror image of a forfeiture action under the [Controlled Substances]
Forfeiture Act.” Boniella, 958 A.2d at 1073 (quoting In re One 1988 Toyota
Corolla, 675 A.2d at 1295) (internal quotations omitted). In a forfeiture action,
however, “for property to be deemed forfeitable, neither a criminal prosecution nor
a conviction is required.” Commonwealth v. $6,425.00 Seized From Esquilin, 880
A.2d 523, 530 (Pa. 2005) (citing Commonwealth v. $11,600.00 Cash, U.S. Currency,
858 A.2d 160, 167 (Pa. Cmwlth. 2004)). Indeed, we have explained that “the
progress of an ancillary criminal proceeding, if any, may not be relevant because
conviction of a crime is not necessary to support forfeiture proceedings[.]”
Commonwealth v. Allen, 59 A.3d 677, 679-80 (Pa. Cmwlth. 2012) (citation and
internal quotation marks omitted). Therefore, “there may be a civil forfeiture
proceeding where no criminal charges have even been filed against the person from
whom the property has been seized.” Id. at 680.
Nonetheless, because these proceedings necessarily entail some criminal
conduct, they have been described as “civil in form, but quasi-criminal in nature.”
Commonwealth v. Landy, 362 A.2d 999, 1005 (Pa. Super. 1976). The United States
Supreme Court has explained that “proceedings instituted for the purpose of
declaring the forfeiture of a man’s property by reason of offenses committed by him,
though they may be civil in form, are in their nature criminal.” Boyd v. United States,
116 U.S. 616, 634 (1886). Even so, this quasi-criminal nature does not “require the
full panoply of rights due a criminal defendant.” Landy, 362 A.2d at 1005. For
instance, with respect to issues of evidence, our courts have required the
12
Commonwealth to prove its forfeiture case by a preponderance of the evidence,
rather than the beyond a reasonable doubt standard applicable in criminal cases. Id.Although forfeiture actions are civil in form, the United States Supreme Court
has recognized that the exclusionary rule of the Fourteenth Amendment7 does apply
to such actions. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702
(1965). This is because the exclusionary rule “is an essential part of both the
Fourth[8] and Fourteenth Amendments,” id. at 695, with “the sole purpose . . . to deter
police misconduct[,]” Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa. Super.
2000). The motion to suppress is a procedural vehicle effectuating the purpose of
the exclusionary rule which is to deter police misconduct, by allowing the
“[s]uppression of the use of illegally seized evidence against the search victim[.]”
United States v. Calandra, 414 U.S. 338, 347-48, 350 (1974). Indeed, the United
States Supreme Court has explained that
[t]he very purpose of a motion to suppress is to escape the
inculpatory thrust of evidence in hand, not because its
probative force is diluted in the least by the mode of
seizure, but rather as a sanction to compel enforcement
officers to respect the constitutional security of all of us
under the Fourth Amendment.
7
The Fourteenth Amendment to the United States Constitution provides, in relevant part:
“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. CONST. amend. XIV, § 1.
8
The Fourth Amendment to the United States Constitution states, in relevant part: “The
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated[.]” U.S. CONST. amend. IV. The protections of the
Fourth Amendment are applicable to the States by virtue of the Due Process Clause of the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 657-60 (1961).
13
McCray v. Illinois, 386 U.S. 300, 307 (1967). Accordingly, absent the ability to file
a motion to suppress evidence seized unconstitutionally, the exclusionary rule would
be without teeth.
In One 1958 Plymouth Sedan, the United States Supreme Court examined the
Commonwealth’s argument that a motion to suppress should not be available in
forfeiture proceedings. The Supreme Court held that “[i]t would be anomalous
indeed, under these circumstances, to hold that in the criminal proceeding the
illegally seized evidence is excludable, while in the forfeiture proceeding, requiring
the determination that the criminal law has been violated, the same evidence would
be admissible.” One 1958 Plymouth Sedan, 380 U.S. at 701. The Court recognized
“[t]hat the forfeiture is clearly a penalty for the criminal offense and can result in
even greater punishment than the criminal prosecution[,]” which “has in fact been
recognized by the Pennsylvania courts.” Id. Thus, “the Commonwealth may not
permanently acquire derivative contraband which it has initially seized
unconstitutionally.” Anthony, 613 A.2d at 584. Keeping this in mind, we look to
the Rules of Criminal Procedure at issue in this case.
