STATE v. ONE PORSCHE 2-DR., I.D. NO. 911211026, T. PP10026F, ETC.

HENRIOD, Justice:

One Price, owner of a Porsche automobile, valued at $10,000, was stopped and arrested for speeding, possession of a controlled substance and driving while under the influence of alcohol. He was charged with possession. There is nothing in the record to indicate what disposition was made of that charge.

Nonetheless, after the arrest and apparently before the charge was filed, the car was turned over to the State for forfeiture.

The section of the statute under which this forfeiture was accomplished, Title 58-37-13(1)(e), Utah Code Annotated 1953, either is invalid or inapplicable under the facts of this case for the following reasons:

The section mentioned reads as follows:

I. The section, as applied to this case leads to an unusually harsh result, constitutes an additional fine or penalty in connection with a misdemeanor — that of possession of marijuana. It is conceded that basis of the charge is that one ounce of marijuana was being carried by Price, who was a university student in Lawrence, Kansas. But it is undisputed that his sole purpose for being in Utah was to visit the Arches National Monument, — not to transport a controlled substance. It appears that the thrust of the section mentioned above is to deter the transportation of a controlled substance from one place to another and has nothing to do with a situation where the controlled substance, — one ounce of marijuana in this case, — simply in a car but possessed by a person incident to a vacation and only incident and collateral to transportation and obviously for personal consumption, is involved. It seems unthinkable that one would package up an ounce of marijuana for the primary purpose of transporting it five hundred to a thousand miles for sale, receipt, possession or concealment.

This whole case leads to an unconscionable forfeiture, and that the trial court was correct in concluding that the enormity of the forfeiture hardly could fit the $299 misdemeanor.

That forfeitures are frowned upon needs citation of but few authorities since the cases supporting such an elementary principle are legion. In Moran v. Knights of Columbus,1 our court had this to say as to forfeitures:

It is no answer for appellant to urge that the court's interpretation of the statute was erroneous, — if the decision of the court is supported by good and sufficient reason or reasons.3

II. The statute must be examined in the light of its purpose and/or intent of the legislature.

In State Land Board v. State Department of Fish and Game,4 we said:

It appears obvious that the primary and sole purpose of the statute and the intent of the legislature were directed exclusively toward the transportation of a controlled substance for distribution according to erstwhile law merchant principles, and not for personal possession and consumption.

Let's look at the statute which points strictly to transportation, not mere possession. It says: "All conveyances [connoting transportation] including aircraft, vehicles or vessels [connoting transportation] used or intended for use, to transport [connoting transportation], or in any manner facilitate the transportation, sale, receipt, possession, or concealment of property ... except ..." are forfeitable. [Emphasis added.]

The statute's theme song has lyrics that require the sheet music to be prefaced by a title such as "Transportation." It seems that the word "possession" mentioned in the section obviously must have an end result from asportation, the gravamen of the legislation, as does the word "concealment." Grammatically, hardly could it be said that knowingly "possession" of an ounce of marijuana by the Captain on the deck of "Old Ironsides," in Boston Harbor, would subject that vessel to forfeiture if the venerable warrior were dry-docked there or in a harbor operated by a ship museum buff at Great Salt Lake. The statute is transportation to accomplish possession, not simply transportation "with" possession, — where the obvious purpose of the statute is an interdiction against transportation for the accomplishment of distribution through pushers, pimps or pirates, — not to accomplish a forfeiture because one has a marijuana cigarette in his pocket or mouth, headed for Disneyland, — or Arches National Monument. The Title in Chapter 145, page 475, Laws of Utah 1971, seems to bear me out on this conclusion, as do the authorities. In Masich v. U.S. Smelting5 we said:

III. The statute obviously can lead to the most absurd results, — a reason this court consistently has pointed up as a valid reason for invalidation of a statute, or a refusal to apply it under particular facts making such application ridiculous.7 This case is such a case, and it is suggested that possession of an ounce of marijuana, the purpose of which is personal consumption, — with incidental transportation for such purpose, — is not trafficking in dope, which is the evil that the statute obviously is designed to eliminate. Under the legislation, Price would have to forfeit his $10,000 Porsche if he happened to be sitting in it in his driveway in silence and serenity, smoking a marijuana cigarette, and was approached by a gendarme, who took his car out from under him. Under this statute he could have his car taken from him if he were taking his six-year old to school and happened to have a marijuana cigarette in his pocket, — or under such circumstances he was rushing his pregnant wife to the hospital, — or if he were driving the Porsche out of a burning garage, — or trying to escape from a highwayman or a flood or anything else. All of these, if bases for forfeiture, in my opinion would give birth to a very serious constitutional question as to the statute's application being offensive to the due process clause or equal protection clause.

IV. The exception to the statute devours it. Section 13(1)(e), Chapter 145, Laws of Utah 1971 (Title 58-37-13(1)(e) Utah Code Annotated 1953), has three sub-subsections: (i) excepts common carriers, (ii) owner having no knowledge of contraband in his "conveyance," and (iii) excepts from forfeiture any such "conveyance" where the owner has a security interest in it, and did not know of any unlawful use thereof. This section might be dubbed the "finance" or "bank" or "loan shark" section. This is the section that makes the statute silly and amounts to inverse discrimination, — a discrimination in favor of a "mortgagee." Such a mortgagee and the conveyance are protected. It seems that if Price had borrowed a bona fide $8,000 from a bank or finance company, the Porsche would not have been subject to forfeiture, Price could have retained possession, gone to Arches National Monument, smoked marijuana all the way, returned to Lawrence, Kansas, gone back to school, unfettered, in his Porsche, and paid off the loan at his leisure or according to the terms of his loan. If he were driving a leased car, as thousands of people do these days rather than to buy one, such conveyance could not be forfeited under this statute. Neither would it be so subject if he rented a car from Hertz, or Avis, or U-Haul. Neither would it be subject to forfeiture if he borrowed the car from his brother or wife, or if he stole it, or temporarily converted it, or sold it the day he left Lawrence in exchange for a promissory note, with permission to drive to Utah.

