#23735-r-DG
2006 SD 29
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
ONE 1995 SILVER JEEP GRAND
CHEROKEE, VIN # 1J4GZ78Y4SC548019
AND $497 IN AMERICAN CURRENCY, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE KATHLEEN K. CALDWELL
Judge
* * * *
LAWRENCE E. LONG
Attorney General
JEFFERY J. TRONVOLD
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellant.
JULIE A. HOFER Attorney for defendant
Sioux Falls, South Dakota and appellee.
* * * *
CONSIDERED ON BRIEFS
ON JANUARY 9, 2006
OPINION FILED 3/29/06
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GILBERTSON, Chief Justice
[¶1.] The State of South Dakota (State) appeals the circuit court’s order
determining forfeiture of one 1995 Silver Jeep Grand Cherokee, vin #
1J4GZ78Y4SC548019, was grossly disproportionate in violation of the Eighth
Amendment of the United States Constitution and Article VI, Section 23 of the
South Dakota Constitution. We reverse.
FACTS
[¶2.] On October 9, 2003, a complaint was filed by the State against the
defendant vehicle for forfeiture pursuant to SDCL chapter 34-20B. The record
owner of the vehicle was Adam Kroupa. The complaint alleged that:
said vehicle transported, possessed, concealed, used or
was intended for use, to transport or in any manner
facilitate the transportation, sale, receipt, possession or
concealment of certain controlled drugs or substances or
marijuana or was used for or acquired or derived from the
unlawful purchase, attempted purchase, distribution or
attempted distribution of any controlled drug or
substance or marijuana.
The parties entered into a stipulation of facts which was the basis for the circuit
court’s determination in this matter. Those stipulated facts provided in relevant
part:
Adam Kroupa, the Claimant in this matter, is the sole
owner of the Defendant Vehicle[].
On October 7, 2003, Adam Kroupa possessed
methamphetamine.
On or about October 7, 2003, Adam Kroupa placed the
methamphetamine in the Defendant Vehicle.
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Kroupa drove the Defendant Vehicle to 5801 West
Christopher Place, in Sioux Falls, Minnehaha County,
South Dakota, and transported the methamphetamine in
the Defendant Vehicle.
Upon arrival at 5801 West Christopher Place, Adam
Kroupa and Jennifer Collins rang the bell to apartment
302, where law enforcement officers were executing a
search warrant for narcotics.
A subsequent search of apartment 302 revealed 6 tablets
of methylene-dioxymethamphetamine, commonly called
“ecstasy,” a controlled substance, with a street value of
approximately $150, as well as a coffee grinder with what
appeared to the officers to be pseudoephedrine, a
component in the manufacture of methamphetamine.
Adam Kroupa is on federal parole for possession with
intent to distribute controlled substances, and therefore
the officers asked whether he was required to submit to a
search of his vehicle.
Trooper Koltz was called and his drug dog alerted and
indicated the presence of the odor of illegal narcotics in
the Defendant Vehicle.
Detective Mathews and Trooper Koltz searched the
vehicle and found the methamphetamine Kroupa had
placed within the Defendant Vehicle.
Kroupa admitted the methamphetamine belonged to him.
The Defendant Vehicle was seized at the scene.
The approximate retail value of the Defendant Vehicle is
$7400.
According to the detectives, the approximate street value
of the methamphetamine seized from the Defendant
Vehicle is $50.
Kroupa was arrested at the scene for possession of a
controlled substance, and eventually entered a plea of
guilty in that criminal case to Ingesting a Substance, in
violation of SDCL 22-42-15.
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Based on these stipulated facts, Kroupa asserted that forfeiture of the vehicle was
unconstitutionally disproportionate as an excessive fine in violation of the United
States and South Dakota Constitutions. The circuit court agreed and dismissed the
complaint. State appeals.
STANDARD OF REVIEW
[¶3.] “[W]hen an asserted error implicates an infringement of a
constitutional right, we employ a de novo standard of review.” State v. Krahwinkel,
2002 SD 160, ¶ 13, 656 NW2d 451, 458 (citing State v. Dillon, 2001 SD 97, ¶ 12,
632 NW2d 37, 43). Thus, no deference is given to the circuit court’s determination,
and the decision is fully reviewable by this Court. Thieman v. Bohman, 2002 SD
52, ¶ 10, 645 NW2d 260, 262.
