Commonwealth v. Irland

193 A.3d 370

COMMONWEALTH of Pennsylvania, Appellant

v.Justen IRLAND; Smith and Wesson 9mm Semi-Automatic Pistol, Serial # PDW0493, Appellee

No. 32 MAP 2017

Supreme Court of Pennsylvania.

Argued: November 29, 2017

Decided: September 21, 2018

Branden James Albaugh, Esq., Philadelphia District Attorney's Office, for Pennsylvania District Attorneys Association, Amicus Curiae.

James Patrick Barker, Esq., for Office of Attorney General, Amicus Curiae. Patrick Michael Hromisin, Esq., Saul Ewing LLP, Martha Meredith Tack-Hooper, Esq., ACLU Foundation, for American Civil Liberties Union of Pennsylvania, Amicus Curiae.

Susan Mon-Yi Lin, Esq., for Institute for Justice, Amicus Curiae. Brian Ray Sinnett, Esq., Daniel Stephen Topper, Esq., Adams County District Attorney's Office, for Commonwealth of Pennsylvania, Appellant.

Sean Alexander Mott, Esq., Kristin Luene Rice, Esq., Adams County Public Defender's Office, for Irland, Justen, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

This case concerns whether a common law basis for the forfeiture of derivative contraband exists in Pennsylvania.

Appellee waved a handgun in the air during a road rage incident. Police officers responding to the scene detained Appellee and recovered a loaded, Smith & Wesson 9 millimeter semi-automatic pistol from the passenger seat of his car.

Appellee was charged with simple assault, disorderly conduct, and harassment.¹ Pursuant to a negotiated plea agreement, Appellee pled guilty to the summary offense of disorderly conduct on August 25, 2014. The trial court sentenced him to a $200 fine, plus costs. On December 10, 2014, Appellee filed a motion for return of property, governed by Pennsylvania Rule of Criminal Procedure 588, asserting a right to possession of the gun on the basis that there are no statutory or common law grounds for forfeiture of the weapon.² The Commonwealth responded with a motion for destruction of property, advancing that forfeiture and destruction were justified since the property was employed in the commission of the disorderly conduct offense.³ Following a hearing, the trial court denied the motion for return and granted the Commonwealth's motion for destruction. A subsequent motion for reconsideration was denied, and Appellee appealed to the Commonwealth Court.⁴

In its Rule 1925 opinion, the trial court found forfeiture appropriate, citing decisions from the Commonwealth and Superior Courts that recognized common law forfeiture. See Commonwealth v. 2010 Buick Enclave , 99 A.3d 163 (Pa. Cmwlth. 2014) ; Commonwealth v. Salamone , 897 A.2d 1209 (Pa. Super. 2006) ; Commonwealth v. One 2001 Toyota Camry , 894 A.2d 207 (Pa. Cmwlth. 2006) (en banc ); Commonwealth v. Cox , 161 Pa. Cmwlth. 589, 637 A.2d 757 (1994) ; Commonwealth v. Crosby , 390 Pa. Super. 140, 568 A.2d 233 (1990). The trial court also rejected the notion that felony and summary offense convictions are distinguishable in forfeiture, as well as Appellee's claim that the Controlled Substances Forfeiture Act, 42 Pa.C.S. §§ 6801 - 6802, was a comprehensive and pervasive statutory scheme that supplanted common law forfeiture.

In a unanimous, en banc opinion, the Commonwealth Court reversed, concluding that common law forfeiture, as originated and developed in England, was never incorporated in Pennsylvania. The intermediate court noted that the Pennsylvania Constitution of 1790 denounced and effectively abolished common law forfeiture via the provisions prohibiting bills of attainder and forfeitures based on attainder. See Commonwealth v. Irland , 153 A.3d 469, 471 (Pa. Cmwlth. 2017) (citing PA. CONST. of 1790 art. IX, §§ 18, 19). Thus, the court reasoned, absent a specific statutory prerogative, the Commonwealth has no authority to seek, and the courts have no power to order, forfeiture of derivative contraband.⁵

Regarding forfeiture's roots in England, the court noted that three kinds of forfeiture existed: deodand, forfeiture upon conviction for a felony or treason, and statutory forfeiture. Deodand, the court explained, was never adopted by American common law. See id. at 473 (citing Calero-Toledo v. Pearson Yacht Leasing Co. , 416 U.S. 663, 682, 94 S.Ct. 2080, 2091, 40 L.Ed.2d 452 (1974) ). As for felony- or treason-based forfeitures, the Commonwealth Court related that convicted offenders, under English law, suffered "attainder" or "legal death," thus extinguishing their civil rights and resulting in the automatic forfeiture of all of their real and personal property. Id. at 474 (quoting Austin v. United States , 509 U.S. 602, 611-12, 113 S.Ct. 2801, 2806-07, 125 L.Ed.2d 488 (1993) ; BLACK'S LAW DICTIONARY 146 (9th ed. 2009) ). The intermediate court explained that felonious forfeiture, or attainder, was rejected by the federal and state governments through constitutions or general statutes. See id. at 474-75 (quoting Scott A. Hauert, Comment, An Examination of the Nature, Scope, and Extent of Statutory Civil Forfeiture , 20 U. DAYTON L. REV. 159, 167-68 & nn. 64, 72–74 (1994) ).

