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Commonwealth v. Irland

Commonwealth Court of Pennsylvania

January 13, 2017

Commonwealth of Pennsylvania
v.
Justen Irland; Smith and Wesson 9MM Semi-Automatic Pistol, Serial #PDW0493 Appeal of: Justen Irland

          Argued: February 10, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge.

          OPINION

          PATRICIA A. McCULLOUGH, Judge.

         The dispositive question presented on appeal is whether the doctrine of common law forfeiture exists in Pennsylvania and can serve as a legal basis to allow the Commonwealth to forfeit any property with a "nexus" to a crime absent any statutory authority to do so. We conclude that common law forfeiture, as that concept originated and developed in England, was never incorporated into or became part of our Commonwealth's common law tradition. Based upon our research, the Commonwealth's organic law, namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790, [1] denounces and effectively abolishes any notion of common law forfeiture and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America. Therefore, absent a statute that specifically authorizes the forfeiture of property, the Commonwealth and the courts have no authority to seek and order forfeiture of so-called derivative contraband.

         Justen Irland appeals from the March 9, 2015 order of the Court of Common Pleas of Adams County (trial court) granting the Commonwealth's motion for forfeiture and destruction of property and denying Irland's motion for return of property. Because the Commonwealth sought forfeiture based on a common law theory, and there was no statute that explicitly authorized the forfeiture, we reverse.

         I. Background

         The facts here are not in dispute. On August 25, 2014, Irland entered a guilty plea to the summary offense of disorderly conduct, see section 5503(a)(4) of the Crimes Code, 18 Pa.C.S. §5503(a)(4), for an incident on November 7, 2013, when Irland was driving on a road in Adams County and a driver behind him was tailgating his car. In response, Irland displayed his handgun to the driver through the rear windshield of his vehicle, in an apparent attempt to induce the driver behind him to increase the distance between the two vehicles. Someone contacted the authorities, and the local police detained Irland and confiscated the handgun. The Commonwealth charged Irland with simple assault, harassment, disorderly conduct as a third degree misdemeanor, and disorderly conduct as a summary offense. Following his guilty plea to disorderly conduct as a summary offense, the trial court ordered Irland to pay a $200.00 fine.

         On December 10, 2014, Irland filed a motion for return of the handgun. On February 4, 2015, the Commonwealth filed a motion for forfeiture and destruction of the handgun based on a theory of common law forfeiture. On March 9, 2015, the trial court denied Irland's motion for return of property and ordered that the handgun be destroyed. Irland then filed a timely notice of appeal.

         On April 2, 2015, the trial court directed Irland to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Irland did on April 15, 2015. In his statement, Irland contended that there was no such thing as common law forfeiture in Pennsylvania and that his property could only be forfeited pursuant to a statute. Irland also asserted, in the alternative, that the legislature enacted a comprehensive scheme of statutory forfeiture which displaced and superseded common law forfeiture.

         On May 7, 2015, the trial court filed an opinion in support of its March 9, 2015 order pursuant to Pa.R.A.P. 1925(a). Citing this Court's decision in Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207 (Pa. Cmwlth. 2006) (en banc), as well as the Superior Court's decisions in Commonwealth v. Salamone, 897 A.2d 1209 (Pa. Super. 2006), and Commonwealth v. Crosby, 568 A.2d 233 (Pa. Super. 1990), the trial court determined that "there is no doubt that Pennsylvania appellate courts currently recognize the existence of common law forfeiture." (Trial court op. at 3.) The trial court noted that it was not within that court's province "to forge new legal ground, but simply to apply the law as it has been interpreted by the higher courts." Id. The trial court also concluded that for purposes of common law forfeiture, there was no qualitative difference between a felony conviction and a summary offense conviction, and found that the Commonwealth established a substantial nexus between the crime committed and the object to be forfeited. Id. at 3-4.

         In addition, the trial court determined that the Controlled Substances Forfeiture Act (Drug Forfeiture Act), 42 Pa.C.S. §§6801-6802, was not a comprehensive legislative scheme and does not prohibit common law forfeiture. The trial court noted that there were other Pennsylvania statutes that permitted forfeiture and determined that the Forfeiture Act is not the exclusive authority for forfeiture actions. For these reasons, the trial court concluded that common law forfeiture has not been superseded by a pervasive statutory regime.