ANALYSIS
ISSUE
[¶4.] Whether the circuit court erred in determining forfeiture was
grossly disproportionate in violation of the United States and South
Dakota Constitutions.
[¶5.] This civil forfeiture action was predicated upon SDCL 34-20B-70,
which is based on the federal forfeiture statutes. That statute provides:
The following are subject to forfeiture and no property
right exists in them:
* * *
(4) All conveyances including aircraft, vehicles, or
vessels, which transport, possess or conceal, or which are
used, or intended for use, to transport, or in any manner
facilitate the transportation, sale, receipt, possession or
concealment of marijuana in excess of one-half pound or
any quantity of any other property described in
subdivision (1) or (2), except as provided in §§ 34-20B-71
to 34-20B-73, inclusive. This subdivision includes those
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instances in which a conveyance transports, possesses or
conceals marijuana or a controlled substance as described
herein without the necessity of showing that the
conveyance is specifically being used to transport, possess
or conceal or facilitate the transportation, possession or
concealment of marijuana or a controlled substance in aid
of any other offense[.]
SDCL 34-20B-70. This Court has held that “[p]ossession, transportation or
concealment of any amount of methamphetamine subjects the vehicle to forfeiture
under SDCL 34-20B-70.” State v. One 1983 Black Toyota Pickup, 415 NW2d 511,
513 (SD 1987). Moreover, forfeiture is not dependent upon a criminal conviction
related to the substance. State v. One 1966 Pontiac Auto., Etc., 270 NW2d 362, 364
(SD 1978). Forfeiture proceedings are civil actions against the property seized, and
the standard of proof is preponderance of the evidence. SDCL 34-20B-80.
[¶6.] This Court has not addressed the limits imposed by the Eighth
Amendment and its South Dakota counterpart, Article VI, Section 23, to the
forfeiture of a vehicle. Our only analogous case on this issue is Krahwinkel, which
addressed a gross disproportionality claim on a civil penalty for an overweight
truck violation. 2002 SD 160, ¶ 38, 656 NW2d at 464-65. In that case, we
recognized:
The Eighth Amendment provides that ‘excessive bail shall
not be required, nor excessive fines imposed, nor cruel
and unusual punishment inflicted.’ This guarantee
protects against fines that are grossly disproportionate to
the offense. Austin v. United States, 509 US 602, 113 SCt
2801, 125 LEd2d 488 (1993). The constitutional inquiry
regarding excessive fines is proportionality: the amount of
the fine must bear some relationship to the gravity of the
offense that it is designed to punish. Id. at 622-23, 113
SCt at 2812, 125 LEd2d at 488; U.S. v. Ursery, 518 US
267, 283, 116 SCt 2135, 2145, 135 LEd2d 549 (1996).
Furthermore, the Eighth Amendment proscription
against excessive fines applies to fines imposed by the
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government in civil actions. Austin, 509 US at 610, 113
SCt at 2806, 125 LEd2d at 488.
Id. In Austin, a case involving forfeiture based on a violation of South Dakota’s
drug laws, the United States Supreme Court explained:
The Excessive Fines Clause limits the government’s
power to extract payments, whether in cash or in kind, as
punishment for some offense. The notion of punishment,
as we commonly understand it, cuts across the division
between the civil and the criminal law. It is commonly
understood that civil proceedings may advance punitive
as well as remedial goals, and, conversely, that both
punitive and remedial goals may be served by criminal
penalties. 1
509 US at 609-10, 113 SCt at 2805-06, 125 LEd2d at 488 (internal citations
omitted). As a result, the United States Supreme Court has held that the Eighth
Amendment Excessive Fines Clause applies to civil forfeiture proceedings. Id. See
also $100 and A Black Cadillac v. Indiana, 822 NE2d 1001, 1010 (Ind App
2005)(holding Indiana forfeiture statute subject to Excessive Fines Clause).
[¶7.] “The touchstone of the constitutional inquiry under the Excessive
Fines Clause is the principle of proportionality: The amount of the forfeiture must
bear some relationship to the gravity of the offense that it is designed to punish.”
United States v. Bajakajian, 524 US 321, 334, 118 SCt 2028, 2036, 141 LEd2d 314
(1998). As the Eighth Circuit Court of Appeals has recognized, “[t]hough the
Supreme Court has held that ‘a punitive forfeiture violates the Excessive Fines
Clause if it is grossly disproportional to the gravity of a defendant’s offense,’ the
1. The United States Supreme Court and this Court have held that forfeiture is
not punishment for purposes of the Double Jeopardy Clause. Ursury, 518 US
at 278, 116 SCt at 2142, 135 LEd2d at 549; State v. Kienast, 1996 SD 111, ¶
12, 553 NW2d 254, 256.
