Com v. $34,440: Proximity to Drugs presumption may be rebutted in forfeiture proceeding

The Supreme Court of Pennsylvania continues its consideration of the powers of civil forfeiture in a 5-2 decision that the “proximity to drugs” presumption in civil forfeiture proceedings may be rebutted by evidence that the seized property was not involved in any illegal activity.

Juan Lugo was pulled over for tailgating in a “borrowed” car with several friends in Monroe County (home of “The Tricky Triangle”). The officer who pulled Lugo over then smelled marijuana, obtained consent to search the car, and discovered ecstasy in the cigarette outlet, a small amount of marijuana by the rear passenger door, and the subject dollar amount in the “b-pillar” on the passenger side of the car.

Rafael Falette came forward claiming ownership of the vehicle, and claiming that the seized money was part of a personal injury settlement which he had withdrawn in cash and used to impress his friends. He produced settlement checks in nearly this amount, making his claim plausible, but the trial court granted the Commonowealth’s forfeiture petition because the proximity between the drugs and the money produces a statutory presumption that the money was involved in drug trafficking.

The controversy in this case was whether the effect of the statutory presumption should be irrebuttable or not. The statute provides for an “innocent owner” defense; is that the only way to rebut the presumption?

Majority by Baer: Entire Record’s Evidence Must be Considered

Justice Baer, writing for the 5-2 majority, rules that the presumption that arises from physical proximity of drugs is rebuttable regardless of whether the elements of the “innocent owner defense” are met. Thus, where evidence derived from the “entirety of the record” demonstrates that the money or other property had no actual connection to drug trafficking, the forfeiture petition should be denied.

The Court first ruled, however, that the discovery of property in close proximity shifts the burden to the defendant. Accordingly, it remains the defendant’s burden to adduce sufficient evidence to prove his innocence in regards to the property at issue. In this case, the Court vacated and remanded for further consideration, holding only that the trial court erred in refusing to consider evidence outside of the “innocent owner” defense.

Dissent by Saylor: No statutory grounds exists for this interpretation

Chief Justice Saylor dissents, arguing that no other statutory grounds exist outside of the innocent owner defense to rebut the presumption of guilt created by the statute.

Dissent by Mundy: Trial Court found Falette’s testimony incredible

Justice Mundy dissents, agreeing with the Chief Justice, and also noting that the trial court did not find Falette’s testimony about his personal injury settlement credible. Mundy would have ruled that the trial court’s assessment of the facts could not be disturbed, and that the judgment should stand on that basis.

Conclusion: Civil Forfeiture is Alive and Well

The legislature recently made modifications to and moved the civil forfeiture statute to a new section (now at 42. Pa.C.S. § 5802). The Court in this opinion was not asked to consider and does not question the constitutionality of the civil forfeiture process. This is the third case this year that the Court has taken on forfeiture, and twice it has asked serious questions about the validity of the overall scheme. In this case, the Court does not raise the same questions.