State v. One Black 1989 Cadillac VIN 1G6DW51Y8KR722027

MESCHKE, Justice,

concurring.

I join in affirming dismissal of this forfeiture action because it was not “instituted promptly.” Since my reasons differ from those given by the majority opinion, I write separately to explain. In my opinion, the reasons for delay of the trial for a crime are not comparable to the reasons for beginning a forfeiture action, the Barker v. Wingo analogy is not germane, and the majority’s analysis overlooks more important considerations.

Constitutional considerations often play some part in interpreting a statute. “In enacting a statute, it is presumed that: Compliance with the constitutions of the state and of the United States is intended.” NDCC 1-02-38(1). But different constitutional factors than those affecting delay in a criminal trial bear upon the need to promptly begin a forfeiture action against property seized without a warrant. Therefore, I disagree that the Legislature either instructed or intended that any delay in beginning a forfeiture action should be measured in the same way as delay of the trial of a criminal ease.

The majority says: “The legislative history reflects a specific intent to ensure due process rights were protected,” referencing a summary of testimony by Robert Bennett before the Senate Judiciary Committee on January 11, 1989. This statement accompanied later legislation than the relevant subsection, in NDCC 19-03.1-36(3) enacted in 1971, that directed prompt commencement of the forfeiture action against seized property. The 1989 amendments dealt with how a forfeiture action must be conducted, not with the 1971 direction about when the forfeiture action must be begun.

The 1971 enactment directed:

3. In the event of seizure pursuant to subsection 2 of this section, proceedings under subsection 4 of this section shall be instituted promptly.

1971 N.D.Laws ch. 235, § 36. Since then, the only change in this direction was stylistic from “shall” to “must.” NDCC 19-03.1-36(3). North Dakota’s 1989 enactment was codified in NDCC 19-03.1-36.1 through 19-03.1-36.7, not in NDCC 19-03.1-36(3), previously enacted.

The legislative history indicates that the original source of the “instituted promptly” phrase, is the Uniform Controlled Substance Act, approved by the National Conference of Commissioners on Uniform Laws in 1970. See 9 U.L.A. 6 (1988) (“While the North Dakota act is a substantial adoption of the major provisions of the Uniform Act, it departs from the official text in such manner that the various instances of substitution, omission, and additional matter cannot be clearly indicated by statutory notes.”). Still, the Uniform Act directed in § 505(c) that forfeiture “proceedings ... shall be instituted promptly.”

Moreover, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), did not decide when a criminal action must be begun, but rather decided when a criminal case must be tried sometime after it has been begun. A criminal case begins with the filing of a complaint, arrest, and initial court appearances well before trial. See NDRCrimP 3, 4, 5, and 5.1. Compare NDRCivP 3 (“A civil action is commenced by the service of a summons.”). Justice Powell explained speedy trial considerations for a unanimous court in Barker v. Wingo:

But such a result [adoption of a rule requiring trial within six months of arrest, as recommended by the American Bar Association and established in the Second Circuit] would require this Court to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should confine our efforts. We do not establish procedural rules for the States, except when mandated by the Constitution. We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free *467to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.

407 U.S. at 523, 92 S.Ct. at 2188. The time to hold a criminal trial is not fairly comparable with the time to begin a forfeiture action.

To explain further, the U.S. Supreme Court measured the constitutional right to a speedy trial by “a balancing test, in which the conduct of both the prosecution and the defendant are weighed,” using “some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right,” including: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192. The U.S. Supreme Court carefully noted:

Nothing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought [to trial].

Barker at 530, n. 29, 92 S.Ct. at 2192, n. 29. To summarize, speedy trial factors have nothing to do with beginning a property forfeiture action after a warrantless seizure, any more than they have to do with beginning a criminal case after an arrest without a warrant.

The majority opinion observes that the “United States Supreme Court later adapted the four-part analysis to forfeiture cases, concluding the Barker test was also appropriate for determining whether the delay between a seizure of property and a forfeiture hearing violated due process,” citing United States v. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). While accurate so far as it goes, this description of $8,850 is incomplete and misleading for comparison here.

