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Commonwealth v. Hall

Supreme Court of Virginia

February 21, 2019

COMMONWEALTH OF VIRGINIA
v.
BRIAN KEITH HALL

          FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Robert M.D. Turk, Judge

          OPINION

          D. ARTHUR KELSEY, JUSTICE.

         The Commonwealth appeals the trial court's denial of an information for the forfeiture of a vehicle used by Brian Keith Hall during a sale of illegal drugs. The trial court held that Code § 19.2-386.22(A), the applicable civil forfeiture statute, does not authorize the forfeiture of property used in a single episode of illegal drug distribution. Disagreeing with this interpretation of the statute, we reverse and remand.

         I.

         In June 2016, a regional drug task force conducted a sting operation in Christiansburg, Virginia. A confidential informant arranged to buy oxycodone pills from Hall in a business parking lot. At the appointed time, Hall arrived at the parking lot in a pickup truck. A police officer watched the informant approach Hall and conduct the transaction. Afterwards, Hall drove away, and the informant delivered the drugs to the officer. The entire episode - Hall transporting himself and the drugs to the parking lot, exchanging cash for the drugs, and leaving the scene of the crime - occurred while Hall was seated in his pickup truck. A grand jury indicted Hall for the distribution of a controlled substance in violation of Code § 18.2-248(C). Hall pleaded guilty, and the trial court convicted him of that offense.

         Pursuant to Code § 19.2-386.1, the Commonwealth filed an information for the civil forfeiture of the pickup truck. After obtaining a seizure warrant, the Commonwealth seized the truck. Relying on undisputed evidence, [1] the Commonwealth argued that Hall had used the pickup truck in "substantial connection" with the illegal distribution of a controlled substance, thus subjecting the truck to forfeiture under Code § 19.2-386.22(A). In its letter opinion, the trial court rejected this argument and found that "based on the evidence, the Commonwealth has failed to meet its burden in establishing that this truck was used in substantial connection with the illegal distribution of [a] controlled substance[]." J.A. at 6. The court reasoned: "Other than this one time incident, the Commonwealth presented no other evidence that this vehicle had been used in the sale or distribution of an illegal substance(s)." Id. at 7 (emphases added).

         The Commonwealth filed a motion to reconsider, arguing that "[t]here is no requirement that the Commonwealth ha[s] to prove the property was used in more than one illegal drug transaction." Id. at 8 (relying primarily on Lee v. Commonwealth, 253 Va. 222 (1997)). Rejecting the motion to reconsider, the trial court entered a final order denying the forfeiture and striking the civil forfeiture action from the docket.

         II.

         On appeal, the Commonwealth argues that the trial court erred as a matter of law in interpreting Code § 19.2-386.22(A) to require that a vehicle be used more than once in a drug transaction before it can be subject to civil forfeiture.[2] The undisputed facts proved that Hall's one-time use of his pickup truck rendered it subject to civil forfeiture. We agree.

         A.

         The General Assembly "has the power to provide for the forfeiture of property used in the violation of a penal statute." McNelis v. Commonwealth, 171 Va. 471, 475 (1938). One of several civil forfeiture statutes in Virginia, [3] Code § 19.2-386.22(A) states in pertinent part that property "subject to lawful seizure" includes "all . . . motor vehicles . . . used in substantial connection with . . . the illegal manufacture, sale or distribution of controlled substances or possession with intent to sell or distribute controlled substances in violation of § 18.2-248."[4]The statute speaks in the singular of "manufacture, sale or distribution" and "possession." Id. Nothing in the text of this statute states that forfeiture requires a showing of more than one episode of the illegal manufacture, sale, distribution, or possession of controlled substances.[5]

         Interpreting the predecessor statute of Code § 19.2-386.22(A) in Lee, we examined the meaning of "substantial connection." That phrase, we observed, had been interpreted and applied several times by the United States Court of Appeals for the Fourth Circuit analyzing a federal civil forfeiture statute. Lee, 253 Va. at 225 (relying on United States v. Two Tracts of Real Prop., 998 F.2d 204, 210-11 & n.9 (4th Cir. 1993); United States v. $95, 945.18, U.S. Currency, 913 F.2d 1106, 1110 (4th Cir. 1990); United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990); United States v. Santoro, 866 F.2d 1538, 1542 (4th Cir. 1989)). We adopted the federal court's interpretation as our own in construing the substantial-connection standard in what is now Code § 19.2-386.22(A). See Lee, 253 Va. at 225.

         Under this line of precedent, the substantial-connection standard does not turn upon the "type or size of transactions," but rather, "a single felony drug violation is all that is necessary to trigger" a forfeiture. Two Tracts of Real Prop., 998 F.2d at 211 (emphasis in original) (citation omitted). "Just one use of the property may be enough" because the forfeiture statute imposes "no requirement of a continuing drug business or ongoing operation." Schifferli, 895 F.2d at 990 (citation omitted).[6] The standard is thus qualitative, not quantitative. "Congress has set no quantity limits on these predicate acts," the Fourth Circuit observed, "and consequently, we cannot." Santoro, 866 F.2d at 1542. The same conclusion is true of the General Assembly's enactment of Code § 19.2-386.22(A) and of our inability, as well as our disinclination, to rewrite the statute under "the subtle 'guise of judicial interpretation.'" Tvardek v. Powhatan Vill. Homeowners Ass'n, 291 Va. 269, 278 (2016) (citation omitted).

         The substantial-connection standard can best be understood by considering what it is not. A substantial connection does not mean that "the property's role in the crime is integral, essential or indispensable." Schifferli, 895 F.2d at 990. Substantial simply means not insubstantial. A substantial connection, therefore, must be more than an "incidental or fortuitous" connection with illegal drug activity. Lee, 253 Va. at 225. For example, when a drug smuggler drives over someone else's private driveway on the way to make a drug transaction, the real property underneath the smuggler's tires cannot be fairly said to have had a substantial connection to the smuggler's illegal activity. Two Tracts of ...


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