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Commonwealth v. 1997 Chevrolet

Supreme Court of Pennsylvania

May 25, 2017


          ARGUED: May 11, 2016

         Appeal from the Order of the Commonwealth Court dated December 17, 2014 at Nos. 1990 CD 2012, 1995 CD 2012 reversing the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, dated May 1, 2012 at No. CP-51-MD-0013471-2010, CP-51-MD-002972-2010



          TODD, JUSTICE

         The Eighth Amendment to the United States Constitution guarantees citizens protection against the government by limiting its power to punish. In this appeal by allowance, we consider, inter alia, the constitutional limitations on civil in rem forfeiture in Pennsylvania under the Excessive Fines Clause of the Eighth Amendment, [1] where the government attempts to seize through forfeiture a home and vehicle not based on any criminal conduct by the property owner - here, a 71-year-old grandmother - but upon the illegal conduct of a third party - her adult son. In doing so, we attempt to reconcile the uncertain constitutional jurisprudence underlying civil in rem forfeiture and provide clarity and uniformity regarding the appropriate constitutional standard to be applied to excessive fines challenges to civil in rem forfeitures in our Commonwealth.

         As more fully explained below, we find the proper constitutional construct in determining whether an in rem forfeiture violates the Excessive Fines Clause of the Eighth Amendment requires an initial determination regarding the relationship between the forfeited property and the underlying offense - the instrumentality prong. If this threshold prong is satisfied, the next step of the analysis is a proportionality inquiry in which the value of the property sought to be forfeited is compared to the gravity of the underlying offense to determine whether the forfeiture is grossly disproportional to the gravity of the offense. For the reasons that follow, we affirm the order of the Commonwealth Court, which remanded the matter to the trial court, for further proceedings consistent with our decision.

         I. Factual and Procedural Background

         Appellee Elizabeth Young is a 71-year-old grandmother who owned and resided at a house at 416 South 62nd Street in West Philadelphia, Pennsylvania.[2] Appellee owned her house for four decades, since the 1970s. In 2006, Appellee purchased a 1997 Chevrolet Venture minivan to meet her transportation needs. In October 2009, Appellee suffered two blood clots in her lungs and was hospitalized through November 2009. Upon her release, Appellee was placed on bedrest and prescribed several medications. During this time, Donald Graham, Appellee's son, then age 50, and two of her grandchildren, resided with her at the house.

         On November 10, 2009, Officer Robert Billups, a member of the Narcotics North Division of the Philadelphia Police Department, was conducting an investigation in relation to illegal drug sales from Appellee's house. On that date, Officer Billups and his partner, Officer Kevin Williams, met with a confidential informant who subsequently was observed giving Graham, who was exiting the house, $40 in pre-recorded money in exchange for a small bag of marijuana. Four days later, on November 14, 2009, the officers, with the confidential informant, observed Graham arrive at the house in a grey Chevrolet vehicle, later determined to be Appellee's minivan. After exiting the vehicle, Graham gave the informant another small bag of marijuana in exchange for $40. A similar transaction occurred two days later on November 16, 2009.

         On November 19, 2009, members of the Narcotics North Division served and executed a search warrant on the house. During the course of their search of the premises, the officers confiscated a letter addressed to Graham, a scale, numerous new and used plastic packets, and six baggies of marijuana. While Graham was not present at the house when the search was executed, Appellee was present. The officers explained to Appellee, who was provided with a copy of the search warrant, that her son had sold drugs from the house and used a vehicle in connection with the sales on several occasions. The officers did not, however, arrest Graham on that date, and he was not charged with a crime based upon these sales.

         On December 4, 2009, Officer Nathan London was conducting an investigation of drug dealings from the house and observed an informant approach it. The informant met with Graham at the door of the house, where the informant provided Graham an unknown amount of currency. Graham momentarily re-entered the house, and then handed the informant certain small objects, which later tested positive for marijuana. Approximately one month later, on January 5, 2010, a similar transaction occurred: after an informant met with Officers McClain and Coaxum, he went to the house, Graham exited the side door of the residence, and both men entered Appellee's vehicle. Thereafter, the informant exited the van with a small item which contained a green weed substance. The next day, Officer London returned to the house with Officer Coaxum and observed a similar transaction take place. Specifically, an informant knocked on the door of the house, Graham answered, and allowed the informant to come into the house. Graham exited the house, went to Appellee's van, remained in the vehicle for several minutes, then exited and returned to the house. Shortly thereafter, the informant left the house and provided the officers with a baggie containing small objects which testing later identified as marijuana.

         The next day, January 7, 2010, at approximately 4:40 p.m., Officer McClain met with an informant who approached the house, and a similar drug transaction occurred resulting in the informant providing officers with two baggies containing marijuana. Immediately thereafter, at 4:45 p.m., Officer Robinson approached Graham and arrested him. Officer Robinson recovered a sandwich bag containing 4.6 grams of marijuana, one cellular telephone, $176.00 in unmarked currency, and $60.00 in pre- recorded currency. The police also took from Graham the keys to Appellee's van. The officers then executed a search warrant on the house and recovered 1.3 grams of marijuana from the living room and 8.5 grams from the van. Graham pled guilty to possession of marijuana and possession of marijuana with intent to deliver, and was sentenced to 11 to 23 months house arrest. 35 P.S. §§ 780-113(a)(16), (30).[3] The trial court imposed no fine on Graham.[4]

         While the Commonwealth never charged Appellee with any crime, on October 20, 2010, the Commonwealth filed a petition for the forfeiture of Appellee's house and her vehicle under the Controlled Substances Forfeiture Act ("Forfeiture Act"). 42 Pa.C.S. §§ 6801-6802. On May 1, 2012, the Philadelphia County Court of Common Pleas held a hearing, and ultimately ordered the forfeiture of Appellee's house and vehicle.