In $8,850, the question decided was whether due process permitted the Government’s 18-month delay in filing a civil proceeding in district court for forfeiture of cash seized from a claimant when she failed to report it under the Bank Secrecy Act of 1970 before passing through customs at the Los Angeles International Airport. Id. at 556, 103 S.Ct. at 2007-08. The Court explained at the outset that the court procedure followed an immediately available agency procedure. Id. at 557, 103 S.Ct. at 2008. Thus, an owner of seized property had a remedy available during any delay before the forfeiture action was filed in court:

[T]he Customs Service generally follows the procedures governing forfeitures for violations of the customs laws, as set forth in 19 U.S.C. § 1602 ei seq. (1976 ed. and Supp. V), and the implementing regulations. Under these procedures, the Customs Service notifies any person who appears to have an interest in the seized property of the property’s liability to forfeiture and of the claimant’s right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture. See 19 CFR § 162.31(a) (1982). The regulations require a claimant to file the petition within 60 days. 19 CFR § 171.12(b) (1982).
If the claimant does not file a petition, or if the decision on a petition makes legal proceedings appear necessary, the appropriate customs officer must prepare a full report of the seizure for the United States Attorney. 19 U.S.C. § 1603 (1976 ed., Supp. V). Upon receipt of a report, the United States Attorney is required “immediately to inquire into the facts” and, if it appears probable that a forfeiture has been incurred, “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay.” 19 U.S.C. § 1604 (1976 ed., Supp.- V). After a case is reported to the United States Attorney for institution of legal proceedings, no administrative action may be taken on any petition for remission or mitigation. 19 CFR § 171.-2(a) (1982).

$8,850, 461 U.S. at 557-58, 103 S.Ct. at 2008-09 (footnotes omitted). The Court later emphasized that the Customs Service is required “to warn claimants that unless they agree to defer judicial forfeiture proceedings until completion of the administrative process, the case will be referred promptly to the United States Attorney for institution of judicial proceedings, or summary forfeiture proceedings will be begun.” Id. at 566, n. 16, 103 S.Ct. at 2013, n. 16 (emphasis added). *468This delay in beginning a federal forfeiture procedure in the court system is more like delaying trial since an immediate agency remedy is available to a claimant after a federal seizure.

The Customs Service processes over 50,-000 noneontraband forfeitures per year. U.S. Customs Service, Customs U.S.A. 36 (1982). In 90% of all seizures, the claimant files an administrative petition for remission or mitigation. Brief for United States 7. The Secretary in turn grants at least partial relief for an estimated 75% of the petitions. Ibid. Typically, this relief terminates the dispute without the filing of a forfeiture action in district court.

$8,850 at 558, 103 S.Ct. at 2009. There is no wonder why the Supreme Court measured the delay before beginning a federal forfeiture action in a customs case like the delay before holding a criminal trial.

Federal drug forfeitures also follow the federal customs procedure. The relevant federal law under the Comprehensive Drug Abuse Prevention and Control Act of 1970, codified at 21 U.S.C. 801 et seq., contains a subsection making “other laws and proceedings applicable.”

The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter....

21 U.S.C. 881(d) (1988). Procedurally, federal forfeitures for drug related crimes are identical to those for violations of customs laws in that an interim agency procedure is immediately available.

The federal set-up is much different than our state forfeiture procedure where there is no interim agency procedure available. A claimant has no ready remedy for an erroneous state seizure until the forfeiture proceeding is begun in court. Rather:

Property taken or detained under this section is not subject to replevin, but is deemed to be in custody of the board or a law enforcement agency subject only to the orders and decrees of the district court having jurisdiction over the forfeiture proceedings as set out in subsection 2.

NDCC 19-03.1-36(4) (part only) (emphasis added). Compare NDRCrimP 41(b), (e), and (h) (Criminal rules for return of property seized as evidence do “not modify any act, inconsistent with it....”); NDRCrimP 54(b)(4) (“These rules do not apply to: ... (ii) Forfeiture of property for violation of a statute of this state;”). For North Dakota’s exclusive forfeiture procedure, the factors for measuring delay of a criminal trial do not appropriately measure the promptness required for beginning the forfeiture action after a warrantless seizure.

