State v. One 1970 2-Door Sedan Rambler (Gremlin)

215 N.W.2d 849, 191 Neb. 462, 1974 Neb. LEXIS 890

• Court: Nebraska Supreme Court
• Decided: March 14, 1974
• Docket: 39119
• Status: Published

Opinions

Spencer, J.

This action involves a forfeiture of the automobile described in the title for transportation of a controlled substance. The action was brought pursuant to section 28-4,135, R. S. Supp., 1972. Donald D. Ruyle, the owner of the car, appeals from the judgment of forfeiture. He contends: (1) The statute is in violation of the due process clauses of the Nebraska and the United States Constitutions; and (2) the court erred in holding that the car was being used to transport a controlled substance within the meaning of the statute. We affirm.

On February 14, 1972, members of the Beatrice police department, who had the residence of Roger Allen Buss under surveillance, observed the automobile in question being driven up and parked on the public street in front of that house. They also observed Donald D. Ruyle alight from the vehicle and enter the residence under surveillance. Approximately an hour later he was arrested for possession of marijuana and taken into custody. The car remained locked and parked on the public street until approximately 10:50 a.m. the next day, February 15, when it was searched and seized. The search was made pursuant to Ruyle’s written consent, and with keys supplied by him. Ruyle was in custody at the time of the search. On February 15, Ruyle pleaded guilty to possession of marijuana, was fined $350, and sentenced to 7 days in jail.

The search of the vehicle revealed manicured marijuana, unmanicured marijuana, and two marijuana cigarette butts. The testimony of Ruyle indicated he was the owner of the vehicle and had been driving it prior to entering the Buss residence shortly before his arrest. The condemnation complaint was filed February 18, 1972, the third day after the seizure of the vehicle.

Section 28-4,135, R. S. Supp., 1972, so far as material herein, provides: “(4) When any conveyance, * * * is seized under subdivision (1) (d) of this section, the person seizing the same shall within five days thereafter cause to be filed in the district court of the county in which seizure was made a complaint for condemnation of the conveyance seized. The proceedings shall be brought in the name of the state by the county attorney of the county in which the conveyance was seized. The complaint shall describe the conveyance, state the name of the owner if known, allege the essential elements of the violation which is claimed to exist, and shall conclude with a prayer of due process to enforce the forfeiture. Upon the filing of such a complaint, the court shall promptly cause process to issue to the sheriff, commanding him to take possession' of the conveyance described in the complaint and to hold the same for further order of the court. The sheriff shall at the time of taking possession serve a copy of the process upon the owner of the conveyance in person or by registered or certified mail at his last-known address; * *

Ruyle challenges the constitutionality of this statute on the ground that it authorizes seizure of property prior to any notice being given to the owner, and before a hearing is afforded on the legality of the seizure. He contends this lack of notice and hearing is contrary to the concept of procedural due process recently enunciated by the United States Supreme Court. He refers to Fuentes v. Shevin (1972), 407 U. S. 67, 92 S. Ct.1983, 32 L. Ed. 2d 556, and Sniadach v. Family Finance Corp. (1969), 395 U. S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349. Those cases are not controlling herein. Shevin involved a prejudgment replevin statute and Sniadach a summary prejudgment garnishment process.

Due process tolerates variances in the form of a hearing appropriate to the nature of the case, depending upon, the importance of the interests involved and the nature of any subsequent proceedings. The present situation is one where a valid governmental interest justifies the seizure upon the discovery of contraband. The statute does not deprive the owner of his property without due notice and hearing. The Supreme Court in Fuentes observed: “If the right ’to notice and a hearing is to serve its full purpose, then, it is clear that' it must be granted at a time when the deprivation can still be prevented.” The notice and hearing required by section 28-4,135, R. S. Supp., 1972, adequately meets this- test.

. The. vehicle was seized legally. It was béing used to transport contraband. • The police removed the illegal .substances: They seized the car to- impound 'it and to keep it until forfeiture proceedings were initiated, as they were required to do. Within the time limited, this action was brought for its condemnation. Notice was promptly served on Ruyle, who appeared by counsel at all stages of the proceeding.

The use of a vehicle in criminal activities ordinarily creates an emergent situation. Unless a vehicle used to transport illegal substances is seized when such substances are discovered, .it can be readily removed from the jurisdiction of the - court, or utilized for further criminal activities of a similar nature. The inherent nature of these considerations requires summary seizure of the vehicle to protect the rights of the state. The same reasoning that allows warrantless searches of automobiles applies to the seizure of them. The absolute requirement of section 28-4,135, R. S. Supp., 1972, that a forfeiture complaint. be filed within 5 days after seizure with provision for notice and hearing, meets the test of due process.

The word “transport” is not defined in the act. Ruyle contends it should be defined to mean trafficking in drugs. He argues it was the intent of the Legislature to penalize the drug pusher, those engaged in the sale and distribution of narcotics, and not to work a forfeiture as in the case at bar. Courts should give statutory language its plain and ordinary meaning. Foote v. County of Adams (1956), 163 Neb. 406, 80 N. W. 2d 179. To the average individual, “transport” means to carry or convey from one place or station to another. We have so defined it. McLaughlin v. State (1920), 104 Neb. 392, 177 N. W. 744.

The judgment is affirmed.

Affirmed.

Smith, J., -not participating.