         Irland then filed a timely appeal to this Court.[2]

         II. Discussion

         In the statement of questions portion of his appellate brief, Irland asks: "Did the [trial] court commit an error of law in recognizing the existence of a so-called 'common law forfeiture' power that permits the Commonwealth to seize any property with a 'nexus' to a crime, where no such statutory authority otherwise exists?" (Brief for Irland at 4.) In the argument portion of his brief, Irland's contentions, distilled to their essence, advance a relatively straightforward proposal: the proposition that common law forfeiture exists in Pennsylvania is based on a misinterpretation of statutory forfeiture authority. Irland contends that even if government authority once existed to seize property linked to a crime, it has been superseded by comprehensive statutory authority defining the limits of forfeiture. He argues that these statutes would be superfluous if the General Assembly intended to retain common law notions of forfeiture.

         Although this Court does not in any way condone Irland's behavior, upon our review, we find Irland's contentions meritorious as a matter of law.

         At the outset, this Court notes that decisional law recognizes two types of contraband: contraband per se and derivative contraband.

Contraband per se is property the mere possession of which is unlawful . . . . 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.

Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998). Further, "[p]roperty is not derivative contraband merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity." Howard, 713 A.2d at 92.

         In this case, there is nothing illegal about Irland's possession of a handgun. In re Firearms, Eleven, 922 A.2d 906, 910 (Pa. Super. 2007). The handgun, or property, was used in perpetration of the summary offense of disorderly conduct. Therefore, this case concerns the issue of whether the property is derivative contraband. See id. at 910-11. Our following discussion regarding common law forfeiture is strictly limited to those instances where, in the absence of a statute, the derivative contraband is the item that is sought to be forfeited.

         A. Common Law Forfeiture

         In 1776, forfeiture existed in England both at common law and by statute. Austin v. United States, 509 U.S. 602, 611 (1993). Specifically, there were three kinds of forfeiture: (1) deodand, (2) forfeiture upon conviction for a felony or treason, and (3) statutory forfeiture. Id.

         Deodand

         "At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required." Austin, 509 U.S. at 611 (citations and internal quotation marks omitted). "This forfeiture proceeding was In rem in nature with the property itself considered [to be] the offender: It is the property to a legal fiction, held guilty and condemned to a legal fiction, held guilty and condemned as though it was conscious instead of inanimate and insentient." Commonwealth v. 2010 Buick Enclave, 99 A.3d 163, 166-67 (Pa. Cmwlth. 2014) (quoting Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931)).

         However, as this Court has recognized, "[d]eodand was never embraced in American common law." 2010 Buick Enclave, 99 A.3d at 167 (citing Calero- Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974)). In Calero-Toledo, the United States Supreme Court determined whether a forfeiture statute passed constitutional muster. In doing so, the United States Supreme Court traced the history of common law forfeiture and cited Parker-Harris Co. v. Tate, 188 S.W. 54 (Tenn. 1916), wherein the Supreme Court of Tennessee observed:

The doctrine [of deodand], after being subtly refined and pared down, was discarded in England by Stat. 9 and 10, Victoria, c. 62. To the credit of American jurisprudence, from the outset the doctrine was deemed to be so repugnant to our ideas of justice as not to be included as a part of the common law of this country.

Parker-Harris Co., 188 S.W. at 55. Based on this authority, the United States Supreme Court declared that "[d]eodands did not become part of the common-law tradition of this country." Calero-Toledo, 416 U.S. at 682.

         Nonetheless, scholars have noted that, in theory, deodand has similarities to modern-day statutory forfeiture because they both focus on forfeiting an object or thing that is used in connection with a crime. George M. Dery III, Adding Injury to Insult: The Supreme Court's Extension of Civil Forfeiture to Its Illogical Extreme in Bennis v. Michigan, 48 S.C. L. Rev. 359, 364 (1997) ("Deodand's 'guilty property' theme, however, survives in today's forfeiture statutes."); Scott A. Nelson, Comment, The Supreme Court Takes a Weapon from the Drug War Arsenal: New Defenses to Civil Drug Forfeiture, 26 St. Mary's L.J. 157, 164-65 (1994). The United States Supreme Court itself has made the connection between this ancient form of forfeiture and current legislation: "The modern forfeiture statutes are the direct descendants of this (English deodand) heritage." United States v. United States Coin & Currency, 401 U.S. 715, 720 (1971). Regardless, as previously explained, the concept of deodand never took hold in colonial America or elsewhere in this country.

