Mayor of Baltimore v. One 1995 Corvette Vin No. 1G1YY22P585103433

MOYLAN, Judge.

Outline

I. Procedural History..................................696

II. The Issue...........................................698

III. The High Water Mark of

Mapp v. Ohio

................699

IV. Holding the Line Against

Mapp’s

Extension............702

F. The Exclusionary Rule Does Not Apply to Grand Jury Proceedings.......................705

G. The Exclusionary Rule is Not a Factor in Federal Habeas Corpus Review....................706

H. The Exclusionary Rule Does Not Apply to Tax Forfeitures of Gambling Proceeds...............707

*694

I. The Exclusionary Rule Does Not Apply to Civil Deportation Proceedings....................... .709

J. The Exclusionary Rule Does Not Apply to Live Witnesses Discovered in the Course of a Fourth Amendment Violation...................710

K. The Exclusionary Rule Does Not Apply to the Impeachment in Rebuttal of Testimonial Credibility....................................711

L. The “Good Faith Exception” to the Application of the Exclusionary Rule.......................712

V. Maryland Cases Recognizing the Limited Reach of

Mapp’s

Exclusionary Rule..........................715

A. The Exclusionary Rule Does Not Apply to Sentencing Proceedings ...........................715

B. The Exclusionary Rule Does Not Apply to Criminal Contempt............................716

C. The Exclusionary Rule Does Not Apply to Probation Revocation Proceedings..................717

D. The Exclusionary Rule Does Not Apply to the Termination of Employment for the Commission of a Crime...............................720

VI. The Issue As Viewed Through the Lens of History.....721

VII. One 1958 Plymouth Sedan............................724

VIII.

Boyd v. United States

Has Been Completely Repudiated .............................................726

A The Intimate Relation of the Fourth and Fifth Amendments.................................728

B.

Boyd’s

Application of the Fifth Amendment Privilege.....................................734

1. Fifth Amendment Privilege Limited to Criminal Cases............................735

2. Personal Papers and Documentary Records No Longer Enjoy a Fifth Amendment Privilege.................................740

C. The Repudiation of

Boyd’s

“Mere Evidence Rule”........................................746

D. The Literal

Boyd

Decision Itself Has Been Implicitly Overruled...........................754

E.

Boyd v. United States:

The Final Requiem.........756

1. What

Boyd

Would Do That Would Not Today Be Done............................759

2. What

Boyd

Would Not Do That Could Today Be Done..............................759

IX. The “Quasi Criminal” Characterization in

One 1958 Plymouth Sedan

Was Ad-Hoc......................760

*695

X. The Currently Controlling Criteria For What Is “Criminal” and what Is “Civil” ......................770

XI. Statutory Forfeitures Generally As Civil

In Rem

Actions...........................................774

A. The Innocent Owner Cases.......................775

B. The Double Jeopardy Cases......................778

XII. The “Quasi-Criminal” or “Partly Punitive” Hybrid Is Now Extinct......................................781

XIII. Forfeiture Law in Maryland..........................790

A. Other Maryland Forfeiture Proceedings............791

B. Earlier Versus Later Forfeiture Laws.............793

C. Section 297 and Its Federal Counterpart...........795

D. The Legislative Scheme of § 297 ..................798

E. The Civil

In Rem

Character of § 297 ..............800

1. The Use of the Civil Burden of Persuasion.....802

2. The Forfeiture Forum Is a Civil Court.........803

3. No Criminal Act Need Actually Occur..........804

4. An Allegedly Innocent Owner Must Prove His Innocence.............................806

5. The Significance of § 297’s Characterization as “Civil” Goes Beyond the Double Jeopardy Clause...........................807

XIV. Conclusion..........................................808

Does the prophylactic

1

Exclusionary Rule of

Mapp v. Ohio,

367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), apply in a civil,

in-rem

forfeiture proceeding in Maryland of an automobile used in the drug trade? No, it does not. Does the case of

