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October 8, 1997


Appeal from the Order of the Court of Common Pleas of Berks County, Criminal Division, at No. 326 M.D. 1996.

Before: Del Sole, Hudock and Montemuro,* JJ. Opinion BY Hudock, J.

The opinion of the court was delivered by: Hudock


Filed 10/8/97

In this appeal from the order denying Owners' *fn1 motion for the return of seized property, *fn2 Owners challenge the trial court's determination that the property is derivative contraband. We reverse and remand for further proceedings.

The pertinent facts may be summarized as follows: On April 10, 1996, Harold Norman (Norman) drove a tractor-trailer combination from Phillipsburg, New Jersey, to Babylon, New York. The tractor part of the combination was owned by L.A.P. Trucking (LAP) and the trailer was owned by Siberian Express (Siberian). There were no written arrangements between these parties regarding this transaction.

Ostensibly, LAP and Siberian (Owners) claim that they sent Norman only to have the trailer repaired in Babylon. Nevertheless, before the truck had been repaired, Norman loaded the truck with solid waste and set-off for Morgantown, Pennsylvania. The next day, April 11, 1996, Norman was stopped by a truck weighing detail at the intersection of U.S. Routes 422 and 222 in Berks County, Pennsylvania.

The officer at the scene noted several problems. First, not only was the combination overweight by approximately 20,000 pounds, but the driver knew that it was overweight. Second, it was generally in poor repair. Third, the driver was driving with an expired license. Finally, the tax stickers on the truck had expired. Citations were issued to Norman, LAP and Siberian for these offenses. Specifically, LAP, as Norman's employer, was cited for allowing him to drive without a valid license. Siberian also faced citations for "things wrong with this truck and trailer." *fn3 N.T., 6/12/96, at 37.

Additionally, Norman told the officer that he was concerned about his job and that "L.A.P. Trucking often run [sic] overweight." N.T., 6/12/96, at 31. When the fines imposed by the citations were not paid within twenty-four hours, the tractor-trailer combination was seized pursuant to section 6309 of the Motor Vehicle Code, 75 Pa.C.S.A. At this point, Owners sought return of their property.

The sole issue raised on appeal is whether the trial court abused its discretion when it denied Owners the return of their tractor-trailer. With respect to the return of property, this Court has stated:

On a motion for return of property, the moving party has the burden of proving ownership or lawful possession of the items. Commonwealth v. Pomerantz, 393 Pa. Super. 186, 573 A.2d 1149 (1989). The burden then shifts to the Commonwealth to prove, by a preponderance of the evidence, that the property is contraband. Id. Rule 324 was interpreted at length by this court in Petition of Maglisco, 341 Pa. Super. 525, 491 A.2d 1381 (1985). Maglisco reaffirmed the principle that where criminal charges have been dismissed, seized property may be retained by the Commonwealth only if it comprises contraband per se or derivative contraband . . . . Derivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, [380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 2d 170] (1965); Commonwealth v. Fassnacht, 246 Pa. Super. 42, 369 A.2d 800 (1977), cert. denied, [ 439 U.S. 911, 99 S. Ct. 280, 58 L. Ed. 2d 257]. Property is not derivative contraband, however, merely because it is owned or used by someone who has been engaged in criminal conduct. Commonwealth v. One 1985 Dark Blue Mercedes, 391 Pa. Super. 507, 571 A.2d 482 (1990), alloc. den. 526 Pa. 654, 586 A.2d 922 (1990). Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity. Id.; Petition of Maglisco, supra.

Petition of Koenig, 444 Pa. Super. 163, 166-167, 663 A.2d 725, 726 (1995) (quoting Commonwealth v. Stipetich, 424 Pa. Super. 539, 544-45, 623 A.2d 360, 362 (1993)). Since there is no dispute as to whether LAP and Siberian owned the tractor-trailer, *fn4 the issue becomes whether the Commonwealth proved, by a preponderance of the evidence, that the tractor-trailer is derivative contraband.

In Petition of Maglisco, wife shot her husband with a .38 caliber pistol at home. When the police responded, they immediately seized the pistol. A number of hours later, police again came to the home and this time seized several rifles. Following a hearing, both the pistol and the rifles were forfeited. This Court held that the pistol was properly seized but that the rifles were not. We reasoned that there was a nexus between the pistol and the alleged criminal act because it was the gun that wife fired at husband. Since the rifles had not been used in the commission of a crime, no nexus sufficient to justify their seizure existed.

In Petition of Koenig, petitioner had made a threat to his wife and son that he would "blow them away." Petition of Koenig, 444 Pa. Super. 163, 168, 663 A.2d 725, 727 (1995). While petitioner had no gun or other weapon in his possession when he made the threat, he did own a substantial gun collection. In order to protect the wife and son, the Commonwealth seized the gun collection. Again, we held that there was an insufficient ...

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