Rule 588(A)-(C) states:
(A) A person aggrieved by a search and seizure, whether or not
executed pursuant to a warrant, may move for the return of the property
on the ground that he or she is entitled to lawful possession thereof.
Such motion shall be filed in the court of common pleas for the judicial
district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue
of fact necessary to the decision thereon. If the motion is granted, the
property shall be restored unless the court determines that such
property is contraband, in which case the court may order the
property to be forfeited.
14
(C) A motion to suppress evidence under Rule 581 may be joined
with a motion under this rule.
Pa.R.Crim.P. 588(A)-(C) (emphasis added).9 In turn, Rule 581(A)-(C) provides in
pertinent part:
(A) The defendant’s attorney, or the defendant if unrepresented, may
make a motion to the court to suppress any evidence alleged to have
been obtained in violation of the defendant’s rights.
(B) Unless the opportunity did not previously exist, or the interests
of justice otherwise require, such motion shall be made only after
a case has been returned to court and shall be contained in the
omnibus pretrial motion set forth in Rule 578. If timely motion is not
made hereunder, the issue of suppression of such evidence shall be
deemed to be waived.
(C) Such motion shall be made to the court of the county in which the
prosecution is pending.
Pa.R.Crim.P. 581(A)-(C) (emphasis added).
Procedurally, under Rule 588, the aggrieved party first must establish lawful
possession of the property, and the burden then shifts to the Commonwealth to prove
the property is contraband. In re One 1988 Toyota Corolla, 675 A.2d at 1295.10
9
The comment to Rule 588 indicates that
[a] motion for the return of property should not be confused with a motion for the
suppression of evidence, governed by Rule 581. However, if the time and effect of
a motion brought under the instant rule would be, in the view of the judge hearing
the motion, substantially the same as a motion for suppression of evidence, the
judge may dispose of the motion in accordance with Rule 581.
Pa.R.Crim.P. 588, Comment.
10
Conversely, in a proceeding under the Controlled Substances Forfeiture Act, the
Commonwealth has the initial burden of proof to show that the property was unlawfully used or is
otherwise forfeitable. The burden then shifts to the individual claiming ownership to either prove
a statutory defense or to disprove that the evidence is contraband. In re One 1988 Toyota Corolla,
(Footnote continued on next page…)
15
Then, if “the court determines that such property is contraband . . . the court may
order the property to be forfeited.” Pa.R.Crim.P. 588(B).11
Looking to Rule 588(C), the specific and unequivocal language that “[a]
motion to suppress under Rule 581 may be joined with a motion under this rule[]”
appears to indicate that a motion to suppress was intended to be available in return
of property actions. Pa.R.Crim.P. 588(C). What is not clear, however, is whether
Rule 588’s language indicating that a “[a] motion to suppress evidence under Rule
581” is to be read as requiring that all of the prerequisites stated in Rule 581 must
be met in every case, as the Commonwealth maintains. Id. A motion to suppress
may only be brought after the case has been returned to court, i.e., after the
Commonwealth has filed criminal charges, or in a forfeiture action.
When construing the Rules of Criminal Procedure, the intent of our Supreme
Court controls. Commonwealth v. Baker, 690 A.2d 164, 167 (Pa. 1997). Our highest
Court has explained that the rules of statutory construction are applicable in the
context of procedural rules. Id. In determining the intent of our Supreme Court,
“the best indication of [the Court’s] intent is the plain language of the rule.”
Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super. 2015) (alterations
omitted). We do not interpret Rule 588(C)’s use of the word “under” in referring to
675 A.2d at 1295. Furthermore, the Controlled Substances Forfeiture Act provides a procedure
for a motion for return of property, stating: “A person aggrieved by a search and seizure may
move for the return of the property seized by filing a motion in the court of common pleas in the
judicial district where the property is located.” 42 Pa.C.S. § 5806(a)(1).
Additionally, while In re One 1988 Toyota Corolla refers to Pennsylvania Rule of Criminal
Procedure 324, the rule was renumbered to Rule 588 as of April 1, 2001. See Note to Pennsylvania
Rule of Criminal Procedure 588, Pa.R.Crim.P. 588.
11
While Rule 588(B) states that forfeiture may be ordered by the trial court, our case law
indicates that forfeiture is not permitted in a return of property action until the Commonwealth has
moved for forfeiture, either orally or in writing. In re One 1988 Toyota Corolla, 675 A.2d at 1295
n.10; Commonwealth v. Pomerantz, 573 A.2d 1149, 1152 (Pa. Super. 1989).
