State v. One 2013, Toyota Corolla
State v. One 2013, Toyota Corolla
Opinion of the Court
¶ 1. Steven T. Baumgard and Gladys A. Vogel appeal from the circuit court's order of forfeiture of the above-captioned 2013 Toyota Corolla. Defendants argue forfeiture of the Toyota pursuant to
Background
¶ 2. Baumgard was arrested in June 2013 on three counts of selling marijuana, utilizing a vehicle to assist with the sales. The allegations were that he sold 3.43 grams for $60 on April 24, 2013, 3.46 grams for $60 on May 1, 2013, and 3.48 grams for $55 on May 8, 2013, for a total of $175. On June 14, 2013, the Walworth county sheriffs office seized the Toyota, which Baumgard used in conjunction with the latter two sales.
¶ 3. On July 2, 2014, the State commenced this action for forfeiture of the Toyota. Defendants responded that the Toyota should not be forfeited be
Discussion
¶ 4. This appeal raises two questions — whether the statutory innocent owner exception to forfeiture applies to Vogel so as to preclude forfeiture of the Toyota and whether forfeiture of the Toyota, and Baumgard's and Vogel's individual financial interests in it, violates the Excessive Fines Clause of the Eighth Amendment.
Ownership under Wis. Stat. § 961.55 and the "innocent owner" exception
¶ 5. Pursuant to Wis. Stat. § 961.55(l)(d), a vehicle is subject to forfeiture if it has been used to transport illegal drugs for the purpose of selling the drugs. Section 961.55(l)(d)2. provides for an "innocent owner" exception, stating that "[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent." To be entitled to the protection of the "innocent owner" exception, a defendant must prove he
¶ 6. In Kirch, we identified "possession, title, control and financial stake" as relevant factors a court should consider in determining whether a defendant is "the owner" of a vehicle for purposes of the innocent owner exception.
¶ 7. The following are the relevant, undisputed facts presented at the forfeiture hearing through docu
¶ 8. The deputy testified that he spoke with Baumgard on the day the Toyota was seized, and Baumgard told the deputy he owned the Toyota; he had exclusive use of it, and Vogel did not drive it; he paid for the insurance, gas and maintenance for the vehicle; and Vogel purchased it but he was paying her back. The deputy further testified that when the Toyota was seized, Baumgard took personal items out of it; when he spoke with Vogel over the phone days after the seizure, she did not ask for the return of any personal items from the vehicle; and a record search indicated the Toyota was titled in both Baumgard's and Vogel's names. On cross-examination, the deputy confirmed that Baumgard never stated he was the sole owner of the Toyota.
¶ 9. Vogel testified she is an owner of the Toyota; paid $20,000 toward the purchase of it in April 2013 so Baumgard could go to work and school but Baumgard was supposed to pay her back; Baumgard had made two payments totaling $550 toward paying her back; she and Baumgard were both on the title when the Toyota was purchased less than two months prior to the seizure,
¶ 10. We consider the Kirch factors. Based on this record, it is clear Baumgard had nearly complete possession and control of the Toyota. He alone used it; Vogel did not. He paid for the insurance, gas and maintenance for the vehicle. When the Toyota was seized, Baumgard took personal items out of it, and the testimony suggests Vogel had no such items in the Toyota. Further, Baumgard traded in his prior vehicle for the Toyota, and Vogel had a different vehicle of her own and did not have to purchase another as a result of the seizure of the Toyota.
¶ 11. As to title, it is undisputed that when the Toyota was purchased and when it was seized two months later following Baumgard's use of it in multiple drug sales, it was titled in both Baumgard's and Vogel's names, but that the address on the title was Baumgard's not Vogel's. With regard to financial stake, $2500 of the purchase of the Toyota was funded by Baumgard's trade-in of his prior vehicle, while the remaining $20,000 was funded by Vogel with the agreement that Baumgard would pay her back. At the time of the forfeiture hearing, Baumgard had paid $550 to Vogel toward that debt.
¶ 13. While Vogel still has the largest financial interest in the Toyota, we have no problem on this record agreeing with the circuit court that Baumgard was the actual owner of the vehicle, and Vogel was merely a nominal owner of it. Thus Vogel has failed to establish she is "the owner" of the vehicle for purposes of the statutory "innocent owner" exception. We must now determine whether forfeiture of the Toyota, while statutorily authorized, constitutes an unconstitutionally excessive fine when applied to the facts of this case.
Constitutionality of Forfeiture
¶ 14. "[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." United States v.
