State of Maine v. Antil

Opinion

STATE OF MAINE

WASHINGTON, SS. MACHIAS 2015-CR-172

STATE OF MAINE )

)

vs . ) ORDER ON DEFENDANT'S ) MOTION FOR RETURN OF PROPERTY

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GREGORY ANTIL )

DEFENDANT )

This matter came before the Court on January 19, 2017, for a hearing on Defendant's Motion for Return of Property. Present before the court were Attorney Jeff Davidson for the Defendant, and ADA Alex Smeaton for the State. Defendant did not appear and his attorney Indicated his client was working. The matter proceeded without objection from the State In Defendant's absence, and It was conceded that the matter would consist of oral argument from each party.

The court finds that each party misconstrued the nature and scope and even the purpose of the hearing . What was scheduled was a hearing on Defendant's Motion for Return of Property, filed on December 5, 2016. During oral argument, however, the parties focused entirely on the appllcablllly of 15 M.R.S.A. Section !.;821, et seq dealing with Forfeltllre . That focus was precipitated and the result of the following procedural facts; 1

1 I he wml l11kes _jt1dil:ii1l 1101ii..:e ol"thc lik: i11 thisa(;lio111111d in ivlt\CDC SW- 15-09.

1. On September 15, 2015 law enforcement executed a search warrant at Defendant's residence and seized numerous Items of evidence which lead to Defendant being charged by Complaint with Class, D, Cultivation of Marijuana In violation of 17-A M.R.S.A., Section 1117(1)(8)(3).

2. Defendant entered a guilty plea to that charge on January 26, 2016, and entered into a peferred Disposition Agreement for a period of 6 months.

3. On August 2, 2016, Defendant returned to court, having compiled with the conditions of the deferred period and was sentenced to the ''good result", a $400, and thereby stood convicted of the charged offense;

4. On December 51\ 2016, Defendant flled a Motion for Return of Property, Indicating that efforts to negotiate the return of certain Items had been unsuccessful;

5. on December 14th, 20.1.6, having received the Motion For Return of Property, the State fll~d an Information alleging Count II, Crlmlnal Forfeiture In vlolatlon of 15 M.R.S.A. 5826;

6. On December 29 111, 2016, Defendcrnt flied a Objection to Information and For Sanctions arguing that Section 5826 requires that the State file any forfeiture count simultaneously with the underlying criminal allegation wnd asserting that since the State flied an Information after ttie unclerlylno case had been dli;posed of c.lncl as a niply to his Mol1011 for Return of Property, the State acted frivolously and wltho111· sl:c1t11tory authority, and Defendant seeks both a dismissal of the Information and Sanctions;

7. On January 9th, 2017, the State flied a Memorandum in Opposition to Defendant's Motion for Return of Property, arguing that It was not necessary for the State to file a Forfeiture count because 15 M.R.S.A. Section 5821 Indicates that any equipment used to cultivate scheduled drug Is subject to forfeiture \\and no property right may exist" In It. The State conceded that the Information should not have been flied under these circumstances and Flied concurrently with Its Opposition a Dismissal of the Information. Flnally, the State obviously objects to the Imposition of sanctions.

8. Defendant's Motion for Return of Property was heard on January 19, 2017, qs prevlously Indicated.

The cout't need not reach the issues raised by Defendant's Objection to Information, because the State, whose prerogative It Is to charge, reduce and dismiss, has dismissed the Count II Informatlon. 2 The Court also need not reach the Issue of whether a criminal for·felture count must, If cJt all, be brought or laid simultaneously with t he underlying and related criminal cllarglng Instrument. And rnon~ovc1·, the court need not: 1·each the Issue of whether no forfeiture action need be commenced at all, c1s i.1rguecl by tlw ~:;tate and Its

) The court is 1101 co11vi11ccd nn lhis rccortl lhal the Slntc 111cd the Jnl'ornrnlion ilh!g11lly or I, ivoluusly as a1gued l>y lk!'cnda,11 n11d a\:1:urdingly DENIES the 1'vlulio11 fo1 Sa11clio11s.

interpretation of only one section of the forfeiture statute. 3 Again, the only thing now before the court Is Defendant's Motion for Return of •;

Property 1 pursuant to M.R.Crlrn.P. Rule 41(e). 4

Maine Criminal Rule 41(e), permits "a person ~ggrleved by an ..

unlawful seizure [to] move the court ... for the return of the property

on the ground that the property was Illegally seized." (Emphasis added.). It speal<s to persons who have had their property Illegally seized, regardless of whether a charge has been lald, but provides nothing by way of conferring upon a person already convicted upon lawfully seized evidence and whose case has been fully resolved, a right to so move the court. Still, although the court has found no Maine cases on point, the court finds that It has the Inherent authority to decide the Issue since It arises from a crlmlnal case over which the court did have jurisdiction. Federal courts Interpret the Federal Rule to allow for recovery of legally seized property despite the fact that Its explicit language provides only for the return of "unlawfully" seized

