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07/07/78 COMMONWEALTH v. ONE 1969 MERCEDES-BENZ

July 7, 1978

COMMONWEALTH
v.
ONE 1969 MERCEDES-BENZ AUTOMOBILE



Suffolk. Civil action commenced in the Superior Court on May 10, 1977. The case was heard by George, J., a District Court Judge sitting under statutory authority. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Quirico, Braucher, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Statute, Construction. Narcotic Drugs. Practice, Civil, Forfeiture proceeding. Evidence, Prima facie evidence. Motor Vehicle, Forfeiture.

The opinion of the court was delivered by: Liacos

In a civil action brought by a district attorney seeking forfeiture of an automobile under the provisions of G. L. c. 94C, § 47, evidence that small quantities of heroin were found on the person of a passenger in the automobile and in the bedroom of the automobile's owner was insufficient to support the Conclusion required by § 47 (a) (3) that the automobile was used or intended for use to facilitate the manufacture, dispensing or distribution of heroin. [666-669]

This is a civil action in the nature of an equitable proceeding in rem brought by a district attorney, in the name of the Commonwealth, to order forfeiture of a 1969 Mercedes-Benz automobile. See G. L. c. 94C, § 47 (d). The action was commenced on May 10, 1977, by the filing of a complaint in Superior Court, Suffolk County. Following a trial before a Judge, see id., the Judge ordered on August 18, 1977, that the automobile be forfeited to the Commonwealth. The owner of the automobile, William R. Askew, moved for a new trial. The motion was denied, but the Judge granted a stay pending appeal to the Appeals Court. We transferred the case here on our own motion. We reverse the judgment of the Superior Court.

The following facts were adduced at trial. On the evening of March 26, 1977, officers of the drug control unit of the Boston police department were conducting a surveillance of Askew's residence. Askew, together with one Larry Harrison, was observed leaving the residence and approaching the automobile in question, which was parked in the driveway. One of the officers, Detective Alton J. Frost, who was the only witness called at the trial, testified that after the two men entered the vehicle they "had their heads together as if in conversation of some sort for approximately thirty seconds to a minute." The vehicle then left the driveway, with Askew driving, and proceeded down the street for a short distance until it was stopped by the officers. The two men complied with the officers' order to get out of the automobile, and submitted to a search of their persons. A quantity of a substance, later identified as heroin, was found in the possession of Harrison. No drugs were found in the possession of Askew, nor did thorough searches of the automobile itself result in the discovery of any controlled substance. The automobile was taken into police custody. *fn1 Askew and Harrison were brought back to Askew's residence where the police conducted a search of the premises pursuant to a search warrant. Detective Frost testified that he found in Askew's bedroom "nother tin of heroin similar to the one that was taken off of Larry Harrison" as well as approximately one pound of marihuana. Askew and Harrison were then taken to the police station.

The controlling provisions of law are found in G. L. c. 94C, § 47, as amended by St. 1972, c. 806, §§ 30-31. Subsection (a) provides in part: "(a) The following property shall be subject to forfeiture to the commonwealth and all property rights therein shall be in the commonwealth: . . . (3) All conveyances, including aircraft, vehicles or vessels which are used, or are intended for use, to transport, conceal or otherwise to facilitate the manufacture, dispensing or distribution of or possession with intent to manufacture, dispense or distribute a controlled substance in violation of the provisions of section thirty-two" (emphasis added).