         The trial court determined that the Commonwealth established a nexus between the seized house and the violations of the Controlled Substance, Drug, Device and Cosmetic Act ("Drug Act").[5] In doing so, the court reasoned that, in determining whether a nexus existed, forfeitures are allowed where the Commonwealth demonstrates that the property owner facilitated the sale of drugs or stored the drugs and paraphernalia on his or her property. The court found that Appellee's house and vehicle were used to facilitate illegal drug sales, as the police had observed several drug transactions inside or around Appellee's house and van, and Appellee's son Graham was selling illegal drugs on a regular basis, and, thus, forfeiture of the property was proper.

         The trial court also rejected Appellee's statutory innocent owner defense afforded by the Forfeiture Act because, after the police notified Appellee of Graham's drug activities, through the service of search warrants on the property and personally informing Appellee of the activities, she "refused to take any proactive measures or steps to demonstrate her lack of consent to this illegal activity." Trial Court Opinion, 4/3/2013, at 11-12. Further, the trial court offered that Appellee did not leave or vacate the property, or restrict her son's access to her property. Moreover, the court concluded that Appellee "either knew of or consented to her son's illegal activities on the subject properties. . . . [and at best] turned a blind eye to her son's illegal conduct on the property and allowed it to continue over a prolonged period of time." Id. at 14. The court explained that it observed Appellee's demeanor and behavior during the hearing and "simply did not believe [Appellee's] testimony due to blatant inconsistencies." Id.

         Additionally, the trial court ruled that the forfeiture did not violate the Eighth Amendment to the United States Constitution as the forfeiture was not grossly disproportionate to the gravity of Graham's offenses, and the court had already found Appellee failed to sustain her burden of establishing an innocent owner defense. In doing so, the court relied upon this Court's case law, discussed below, and looked to the penalty imposed as compared to the maximum penalty allowed, whether the violation was part of a pattern of unlawful behavior, and the harm resulting from the crime charged. The court rejected as irrelevant that Appellee herself was not charged with or convicted of a violation of the Drug Act; it found that for the relevant offenses Graham theoretically could have been charged with, he faced maximum criminal penalties of $80, 000, which, according to the trial court, exceeded the combined appraised value of Appellee's home and vehicle. The court noted that, for several years, Graham had continually sold illegal drugs from the property, and that this activity put "not only Mr. Graham's neighbors in harm's way, but also the officers investigating his unlawful activities and serving warrants in connection with that illegal conduct." Id. The trial court deemed this relevant time period as beginning in November 2009 and continuing until April 2011.[6] Thus, the trial court rejected Appellee's statutory defense and constitutional challenge to its order allowing forfeiture of her house and vehicle.

         Appellee appealed to the Commonwealth Court, which reversed the trial court, concluding that the lower tribunal applied an erroneous standard for determining whether the forfeiture violated the Eighth Amendment, and that it failed to consider all relevant circumstances in rejecting Appellee's innocent owner defense. Thereafter, we granted review on both issues, which we discuss in turn.

         II. Analysis

         A. Forfeiture

         1. Legal Background

         Before reviewing in full the Commonwealth Court's decision below, it is advantageous, and indeed, necessary, to consider the legal background of the Eighth Amendment with respect to forfeitures, including the United States Supreme Court's two foundational decisions upon which its Eighth Amendment jurisprudence is grounded, as well as our Court's pronouncements in this area of the law.[7]

         The historical underpinnings of forfeiture law and the Excessive Fines Clause as it has been interpreted by the United States Supreme Court as well as our Court provides a rich, but yet not entirely lucid, backdrop regarding the constitutionality of property forfeiture. Generally speaking, forfeiture involves a taking of property through a forfeiture statute which provides that, when an item is possessed or used in violation of the law, private ownership of the property ceases, and the government becomes the owner of the property. Caleb Nelson The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2456 (2016) (hereinafter "Nelson"). Forfeitures fall into two broad categories: criminal in personam forfeitures and civil in rem forfeitures. Criminal in personam forfeitures arise from criminal proceedings in which the property owner is convicted of a crime. In contrast to the ancient concept of civil in rem forfeiture, criminal in personam forfeiture is a more recent legal means by which to confiscate property, with the first federal criminal forfeiture statute being the Racketeer Influenced and Corrupt Organizations Act of 1970. 18 U.S.C. § 1963. Conversely, civil in rem proceedings, which maintain a centuries-old focus on the property as the offender, do not require a criminal conviction, or even a criminal charge, as demonstrated in the case sub judice.[8] Thus, criminal in personam and civil in rem forfeiture are a powerful means by which the state can seize private property. While, in this matter, the forfeiture concerns a civil in rem proceeding, the distinction between the two types of forfeiture has played, and continues to play, an important role in this area.

