F & M Bank v

State, 167 Ga. App. 77, 306 S.E.2d 11, 1983 Ga. App. LEXIS 2398 (1983) (decided under former O.C.G.A. § 16-13-49). Participation in preliminary hearing constitutes notice. — Assistant district attorney’s participation in the preliminary hearing at which 16-13-49 testimony concerning the seizure was elicited, constituted notice to the district attorney. State v. Luke, 183 Ga. App. 182, 358 S.E.2d 272, 1987 Ga. App. LEXIS 1927 (1987), superseded by statute as stated in Robinson v. State, 209 Ga. App. 446, 433 S.E.2d 707, 1993 Ga. App. LEXIS 910 (1993), superseded by statute as stated in Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372, 1994 Ga. App. LEXIS 572 (1994) (decided under former O.C.G.A. § 16-13-49). Notice held sufficient for out-of-state residents. — Publication of forfeiture proceedings for two weeks in a newspaper with local circulation in Lowndes County, as provided for in former O.C.G.A. § 16-13-49(e), was not insufficient notice to the defendants as out-of-state residents so as to be violative of the due process provisions of the state and federal constitutions. Not only did the state publish notice of the proceedings, but it also attempted, unsuccessfully, personal service, at addresses which were supplied by the defendants themselves to drug agents at the time of arrest. Pack v. State, 187 Ga. App. 210, 369 S.E.2d 530, 1988 Ga. App. LEXIS 556 (1988) (decided under former O.C.G.A. § 16-13-49). No standing for general unsecured creditor. — General unsecured creditor does not have a legally cognizable interest sufficient to grant the creditor standing to challenge a forfeiture action against seized currency. Crenshaw v. State, 206 Ga. App. 271, 425 S.E.2d 660, 1992 Ga. App. LEXIS 1606 (1992), cert. denied, No. S93C0383, 1993 Ga. LEXIS 85 (Ga. Jan. 14, 1993) (decided under former O.C.G.A. § 16-13-49). No retroactive application of former O.C.G.A. § 16-13-49(o)(3). — See Jones v. State, 210 Ga. App. 140, 435 S.E.2d 507, 1993 Ga. App. LEXIS 1099 (1993) (decided under former O.C.G.A. § 16-13-49). Forfeiture inappropriate. — Forfeiture provisions of former O.C.G.A. § 16-13-49 did not apply to transactions involving counterfeit controlled substances. State v. White, 216 Ga. App. 183, 454 S.E.2d 542, 1995 Ga. App. LEXIS 58 (1995) (decided under former O.C.G.A. § 16-13-49). 544 Forfeiture of 5.1 acres of land, including a house, based on the recovery of a few immature marijuana plants growing on a small portion of the property was excessive under U.S. Const., amend 8, and mitigation of the forfeiture was not practicable. State v. Evans, 225 Ga. App. 402, 484 S.E.2d 70, 1997 Ga. App. LEXIS 407 (1997) (decided under former O.C.G.A. § 16-13-49). Forfeiture appropriate. — When it was probable defendant would have left the site with the marijuana in the pickup had defendant not been arrested, even though the arrest prevented the pickup from actually being used to transport the contraband, the court did not err in ordering the truck’s forfeiture. Lanier v. State, 212 Ga. App. 51, 441 S.E.2d 87, 1994 Ga. App. LEXIS 127 (1994) (decided under former O.C.G.A. § 16-13-49). Evidence of defendant’s possession of methamphetamine was sufficient to support the forfeiture of defendant’s truck. Gearin v. State, 218 Ga. App. 390, 461 S.E.2d 562, 1995 Ga. App. LEXIS 743 (1995) (decided under former O.C.G.A. § 16-13-49). Evidence that marijuana was to be transported in defendant’s vehicle and that money found in defendant’s pocket was to be used to pay defendant’s drug courier was sufficient to show that the items were contraband subject to forfeiture. Michael v. State, 226 Ga. App. 288, 486 S.E.2d 406, 1997 Ga. App. LEXIS 584 (1997) (decided under former O.C.G.A. § 16-13-49). A CD and checking account found in close proximity to marijuana in a private residence were subject to forfeiture after the owner could not prove acquisition thereof as a bona fide purchaser. Salem v. State, 232 Ga. App. 886, 503 S.E.2d 62, 1998 Ga. App. LEXIS 837 (decided under former O.C.G.A. § 16-13-49). State showed a strong nexus between currency and the claimant’s activity of selling marijuana sufficient to support forfeiture of the currency since the currency was seized at the time the defendant was arrested for possession of marijuana, and although no actual drug transaction was observed, the