Subsection (c) further defines the circumstances in which forfeiture of conveyances is appropriate. It provides: "(c) The court shall order forfeiture of all conveyances subject to the provisions of subparagraph (3) of subsection (a) of this section, except as follows: . . . (3) No conveyance shall be subject to forfeiture unless the owner thereof knew or should have known that such conveyance was used in and for the business of unlawful manufacturing, dispensing or distributing controlled substances. Proof that the conveyance was used to facilitate the unlawful dispensing, manufacturing or distribution of, or possession with intent unlawfully to manufacture, dispense or distribute, controlled substances on three or more different dates shall be prima facie evidence that the conveyance was used in and for the business of unlawfully manufacturing, dispensing or distributing controlled substances" (emphasis added). *fn2

Askew raises two arguments on appeal. He first contends that the forfeiture proceeding should have been dismissed because it was not timely commenced. The automobile was seized on March 26, 1977, and the instant action was brought on May 10, 1977, a time period of more than six weeks. Askew relies on G. L. c. 257, § 2, which imposes a fourteen-day limitation period for the commencement of forfeiture proceedings following seizure of property. Askew recognizes that no period of limitations is provided within the specific statutory scheme directly involved in the forfeiture at issue -- the provisions of G. L. c. 94C, § 47. Nevertheless, he maintains that the fourteen-day limitation period of G. L. c. 257, § 2, characterized by him as a more generally applicable statute, must be employed in his case both to preserve legislative intent and to avoid potential constitutional problems involving the deprivation of property without due process of law. Because of our view that resolution of the issue addressed in Askew's second argument requires reversal, we find it unnecessary to determine whether the fourteen-day limitation of G. L. c. 257, § 2, must be applied to the instant case. Cf. Commonwealth v. Bartlett, 374 Mass. 744, 748-749 (1978) ("A court will ordinarily 'not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . .' Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 . . . [1936] [Brandeis, J., Concurring]").

Askew asserts in his second argument that the Commonwealth failed to make out a prima facie case for forfeiture under G. L. c. 94C, § 47 (a) (3), (c) (3). *fn3 Viewing the evidence in the light most favorable to the Commonwealth, cf., e.g., Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 573 (1971); Adams v. Herbert, 345 Mass. 588, 589 (1963), we agree that the evidence could not support a forfeiture order under the controlling statutory terms.

The provisions of § 47 (a) (3), (c) (3), quoted above, require that the conveyance in question has been used, or has been intended for use, in the "business" of "manufacturing, dispensing or distributing" controlled substances. *fn4 It thus clearly appears that the mere personal possession of a controlled substance by one traveling in a vehicle would not constitute sufficient grounds under the statute for the forfeiture of the vehicle. We can find no support in the testimony of the sole witness, Detective Frost, for the proposition that the automobile was in any way involved in the manufacture, dispensing or distribution of controlled substances. *fn5 Evidence that relatively small quantities of heroin were found on the person of a passenger in the automobile and in the bedroom of the automobile's owner *fn6 could support several equally likely propositions -- one of which would be that Harrison and Askew had, on some prior occasion, purchased the quantities of heroin for their personal use. *fn7 Nor does the quantity or packaging of the heroin found in Harrison's possession or in Askew's bedroom inherently suggest a business operation rather than possession for personal use. Cf. Commonwealth v. Ellis, 356 Mass. 574, 578-579 (1970) (fifty-six glassine bags of heroin, empty sheets of glassine bags, equipment for processing heroin, and other facts and circumstances warranted findings of intent to sell).

We are left with the firm conviction that the evidence adduced at trial is insufficient, as matter of law, to support the Conclusion required by § 47 (a) (3) of the statute -- that the automobile was "used, or . . . intended for use . . . to facilitate the manufacture, dispensing or distribution," of heroin or other controlled substances. Only pure conjecture supports such a Conclusion both with regard to the episode involving Harrison and the episode involving "Zappo." See note 7, (supra) . The Commonwealth's prima facia case having fallen short of the "three or more different dates" provision of § 47 (c) (3), as well as of common law notions of a prima facie case, see, e.g., DeFilippo's Case, 284 Mass. 531, 534 (1933); Hanna v. Shaw, 244 Mass. 57, 60 (1923); see also Commonwealth v. Pauley, 368 Mass. 286, 290-291 (1975); W.B. Leach & P.J. Liacos, Massachusetts Evidence 52-62 (4th ed. 1967), we conclude that the Judge was clearly in error in ordering forfeiture of ...


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