         The type of property at issue, at least to some extent, informs a forfeiture analysis. "Contraband" connotes property that is inherently illegal, the mere "possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965). Forfeiture of contraband is not subject to Eighth Amendment scrutiny, as removal of such illegal or dangerous property from society is deemed to be purely remedial in nature. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984). Conversely, property that is "tainted" by unlawful use, but which is not otherwise illegal to possess, has come to be known as an "instrumentality" of the offense, and, as discussed below, has been a subject of contention as to whether such property is subject to Eighth Amendment protections. Whether property is an instrumentality is determined by evaluating the relationship of the property to the underlying criminal offense.

         As noted above, the Eighth Amendment to the United States Constitution prohibits, inter alia, the government imposing excessive fines upon the citizenry. It states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. While the "cruel and unusual punishment" clause has generated a significant amount of litigation, the United States Supreme Court has interpreted the Excessive Fines Clause only on rare occasions, and, for many years, that Clause with respect to civil in rem forfeitures went unexplored.

         In 1993, however, in Austin v. United States, 509 U.S. 602 (1991), the United States Supreme Court considered the Excessive Fines Clause in the context of a civil in rem forfeiture, finding such forfeiture is subject to the limitations imposed by the Eighth Amendment if it is punitive in nature. In that matter, Richard Lyle Austin was indicted on four counts of violating South Dakota's drug laws. After Austin pled guilty to one count of possessing cocaine with intent to distribute and was sentenced to seven years imprisonment, the United States filed a civil in rem proceeding seeking forfeiture of Austin's mobile home and auto body shop, under the applicable federal forfeiture statute. The forfeiture was based upon Austin bringing two grams of cocaine from his mobile home to the auto body shop where he sold the cocaine to a buyer. The high Court granted certiorari to determine whether the Eighth Amendment's Excessive Fines Clause applied to civil in rem forfeitures.

         Writing for the majority, Justice Harry Blackmun rejected the United States' assertion that the Eighth Amendment does not limit the government's conduct in civil proceedings unless the challenged governmental action would have been recognized as a criminal punishment at the time of its adoption and unless that proceeding is so punitive that it must be considered criminal. The Court first noted that, unlike other provisions found in the Bill of Rights, the Eighth Amendment by its terms was not limited to criminal cases. The Court proceeded to consider the purpose behind the Eighth Amendment, which it stated was to "limit the government's power to punish, " and that punishment applied to both civil and criminal law. Austin, 509 U.S. at 609-10. Thus, the Court found that the focus was on whether the forfeiture was punishment.

         After tracing the three kinds of forfeiture established in England at the time the Eighth Amendment was ratified - deodand, forfeiture upon conviction for a felony or treason, and statutory forfeiture - the Court reasoned that each was understood as imposing punishment, at least in part. Tracing its prior case law, the Court found that it had recognized for some time that statutory in rem forfeiture imposed punishment, along with the legal fiction that the "thing is primarily considered the offender." Id. at 615 (quoting J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 511 (1921)). Indeed, this fiction enabled courts to expand their reach as, in situations typically arising in admiralty proceedings, courts lacked in personam jurisdiction over the owner of the property. Austin, 509 U.S. at 616 (citing Republic National Bank of Miami v. United States, 506 U.S. 80, 87 (1992)). Yet, the Court observed that the fiction that the object was the offender rested upon "the notion that the owner who allows his property to become involved in an offense has been negligent." Austin, 509 U.S. at 616. Thus, the Court reasoned that, even though it had rejected the "innocence" of the owner as a common-law defense to forfeiture, it had recognized that forfeiture generally, and statutory in rem forfeiture specifically, had historically intended, at least in part, to punish the owner. Accordingly, the Court concluded that the drug offense forfeiture statutes at issue constituted punishment.

         The United States argued that the forfeiture statutes at issue were not punitive, but were remedial, because they removed the "instruments" of the drug trade, thus, protecting the community from ongoing drug dealing. Accordingly, the United States maintained the statutes were not subject to Eighth Amendment scrutiny. The Supreme Court, however, rejected any extension of the idea of a statute being remedial beyond the application to the contraband seized. Consistent therewith, the Court went on to find the mobile home and auto shop at issue, like the automobile at issue in its earlier decision involving the transportation of illegal liquor, not immune from Excessive Fines Clause examination. Austin, 509 U.S. at 621; One 1958 Plymouth Sedan, 380 U.S. at 699.[9]

         Ultimately, the Court reasoned that forfeiture that "constitutes 'payment to a sovereign as punishment for some offense'" is subject to the protections and limitations found in the Excessive Fines Clause of the Eighth Amendment. Austin, 509 U.S. at 622. Critically, however, the Court declined to establish a definitive test for determining when a forfeiture is constitutionally excessive, but remanded the matter, leaving the development of the applicable considerations for evolution in the lower courts.

         Important to our Commonwealth's experience in interpreting the Excessive Fines Clause, and our analogous Pennsylvania Constitution provision, Justice Antonin Scalia penned an opinion concurring in part and concurring in the judgment. He first explained that, at the time of the drafting of the Eighth Amendment, fines were understood to be a payment to a sovereign as punishment for some offense, and that the taking of lawful property must be considered, in part or in whole, punitive. Justice Scalia, however, went further than the majority and offered that, in his view, the test for constitutional excessiveness was straight forward. He opined that whether in rem forfeiture violated the Eighth Amendment turned solely on whether the confiscated property had a close relationship to the offense. As discussed in greater detail below, in Justice Scalia's view, the value of the property was irrelevant, and if there existed a close enough relationship between the property and the offense, the forfeiture passed constitutional muster.