¶ 15. In making this determination, we consider the culpability of each owner of the subject property for the crime(s) giving rise to the forfeiture. See United States v. Ferro, 681 F.3d 1105, 1115-16 (9th Cir. 2012); von Hofe v. United States, 492 F.3d 175, 185 (2d Cir. 2007); Commonwealth v. 1997 Chevrolet, 106 A.3d 836, 862, 866 (Pa. Commw. Ct. 2014). Here, the State has named two defendants, Baumgard and Vogel, and we have already concluded that each has some ownership interest in the Toyota. While we recognize that Vogel effectively made a "loan" of $20,000 for the purchase, the terms are fairly informal, such that under the arrangement, as Vogel described it, Baumgard is supposed to "pay [her] what he could." In the year and a half between the purchase of the Toyota and the forfeiture hearing, Baumgard had paid Vogel back only $550 of her $20,000 loan. With this payment, Baumgard then has paid the equivalent of $3050 ($2500 trade-in of prior vehicle plus $550), and Vogel has paid the remainder. As the circuit court recognized, "the primary financial stake issue here falls on Ms. Vogel." Baumgard and Vogel both stand to incur at least some loss from the forfeiture of the Toyota; thus, we consider with regard to each Defendant whether the loss is excessive.
¶ 17. We first consider the proportionality test with regard to Baumgard and begin by analyzing the first and fourth factors of the test — the nature of the offense and the harm resulting from Baumgard's conduct. Defendants argue that "there was no violence; no one was robbed; no one was shot;" and "forfeiture of a $22,500 car in a case involving the sale of $175 of
¶ 18. While the total amount of illegal drugs Baumgard sold was less than that of many large-scale drug dealers, and the charges were ultimately dropped pursuant to a deferred prosecution agreement, as the State points out, each of Baumgard's sales took place in the middle of the day in parking lots where members of the public would likely be present. And while we certainly recognize that no direct harm to innocent bystanders occurred on these occasions, Baumgard's repeated participation in the sale of drugs would harm not only the user of the drugs he sold but society more generally. Additionally, his sales of drugs in such public locations and at such times of day would inherently create at least some safety risk to others. See State v. Johnson, 2007 WI 32, ¶ 29, 299 Wis. 2d 675, 729 N.W.2d 182 (noting "the link between dangerous weapons and the drug trade"). While these two factors do not overwhelmingly support forfeiture of the Toyota and Baumgard's $3050 financial interest in it, they nonetheless do support it.
¶ 19. The second and third considerations of the proportionality test — the purpose of the forfeiture stat
¶ 20. Forfeiture of the Toyota and Baumgard's $3050 financial interest in it does not violate the Eighth Amendment's Excessive Fines Clause.
¶ 21. Forfeiture of Vogel's full financial interest in the Toyota is an entirely different matter. This is not a case where evidence would support the conclusion that a nominal owner of a vehicle, such as Vogel, had knowledge of the actual owner's involvement with illegal drugs and simply took no action to prevent use of the vehicle for such activity. The undisputed testimony was that Vogel had no knowledge of Baumgard's illegal activity and certainly did not consent to it; and
¶ 22. Based on the foregoing, we conclude that the Toyota is properly forfeited, that $3050 of the proceeds from any sale of the vehicle — Baumgard's direct financial interest — is properly forfeited, but that any remaining proceeds are to be returned to Vogel. This holding balances the purpose of the forfeiture statute with the need to apply the law in a constitutional manner based on the individualized culpability of persons with an ownership interest in the subject property.
Conclusion
¶ 23. As set forth above, we affirm the circuit court's determination that Vogel was not "the owner" of the Toyota for purposes of Wis. Stat. § 961.55(l)(d), and therefore the innocent owner exception does not apply here. We further affirm the circuit court's determination that forfeiture of the Toyota is constitutional under the Eighth Amendment's Excessive Fines Clause, as is forfeiture of Baumgard's own financial interest in the vehicle. We conclude, however, that
By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
Baumgard's previous vehicle, which he traded in as part of the purchase of the Toyota, was used in conjunction with the first sale of marijuana.
In State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), while we addressed Wis. Stat. § 973.075(l)(b)2. (1995-96), we specifically drew upon Wis. Stat. § 961.55(l)(d)2. (1995-96). Kirch, 222 Wis. 2d at 603-05. We concluded that because both statutes "include the same 'innocent owner' defense language, which bars forfeiture if the crime was committed without the property owner's knowledge or consent," "the legislature intended 'owner' to have the same meaning in both provisions." Id. at 604-05. We note that the text of the 1995-96 and 2013-14 versions of § 961.55(l)(d)2. are identical in all respects relevant to this case.