No judicial warrant for this seizure of one black 1989 Cadillac was obtained by law enforcement officers, but the seizure was premised upon probable cause. Absent an extraordinary situation, the power of the state to seize a person’s property must be ordinarily justified by a judicial determination of probable cause. Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 791-92, 28 L.Ed.2d 113 (1971); U.S. v. $8,850, 461 U.S. at 562, n. 12, 103 S.Ct. at 2010-11, n. 12. Compare State ex rel. Herigstad v. McCray, 48 N.D. 625, 186 N.W. 280 (1921) (due process requires government to give notice and hearing opportunity before seizing real property); Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991) (same); United States v. James Daniel Good Real Property, — U.S. -, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (same). However, an extraordinary situation sometimes exists that can temporarily defer a judicial determination of probable cause, when the government seizes movable and forfeitable property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (due process did not require Puerto Rican officials to conduct a hearing before seizing a boat for forfeiture when there is probable cause to believe that it was used for drugs). In this case, we consider how long state officials may delay before beginning any formal procedure for judicial attention *469after the ex parte seizure of property used in drug-law violations.

The seizure of movable property for forfeiture without probable cause violates the constitutional guarantee of the right of the people to be secure “in their persons, houses, papers and effects, against unreasonable searches and seizures,” and the seized property is subject to the exclusionary rule of evidence and, unless it is contraband per se, it must be returned to the owner. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Soldal v. Cook County, Ill., — U.S. -, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). For the like warrantless seizure and arrest of a person, the same constitutional guarantee in the Fourth Amendment requires that a judicial determination of probable cause be made promptly as a prerequisite to pretrial detention of the person. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In this context, County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), recently decided how promptly that probable cause determination must be made for a warrantless seizure of a person. Logically, similar promptness should be necessary for judicial attention to a warrantless seizure of property.

Considering it “important to provide some degree of certainty so that States and counties may establish procedures with confidence that they fall within constitutional bounds,” Justice O’Connor wrote for the majority in County of Riverside that, “[w]here an arrested individual does not receive a probable cause determination within 48 hours, ... the arrested individual does not bear the burden of proving an unreasonable delay.” Id. at 56, 57, 111 S.Ct. at 1670.

Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.

Id. The four dissenting justices believed that “a probable-cause hearing is sufficiently ‘prompt’ under Gerstein only when provided immediately upon completion of the ‘administrative steps incident to arrest.’ ” Id. at 59, 111 S.Ct. at 1671. The short time necessary for judicial attention to a warrantless seizure of a person is more closely related — if it is not exactly the same — to the time essential for judicial attention to a warrantless seizure of movable property.

The constitutional concerns in this case are not due process or speedy trial as in Barker and $8,850. Rather, the important constitutional concern here is a Fourth Amendment one: When must judicial attention begin to make a warrantless seizure of movable property reasonable.

“The practice of ex parte seizure [of property], moreover, creates an unacceptable risk of error.” James Daniel Good Real Property, — U.S. at -, 114 S.Ct. at 501. Other courts have explained how this risk requires a punctual procedure for judicial attention to a warrantless seizure of property:

[T]he lack of preseizure notice and hearing serves to emphasize the importance of the forfeiture hearing which this state’s legislature has seen fit to provide....
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Because of the provision for seizure during the period prior to the hearing, the owner is deprived of the use of his vehicle regardless of whether it is actually subject to forfeiture or has been seized in compliance with statutory requirements.
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Here, there is no specific penalty provided for failure to adhere to the time provision. However, the statute seeks to provide a prompt adjudication of the issues involved in the forfeiture proceeding, and seeks to mitigate the harsh effects of the seizure and forfeiture proceeding. A directory construction would allow the state to continue to hold the property which has been seized for an indefinite period of time, without having to prove its compliance with the provisions of [statute], or that the *470property is actually subject to forfeiture. The interest of the state and the public in controlling the drug traffic, which the forfeiture action is designed to protect, is adequately served by the initial seizure. The interests of the possibly innocent owner should likewise be protected by strict compliance with the procedural mandate of [law]_ Although the action is designated as a proceeding in rem, ... it cannot be denied that it imposes a penalty, and, as such, must be subject to strict application of procedural guarantees,_ A time provision should be construed as directory only if an injury or wrong could not be presumed to result,....

State v. Rosen, 72 Wis.2d 200, 240 N.W.2d 168, 171-72 (1976) (citations omitted). And:

[B]ecause such seizures are ex parte, the statutory safeguards should be rigidly adhered to.
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[I]n forfeiture actions safeguards which are statutorily provided should be strictly construed. Therefore, ... time limitations provided by statute must be considered mandatory.