         Five years later, in United States v. Bajakajian, 524 U.S. 321 (1998), the high Court again spoke to the Excessive Fines Clause, albeit in the context of a criminal in personam forfeiture statute. In that matter, Hosep Bajakajian attempted to leave the United States with $357, 144 in currency without reporting the funds as required by federal law. See 31 U.S.C. § 5316(a)(1)(A) (requiring the reporting of the transfer outside of the United States of monies in excess of $10, 000). Federal forfeiture law provided that an individual convicted of willfully violating the reporting provision should forfeit to the government "any property . . . involved in such offense." 18 U.S.C. § 982(a)(1). The United States sought forfeiture of the entire $357, 144, and Bajakajian challenged the forfeiture as violative of the Excessive Fines Clause. The federal district court determined that the entire amount was subject to forfeiture, as it was "involved in" the offense, even though the funds were not connected to any other crime and even though they were being transported to repay a lawful debt. The district court, however, determined that such forfeiture would be "extraordinarily harsh" and "grossly disproportionate to the offense in question, " and, thus, violated the Excessive Fines Clause. Bajakajian, 524 U.S. at 326. Instead, the court ordered the forfeiture of $15, 000.

         On appeal, the Court of Appeals for the Ninth Circuit affirmed. The circuit court reasoned that a forfeiture must fulfill two conditions: first, the property forfeited must be an instrumentality of the crime committed, and, second, the value of the property must be proportional to the culpability of the owner. The circuit court concluded that the currency was not an instrumentality of the reporting crime, as it was the withholding of information, rather than the possession of the money, that ran afoul of the law. According to the circuit court, the forfeiture statute involving currency could never satisfy the Excessive Fines Clause, and thus it was unnecessary to consider the proportionality condition. The Supreme Court granted certiorari to consider the per se nature of the court of appeals' holding, which invalidated a portion of the statute.

         In a 5-4 decision, with Justice Clarence Thomas writing for the majority, the United States Supreme Court affirmed. The high Court first made clear that the forfeiture of currency pursuant to Section 982(a)(1) constituted punishment, thus implicating the Excessive Fines Clause. Id. at 329. The Court reached this conclusion by tracing the history of forfeitures, and concluding that, because in rem forfeitures were traditionally viewed as non-punitive, and the conduct of the property owner irrelevant as the focus of the action was on the property, they were not encompassed by the Excessive Fines Clause. The Court went on, however, to find that the forfeiture in the matter before it "does not bear any of the hallmarks of traditional civil in rem forfeitures, " id. at 331, but, rather, was born from a criminal in personam forfeiture, and imposed at the culmination of criminal proceedings. Thus, for purposes of the threshold issue of Eighth Amendment protection, the Court reasoned that, while instrumentalities were historically considered a form of "guilty" property, here, the forfeiture was a criminal in personam proceeding; thus, it was irrelevant whether Bajakajian's currency was an instrumentality.[10] The Court concluded, however, that, in any event, the currency was not an instrumentality. Rather, the Court found that the forfeiture was punitive, and that being the case, the test for excessiveness of a punitive forfeiture involved "solely a proportionality determination." Id. at 333-34.

         The Court explained the proportionality concept by offering that "[t]he amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish, " and, more specifically, "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Id. at 334. Finding that neither the text of the Excessive Fines Clause, nor the history behind it, identified how proportional to a criminal offense the fine must be, the court went on to find "particularly relevant" two factors to be considered in divining constitutional excessiveness: first, judgments about the appropriate punishment for an offense belong in the first instance to the legislature; and, second, any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Together, these considerations counseled against requiring any strict proportionality between the amount of the punitive forfeiture and the gravity of the criminal offense, leading to the adoption of the grossly disproportionate standard. Id. at 336.

         Applying this standard, the Court concluded that the forfeiture of the entire $357, 144 would have been excessive, as Bajakajian's crime was merely one of a failure to report, and his violation was unrelated to any other criminal activity. The Court looked to the sentencing guidelines, offering that the maximum sentence Bajakajian faced under the federal sentencing guidelines was six months imprisonment and the maximum fine was $5, 000. Id. at 338. Indeed, the Court rejected the United States' argument that the proper approach focused on the maximum statutory penalty permitted, and, its argument that the forfeiture was not excessive, as Congress authorized a maximum fine of $250, 000 plus five years imprisonment for willfully violating the reporting requirements. Instead, the Court reasoned that the fact that the maximum punishment that Bajakajian faced under the guidelines was but a fraction of the penalties authorized by the statute demonstrated his culpability relative to other potential violators of the reporting provision - such as "tax evaders, drug kingpins, or money launderers" - was small. Id. at 339 n.14. Further, the Court offered that the harm that Bajakajian caused was minor, as it impacted only the government, and in relatively minimal fashion. Thus, the Court concluded that, when comparing the gravity of Bajakajian's crime with the $357, 144 sought by the government for forfeiture, such a forfeiture would be grossly disproportionate. Finally, the Court rejected the United States' reliance upon early statutory enactments requiring full forfeiture of goods involved in customs offenses, as such statutes were not considered punishment for a criminal offense because they rested upon the theory of guilty property; thus, according to the Court, they revealed nothing about the proportionality of the punitive forfeiture at issue in the matter before it.