arresting officers had received a tip that the defendant was selling 16-13-49 drugs, the defendant fled with a paper bag in defendant’s hands when the officers stopped the defendant, the officers later found the bag containing currency some ten feet away from where the officers arrested the defendant, and 1.1 ounces of bagged marijuana were found in the defendant’s car. Morris v. State, 234 Ga. App. 683, 507 S.E.2d 532, 1998 Ga. App. LEXIS 1337 (1998), cert. denied, No. S99C0229, 1999 Ga. LEXIS 204 (Ga. Feb. 19, 1999) (decided under former O.C.G.A. § 16-13-49). Trial court’s judgment of condemnation was supported by a preponderance of the evidence including: authentication by a forensic chemist that a sample submitted was cocaine, and the laboratory report showed 67.2 grams of the cocaine to have 78 percent purity; testimony by an officer that the cocaine was field tested and by the drug’s color, the officer knew that the drugs were going to be a good purity; evidence showed that defendant was able to supply a kilo of cocaine on very short notice, leading to an inference that defendant was regularly engaged in the drug trade; defendant’s explanations for the presence of the large amount of cash in defendant’s apartment were not reasonable given the earnings defendant reported to the Internal Revenue Service; defendant’s explanation for having a bulletproof vest and the gun was not reasonable, and defendant had no explanation for the presence of cocaine in a vehicle owned by the defendant. Davis v. State, 256 Ga. App. 299, 568 S.E.2d 161, 2002 Ga. App. LEXIS 891 (2002) (decided under former O.C.G.A. § 16-13-49). In a civil in rem forfeiture proceeding, because the trial court agreed that due process required a judicial finding of some degree of criminal responsibility on the part of the owner of contraband before the government could constitutionally take title to the property, the trial court properly found as a factual matter that the owner at issue possessed the requisite degree of criminal responsibility to justify a forfeiture, and could not, therefore, demonstrate reversible error on appeal. Walden v. State of Ga., 283 Ga. 148, 656 S.E.2d 801, 2008 Ga. LEXIS 37 (2008) (decided under former O.C.G.A. § 16-13-49). 545 General Consideration (Cont’d) Trial court’s order of forfeiture was upheld on appeal and thus was not subject to dismissal as: (1) the trial court was presented with testimony from witnesses other than the affiant, as well as sufficient other evidence, to support the order; (2) the alleged property owner waived any defense of insufficient service; and (3) an alternative code section did not afford the owner relief. McDowell v. State of Ga., 290 Ga. App. 538, 660 S.E.2d 24, 2008 Ga. App. LEXIS 268 (2008) (decided under former O.C.G.A. § 16-13-49). In a civil forfeiture proceeding, the trial court properly entered an order of forfeiture and disposition of seized property as the challenging claimant failed to file a claim to the property within 30 days from the second publication notice. Therefore, the claim was untimely. Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361, 2009 Ga. App. LEXIS 747 (2009), cert. denied, No. S10C0024, 2010 Ga. LEXIS 128 (Ga. Feb. 1, 2010) (decided under former O.C.G.A. § 16-13-49). Trial court’s innocent owner finding upheld. — Because the plain language of former O.C.G.A. § 16-13-49 supported the trial court’s conclusion that the owner was permitted under former § 16-13-49(o)(3) to file an answer in the state’s in rem proceeding seeking forfeiture of a truck the state seized, and as to which the owner claimed “innocent owner” status, and the owner filed a timely claim, the appeal court rejected the state’s contrary contention. State of Ga. v. Howell, 288 Ga. App. 176, 653 S.E.2d 330, 2007 Ga. App. LEXIS 1082 (2007), cert. denied, No. S08C0454, 2008 Ga. LEXIS 224 (Ga. Feb. 25, 2008) (decided under former O.C.G.A. § 16-13-49). Double jeopardy. — Forfeiture proceeding under former O.C.G.A. § 16-13-49 was legitimately a civil sanction and did not constitute punishment for purposes of double jeopardy. Murphy v. State, 267 Ga. 120, 475 S.E.2d 907, 1996 Ga. LEXIS 712 (1996); Lundy v. State, 226 Ga. App. 197, 482 S.E.2d 516, 1997 Ga. App. LEXIS 282 16-13-49 (1997) (decided under former O.C.G.A. § 16-13-49). Constructive notice