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Hearing date for truck forfeiture was timely under drug law, CSA holds

In property forfeiture cases, courts must set a trial date within 60 days of the filing of an answer, but the trial need not be conducted with that period, the Court of Special Appeals has held.

The reported opinion, written by Judge James A. Kenney III, reverses a circuit court judge’s dismissal of a civil forfeiture case against a defendant who was arrested on drug charges.

“Section 297 [of Article 27], by design, is a harsh law,” wrote Kenney, who went on to quote the 1997 case of Boyd v. Hickman. “’The purpose of the statutory scheme is to impede the drug trade by depriving drug dealers of the instrumentalities that facilitate the sale and use of illegal drugs.’”

A Howard County grand jury returned two indictments against Joseph Albert Connolley on charges he conspired to distribute cocaine on Oct. 10 and Oct. 15, 1998.

Bench warrants were issued on April 7, 1999 for Connolley’s arrest, and they were executed on April 26, 1999 at Connolley’s home.

The arresting officers seized Connolley’s GMC truck, which was parked in a detached garage.

On May 27, 1999, the county filed a Complaint to Acquire a Motor Vehicle, pursuant to §297. The county’s letter to the clerk of court requested that a summons be issued and served within 10 days and a hearing set within 60 days from the time Connolley filed an answer. Also, the sheriff posted a Notice of Forfeiture on the courthouse from May 27, 1999 until June 27, 1999.

Connolley filed a motion to dismiss the forfeiture complaint on June 10, 1999. A hearing on that motion was held on Sept. 3, 1999.

The trial court ruled against Connolley’s motion. Four days later, Connolley filed an answer to the complaint, and on Oct. 7, 1999 he filed a separate request for a hearing.

The next day the clerk of court set Jan. 20, 2000 as the hearing date.

Connolley also filed a motion to recuse the judge, which was granted, but this postponed the hearing until Feb. 17, 2000. Finally, Connolley moved to dismiss the case because the court failed to set a timely hearing.

The trial court agreed with Connolley and Howard County appealed, saying that §297 does not require that the forfeiture hearing be held within the 60-day period.

The intermediate appeals court agreed with the county.

“As now written, §297 … does not require that a hearing be set until a timely answer is filed,” wrote Kenney, who noted that the hearing was scheduled within 28 days of Connolley’s filing an answer.

Connolley cross-appealed on grounds that forfeiture procedures violate due process and Fourth Amendment rights.

“[I]t is difficult to see where Connolley was not afforded due process, as a hearing was set within one day of his request for a hearing,” Kenney wrote.

Connolly, however, may get a chance to explore the probable cause issue on remand.

The lower court was required to “assume the truth of all well pleaded facts and all inferences that can reasonably be drawn from them” at the hearing on the motion to dismiss, Kenney wrote.

“[T]he proceeding effectively became one of summary judgement, and the County was entitled to a reasonable opportunity to present evidence establish probable cause,” Kenny wrote in vacating the lower court ruling. “Connolley is in no way precluded from raising the issue of probable cause at a later date.”<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

Case: Howard County, Maryland v. Joseph Albert Connolley, et al., CSA No. 74, Sept. Term 2000. Reported. Opinion by Kenney, J. Filed March 2, 2001.Issue: Must the hearing in a civil forfeiture case dealing with a truck whose owner was charged with drug distribution take place within 60 days of the accused’s filing an answer to the compliant≠Holding: No. Section 297 of Article 27 requires that the hearing date be set within 60 days, but the hearing does not have to be conducted within that period.Counsel: Senior Assistant Solicitor F. Todd Taylor Jr. for appellant; Timothy J. McCrone for appellee.RecordFax: #1-0302-01 (18 pages)