         It is these two United States Supreme Court pronouncements considering the Excessive Fines Clause that serve as the bedrock constitutional foundation regarding forfeiture from which any analysis must be based. With these decisions in mind, we turn to the decisions of our Court which have applied them.

         After Austin, but prior to Bajakajian, this Court decided In re King Properties, 635 A.2d 128 (Pa. 1993). In an opinion authored by Justice John Flaherty, we considered the question of whether Article I, Section 13 of the Pennsylvania Constitution - our Commonwealth's excessive fines clause - mandated that owners of real property forfeited under the Forfeiture Act be permitted to redeem their property in order for the statute to pass constitutional muster.[11] In In re King Properties, police found a large sum of cash and items commonly used in the selling of illegal drugs in Coy King's home. The Commonwealth sought the forfeiture of the house, and, while the trial court found that King's entire interest in the house was subject to forfeiture, it granted King the right to redeem the property for $30, 000. On appeal, the Commonwealth Court reversed, finding the trial court was not authorized to permit King's redemption.

         In contemplating this question of authority on appeal, our Court first considered whether redemption is required by our Constitution's prohibition on excessive fines. The Court noted the Eighth Amendment and Article I, Section 13 were virtually identical, and, thus, looked to federal treatment of the United States Constitution's excessive fines provision. Our Court, relying upon Austin, determined that the forfeiture before it, which was similar to that at issue in Austin, was punitive, and, thus, subject to the protections of the Pennsylvania Constitution. Turning to consideration of what factors were appropriate under Article I, Section 13, the Court adopted Justice Scalia's standard for determining whether a forfeiture was excessive - that the inquiry does not concern the value of the property forfeited, but, rather, the nexus between the offense and the subject property. Placing the burden on the Commonwealth to establish the relevant pattern of criminal conduct, the Court found that there was "clear and convincing evidence that King was involved in an ongoing drug business for which he used his house as a base of operations. King admitted involvement in unlawful drug sales and was in the possession of large amounts of cash, drugs, and drug paraphernalia, all of which were found either in his house or his car." 635 A.2d at 133. This, according to the Court, established a sufficient connection between the criminal conduct in question and King's house, and, thus, the forfeiture of this property (without the right of redemption) was not an excessive fine under the Pennsylvania Constitution.[12]

         A decade later, after the United States Supreme Court rendered its decision in Bajakajian, our Court revisited this area of the law in Commonwealth v. 5444 Spruce Street, 832 A.2d 396 (Pa. 2003). In 5444 Spruce Street, with Justice William Lamb writing for the Court, we considered whether the civil in rem forfeiture of a house in Philadelphia owned by Elizabeth Lewis, who pled guilty to a single charge of possession with intent to deliver a controlled substance and who was sentenced to two years probation, was unconstitutional. Again, accepting that Article I, Section 13 of the Pennsylvania Constitution was coextensive with the Eighth Amendment to the United States Constitution, the Court analyzed the issue under our state constitution using Eighth Amendment jurisprudence. The Court surveyed our prior decisions, noting that they turned on whether the forfeited property was significantly related to the underlying criminal activity. Specifically, the Court drew the distinction, based upon pre-Bajakajian case law, that we had allowed forfeiture when the property forfeited was "significantly related to the criminal offense, " but disallowed it when the property forfeited was "not significantly related to the criminal activity." Id. at 400. Recognizing that Bajakajian involved a criminal in personam forfeiture, the Court nevertheless considered whether the Bajakajian gross disproportionality test applied to a punitive civil in rem forfeiture "where the government has established a significant relationship between the property sought to be forfeited and the underlying criminal offense." Id.

         After tracing the legal construct adopted by the United States Supreme Court in Bajakajian, our Court offered that both Bajakajian and our decision in In re King Properties began at the same point - that forfeitures are fines for Eighth Amendment purposes if they constitute punishment for an offense, regardless of whether the action is characterized as in rem or in personam. The 5444 Spruce Street Court continued that the next step was consideration of whether the fine - here, the forfeiture - was excessive. We noted that the Bajakajian Court found that the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish, ultimately determining that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of a defendant's offense. In conducting this disproportionality analysis, we interpreted the Bajakajian Court as placing the primary emphasis on the culpability of the defendant, rather than on the severity of the crime in the abstract. Id. at 401.

         The high Court's analysis, we explained, warranted consideration of three factors, each of which were focused on the conduct of the defendant: "the penalty imposed as compared to the maximum penalty available; whether the violation was isolated or part of a pattern of misbehavior; and, the harm resulting from the crime charged." Id. at 402. Ultimately, our Court did not adopt specific factors to be considered in an excessiveness analysis, concluding that the question of the proper approach had not gone through the "sharpening and annealing process of litigation in the lower courts." Id. at 402 n.7. Nevertheless, we held that Bajakajian's gross disproportionality test applied to all punitive forfeitures regardless of the form of the underlying proceedings, and overruled In re King Properties to the extent it held otherwise.

