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COMMONWEALTH PENNSYLVANIA v. GEORGE E. FASSNACHT (02/18/77)

decided: February 18, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE E. FASSNACHT, APPELLANT



No. 705 OCTOBER TERM 1975 Appeal from the Order of the Court of Common Pleas, Trial Div., Crim. Sect., of Phila. County, Misc. No. 74-00-2013, Denying Petition for Return of Property and Ordering Forfeiture and Destruction of Said Property.

COUNSEL

Burton A. Rose, Philadelphia, with him A. Charles Peruto, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 246 Pa. Super. Page 44]

On June 20, 1971, officers of the Philadelphia Police Department searched appellant's home in Northeast Philadelphia, and found stored in the basement an arsenal of weapons and explosives, ranging from several hundred automatic machine guns, rifles, and pistols to military knives and swords, and a machete. This property was seized by the police, and appellant was arrested and charged with several criminal offenses relating to possession and dealing in weapons and explosives. However,

[ 246 Pa. Super. Page 45]

    because the weapons and explosives had been seized in violation of the Fourth Amendment, appellant's motion to suppress their use as evidence was granted, with the result that appellant was found not guilty.

On April 19, 1974, appellant filed a petition for the return of his property. By order of June 5, 1975, the lower court denied the petition, and ordered the property forfeited and destroyed. This appeal is from that order. Pending disposition of the appeal, a supersedeas was granted to stay the destruction of the property. We now dissolve the supersedeas, affirm the order of the lower court in part, and reverse in part.

I

A petition for the return of property is authorized by Pa.R.Crim.P. 324, which permits the return of property seized with or without a warrant "unless the court determines that such property is contraband, in which case the court may order the property to be forfeited." Pa.R.Crim.P. 324(b). Here the lower court determined that the property was contraband.

The law of contraband is ancient*fn1 but evolving. Originally a forfeiture proceeding was considered a purely in rem civil action against the property. Courts have come to recognize, however, that in substance the proceeding may be more criminal than civil, and consequently they will afford the owner some of the procedural safeguards normally relevant only to criminal actions.*fn2 One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965).

In this evolution, two distinct classifications of contraband have been developed: contraband per se, and

[ 246 Pa. Super. Page 46]

    derivative contraband. Contraband per se is property the mere possession of which is unlawful. One 1958 Plymouth Sedan, supra; United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.N.H.1971). Heroin and "moonshine" whiskey are examples of contraband per se. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. An example of derivative contraband is a truck used to transport illicit goods.

Most jurisdictions have procedures by which derivative contraband may be forfeited.*fn3 However, in a forfeiture proceeding, derivative contraband will be treated differently from contraband per se. In One 1958 Plymouth Sedan, supra, the Commonwealth of Pennsylvania sought the forfeiture of an automobile used to transport untaxed liquor. It appeared that officers of the Pennsylvania Liquor Control Board had searched the automobile and seized the liquor without probable cause. The hearing judge denied the forfeiture petition on the ground that forfeiture of the automobile depended upon the admission of evidence seized in violation of the Fourth Amendment as applied to the States by the Fourteenth Amendment. This court reversed, and directed that the automobile be forfeited, 199 Pa. Super. 428, 186 A.2d 52 (1962), and on further appeal, the Supreme Court affirmed our order, 414 Pa. 540, 201 A.2d 427 (1964). The United States Supreme Court granted certiorari, and reversed, holding that when the property in question was derivative contraband, the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 ...


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