On June 17,2013, three days after the Toyota was seized, Baumgard transferred his title interest over to Vogel, so that title was then held solely in her name. During its ruling, the circuit court discussed this move:
The fact that he ran and gave up his interest per title three days after it was seized is very telling to the Court of evidence,*590 acknowledgement, that, oh boy, guilt on his part. He clearly was in possession of it. It was titled in both of their names until a couple of days after the seizure.
The State does not dispute that the Excessive Fines Clause is applicable to this case.
At one point, the Boyd court referred to this third factor as "the fine commonly imposed upon similarly situated offenders." State v. Boyd, 2000 WI App 208, ¶ 14, 238 Wis. 2d 693, 618 N.W.2d 251. The Boyd court, however, did not actually consider what fine was "commonly imposed upon similarly situated offenders," but instead considered the forfeiture amount in relation to the "the maximum fine" that could have been imposed for the underlying offense. See id., ¶¶ 15-17. Likewise, the Supreme Court in United States v. Bajakajian, 524 U.S. 321 (1998), the precedent upon which the Boyd court relied for the proportionality test, and this court in State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), relied upon by Baumgard and Vogel, also considered the amount of the forfeiture in relation to the maximum potential fine for the underlying offenses in those cases. See Bajakajian, 524 U.S. at 338 — 39 & n.14; Hammad, 212 Wis. 2d at 357. We also note that the record in this case provides no basis upon which we even could determine "the fine commonly imposed upon similarly situated offenders."
As noted, the first offense occurred through use of Baumgard's prior vehicle, with the second two offenses occurring through use of the Toyota. No party suggests this should make any difference in our analysis.
We recognize that forfeiture of the Toyota may result in a financial recovery of less than $22,500, and therefore Vogel may ultimately receive less than the full amount Baumgard still owes her. She may address this issue with Baumgard; we do not deem it to be of constitutional significance.
Concurring Opinion
¶ 24. (concurring). This case presents an issue of first impression: whether the innocent owner defense in a forfeiture action under Wis. Stat. § 961.55(l)(d)2. applies to an innocent co-owner. Analysis of the forfeiture statute, State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), as well as persuasive federal and state authority addressing the same or similar statutory language leads me to conclude that under § 961.55(1)(d)2. "the owner" includes a co-owner and that an "innocent" co-owner is protected to the extent of his or her interest in the property. This straightforward statutory approach avoids the need to address the forfeiture of an innocent co-owner's financial interest as an unconstitutional excessive fine.
¶ 25. In Wisconsin, a vehicle that is used in connection with a drug-related offense is subject to forfeiture. Wis. Stat. § 961.55(l)(d). However, "[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent." Sec. 961.55(l)(d)2. (emphasis
¶ 26. The majority looks to Kirch for guidance in determining whether Baumgard or Vogel is "the owner" for purposes of the innocent owner defense, concluding that "the owner" has to be one or the other. The majority's analysis that there can be only one owner appears to turn on the use of "the owner" in the statute and repeated in Kirch. But, it is a codified rule of statutory construction that "[t]he singular includes the plural. . . ." Wis. Stat. § 990.001(1); see In re Forfeiture of One 1970 Ford Pickup Truck, 823 P.2d 339, 341 (N.M. Ct. App. 1991). The statute permits more than one owner.
¶ 27. In Kirch we determined that the factors to be considered to determine ownership include "posses
¶ 28. The majority relies on Kirch to conclude that Vogel is a "nominal owner," when she in fact is on the title and has a significant financial stake. However, a nominal owner is one "existing in name only." Nominal, Black's, supra. In Kirch and the federal cases we cite and upon which the majority relies, the "nominal owner" had no financial stake: the claimants had no indicia of ownership beyond bare legal title. Kirch, 222 Wis. 2d at 605-06. These cases do not address a co-owner who is, in fact, not a nominal owner.
¶ 29. In Kirch we favorably cited the federal statute that provided an exception for property from forfeiture "to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." Id. at 605 n.2 (citing 21
¶ 30. Similarly, a number of state courts interpreting the same or similar statutory language as that provided in Wisconsin's forfeiture statute have concluded that "the owner" recognizes innocent co-owners. Like in Wisconsin, Delaware provides that "[n]o vehicle is subject to forfeiture under this section by
¶ 31. Similarly, in State v. Jackson, 399 S.E.2d 88 (Ga. Ct. App. 1990), at issue was Georgia's forfeiture statute, which then provided that "[n]o conveyance is subject to forfeiture under this Code section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent." Id. at 90 (emphasis added) (quoting Ga. Code Ann § 16-13-49).