The most that can be said for this statute's efficacy or practical worth, much less its validity, was said in 1967, when the California legislature repealed its legislation on forfeiture of vehicles used in violation of narcotics laws. In California Statutes 1967, Chapter 280, Section 1, page 1437, "Urgency," the legislature had this to say:

The moral of this story if this case should be reversed would be interesting mostly and primarily to the pusher, and to him who makes a business of trafficking in and transporting contraband. It then would be simple: If you buy a car in which you want to transport marijuana (or consume an ounce yourself on the way to the Arches), make sure the bank or loan company has your note and chattel mortgage, or just borrow a car, or lease one, or rent one, and you will have transportation throughout Utah free and clear of forfeiture and without any concern whatever that you will be prohibited either from owning or driving it.

The trial court's judgment should be and is sustained.

CALLISTER, C.J., and TUCKETT, J., concur.

CROCKETT, Justice (dissenting).

It is indisputably clear from the evidence that Donald Price, the owner of this Porsche sedan, was knowingly transporting in it considerable quantities of illicit drugs: marijuana and amphetamine pills; and that they were discovered and seized in connection with his lawful arrest. The Highway Patrol officers had followed this car, clocking its speed at 95 to 100 miles per hour. The arresting officer, William Pectol, testified that at the time of the arrest he observed in the car in an open sack plastic bags containing what appeared to be marijuana; and also observed different kinds of pills.

The amounts of these substances is not expressly stated. But it is clear that the one ounce of marijuana which was tested had no relationship whatsoever to the total quantities of illicit drugs found in the car. Informative on this point are certain excerpts from the record. Officer Pectol said that after he had informed Mr. Price that he was under arrest and "read him his rights from the card":

Also pertinent to this point is a statement of the trial court with reference to the proffered evidence. In speaking of the officer's testimony he stated in part:

Concerning the matter of forfeiture in his memorandum decision the trial court referred to the car as being of great value, $10,000 which he regarded as greatly disproportionate to the penalty for the crime. (The main opinion speaks of a fine of $299. But there is also the more important penalty of up to six months in jail.) Moreover, it is to be noted that Section 58-37-8, U.C.A. 1953, which provides for the penalties for the possession of marijuana, further provides in subsection 58-37-8(8):

The important proposition to be noted on this appeal is that the only reason given by the trial court for his refusal to declare the forfeiture of the automobile was that he thought that its value (the only evidence concerning value was Price's statement that he had paid $10,000 for it) was so disproportionate to the penalty for the offense of possession of marijuana that the forfeiture should not be enforced. In that connection he stated: "This court does not believe that the legislature intended such a harsh and drastic result," i.e., the forfeiture.

The proposition stated by the trial judge gives rise to two thoughts:

First, that the judge just couldn't believe the legislature meant what is so clearly said in the statutes.

Second, that if a person is caught transporting drugs in an old beat-up inexpensive car, it is subject to forfeiture. But if he is more prosperous in his traffic, and has a fine new expensive car, the law should not deign to forfeit it.

The trial judge was patently right when he said "I can make a reasonable inference." That is, that the rest of the substance was also marijuana. It is totally inconceivable to me that the officer could pick up one ounce of substance, all of which had the same appearance, which would turn out to be marijuana, and the rest of it be something else. I therefore say with complete assurance that the only reasonable inference was that the entire quantity was marijuana. I add, however, that the issue of forfeiture under the statute, depends only upon the identification of some substantial and identifiable amount of marijuana, and not upon any particular quantity thereof.

It is to be remembered that the forfeiture of property declared by law is not the same as imposing a sentence for a crime, with respect to which the trial court does have some discretion in modifying or suspending the sentence.1 The declaration of forfeiture of property under circumstances so justifying is the mandate of the people, speaking through their legislature. When such a mandate is expressed in clear and unambiguous terms, it is the duty of the court to abide thereby and carry out its mandate, thus avoiding judicial intrusions into the legislative prerogative.2

The principle of forfeiture of the means of transportation as a method of law enforcement and control of illicit traffic in contraband was discussed and reviewed by the United States Supreme Court in the recent case of Calero-Toledo v. Pearson Yacht Leasing Co.3 That principle was reaffirmed in a situation greatly more exaggerated than the instant one. After officers had discovered marijuana aboard, the yacht was seized and forfeited pursuant to Puerto Rican statutes.4 The Supreme Court rejected the attack upon the procedure and the statutes; and particularly rejected the contention of deprivation of property without due process of law under the Fourteenth Amendment. It is noteworthy that our Utah statute is more fair than the one under attack in the Calero-Toledo case, in that under our statute the owner is given the opportunity to show his innocence and his interest will be protected.

With respect to the California experience referred to in the main opinion, this should be noted: their statute was not declared unconstitutional. It was repealed by their legislature,5 after a study by the Commission on State Government, and apparently largely because of economic considerations. I appreciate that the reason is quite immaterial here. But the experience itself is in conformity with the idea herein advocated: that whatever the problem may be, it should be dealt with legislatively rather than judicially.

In accordance with what I have said above, it is my judgment that the order of forfeiture should be entered as prescribed by law. (All emphasis added.)

ELLETT, J., concurs in the dissenting opinion of CROCKETT, J.