permissible. — Property owner was not entitled to relief under Fed. R. Civ. P. 60(b)(4) on the ground that the court’s judgment was inconsistent with due process of law because: (1) the court did not improperly invoke the fugitive disentitlement doctrine; (2) Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions G(4)(a)(iii)-(iv) required publication of the forfeiture proceeding once a week for three consecutive weeks in a newspaper generally circulated in the district where the action was filed, and those procedures were fully complied with as written notice was served upon petitioner’s property by the United States Marshals and was printed for three weeks in the Atlanta Journal Constitution, a local newspaper in general circulation in the district; and (3) the notice was sufficient under CAFRA, 18 U.S.C. § 985 since a copy of the complaint was posted on the defendant’s property by the United States Marshals and because at the time of the original forfeiture action, there were serious criminal charges pending against the property owner, and law enforcement officers were actively attempting to locate the defendant, the government therefore exercised due diligence attempting to locate petitioner, and thus, constructive notice under Georgia law, former O.C.G.A. § 16-13-49(i)(2), was permissible. United States v. 5054 Stoney Point Lake, 731 F. Supp. 2d 1345, 2010 U.S. Dist. LEXIS 92036 (N.D. Ga. 2010) (decided under former O.C.G.A. § 16-13-49). Constitutionality Former O.C.G.A. § 16-13-49 did not violate Ga. Const. 1983, Art. III, Sec. V, Para. III, which forbid treatment of more than one subject matter in a single statute. Lang v. State, 168 Ga. App. 693, 310 S.E.2d 276, 1983 Ga. App. LEXIS 3434 (1983) (decided under former O.C.G.A. § 16-13-49). Former O.C.G.A. § 16-13-49 afforded adequate notice and hearing so as to comport with due process require- 546 ments of federal Constitution and the Georgia Constitution. Tant v. State, 247 Ga. 264, 275 S.E.2d 312, 1981 Ga. LEXIS 596 (1981) (decided under former O.C.G.A. § 16-13-49). Contrary to a firearms owner’s assertion, the publication method selected by the Georgia General Assembly did not need to ensure actual notice in order for former O.C.G.A. § 16-13-49(n) to comport with due process, and former O.C.G.A. § 16-13-49(n) was not required to provide for notice to be printed in the county’s legal organ in order to satisfy due process; publication in a newspaper of general circulation was sufficient to satisfy the requirements of due process. Brewer v. State of Ga., 281 Ga. 283, 637 S.E.2d 677, 2006 Ga. LEXIS 976 (2006) (decided under former O.C.G.A. § 16-13-49). Former O.C.G.A. § 16-13-49(c) did not violate the equal protection and due process clauses of the United States Constitution. Porter v. State, 196 Ga. App. 31, 395 S.E.2d 360, 1990 Ga. App. LEXIS 800 (1990) (decided under former O.C.G.A. § 16-13-49). Constitutional prohibition against excessive fines applies to civil in rem forfeitures. Shook v. State, 221 Ga. App. 151, 470 S.E.2d 535, 1996 Ga. App. LEXIS 400 (1996) (decided under former O.C.G.A. § 16-13-49). Finding that forfeited currency was used in the purchase of cocaine was supported by the evidence; thus, the forfeiture did not violate the excessive fines clause. Lundy v. State, 226 Ga. App. 197, 482 S.E.2d 516, 1997 Ga. App. LEXIS 282 (1997) (decided under former O.C.G.A. § 16-13-49). Direction of the Court of Appeals upon remand of a forfeiture proceeding requiring the trial court to hold a hearing to determine whether the forfeiture violated the constitutional prohibition against excessive fines was mandatory, and the trial court had no discretion to refuse to comply with the direction. Rabern v. State, 231 Ga. App. 84, 497 S.E.2d 631, 1998 Ga. App. LEXIS 381 (1998) (decided under former O.C.G.A. § 16-13-49). Finding that a portion of real property was used to facilitate drug activities did not make the entire tract of land contra- 16-13-49 band and, thus, forfeiture of a residence and the 5.2 acres of land upon which the residence stood was excessive. Rabern v. State, 242 Ga. App. 804, 531 S.E.2d 373, 2000 Ga. App. LEXIS 354 (2000) (decided under former O.C.G.A. § 16-13-49). Former O.C.G.A. § 16-13-49 did not violate excessive fines provision. — Based on a property owner’s willful blindness to the illegal growing