Posted On: August 26, 2008 by Brian G. Thompson

Drug Asset Forfeiture under Maryland State Law - A Discussion By A Baltimore Criminal Attorney

As a Maryland Criminal Attorney I am often confronted with cases in which a person is charged with possession with the intent to distribute cocaine, heroin, marijuana or some other controlled dangerous substance (CDS) or even simple misdemeanor possession of CDS, where in addition to being charged criminally, the police also seize the person's property, usually automobiles, weapons and/or currency pursuant to the drug asset forfeiture laws. Most people are surprised to learn that, unlike in a criminal case where the State has the burden of proving beyond a reasonable doubt that a person is guilty of the offenses with which he is charged, under drug asset forfeiture law, once property or money is seized by the police pursuant to a narcotics arrest or even a narcotics investigation, it is presumed that the property or money is subject to forfeiture and the owner bears the burden of proving otherwise. Not only that but the government maintains possession of the asset throughout what can be a long and expensive legal battle to have the property or money returned.

I was retained yesterday in a case in Baltimore County Maryland District Court that is troubling to me as a Maryland Criminal Attorney and as a citizen of this state on several levels. The facts are that an anonymous caller contacted 911 and advised that he had just witnessed two black males try to rob a white male (my client) as he attempted to enter his apartment. The caller went on to say that the black males beat the white male with a handgun and that during the scuffle one of the black males was knocked down the steps. The caller went on to say that during the scuffle, a bag of marijuana had fallen from one of the three men's pocket and had spilled down the steps and on the ground. He noted to 911 that as they spoke the white male was sweeping the marijuana up.

The police arrive a few minutes later and speak to the caller at the scene at which time he confirms the information that he gave to the 911 operator. My client, because he is on probation and generally un-trusting of the police, foolishly does not answer the door when the police knock. He advised that he did this because he knew the police would want to come into his apartment and that he and his roommates do occasionally smoke marijuana and have smoking devices and small amounts of marijuana in the apartment. Again, given that he is on probation for DUI, he did not want to take the chance of getting charged with simple possession.
Now here is the outrageous part; from the moment the police arrive it was clear that were not at all interested in investigating a robbery. Instead, they were interested in investigating where the marijuana, some of which was still on the steps and on the ground, came from. The responding officers call a narcotics detective, not a robbery detective to the scene. Ultimately in excess of 15 police officers show up where they all sit around and wait for the narcotics detective to get a search warrant for my client's, aka, the robbery victim, apartment.

When the detective comes back with the warrant, they knock on the door and my client lets them in. The detective and his merry men then search the apartment and find a bong and a small amount of marijuana in my client's roommate's room. They find absolutely nothing in my client's room until he lets them open his safe. In the safe, the Detective claims to find basically marijuana crumbs and one Xanex along with $4,200 in cash. At this point the statement of charges takes on what would almost be a comical tone were it not so frightening that the police can so easily seize a person's property. The detective notes that the money was banded together in increments of $1000 and that he knows through his training knowledge and experience (TKE) that drug dealers (along with bankers, small business owners and pretty much everyone else) band their money together. He then noted that my client had a cell phone (one cell phone) and that he knows through his TKE that drug dealers (and everyone else in the world) use cell phones. In probably the most laughable contention by the detective, he confiscated a single box of sandwich bags, which he admits were in the kitchen, and then notes that he knows through his TKE that drug dealers use sandwich bags to pack their drugs. And of course, he seized my client's money. All the while my client was trying to get them to focus on the robbery. He even had the slide from the gun that he was pistol whipped with and aparently came apart during the scuffle. The detective would not even take the slide to fingerprint telling my client that he was there for a search warrant.

So what gives the detective the right to seize my client's money?
Maryland Criminal Procedure Article 12-102 notes that "money or weapons that are found in close proximity to a contraband controlled dangerous substance, controlled paraphernalia.... are presumed to be forfeitable".

Setting aside for a moment the incredibly backwards priorities of the Baltimore County Police, who obviously believe that investigating where some marijuana came from is more important that investigating a violent felony, my client who was the victim of that violent crime, now has to prove in court that he is not a drug dealer, even though the police didn't even charge him with possession with the intent to distribute, but only simple possession. Scary.

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