Riley v. 1987 STATION WAGON

AMUNDSON, Judge

(dissenting).

I respectfully dissent. Under Minnesota law, personal property may be subject to forfeiture if “used to commit or facilitate the commission of’ a listed offense, including conspiracy to commit first-degree murder. Minn.Stat. § 609.531, subd. 1(f)(2) (2000), Minn.Stat. § 690.5312, subd. 1 (2000). But forfeitures are not favored. City of Faribault v. One 1976 Buick LeSabre, 408 N.W.2d 584, 588 (Minn.App.1987).

While forfeiture proceedings are not of course, criminal in nature, their effect, when invoked, is to permanently deprive the owner of the forfeit property of its use. To the extent that the owner of forfeit property is caused loss and inconvenience resulting from the commission of certain offenses, the forfeiture provisions are punitive in effect and are subject to careful scrutiny by the [cjourt.

Id. (quoting United States v. One 1970 Buick Riviera, 374 F.Supp. 277, 279 (D.Minn.1973)). To the extent that forfeiture provisions penalize a person for participating in a designated offense by the loss of use of property, the forfeiture statute is in effect a quasi-penal statute. Id. Penal statutes are strictly construed and any doubt is resolved in favor of the defendant. Id.

Duwenhoegger’s vehicle was only remotely connected to the crime barely more than the alarm clock that woke him up that morning. Each in its unique way facilitated the accomplishment of the crime. Here there was a discrete beginning to Duwen-hoegger’s criminal activity, and Duwenho-egger involved his vehicle only before that point.

The underlying crime was conspiracy to commit first-degree murder. The overt acts of this conspiracy, making Duwenho-egger’s actions a crime, consisted of the clandestine meetings to plot the deed and also driving to an intended victim’s residence to attempt a break-in. Duwenhoeg-ger did not use this vehicle in any one of those endeavors. Each of the four meetings took place outside of Duwenhoegger’s vehicle. His accomplice, Sullivan, drove Duwenhoegger, and the tools used in the break-in, to the intended crime site in his own vehicle. Duwenhoegger and Sullivan left the scene of the failed attempt in that *439same vehicle. Duwenhoegger simply used Ms vehicle to travel to and from a meeting place four times. His vehicle was not itself used for any activity that was inherently criminal. Employing the majority’s reasomng that the vehicle was subject to forfeiture because it facilitated the crime, will there be any practicable stopping point? Wouldn’t anything that a perpetrator used to prepare for the act be subject to forfeiture? This cannot be the law.

This case is essentially like One 1970 Buick Riviera, where a vehicle was used to transport a heroin buyer to the airport for a flight to Mexico. 374 F.Supp. 277, 280 (D.Minn.1973). In that case, the court denied the forfeiture because neither the negotiations to purchase the heroin, nor the contraband itself, was ever in the vehicle and therefore the use of the vehicle did not make the commission of the crime less difficult. Id. Thus, the vehicle was not sufficiently connected with the crime of buying heroin to “facilitate” the crime. Similarly, in State by Mendota Heights Police Dept. v. Coley, we denied forfeiture where the owner drove from Oklahoma to Minnesota; then, the next morning, took a bus to his ex-wife’s home where he committed the underlying crimes. 453 N.W.2d 64, 65 (Minn.App.1990). The district court decided that the owner’s use of the car to drive to Minnesota from Oklahoma constituted a sufficient connection to the crime to subject the car to forfeiture. Id. at 66. Because there was no evidence that the owner came to Minnesota to commit a crime, or that he even used the car the day of the crime, we determined there was not a sufficient nexus between the vehicle and the crime to warrant forfeiture. Id. The courts in One 1970 Buick Riviera and Coley limited forfeitures to instances where the forfeited property is used to commit or facilitate the actions which themselves constitute crimes, not those which obliquely facilitated conduct culminating in transgressive behavior.

I wonder if the majority’s reliance on City of Worthington Police Dept. v. One 1988 Chevrolet Berreta, 516 N.W.2d 581 (Minn.App.1994), is not misplaced. In that case the vehicle was used not only to transport the burglar to the burglary location, but also to transport a stolen item away from the burgled building. Id. at 582. Similarly, the majority cites to United States v. Lewis, another conspiracy case. But, in Lewis, the vehicle was subject to forfeiture in a conspiracy not only because the vehicle owner drove the vehicle to a meeting point to meet with other conspirators, but also because one of the conspirators’ meetings actually took place inside the vehicle. 987 F.2d 1349, 1356 (8th Cir.1993).

Because this vehicle was never used to commit or facilitate any act that directly constituted a crime, I do not believe the forfeiture statute should apply, and I respectfully dissent.