
    CIRCUIT COURT OF SPOTSYLVANIA COUNTY
    Commonwealth of Virginia v. Lewis G. Thomas, Jr.
    September 11, 1997
    Case No. CR97-111
   By Judge William H. Ledbetter, Jr.

The outcome of this forfeiture proceeding depends upon the applicability of the Fourth Amendment exclusionary rule.

Facts

On February 11,1997, a sheriff’s deputy responded to a call from Deerfield Subdivision in which the caller claimed to have knowledge of a drug transaction. Gniising the neighborhood, the officer saw a car that appeared to be idling in font of an unlighted house. As the officer approached, die car moved away, violating no traffic laws, as if to leave the subdivision. Although the car did not match the description provided by die call, the officer's suspicions were aroused, and he stopped the car. He found the driver to be the defendant, Lewis G. Thomas, Jr. A passenger was also in the car. A search of dm vehicle resulted in the discovery of a quantity of cocaine and marijuana, drug paraphernalia, a notebook with a list of names, and $1,635.00 in cash.

Thomas was charged with possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. (## CR97-349 and CR97-350.) At a suppression hearing on July 15,1997, the court held that the vehicular step violated Thomas' rights under the Fourth Amendment and suppressed the evidence sensed from the car. Because the Commonwealth conceded that it could not prove the charges without that evidence, the criminal charges were dismissed.

The Commonwealth also filed an information for die forfeiture of the cash found in the car. A hearing was heid on September 8, 1997. As a threshold issue, Thomas asserted that nothing seized from the car could be used against him in this proceeding because of the Fourth Amendment exclusionary rule. Ihe Commonwealth argued that the exclusionary rule does not apply to this proceeding. After hearing the evidence, die court took the case under advisement to consider die merits of Thomas’ Fourth Amendment argument

(The Commonwealth agrees that if die Fourth Amendment exclusionary rule applies to forfeiture proceedings, it is bound by the court’s ruling in the companion criminal cases.)

Decision

In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), the United States Supreme Court held that the Fourth Amendment exclusionary rule applies to state forfeiture proceedings, hi that case, officers seized an automobile carrying 31 cases of illegal liquor. The seizure was founded upon evidence obtained without probable cause. The Court noted that Boyd v. United States, 116 U.S. 616 (1886), a leading case in the development of the law of search and seizure, was itself a forfeiture proceeding. The question before the Court in Boyd was whether the compulsory production of a person’s private papers for die evidentiary use against him in a forfeiture proceeding constituted an unreasonable search and seizure within die meaning of the Fourth Amendment The Court held that the Fourth Amendment applied. The Court declared:

We are also clearly of opinion that proceedings instituted for die purpose of declaring die forfeiture of a man’s property by reason of offenses committed by him, though they may be civil In form, are in their nature criminal ... . As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against die law are of this quasi-criminal nature, we think that they are within die reason of criminal proceedings for all die purposes of the Fourth Amendment

Plymouth Sedan quoted this passage from Boyd with approval and adopted the reasoning of that earlier decision.

In One 1963 Chevrolet v. Commonwealth, 208 Va. 506 (1968), a forfeiture case, the Supreme Court of Virginia observed that “the rule excluding evidence obtained by a search and seizure unlawful under die Fourth Amendment ... is now applicable to state forfeiture proceedings," citing Plymouth Sedan. The Court held that the forfeiture was proper, however, because the search and seizure in that case did not violate the Fourth Amendment

The Commonwealth cites County of Henrico v. Ehlers, 237 Va. 594 (1989). There, foe Court stated: “According to foe Supreme Court, foe exclusionary rule has never been applied in a civil proceeding, state cur federal.” But Ehlers was not a forfeiture proceeding. It was a civil action to determine ownership of a large quantity of cash left unclaimed on a train. The Court held that foe Fourth Amendment was not implicated and, in any event, foe Fourth Amendment exclusionary rule “should not be extended from criminal cases to civil cases.”

Perhaps foe basis for foe Court’s statement in Ehlers that “foe exclusionary role has never been applied in a civil proceeding...” is that the United States Supreme Court has characterized forfeiture proceedings as “quasi-criminal.” In Boyd and Plymouth Sedan, that Court held that forfeiture proceedings “are within foe reason of criminal proceedings for all foe purposes of foe Fourth Amendment”

The Ehlers court cited INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), as authority for its above-quoted statement. Lopez-Mendoza was a civil deportation proceeding, not a forfeiture proceeding.

Counsel have cited no authority, and foe court finds none, for foe proposition that Plymouth Sedan has been overruled.

Based on foe foregoing, foe court is of foe opinion that foe Fourth Amendment exclusionary rule applies to this proceeding. Because foe court has already determined that foe seizure of foe items in Thomas’ car was foe result of an unlawful vehicular stop, this proceeding must be dismissed. The subject of foe forfeiture proceeding is cash, not contraband; therefore, it must be returned to Thomas, the person fiom whom it was seized.  