Pertaining to statutory forfeiture, the Commonwealth Court developed that, although pre-statehood legislation generally embraced English common law, early Pennsylvania enactments reflected a more remedial, rather than punitive, stance, mandating forfeiture only in limited instances. See id. at 476 (citing Act of Sept. 23, 1791, § 9 (requiring forfeiture of a convicted robber's land and goods to the extent required to make restitution) ). Additionally, the court posited that forfeiture was notably excepted from the general embrace of English common law during the nation's founding. See id. (quoting Richard E. Finneran & Steven K. Luther, Criminal Forfeiture and the Sixth Amendment: The Role of the Jury at Common Law , 35 CARDOZO L. REV. 1, 33–47 (2013) ).

Relative to the present day, the court observed that Pennsylvania has forfeiture laws pertaining to drugs, fireworks, and alcohol, generally requiring that the property have a substantial nexus with the misconduct at issue. In this respect, according to the Commonwealth Court, it is a "commonly accepted and wide-spread view that ‘[s]tatutory civil forfeiture is the only type of forfeiture adopted in this country.’ " Id. (quoting Hauert, An Examination of the Nature, Scope, and Extent of Statutory Civil Forfeiture , 20 U. DAYTON L. REV. at 167–68 ); see also Susanne H. Bales, Note, Constitutional Law-Fifth Amendment Right to Due Process-Civil Forfeiture Defendants and Constitutional Protection , 62 TENN. L. REV. 331, 336 (1995). The court concluded that the case law of other jurisdictions, both state and federal, reflects a similar perspective on forfeiture. See Irland , 153 A.3d at 476-77 (collecting cases).

Turning to Pennsylvania's case law, the Commonwealth Court initially suggested that the only potential basis for forfeiture of Appellee's weapon in this case would be pursuant to his conviction, since there was no authorizing statute. In this regard, the appellate court described the Commonwealth's case law experience as "somewhat unique and marked with conflict." Id. at 478. For example, the court explained, cases in the 1960s and 1970s held that no common law forfeiture existed and that forfeiture must be authorized by statute. See id. (citing Commonwealth v. Schilbe , 196 Pa. Super. 361, 175 A.2d 539 (1961) ; Commonwealth v. Spisak , 69 Pa. D. & C.2d 659 (C.P. Somerset 1974) ). By the 1980s, in a marked shift, the court noted that panels of the Superior Court began recognizing forfeiture based on the common law. See Petition of Maglisco , 341 Pa. Super. 525, 491 A.2d 1381 (1985) ; Estate of Peetros v. Cty. Detectives , 341 Pa. Super. 558, 492 A.2d 6 (1985) ; Commonwealth v. Coghe , 294 Pa. Super. 207, 439 A.2d 823 (1982). Similarly, the court observed that a panel and an en banc complement of the Commonwealth Court had accepted a common law predicate for forfeiture in more recent years. See One 2001 Toyota Camry , 894 A.2d 207 (Pa. Cmwlth. 2006) (en banc ); Commonwealth v. One 1990 Dodge Ram Van , 751 A.2d 1235 (Pa. Cmwlth. 2000).

However, the appellate court concluded that the Superior Court's 1980s decisions relied on authorities that were founded on statutory authority for forfeiture, thus undermining the claim of a common law predicate. See, e.g. , Crosby , 390 Pa. Super. at 147-49, 568 A.2d at 237-38 (explicating the statutory support relied upon to establish a common law forfeiture power). Moreover, the Commonwealth Court noted that In re Carpenter's Estate , 170 Pa. 203, 32 A. 637 (1895), had rejected a forfeiture claim following a murder conviction on the basis that Article I, Sections 18 and 19 of the Pennsylvania Constitution prohibited attainder and the corresponding forfeiture. See id. at 208, 32 A. at 637 ("The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence."); see also id. at 209, 32 A. at 638 ("Forfeitures of property for crime are unknown to our law ...." (quoting Owens v. Owens , 100 N.C. 240, 6 S.E. 794, 795 (1888) ) ).⁶ Ultimately, the Commonwealth Court reasoned that, "[f]ollowing the natural direction of Carpenter's Estate and the unquestioned view espoused by various courts and commentators, ... there is no such thing as common law forfeiture in Pennsylvania and that an individual's property can be forfeited only when the General Assembly enacts legislation that explicitly provides for forfeiture as a penalty for proscribed conduct." Irland , 153 A.3d at 485. The intermediate court further developed that, even if common law forfeiture had been adopted in the Commonwealth, it only applied to felonies and treason and, thus, would not be implicated by the summary offense conviction involved here. Accordingly, the appellate court reversed the trial court's order and remanded for the return of Appellee's property.

The Commonwealth petitioned for...