         Deconstructing the above seminal decisions by the United States Supreme Court and our Court, we observe that certain concrete principles emerge, while other issues remain open. Specifically, it is now accepted that the Eighth Amendment's Excessive Fines Clause applies to civil in rem forfeitures that are punitive and criminal in personam forfeitures. Austin; Bajakajian. With respect to criminal in personam forfeitures, an Excessive Fines Clause inquiry focuses on proportionality, and, specifically, to survive an excessiveness challenge, the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. Bajakajian, 524 U.S. at 334. Whether a criminal in personam forfeiture is excessive requires consideration of whether the forfeiture is "grossly disproportional" to the gravity of a defendant's offense. Id. With regard to the gross disproportionality standard, the Bajakajian Court warned that judgments regarding the appropriate punishment for an offense belong initially to the legislature, and judicial determinations regarding the gravity of an offense will be "inherently imprecise." Id. at 336. In applying the gross disproportionality standard, the amount of the forfeiture is compared to the gravity of the offense, and if the amount is grossly disproportionate, it is unconstitutional. In judging the gravity of the offense, we look to the culpability of the defendant rather than the severity of the crime in the abstract. 5444 Spruce Street, 832 A.2d at 401. In Pennsylvania, the gross disproportionality test is applicable to all punitive forfeitures, including civil in rem proceedings. Id. at 403. In this regard, the following three, non-exhaustive, factors have been considered: the penalties that the legislature has authorized compared to those to which the defendant was subjected; whether the violation was isolated or part of a pattern of misbehavior; and the nature of the harm caused by the defendant. Bajakajian, 524 U.S. at 338-39; 5444 Spruce Street, 832 A.2d at 402.

         In the wake of Bajakajian and 5444 Spruce Street, however, certain issues remain open. First, answering the question of whether, as part of the excessiveness analysis, a court must find as a threshold matter that the property sought to be forfeited is an instrumentality of the underlying offense is not clear cut. Further, federal and state courts have adopted a variety of considerations in determining whether a forfeiture is constitutionally excessive. Critically, while many courts have relied, in whole or in part, on the factors articulated in Bajakajian, no definitive set of factors has emerged to be used in making the grossly disproportionate analysis. Id. at 402.

         2. Commonwealth Court Decision

         With this background in mind, we turn to the Commonwealth Court's decision in the matter sub judice. On December 17, 2014, an en banc Commonwealth Court, in a published opinion authored by then-Judge, now President Judge Mary Hannah Leavitt, and over a dissent, reversed the trial court's granting of the Commonwealth's petition for forfeiture. Commonwealth v. 1997 Chevrolet, 106 A.3d 836 (Pa. Cmwlth. 2014).

         The court initially set forth the factual predicate for both the criminal activity underlying the forfeiture, and the testimony regarding Appellee's role as property owner. The court, noting that the Eighth Amendment serves to limit the power of the government to punish its citizens, offered that the central question in the appeal was whether the forfeiture of Appellee's home and vehicle imposed an excessive fine on her. The Commonwealth Court went on to survey the above case law from the United States Supreme Court as well as our Court's decisions interpreting the Eighth Amendment. Reconciling these decisions, the Commonwealth Court found that, for a civil forfeiture brought under the Forfeiture Act to survive an Eighth Amendment challenge, the Commonwealth must show, initially, that the forfeitable property was the instrumentality of the offense. 1997 Chevrolet, 106 A.3d at 858-59, 866. The Commonwealth Court also found it necessary to consider the property owner's level of involvement - culpability - in the criminal activity, relying upon the Second Circuit Court of Appeals' decision in von Hofe v. United States, 492 F.3d 175 (2d Cir. 2007), discussed below. 1997 Chevrolet, 106 A.3d at 859-862, 866.

         Next, the court noted that the Commonwealth must show that the amount of the forfeiture, or punishment, is proportional to the gravity of the offense, determined by using what the Commonwealth Court characterized as the Bajakajian "three-prong test, " id. at 850, 863-64 - that is, "the penalty imposed as compared to the maximum penalty available; whether the violation was isolated or part of a pattern of misbehavior; and, the harm resulting from the crime charged." 5444 Spruce Street, 832 A.2d at 402.

         The Commonwealth Court went on to reconsider the method for establishing the gravity of the offense aspect of the analysis, as well as how to apply the Bajakajian test where the owner of the forfeited property was not charged with, or convicted of, a crime. After considering, and rejecting, its own decisional law, the Commonwealth Court opined that the amount of the forfeiture - the value of the property - is not the "penalty" for the assessment of the first factor in determining the gravity of the offense. Rather, the penalty in this context is the criminal penalty actually imposed for the related offense. 1997 Chevrolet, 106 A.3d at 864. The court reasoned that it is only after the gravity of the offense is established that the actual amount of the forfeiture is compared to the gravity of the offense. Thus, the court found the Commonwealth must present evidence as to Graham's actual criminal history, i.e., the charges filed against Graham, the actual penalty imposed, and the maximum penalty on the charges for which Graham was convicted. Id. at 683. Turning to the second factor, the court found the trial court needed to consider whether Graham's conduct was extensive in space and time and had to relate the misbehavior to the subject property. Additionally, the trial court was instructed to consider to what extent Graham's pattern of misbehavior was due to the police sending its informant to Appellee's house, rather than a distinct location. Further, regarding the third factor, the court concluded that evidence is required of the specific harm caused by the offense, including the type and quantity of drugs sold, the use of illegal drugs by purchasers, and the impact of the sales upon the neighborhood, without reliance upon general or "self-evident" harm. Ultimately, the Commonwealth Court rejected the trial court's gravity of the offense analysis and determined that a proper Eighth Amendment analysis required an initial assessment of instrumentality, Appellee's culpability, and a determination of the gravity of the defendant's offense by analyzing the actual penalty imposed upon the defendant, the extensiveness of the defendant's conduct, and the actual harm caused by the illegal conduct. As there was insufficient evidence of record regarding this approach, and the trial court did not analyze the excessive fines inquiry in these terms, the Commonwealth Court remanded for further proceedings consistent with its opinion.[13]