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Court has expressly declined to enunciate a test of gross disproportionality.”
United States v. Dodge Caravan Grand SE, 387 F3d 758, 763 (8th Cir 2004). The
Eighth Circuit Court of Appeals has articulated a two-pronged approach to assess
any such challenge: First, the claimant must “make a prima facie showing of gross
disproportionality;” and, second, if the claimant can make such a showing, “the
court considers whether the disproportionality reaches such a level of excessiveness
that in justice the punishment is more criminal than the crime.” Id.
[¶8.] The assessment of gross disproportionality requires particular
attention to a number of factors surrounding the forfeiture. As the Eighth Circuit
Court of Appeals has instructed:
To determine whether the facts indicate gross
disproportionality, the district court must consider
multiple factors, including the extent and duration of the
criminal conduct, the gravity of the offense weighed
against the severity of the criminal sanction, and the
value of the property forfeited. We have also identified
other helpful inquiries such as an assessment of the
personal benefit reaped by the defendant, the defendant's
motive and culpability and, of course, the extent that the
defendant's interest and the enterprise itself are tainted
by criminal conduct. This list is not exhaustive, and, in
dicta, we have criticized an excessive fines analysis that
failed to consider factors, such as the monetary value of
the property, the extent of the criminal activity associated
with the property, the fact that the property was a
residence, the effect of the forfeiture on innocent
occupants of the residence, including children, or any
other factors that an excessive fine analysis might
require. A survey of case law also illustrates other
potentially relevant factors, such as whether the Act
authorizing forfeiture is aimed at the underlying criminal
act giving rise to the forfeiture, the harm caused by the
criminal wrongdoer's acts, and the value of drugs seized.
Id. (internal citations omitted). In addition, “if the value of the property
forfeited is within or near the permissible range of fines . . . the forfeiture
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is almost certainly not excessive.” Id. Criminal fines are particularly
relevant as they reflect judgments made by the legislature about the
appropriate punishment for an offense. Bajakajian, 524 US at 336, 118
SCt at 2037, 141 LEd2d at 314. However, in weighing these factors
“mathematical exactitude in the analysis is not required.” Property Seized
from Terrell, 639 NW2d 18, 21 (Iowa 2002).
[¶9.] Furthermore, “the comparison in a disproportionality analysis
must be made between the value of the property to be forfeited and the
severity of the offense as viewed by the legislature, not the actual sanction
imposed.” Id. (emphasis added). This is because:
[A] defendant who received only probation could not lose
any property to forfeiture because any value attached to
the property would be disproportionate to the criminal
sanction. It would also be poor public policy because a
prosecutor who has an eye toward possible forfeiture
would naturally press for the imposition of the maximum
sentence in order to make a forfeiture less subject to a
claim of disproportionality. Further, as a criminal
conviction is not a prerequisite to a forfeiture action, in
some cases there may not even be a sentence or other
sanction to consider.
Id. at 21-22.2 Also relevant is a correlation between the offense and the “damages
sustained by society or to the cost of enforcing the law.” One Car, 1996 Dodge X-
2. Therefore, it is permissible to consider the offense resulting in the forfeiture
and not solely what a claimant has pleaded guilty to as a result of the
offense. See $100 and A Black Cadillac, 822 NE2d at 1011-12. This is
supported by the fact that the “conveyance used in connection with the
controlled substance is considered to be the offender under the statute and
there is no expressed or implied provision for a prior conviction of the
registered owner as a condition precedent to forfeiture.” One 1966 Pontiac
Auto, Etc., 270 NW2d at 364.
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Cab Truck, 122 SW3d 422, 425 (Tex App 2003).3
[¶10.] In this case, the circuit court was limited in its consideration of
relevant factors by the stipulation of the parties. Those stipulated facts established
that Kroupa possessed methamphetamine, he placed that methamphetamine in the
vehicle, he drove to an apartment that was being searched for narcotics, narcotics
were found at that apartment, ingredients for the manufacture of
methamphetamine were also found at the apartment, Kroupa possessed a large
amount of cash, a drug dog hit on the vehicle, methamphetamine was found in the
vehicle, Kroupa admitted the methamphetamine belonged to him and he was on
probation for federal crimes relating to his possession of a controlled substance with
the intent to distribute. These stipulated facts do not suggest gross
disproportionality in the forfeiture of this $7400 vehicle.