16
a Rule 581 motion to suppress as intended to incorporate all of the prerequisites
stated in Rule 581. Indeed, this interpretation is supported by the specific language
used in each of these rules to describe the individual who may bring these motions.
In Rule 581(A), that individual is explicitly referred to as a “defendant.”
Pa.R.Crim.P. 581(A). This comports with the purpose of a standard Rule 581
suppression motion, which is brought in a criminal proceeding in which there is a
defendant who has been charged with a crime or a forfeiture action in which the
government seeks to prove that an individual committed a crime by a preponderance
of the evidence. Conversely, Rule 588 explicitly refers to the individual who may
bring a return of property action as a “person.” Pa.R.Crim.P. 588(A). In fact, the
word “defendant” is not found in Rule 588 at all. While this “person” could be a
defendant, the specific use of the word “person” in lieu of “defendant” indicates an
intention that Rule 588 be available to any “person” who has had their property
seized, not just a “defendant” who is the subject of criminal or forfeiture
proceedings. This difference in the specific language in the Rules supports our
conclusion that a motion to suppress may be brought in a return of property action
under Rule 588 by any person who has had their property seized unconstitutionally,
regardless of whether criminal charges or a forfeiture action have been filed.12
Considering that the Commonwealth may not retain property seized
unconstitutionally, Anthony, 613 A.2d at 584, that the exclusionary rule is applicable
to civil asset forfeiture proceedings, One 1985 Plymouth Sedan, 380 U.S. at 702, and
that a civil asset forfeiture requires neither a criminal prosecution nor a conviction,
$6,425.00 Seized From Esquilin, 880 A.2d at 530, this conclusion is also consistent
12
Because we conclude that a motion to suppress is available to individuals in a return of
property action, we need not address whether the “interests of justice” exception in Rule 581(B)
would have to be met in order for the motion to be brought.
17
with our precedent. In interpreting Rule 588 to permit the filing of a motion to
suppress in this circumstance, we ensure that individuals have a viable vehicle to
challenge the Commonwealth’s conduct in unconstitutionally seizing their property
where they have not been subjected to criminal charges or a forfeiture petition—a
purpose supported by Rule 588(C)’s explicit provision providing for such a motion.
In the present case, Appellant alleges that the Commonwealth illegally seized the
following evidence: $300,000 in currency, his iPhone, and statements made to law
enforcement during the traffic stop. Without the motion to suppress, the
Commonwealth would be able to use this evidence in an effort to meet its burden of
showing that the Property was contraband, In re One 1988 Toyota Corolla, 675 A.2d
at 1295, while Appellant would have no procedural mechanism to challenge such
use of this evidence. This would leave unchecked unconstitutional searches and
seizures by the Commonwealth, as individuals would lack a procedure to suppress
illegally gained evidence until the Commonwealth decides to file either criminal
charges or a forfeiture petition. And, considering that there are some instances in
which there is no applicable statute of limitations requiring the Commonwealth to
do so, such an individual may never have the opportunity to challenge a seizure of
their property if the Commonwealth chooses to not file charges or a forfeiture
petition. In sum, there is simply no indication that Rule 588 was written to preclude
the filing of a motion to suppress in this instance.13
13
We note that our decision is narrowly focused on when an individual may file a motion
to suppress in a return of property action.
18
III. CONCLUSION
Based on the foregoing, this matter is not moot as a result of the
Commonwealth’s filing of a forfeiture action, and we deny the Application to
Dismiss. We further conclude that a motion to suppress may be brought in a Rule
588 return of property action, regardless of whether the Commonwealth has filed
criminal charges or a forfeiture action, and vacate common pleas’ Order and remand
for further proceedings.
_____________________________________
RENÉE COHN JUBELIRER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: $300,000 in U.S. Currency, :
: No. 906 C.D. 2020
Appeal of: Zhi Xiong Xu :
ORDER
NOW, July 16, 2021, the Commonwealth’s Motion to Dismiss Appeal for
Mootness is DENIED, the Order of the Court of Common Pleas of the 17th Judicial
District, Union County Branch, denying Appellant’s Motion to Suppress in the
above-captioned matter is VACATED, and this matter is REMANDED for further
proceedings.
Jurisdiction relinquished.
_____________________________________
RENÉE COHN JUBELIRER, Judge