property. The ratlonale for this construction Is that "the Court's

1

J lneidentnlly, while 15. M. R.S.A. 5821 sets forth proper!)' that is "subjccl to fol'fciture ' and indicntcs thut "no propurty right may exists" i11 these lypes of'cnumcratcd propcl't)', the very next section of the stntutc sets forth the procedure for initinting n proceeding in rem and confers upon lhe l)efondnnl ue11oi11 due process rights when the Stntc seeks to forfeit . 1 The clay following oral arguments, which ngnin focused on the applicability of the hll'l'cit11re slnh1lc, the c:011rt informed counsel in chnmbers thnt the only thing the court wn:-. being asked to dec.:idc was the Ruic ,11 ivlotion and that since there had been no testi1110ny provided at the hcnring, the comt would be willing to reopl~n the evidence . I)ef'cndnnt ohjcctccl lo this proposnl nnd wnntcd the Motion decided on tlw record before tlw cu1111 1\ecordi11gJy, the colll'l dues so .

equitable powers confer on It the jurisdiction as well as the duty to return [legally seized, nonforfeited] evidence to its owner once the need for It has ceased." United States v. Farese, No. 80 Cr. 63 (MJL), 1987 U.S. Dist. LEXIS 11466, at *S, 1987 WL 28830, at *1 (S.D.N.Y. Dec. 15, 1987) (mem.) (citing Sovereign News Co. v. Unll"ed States, 690 F.2d 569 (6th Cir. 1987.L cert. denied, 464 U.S. 814 (1983); WIison, 540 F. 2d at 1103"04; United States v. Totaro, 468 F. Supp, 1045, 1048 (D. Md. 1979)).

The Maine Rule 41(e) Is also silent on who bears the burden of proof at hearing on the Defendant's Motion for Return of Property. Since It Is a crlmlnal rule and since the rule Itself allows such a motion to be joined with a motion to suppress, the court concludes that the State, although not the movant, carries the burden of establlshlng that it is entitled to maintain possession of the property, In State v Sweatt, 427 A.2d 940 (Me. 1981) provides that;

Whether evidence should be suppressed and whether It should be returned to Its owner are distinguishable questions .......... However, the burden Is always on the government to show some nexus between the supposed evidence ........ and criminal activity before the supposed evidence rnay he detained.

State v Sweatt, 427 A.2d 940 (Mc ..1981). Furthermore, not all seized property is 5Ubject to 1·ctum, howcve1·, onci property "otherwise• s11bwc:t to l<1wful cletenl:ion 11 need not be returned. Id. Under section l l l l ·/\(I) of Tit·le 1 /-/\. drn(J pc11·i'1pt1e1T1r1liil consis!·s of", products, and materials of any kind that are used or intended for use In plantlng .... or cultvatlng. Growing equipment, the court finds, is contraband when coupled with a conviction for Cultlvatlng and may be seized and confiscated by the State.

In this action Involving Mr. Anti! and the return of his property, there was no testimonial hearing because the parties misconstrued the nature of the hearing and perhaps the State Itself didn't realize that the court "shall receive evidence on any Issue of fact necessary to the decision of the motion." M.R.Crlm. P. 41(e). From just the record itself, however, the court can easlly find that a lawfully Issued search warrant was executed pursuant to which the authorities seized from

the Defendant's possession "scheduled drugs, Including but not llmlted .,

to marijuana; drug paraphernalia (lncludlng that as defined In 17-A '

M.R.S.A. 1111-A", See SEARCH WARRAN7; DESCRIPTION OF PROPERTY TO BE SEIZED. More partlcularly, the authorities seized lawfully the property llsted In the Evidence Log, returned with the warrant. The court can also easlly find from the record that Defendant was charged ancl convicted of Cultivating Marijuana, a Class D crime, based upon l:he success of the search and based upon his own pie<'! of gullty.

Now, l)ele11cl,rnl clews ,wt c:;ecil< the rP.hJrn nt ;-111 of l"lw prnperly t111d I 1f• did ;:1l l h<'· hc'.al i119 spP.cily whicl1 Items he sP,~ks rflt urnf'cl.

Speclflcally, he seeks the return of; a carno bag, back pump, camera, wooden processor, a bong and two grow llghts. The court has no direct evidence on the use or intended use of the camo bag, the back pump, the camera or the wooden processor. Nor does the court have any evidence about how these Items wer·e related to the charge laid against the Defendant and for which he was ultimately convicted, and therefore the court cannot on this record in this case find that those items are Instruments or fruits of his crime, or even contraband.

However, the court finds that the bong is "drug paraphernalia", pursuant to 17-A M.R.S.A, Section 111-A(l)(K)(12),when found In Defendant's possession during a lawful search for cultivation of marijuana to which Defendant admits. As such It Is contraband and need not be returned. The two remaining Items, two grow llghts,, used In connection with the cultlvatlon of marijuana, are also paraphernalia ancl contraband c1nd need not be returned.

Accordingly, the Defendant's Motion Is DENIED In all regards except that the State shall return the camo bag, back pump, camera, and wooden processor.

LMTlm TlllS 2i' D1\ Y OF J1\NlJARY, 201?

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ll.llHiF rvlAlNr. DJSTRJ('T ('O JRT