[¶11.] In this case, the circuit court limited and placed undue consideration
on the crime Kroupa pleaded guilty to (misdemeanor ingestion) and the maximum
3. This is consistent with Krahwinkel, where this Court considered “the amount
of money expanded by the State” to enforce the overweight truck provisions
and also the purpose of those provisions to “protect the roads from damage”
and “insure the safety of the traveling public” as relevant factors when
assessing a claim of gross disproportionality. 2002 SD 160, ¶¶ 38-39, 656
NW2d at 465.
Along this same line, this Court has recognized that:
Selling drugs is a harsh and unsavory business. Many
drug dealers make handsome profits from their
endeavors. Drug abuse has devastated countless
American youth to include young South Dakotans. Drugs
are a peril to our society.
State v. Pettis, 333 NW2d 717, 720 (SD 1983).
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punishment for that crime (one year imprisonment and/or a $1,000 fine) in
assessing disproportionality. This overly restrictive view is clearly evidenced by the
circuit court’s findings:
Adam Kroupa was arrested for possession of a controlled
substance, and plead[ed] guilty to ingesting a substance
under SDCL 22-42-15, which is a Class 1 misdemeanor
punishable by one year imprisonment and/or a $1000
fine. Kroupa received a one year sentence with all but
thirty days suspended, plus costs. Kroupa did not receive
a fine.
The forfeiture of Kroupa’s vehicle would inflict a
punishment 7.4 times the fine Kroupa was subject to for
ingesting a substance[.]
In this case, the possible fine which could have been
imposed for the offense is substantially less than the
value of the Defendant vehicle, and forfeiture of the
vehicle is grossly disproportionate to the gravity of the
offense, and is therefore an excessive fine and
unconstitutional.
A court must consider the entire circumstances surrounding the offense that lead to
the forfeiture when assessing gross disproportionality. See Dodge Caravan Grand
SE, 387 F3d at 763. The circuit court disregarded the fact Kroupa was in
possession of a controlled substance and was also a habitual offender and thus
faced a possible fifteen years in the penitentiary and a $15,000 fine. SDCL 22-42-5,
22-7-7, 22-6-1. As previously mentioned, Kroupa’s guilty plea to a lesser charge did
not foreclose consideration of the facts of the entire offense, especially in this civil
case with a lesser burden of proof. See $100 and A Black Cadillac, 822 NE2d at
1011-12; Property Seized from Terrell, 639 NW2d at 21. The circuit court erred as a
matter of law in limiting its analysis to the fine for the ingestion charge when
assessing gross disproportionality. An assessment of all the relevant factors in this
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situation does not suggest that this forfeiture was grossly disproportionate to the
gravity of the offense in violation of the United States or South Dakota
Constitutions.
[¶12.] Reversed.
[¶13.] KONENKAMP and ZINTER, Justices, concur.
[¶14.] SABERS and MEIERHENRY, Justices, dissent.
SABERS, Justice (dissenting).
[¶15.] The trial court held that the forfeiture of the vehicle valued at $7,400
was grossly disproportionate to the gravity of the offense; that the possible fine
which could have been imposed for the offense is substantially less than the value
of the vehicle, and therefore, is an excessive fine and unconstitutional.
[¶16.] I would affirm the holding of the trial court.
[¶17.] This holding was fairly based on the stipulated facts between the
parties which in key parts provide:
According to the detectives, the appropriate street value
of the methamphetamines seized from the Defendant’s
vehicle is $50.
The appropriate retail value of the Defendant’s vehicle is
$7,400.
[¶18.] In my view, the majority opinion goes far beyond the stipulated facts
and puts its own spin on those facts and relevant law. In paragraph 6, the majority
opinion acknowledges that this Court has not addressed the limits imposed by the
Eighth Amendment and its South Dakota counterpart, Article VI, Section 23, to the
forfeiture of a vehicle. To follow this majority opinion would make it clear that
there ARE NO LIMITS and I dissent.
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[¶19.] MEIERHENRY, Justice, joins this dissent.
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State v. One 1995 Silver Jeep Grand Cherokee, Vin 1J4GZ78Y4SC548019
Court: South Dakota Supreme Court
Date filed: 2006-03-29
Citations: 2006 SD 29, 712 N.W.2d 646
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