Maryland Attorney General Opinion 96 OAG 031

Gen. 31] 31

FORFEITURE

C ONTROLLED D ANGEROUS S UBSTANCES – F ILING AND
C OMPLETION OF C RIMINAL C ASE N OT A C ONDITION
FOR F ORFEITING M ONEY R ELATED TO V IOLATION OF
C ONTROLLED D ANGEROUS S UBSTANCES L AWS

May 2, 2011

The Honorable Scott G. Patterson
State’s Attorney for Talbot County

You have asked for our opinion on the interpretation of
Annotated Code of Maryland, Criminal Procedure Article (“CP”),
§12-304(c)(1), which requires that an action to forfeit money related
to controlled dangerous substances be filed within 90 days of the
final disposition of any related criminal proceedings. In particular,
you ask whether this provision merely establishes a statute of
limitations for filing a forfeiture proceeding that happens to be
related to a criminal case, or whether it also requires that a criminal
case be filed and completed as a condition of forfeiture.

In our opinion, the case law makes clear that a forfeiture action
is not contingent upon the filing of a criminal proceeding. The 90-
day period in CP §12-304(c)(1) sets a limitation for the filing of a
forfeiture action whenever a related criminal proceeding has been
completed. But the forfeiture action need not await the filing or
completion of criminal proceedings.

I

Forfeiture Statute

State law permits the seizure of property when there is
probable cause to believe that the property was or will be used to
violate the controlled dangerous substances laws. CP §12-
202(a)(2)(v). A prime example of such property is money intended
for an illegal drug transaction or the cash proceeds of such a
transaction. The statute further specifies the procedures for
instituting and litigating forfeitures. CP §12-301 et seq. Among
other things, the statute establishes deadlines for filing various types
32 [96 Op. Att’y

of forfeiture proceedings. CP §12-304. With respect to a
proceeding for the forfeiture of money, it states:

(1) A proceeding about money shall be
filed within 90 days after the final disposition
of criminal proceedings that arise out of the
Controlled Dangerous Substances law.

(2) If the State or a political subdivision
does not file proceedings about money within
the 90-day period, the money seized under this
title shall be returned to the owner on request
by the owner.

(3) If the owner fails to ask the return of
the money within 1 year after the final
disposition of criminal proceedings, as
provided under §12-403 of this title, the
money shall revert to:

(i) the political subdivision in which
the money was seized; or

(ii) the State, if the money was seized
by State authorities.

CP §12-304(c). Your question relates to the deadline set forth in
paragraph (1) for filing forfeiture proceedings.

II

Analysis

A. Origin of 90-day Deadline for Money Forfeitures

The State statute authorizing the forfeiture of money related to
illegal drug transactions was first enacted in 1970. Chapter 403,
Laws of Maryland 1970, then codified at Annotated Code of
Maryland, Article 27, §297. Among other things, that statute
provided that money or currency was subject to forfeiture if there
was probable cause to believe that it had been used, or was intended
to be used, in connection with a violation of the controlled
dangerous substances laws. Article 27, §297(a)(6) (1971 Repl.
Gen. 31] 33

Vol.). The statute required that such forfeiture proceedings be
instituted “promptly.” Article 27, §297(b) (1971 Repl. Vol.).

In 1973, the Court of Appeals interpreted the term “promptly”
in a case involving the forfeiture of money allegedly related to a
drug transaction. Geppi v. State, 270 Md. 239, 310 A.2d 768 (1973).
In that case, money was seized from an individual named Geppi
shortly after his October 1970 arrest for drug offenses. The charges
were eventually stetted in August 1971. Eight months later, in April
1972, the State filed a petition to forfeit the money under Article 27,
§297, on the ground that it was intended for use in a drug
transaction. Geppi contested the forfeiture, arguing that the State
had not filed its petition “promptly.” The Court looked to the period
between the stetting of the criminal charges and the filing of the
petition – a period of eight months – and, given that no explanation
had been offered for the delay, held that the State had failed to file
the petition “promptly.” 270 Md. at 247. The Court declined to set
a general rule or indicate “any particular time as unreasonable for the
institution of forfeiture proceedings within the limits of [the
statute],” but left that determination to the facts of each case and
suggested that a delay of even eight months might be reasonable in
some circumstances. Id.

Geppi thus did not resolve the uncertainty as to the deadline for
filing a forfeiture proceeding after a criminal case was concluded.
The following year the General Assembly amended the statute.
Chapter 666, Laws of Maryland 1974. The 1974 amendment
eliminated the uncertainty by specifying that a proceeding to forfeit
money had to be “instituted within 90 days from the date of final
disposition of criminal proceedings which arise out of [the
controlled dangerous substance laws].” Article 27, §297(b) (1971
Repl. Vol. & 1974 Cum. Supp.).1

B. Whether a Forfeiture Proceeding May be Filed Before
Completion of a Criminal Case

The 90-day post-criminal disposition period was thus added to
the statute to clarify when a forfeiture proceeding involving money
could be filed after the conclusion of a related criminal proceeding.

1
There are no legislative bill files available for legislation passed
prior to 1975, but the intent of the 1974 amendment appears fairly clear
from the context, as well as the statutory language.
34 [96 Op. Att’y

But is that the exclusive period for the filing of a forfeiture
proceeding? In other words, may a forfeiture proceeding be filed
before the conclusion of the criminal proceeding – or even before
criminal charges are filed? The Court of Appeals has held that it
may.

In Bozman v. Office of Finance, 296 Md. 492, 463 A.2d 832
(1982), federal and county law enforcement officers executed search
warrants at Bozman’s house, where they recovered illegal drugs and
$3,950 in currency. Bozman was never charged with criminal
violations of the controlled dangerous substances laws. Nonetheless,
nearly 18 months after the search, Baltimore County filed a petition
in circuit court to forfeit the currency. Bozman opposed the
forfeiture, arguing that the final disposition of criminal proceedings
was a condition precedent to the institution of a forfeiture
proceeding. He specifically relied on the 1974 amendment that
added the 90-day period to the statute. 296 Md. at 497-98. The
Court of Appeals rejected that argument:

We believe that the Legislature, by adding
the [90-day period] to [CP §12-304(c)(1)]
clearly intended to impose a fixed limitation
upon the filing of applications for forfeiture if
a trial has taken place and a final disposition
of criminal proceedings has resulted....

The legislative purpose plainly was to
place a specific time limitation of 90 days
after a concluded criminal prosecution in the
case of a seizure of money or currency in lieu
of the previously indefinite requirement that
the filing “shall be instituted promptly.”

Id. at 499 (emphasis in original). The Court further held that the 90-
day limitation was not intended to foreclose forfeiture proceedings
for seized currency “merely because its possessor has not or not yet
been brought to a concluding trial.” Id. at 500. It concluded that
“nothing in the [1974] amendment ... prohibits ... the filing of such
an application earlier than the conclusion of an initiated
prosecution.” Id. (emphasis in original).
Gen. 31] 35

III

Conclusion

In summary, the case law makes clear that a forfeiture action
is not contingent upon the filing of a criminal proceeding. The 90-
day period in CP §12-304(c)(1) sets a limitation for the filing of a
forfeiture action whenever a related criminal proceeding has been
completed. But the forfeiture action need not await the filing or
completion of criminal proceedings.

Douglas F. Gansler
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Editor’s Note: This opinion was originally issued as a letter of
advice.