         Judge Robert Simpson authored a dissenting opinion, joined by Judge Bonnie Brigance Leadbetter. The dissenters objected to what they believed to be the overruling of the court's prior en banc decision in Commonwealth v. 542 Ontario Street, 989 A.2d 411 (Pa. Cmwlth. 2010), and would have embraced that decision's approach, which examines the property owner's conduct and the value of the property in comparison to the maximum statutory penalty for the underlying criminal conduct. 1997 Chevrolet, 106 A.3d at 882 (Simpson, J., dissenting).

         As noted, we accepted allocatur to address the appropriate standard for determining whether a civil in rem forfeiture violates the Excessive Fines Clause of the United States Constitution. This constitutional issue raises a pure question of law, and, thus, our standard of review is de novo and our scope of review is plenary. 5444 Spruce Street, 832 A.2d at 398. We begin by reviewing the parties' respective arguments.

         3. Argument of the Parties

         As Appellant, the Commonwealth initially stresses that Appellee owned the property from which her adult son repeatedly sold marijuana, and that, after the police informed her of this activity, she did not take any steps to terminate the sales, justifying the forfeiture of her home and vehicle. The Commonwealth characterizes the Commonwealth Court's decision below as inventing a new test for an excessive fine analysis under the Eighth Amendment, and, like the dissent below, accuses the lower court of imposing "new, baseless standards for reviewing a challenge to a statutory forfeiture under the Excessive Fines Clause . . . . [and claiming the] Commonwealth Court's real agenda is to imperil civil forfeiture in the absence of a criminal conviction, contrary to settled law." Commonwealth's Brief at 14. The Commonwealth emphasizes that, while forfeiture statutes have certain punitive aspects, they also serve non-punitive goals such as encouraging owners to properly manage their property, ensuring that it is not used for illegal purposes, and ensuring that persons do not profit from illegal activities. The Commonwealth warns that the lower court's undermining of civil forfeiture law will be suffered by "the innocent neighbors of drug peddlers." Id.

         Specifically, the Commonwealth maintains that the Excessive Fines Clauses of the United States and Pennsylvania Constitutions are coextensive, and that the United States Supreme Court in Bajakajian found forfeiture to be constitutionally impermissible only if the forfeited amount was grossly disproportional to the gravity of the offense on which the forfeiture was based. Stated another way, the Commonwealth asserts that the Constitution permits civil in rem forfeiture if the res is an instrumentality or its value is not grossly disproportional to the gravity of the underlying offense. The Commonwealth contends that our Court has applied the Bajakajian standard to all punitive forfeitures, and made this the exclusive test in Pennsylvania, citing 5444 Spruce Street. According to the Commonwealth, the Supreme Court in Bajakajian specifically rejected a requirement that the forfeited property had to be an instrumentality of the crime. Thus, the Commonwealth claims that the appropriate standard as articulated by the United States Supreme Court, and our Court, is that a statutorily-permitted forfeiture is constitutional if the property is either an instrumentality of the crime committed - that is, the forfeiture is non-punitive and, thus, not subject to constitutional scrutiny as it is remedial in nature - or satisfies the gross disproportionality test. The Commonwealth goes on to argue that the Commonwealth Court improperly limited Bajakajian's rejection of the property having to be an instrumentality of the underlying offense to criminal in personam forfeitures, and asserts that, to the contrary, the Bajakajian approach applies to both civil in rem and criminal in personam forfeitures, which was made clear by our Court in 5444 Spruce Street. Thus, the Commonwealth urges that, consistent with Bajakajian, our Court should reiterate that a civil in rem forfeiture passes constitutional muster if the property is either an instrumentality or the forfeiture is not grossly disproportional to the gravity of the offense.

         With respect to the gross disproportionality test, and, specifically, consideration of the culpability of the property owner, the Commonwealth develops that the Commonwealth Court's standard is unworkable, and accuses the Commonwealth Court of legislating by imposing a culpability requirement that requires direct knowledge and active participation in the underlying offense by the property owner. More precisely, the Commonwealth offers that justification for civil in rem forfeiture of non-instrumentalities rests on the notion that the owner of the property is negligent. Thus, in the Commonwealth's view, where the property owner has done all that he or she can reasonably do to prevent the criminal use of his or her property, forfeiture should be denied. This standard, according to the Commonwealth, would induce the owner to exercise greater care in allowing his or her property to be used by those who may commit a crime. Moreover, the Commonwealth offers that owner culpability is accounted for in the Forfeiture Act through the innocent owner defense, as the property is exempt from forfeiture if the owner did not know about or consent to the properties' illegal use. 42 Pa.C.S. §§ 6801(a)(6)(ii), 6802(j). Accordingly, the Commonwealth contends that it would be duplicative to make relative culpability a factor in the Bajakajian balancing analysis where the innocent owner defense is available, and maintains that, where the innocent owner defense has been defeated, the constitutionally mandated level of negligence has been established.