of marijuana on the subject property, and the owner’s knowledge of the past use of the property for criminal purposes, the forfeiture did not amount to an unconstitutional excessive fine; moreover, the harshness of the forfeiture was not grossly disproportionate to the gravity of the offense on which it was based or to the owner’s own culpability. Howell v. State of Ga., 283 Ga. 24, 656 S.E.2d 511, 2008 Ga. LEXIS 41 (2008) (decided under former O.C.G.A. § 16-13-49). Right against self-incrimination. — Defendant failed to show how requiring the defendant to conform to the pleading requirements of former O.C.G.A. § 16-13-49(o)(3) violated the defendant’s Fifth Amendment right against self-incrimination. Jett v. State, 230 Ga. App. 655, 498 S.E.2d 274, 1998 Ga. App. LEXIS 250 (1998) (decided under former O.C.G.A. § 16-13-49). Defendant was not forced to be a witness against self in criminal case when the trial court allowed admission of certain answers defendant gave in a petition filed in a related civil forfeiture proceeding that defendant owned certain property, including illegal drugs seized at defendant’s residence, as defendant had the option of seeking a stay of the civil forfeiture proceeding while the criminal case was going on, but chose not to do so. Clemons v. State, 257 Ga. App. 96, 574 S.E.2d 535, 2002 Ga. App. LEXIS 1059 (2002) (decided under former O.C.G.A. § 16-13-49). Statute does not violate the confrontation clause. — Trial court did not err in admitting hearsay evidence in a forfeiture hearing, pursuant to former O.C.G.A. § 16-13-49(s)(1), where officers who testified therein were not called upon to prove that defendant violated the law but for the limited purpose of explaining 547 Constitutionality (Cont’d) the basis for seeking a warrant; therefore, the trial court correctly rejected defendant’s challenge that the statute violated defendant’s constitutional right to face defendant’s accusers. Banks v. State of Ga., 277 Ga. 543, 592 S.E.2d 668, 2004 Ga. LEXIS 71 (2004) (decided under former O.C.G.A. § 16-13-49). Procedural due process does not require a preseizure hearing in cases of contraband condemnation. State v. Bailey, 233 Ga. 795, 213 S.E.2d 661, 1975 Ga. LEXIS 1446 (1975) (decided under former Code 1933, § 79A-828). Former language “or possessed in violation of § 16-13-32.2” was invalid. Windfaire, Inc. v. Busbee, 523 F. Supp. 868, 1981 U.S. Dist. LEXIS 15060 (N.D. Ga. 1981) (decided under former O.C.G.A. § 16-13-49). Provisions mandating proceedings without jury trial. — Former O.C.G.A. § 16-13-49(o)(5) and (p)(6), mandating drug forfeiture proceedings “without a jury trial,” violate neither the Seventh Amendment to the federal Constitution, whose range is over federal drug forfeiture actions, nor Ga. Const. 1983, Art. I, Sec. I, Para. XI, as the right to jury trial in drug forfeiture proceedings did not exist in 1798. Swails v. State, 263 Ga. 276, 431 S.E.2d 101, 1993 Ga. LEXIS 489, cert. denied, 510 U.S. 1011, 114 S. Ct. 602, 126 L. Ed. 2d 567, 1993 U.S. LEXIS 7657 (1993) (decided under former O.C.G.A. § 16-13-49). No unconstitutional taking resulted from lawful forfeiture. — Because a forfeiture of real property was not made under the power of eminent domain, and the trial court properly ruled that the forfeiture was proper, no takings clause issue was presented which entitled the property owner to just compensation. Howell v. State of Ga., 283 Ga. 24, 656 S.E.2d 511, 2008 Ga. LEXIS 41 (2008) (decided under former O.C.G.A. § 16-13-49). Procedure Applicability of subsection (e). — Former O.C.G.A. § 16-13-49(e) had no application where it was the federal 16-13-49 government, and not the state, which brought the forfeiture proceeding. Freeman v. City of Atlanta, 195 Ga. App. 641, 394 S.E.2d 784, 1990 Ga. App. LEXIS 658 (1990), superseded by statute as stated in Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372, 1994 Ga. App. LEXIS 572 (1994) (decided under former O.C.G.A. § 16-13-49). Applicability of § 17-5-54. — When the claimant asserted a right to property which was the subject of a forfeiture proceeding under former O.C.G.A. § 16-13-49, the state’s filing of a dismissal did not terminate the proceeding, and the sheriff was not authorized to apply for an order disposing of the property as “abandoned” pursuant to O.C.G.A. § 17-5-54. Boone v.