State v. Barker

Holmes, J.,

dissenting in part. Although I concur that a motor vehicle may be considered as an “other device” within the meaning of R.C. 1531.20, and therefore would be subject to forfeiture in a given case, I must dissent from that portion of the syllabus and opinion which grants forfeiture of such a vehicle where the owner had no knowledge of, nor consented to, the use of the vehicle by the offender. The denial of an appropriate hearing to the owner of such a vehicle in order to avoid forfeiture would violate the owner’s due process rights.

I am aware that, historically, the law has permitted the forfeiture of inanimate objects which have been instrumental to, or used in, the violation of the law. It is also conceded that generally the innocence of the owner of the property subject to forfeiture as to any unlawful purpose for which his property is to be used, provides little by way of defense. Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663. It would seem that this principle has prevailed in order to alert owners of property not to be negligent in the loaning, leasing or bailing of their property. See Dobbins’s Distillery v. United States (1878), 96 U.S. 395; Goldsmith-Grant Co. v. United States (1921), 254 U.S. 505. As stated in Pearson, supra, at pages 687-688:

¡¡* * * p0 the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care *44in transferring possession of their property. Cf. United States v. One Ford Coach, 307 U.S. 219, 238-241 (1939) * * *.”

The court, in Pearson, although permitting the forfeiture of the leased yacht used for the transportation of marijuana, felt that in certain instances it would not be lawful or equitable to retain the property of an innocent party who was unaware of the use of his property. Accordingly, the court stated, at pages 688-690, that:

“This is not to say, however, that the ‘broad sweep’ of forfeiture statutes remarked in [United States v. United States] Coin & Currency [(1971), 401 U.S. 715] could not, in other circumstances, give rise to serious constitutional questions. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that ‘a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.’ Peisch v. Ware, [8 U.S.] 4 Cranch 347, 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See, id., at 364; Goldsmith-Grant Co. v. United States, 254 U.S., at 512; United States v. One Ford Coupe Automobile, 272 U.S., at 333; Van Oster v. Kansas, 272 U.S., at 467. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v. United States, 364 U.S. 40, 49 (1960).”

In Lindsay v. Cincinnati (1961), 172 Ohio St. 137 [15 O.O.2d 278], this court did approve of the seizure of an automobile used in a violation of a municipal ordinance; however, in that case the facts show that the owner did lend the automobile to the individual who had violated the law. That case did not involve the use of an automobile which had been taken without the permission of the owner. Judge O’Neill stated, at page 139, that:

“* * * A different question would be presented in this case had the automobile here in question been stolen. However, that question is not presented in this case since the automobile with which we are here concerned was lent by the owner to the driver, although it was lent for a legal purpose, and, according to the record, the owner had no knowledge that it was to be used as a ‘bootleg cab’ or for any other illegal purpose.”

Here we are faced with facts which would show that the defendant-employee had not obtained permission from the owner to use the automobile. Further, there are no facts presented which would show that the owner had previously allowed the employee to use automobiles for any such purpose. Additionally, there are no facts which would show any automobiles of the owner car dealership were outfitted with spotlights which could have been used by this employee or any other employee. In fact, contrary to the facts set forth within the majority opinion here, the spotlight used by this offend*45ing employee was his own portable spotlight which he had brought from home, and was not attached to the automobile.

For these and other reasons, I would hold that a due process hearing should have been afforded the owner on the forfeiture proceeding in order to present evidence of the unauthorized use of the automobile, its innocence of the intended and actual use of such automobile, and its attendant rights for the repossession of such vehicle.