         The Commonwealth also argues that von Hofe, the Second Circuit Court of Appeals decision relied upon by the Commonwealth Court which introduced consideration of owner culpability, is inapplicable to the extant circumstances, and should not have been adopted by the Commonwealth Court, as, here, the property owner was willfully blind to the drug activity on her property, thus, satisfying the requirement of at least negligence. Further, the Commonwealth claims that the Commonwealth Court actually expanded the von Hofe construct, requiring it to establish that the property owner "participated in the offense" prior to forfeiture, 1997 Chevrolet, 106 A.3d at 862, and that such participation was significant. Commonwealth's Brief at 27. In this regard, the Commonwealth maintains that Appellee had the ability to "prohibit the drug sales from her property, but chose to permit them instead, even after being warned by a police officer" of her son's activities. According to the Commonwealth, rather than doing what "she reasonably could under the circumstances, she did nothing. By failing to responsibly exercise control over her property, [Appellee] forfeited her right as the owner." Id. at 28. The Commonwealth asserts it had an "enforceable interest" to protect "the truly innocent property owners in the neighborhood from [Appellee's] enablement of drug peddling." Id.[14]

         Moreover, the Commonwealth challenges the Commonwealth Court's introduction of a subjective test for constitutional excessiveness.[15] Specifically, the Commonwealth offers that our Court, in 5444 Spruce Street, recognized various approaches to the United States Supreme Court's balancing test: "(1) a 'multi-faceted measuring' of the value of the property to the gravity of the offense; (2) a comparison of the value of the property to a 'subjective estimation of the gravity of the offense;' (3) a 'more objective standard' which 'look[s] first to the legislative body which has specified the maximum permissible fine for a given offense, holding that if the value of forfeited property is within the range of fines prescribed . . . a strong presumption arises that the forfeiture is constitutional;' and (4) an outlier approach adopted in Utah that 'considered the effect of the forfeiture on the' claimant and which had been 'specifically rejected' in more jurisdictions than it had been adopted." 5444 Spruce Street, 832 A.2d at 402 n.7; Commonwealth's Brief at 29-30.

         The Commonwealth traces the experience of these tests in the Commonwealth Court, noting that the court has rejected its prior "objective" test, based upon statutory maximum penalties embraced most recently in 542 Ontario Street, and replaced it with the more subjective test followed in Utah, State v. Real Property at 633 East 640 North, Orem, Utah, 994 P.2d 1254, 1257 (Utah 2000). Yet, the Commonwealth highlights that this subjective standard, which includes weighing the effect of the forfeiture on the owner, was not only originally adopted before the Supreme Court's decision in Bajakajian, but was similar to the Ninth Circuit's decision in Bajakajian which the high Court rejected. Moreover, the Commonwealth offers, as noted above, that our Court in 5444 Spruce Street had expressed reservations about such a subjective approach, including the weighing of the effect of the forfeiture on the owner, as it had been adopted only in a minority of jurisdictions. The Commonwealth claims that such an approach is not faithful to Bajakajian, which, as noted above, offered that the appropriate punishment was initially for the legislature, and that any determination by the courts regarding the gravity of a particular offense will be "inherently imprecise." Commonwealth's Brief at 33 (quoting Bajakajian, 524 U.S. at 336). The Commonwealth ultimately advocates that, where the value of the property is below the statutory maximum fine applicable to the drug crime the property facilitated, the forfeiture is constitutional, and this, according to the Commonwealth, places an effective limit on forfeitures.

         The Commonwealth also takes issue with the Commonwealth Court requiring specific harm from the underlying offense, and its suggestion that the drug sales at issue in this appeal were not harmful due to the use of confidential informants. The Commonwealth urges that the legislature made drug sales illegal because they harmed individuals and society as a whole, and that such harm must have some weight in favor of forfeiture. Moreover, the Commonwealth asserts the Commonwealth Court's finding of less harm due to the sale of drugs to informants illogically assumes that in this matter Appellee's son sold only to buyers who were informants and that he intended to sell only to them, rather than to others.

         Consistent with this approach, the Commonwealth further challenges the Commonwealth Court's comparison of the fine imposed in the underlying criminal offense to the statutory maximum to assess the relative gravity of the crime charged for purposes of forfeiture, and instead urges the "main" comparison should be between the amount of the forfeiture and the statutory maximum fine for the underlying criminal offense. Commonwealth's Brief at 38-39.

         The Commonwealth offers that the trial court, by conducting an objective balancing test, properly considered only whether the amount of the forfeiture was grossly disproportionate to the gravity of the defendant's offense for purposes of constitutional challenge. According to the Commonwealth, the amount of the forfeiture need bear only some relationship to the gravity of the offense and not an exact one. The Commonwealth submits that the proper balancing test compares the fair market value of the forfeiture to the applicable fine. Under this approach, the Commonwealth asserts that Appellee's appraisal of her house in the amount of $54, 000 (which it contends is the high-end estimate) is compared to the maximum statutory fine for the crime of possession with intent to sell marijuana, $15, 000, and the maximum imprisonment for the crime of five years. 35 P.S. § 780-113(f)(2). According to the Commonwealth, this aggregate applicable fine for each of the proven sales (seven sales) totals $105, 000. The Commonwealth submits that, even if the sales were limited to the period of December 2009 through January 2010, when the Commonwealth claims Appellee was on notice of her son's selling of marijuana from her house, the aggregate maximum applicable fine would be $45, 000 for the illegal drug sales from the house, and an additional $15, 000 for each sale from the vehicle and the bulk marijuana ...

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