         Conviction of Felony or Treason

         "The second kind of common-law forfeiture fell only upon those convicted of a felony or of treason. The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown." Austin, 509 U.S. at 611-12 (citations and internal quotation marks omitted). "Such forfeitures were known as forfeitures of estate. These forfeitures obviously served to punish felons and traitors and were justified on the ground that property was a right derived from society which one lost by violating society's laws." Id. (citations omitted). Upon conviction of a felony or treason, the offender was considered to have suffered a "legal death, " also known as "attainder, " which has been defined as "the act of extinguishing a person's civil rights[.]" Black's Law Dictionary, 146 (9th Ed. 2009). The commission of the felony also resulted in "corruption of the blood, " which has been described as "[a] defunct doctrine, now considered unconstitutional, under which a person loses the ability to inherit or pass property as a result of an attainder or being declared civilly dead." Id. at 397. See Robert Lieske, Civil Forfeiture Law: Replacing the Common Law with a Common Sense Application of the Excessive Fines Clause of the Eighth Amendment, 21 William Mitchell L. Rev. 265, 272 (1995).

         At English common law, the crimes of felony and treason - or what we would simply call today "felony offenses" - were defined as such solely because the punishment imposed upon conviction was forfeiture of the individual's property and estate. 4 William Blackstone, Commentaries on the Laws of England 94 (1766) ("Felony, in the general acceptation of our English law, comprises every species of crime, which occasioned at common law the forfeiture of lands or goods."); see Lynch v. Commonwealth, 88 Pa. 189 (1879). Our Supreme Court has recognized this principle in confirming that the distinction between a felony and a misdemeanor is illusory because, unlike the English common law, an individual does not automatically forfeit his property and estate following a felony conviction. 88 Pa. at 192-93. As our Supreme Court stated:

The fact that larceny is called a felony is of no importance. Felony, as a term, is incapable of any definition, and is descriptive of no offence. . . . [I]t now imports an offence which occasions a total forfeiture of either lands or goods, or both, at common law, and to which capital or other punishment may be superadded, according to the degree of guilt. And even this forfeiture was abolished by the Constitution of this state, of 1790, except during the life of the offender: art. 9, §19. It is, therefore, well said . . . that the term felony has become useless and unintelligible, for it seems to mean something, when in truth it conveys no distinct ideas.

Id.

         Generally, "[f]orfeiture of a felon's property was also rejected in this country" and most states have explicitly done so "through their constitutions or general statutes." Scott A. Hauert, An Examination of the Nature, Scope, and Extent of Statutory Civil Forfeiture, 20 U. Dayton L. Rev. 159, 167-68 & nn. 64, 72-74 (1994). See Pa. Const. art. 1, §18; Terrance G. Reed & Joseph P. Gill, RICO Forfeitures, Forfeitable "Interests, " and Procedural Due Process, 62 N.C. L. Rev. 57, 61 (1983). For example, in Farley v. $168, 400.97, 259 A.2d 201 (N.J. 1969), the Supreme Court of New Jersey proclaimed: "The doctrine of forfeiture upon conviction of treason or felony of course never obtained in our State, N.J.S.A. 2A:152-2, or elsewhere in this country." Farley, 259 A.2d at 204.

         Statutory Forfeiture

         Third, and finally, "English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws. The most notable of these were the Navigation Acts of 1660 that required the shipping of most commodities in English vessels. Violations of the Acts resulted in the forfeiture of the illegally carried goods as well as the ship that transported them." Austin, 509 U.S. at 612. "Statutory civil forfeiture, as the name suggests, arises by acts of legislatures, state or federal, which ascribe certain criminal character to property, not persons, and provide for their forfeiture to the government." 2010 Buick Enclave, 99 A.3d at 165-66.

         In colonial Pennsylvania, while still a subject of England, and as a result of pressure from the Crown, our General Assembly codified the law of England in the Act of 1718.

It is well known that William Penn was opposed to the infliction of capital punishment except in the single instance of wilful murder, and beginning with temporary laws, he endeavored to reduce the punishment of all other offences, capital by the laws of England, to lower grades. His efforts were fruitless, however, for when these laws were enacted permanently, they were repealed by the queen in council. This led, as the preamble to the [Act of 1718] clearly indicates, to its passage. It not only enacted capital punishment for a number of offences, but declared in the 6th section that "when any persons shall be so as aforesaid convicted or attainted of any of the aforesaid crimes, they shall suffer as the laws of Great Britain now do, or hereafter shall, direct and require in such cases respectively."

Lynch v. Commonwealth, 88 Pa. 189, 191 (Pa. 1879) (citation omitted).

         While the Act of 1718 may have been the earliest form of a forfeiture statute in Pennsylvania, by 1791 statutory forfeiture took a more remedial - rather than punitive - appearance. More specifically, in cases concerning convictions for robbery and burglary, statutory law only permitted forfeiture of personal property as a secondary measure and only to the extent that the offender could ...


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