¶ 32. Like these other jurisdictions, the plain language of Wis. Stat. § 961.55 demonstrates that the intent of the legislature is to deter and punish drug trafficking by permitting the forfeiture of vehicles used in connection with drug-related offenses, while protecting the interests of innocent parties. State v. Fouse, 120 Wis. 2d 471, 477-79, 355 N.W.2d 366 (Ct. App. 1984). The statute provides that all forfeitures "shall be made with due provision for the rights of innocent
¶ 33. The majority's analysis forces a conclusion that one co-owner is the only "actual owner," and employs the fiction that the other with a financial stake is a "nominal owner," when neither is the case. This artificial analysis undermines the intent of the legislature by potentially precluding the forfeiture of co-owned vehicles. Considering the practical realities of ownership as reflected in that word's very meaning, that the singular includes the plural, and the intention
¶ 34. The next issue is whether Vogel qualifies as a co-owner, since it is undisputed that she is "innocent." As noted above, relevant factors a court must consider are "possession, title, control and financial stake." Kirch, 222 Wis. 2d at 606. In addition to having her name on the title, Vogel had, as the circuit court found, "the primary financial stake" in the Toyota. She paid $20,000 toward the $23,320 purchase price, which Baumgard had started to repay when the vehicle was seized. The majority, while acknowledging that Vogel has the largest financial interest in the vehicle, is persuaded that Vogel is not "the owner" because it is Baumgard who will "suffer most" from the forfeiture, Majority, ¶ 12, but, if Vogel was truly a mere "nominal owner," then why would she suffer at all? As already discussed, "the owner" includes a co-owner, and that interpretation prevents an innocent owner with a financial stake in the property from suffering at all. Therefore, for the foregoing reasons, I conclude that Vogel has met her burden to establish that she is a co-owner entitled to the protection of Wis. Stat. § 961.55(l)(d)2.
¶ 35. Because this appeal can be decided using a straightforward construction of the statute, I need not address whether the forfeiture is constitutionally ex
¶ 36. I conclude that the term "owner" under the innocent owner defense of Wis. Stat. § 961.55(l)(d)2. includes a "co-owner," Vogel is a co-owner and, thus, should receive the protection of the statute to the extent of her ownership interest in the vehicle. To that end, I would remand this forfeiture matter with directions for the circuit court to determine the extent of her interest in the vehicle and to fashion an appropriate remedy taking into account the State's interest in Baumgard's portion of the vehicle and her interest in the vehicle.
The State does not dispute that Baumgard committed the drug offenses without Vogel's knowledge or consent. Wis. Stat. § 961.55(l)(d)2.
I agree with the majority that the analysis of "owner" in Kirch is applicable to the forfeiture statute. Majority, ¶ 6 fn.3.
United States v. Real Prop. & Improvements Located at 5000 Palmetto Drive, 928 F.2d 373, 375 (11th Cir. 1991); United States v. One Parcel of Prop. Located at Route 27, Box 411 (Patterson Rd.), 845 F. Supp. 820, 824 (M.D. Ala. 1993); United States v. One 1986 Chevrolet Monte Carlo, 817 F. Supp. 729, 732 (N.D. Ill. 1993).
Earlier, the U.S. Supreme Court had intimated that the forfeiture of a truly innocent owner's property would raise "serious constitutional questions." Calero-Toledo v. Pearsing Yacht Leasing Co., 416 U.S. 663, 688—89 (1974). In Bennis v. Michigan, 516 U.S. 442 (1996), in reviewing a Michigan forfeiture statute, the Court concluded that lack of an innocent owner defense in the statute did not offend the U.S. Constitution. Id. at 446, 451-53. However, significant for the Court in Bennis was that the Michigan statute gave the trial court "remedial discretion." Id. at 444, 453.
In 2015, Georgia amended its forfeiture law. 2015 Ga. Laws 98.
This language, which is not included in the statutes of the states already discussed, is further evidence of the legislature's desire to protect the rights of innocent persons.
In State v. Fouse, 120 Wis. 2d 471, 355 N.W.2d 366 (Ct. App. 1984), we considered only whether persons who had an unperfected security interest in a vehicle subject to forfeiture could claim protection as "innocent persons" even though such an interest was not enumerated in the statute. We held that they could claim protection. In response to our decision, the legislature amended then Wis. Stat. § 161.55(3) for the express purpose of limiting the rights of innocent persons to those persons delineated in the subdivisions of the statute, including subd. (1)(d)2. State v. One 2010, Nissan Altima, No. 2013AP2176, unpublished slip op. ¶ 14 n.5 (WI App
June 11, 2014). Neither Fouse nor the amendment that followed addressed the issue of whether a co-owner is included within the term "the owner" in subd. (l)(d)2.
I agree with the majority that forfeiture of Baumgard's interest is not an excessive fine.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.