State v. 1978 LTD II, 216 Mont. 401, 701 P.2d 1365, 1367 (1985), citing State v. Rosen. Even though these cases construe different forfeiture statutes, the factors that they emphasize are equally important here. In State v. Ronngren, 356 N.W.2d 903, 905 (N.D.1984) (citations omitted), this court expressed like views: “Forfeitures are not favored. Contract law provides that: ‘A condition involving a forfeiture must be interpreted strictly against the party for whose benefit it is created.’ Section 9-01-15, NDCC. Many courts have applied similar standards to statutes which impose forfeiture.”

Ordinarily, “promptly” means “at once; immediately; quickly.” Webster’s Third New International Dictionary 1816 (1971). Our rules of statutory interpretation direct that “[w]ords used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears,.... ” NDCC 1-02-02. We should give the phrase, “instituted promptly,” its ordinary meaning — to begin immediately, quickly, and without delay.

That meaning is the one that the trial court used in deciding this case:

The initial question ... is whether a delay of 174 days in instituting forfeiture proceedings can, nevertheless, be considered “prompt.”
There was no reason why forfeiture proceedings could not have been commenced immediately after the seizure of the Cadillac occurred....
Recognizing that the word “prompt” carries with it no fixed meaning, the commencement of the forfeiture proceeding was certainly not “prompt” in this case since there was no reason to delay. The question then becomes whether a failure to act promptly can be excused and, if so, whether the circumstances in this ease constitute such an excuse.
... I note also the statute in question says that the forfeiture proceeding “must be” instituted promptly.
While I do not suggest that it should be heightened to the same level of scrutiny as an ex parte loss of liberty, which occurs with a warrantless arrest, an ex parte loss of property on a warrantless seizure carries with it the same policy consideration, which is that an ex parte seizure of private property by the government is of sufficient concern so as to require an immediate independent probable cause determination or, to use the language of our statute, a “prompt” probable cause determination. See 19-03.1-36.6 NDCC.
The language under consideration here is identical to the language in the Uniform Controlled Substance Act. In reviewing case law in this area, the first thing to be noted is that the statutory enactments vary from place to place, including the federal enactment, and court decisions must be read with those distinctions in mind. For example, some statutes contain specific time limits.
Some of the cases are couched in terms of whether the delay was “reasonable.” Our statute contains no provision of that nature. Furthermore, it does not say that the proceeding should be commenced with*471in a reasonable time, but states that the proceeding must be commenced promptly.
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The owner did nothing that would justify the conclusion that he had waived the benefits of the statute or was estopped from insisting that the government comply therewith. On the contrary, the government had his car in its possession and its absence created an awkward situation for its owner. Delaying commencement of the forfeiture proceeding, which is essentially a private process between the government and the owner of the vehicle, did not provide the owner with any protection or make him any less effective at all, because the government still had the vehicle in its possession. Letting him keep the car would have better served the government’s avowed purpose.
As stated, the question to be resolved is not whether delay was “reasonable” or “justifiable,” but whether the government complied with the statutory command that it institute proceedings promptly. There was nothing to prevent it from doing so, and the delay of 174 days was not prompt. The owner did not engage in any activity that could be said to create an estoppel or waiver against him. His motion is therefore granted.

For the reasons I have given, I agree with the trial court’s reasoning.

The phrase, “must be instituted promptly,” when used in other state’s forfeiture statutes, has been interpreted similarly. Reach v. State, 580 So.2d 40, 41 (Ala.1988) (citations omitted) (“The mandate in the statute that forfeiture proceedings be instituted promptly is necessary to the statute’s constitutionality. The statute contains no provision whereby the owner of a seized vehicle may post a bond and secure the use of his vehicle pending a hearing on the merits concerning the seizure.”); City of Everett v. Slade, 83 Wash.2d 80, 515 P.2d 1295, 1298-99 (1973) (“A delay of almost two full months does not constitute prompt action_”). See also An-not., Timeliness of Institution of Proceedings For Forfeiture Under Uniform, Controlled Substances Act or Similar Statute, 90 ALR 4th 493, 517, § 14(b) (“Promptly” or “shall ... promptly;” “Proceeding untimely”). In this case, the State’s commencement of forfeiture proceedings 174 days after it seized this Cadillac without a warrant was not prompt.

I agree that the trial court properly dismissed this forfeiture action and correctly ordered return of the Cadillac to the claimant.

LEVINE, J., concur.