One 1958 Plymouth Sedan v. Pennsylvania,

380 U.S. 693 , 85 S.Ct. 1246 , 14 L.Ed.2d 170 (1965), stand for the broad principle that Mapp’s Exclusionary Rule must be applied to all drug-related forfeitures of automobiles regardless of whether those forfeiture proceedings are criminal or civil in

*696

character? A close reading of the opinion reveals that it most certainly does not. In the years since 1965, however, the academic discipline of reading the case closely has been honored more in the breach than in the observance; Has

One 1958 Plymouth Sedan ,

whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not.

I.

Procedural History

On May 9, 1996, Baltimore City police officers, conducting a surveillance in the 300 block of East Coldspring Lane, stopped a 1995 Chevrolet Corvette based on their belief that the driver had just engaged in a drug transaction. In the course of the stop, the automobile was searched and the following contraband was found: 487 grams of 82% pure cocaine in one large ziplock bag; approximately 12.8 grams of 80% pure cocaine packaged in seven blue ziplock bags; and 35 grams of 81% pure cocaine packaged in five plastic bags. The officers concluded that the automobile was being used to transport drugs. The automobile itself was seized, and the driver, Weldon Connell Holmes, was placed under arrest.

2

At the time of the seizure, Weldon Holmes was the registered owner of the automobile, and the General Motors Acceptance Corporation (GMAC) was the lien holder.

On June 6, 1996, the State’s Attorney for Baltimore City filed a complaint in the Circuit Court for Baltimore City seeking forfeiture of the Chevrolet Corvette pursuant to Maryland Annotated Code, Article 27, § 297. In pertinent part, subsection (b), listing the “Property Subject to Forfeiture,” includes the following:

*697

(4) All conveyances including ... vehicles ... which are used ... to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled dangerous substances].

(10) [A]ll proceeds traceable to ... an exchange [of] a controlled dangerous substance.

Pursuant to subsection (b)(4), the Complaint for Forfeiture included the following allegation:

That on or about the 9th day of May, 1996, Weldon Connell Holmes, and/or his agents used and intended to use the above described motor vehicle while engaged in an unlawful violation of the Controlled Dangerous Substance Law of the State of Maryland by having possession of 487 grams of 82% pure cocaine packaged in one (1) large ziplock, approximately 12.8 grams of 80% pure cocaine packaged in seven (7) blue ziplock bags, and thirty-five (35) grams of 81% pure cocaine packaged in five (5) plastic bags as well as other possible related violations, as proscribed by Article 27 Section 276-302, Annotated Code of Maryland.

As an alternative basis for the forfeiture and pursuant to subsection (b)(10), the Complaint for Forfeiture included the following allegation:

8. That the subject vehicle is a proceed traceable to the profits made from the illegal sales of Controlled Dangerous Substances.

On September 10 and 12, 1996, a hearing was held on the forfeiture action, at which time the defense moved to dismiss the complaint based on the illegal search and seizure of the drugs from the automobile. The trial court denied the motion. The defense renewed its motion to dismiss prior to the testimony of Officer Tony Ellison, one of the officers involved in the search. The motion was again denied. A continuing objection was then made by the defense to the introduction of the drugs seized from the automobile. At the conclusion of all of the testimony, the trial court, despite its two earlier rulings, requested that both counsel submit memoranda of law on the

*698

issue of whether the Exclusionary Rule applied to exclude evidence in a civil forfeiture proceeding.

In a Memorandum and Order dated October 29, 1996, the trial court concluded that the Fourth Amendment had been violated because the police officers lacked probable cause to believe that contraband was located in the automobile. As a result of the Fourth Amendment violation the trial court, relying almost exclusively on

One 1958 Plymouth Sedan ,

held that the Exclusionary Rule applies in civil forfeiture cases. In doing so, the court stated, “[t]he rule established by the Supreme Court in

Plymouth Sedan

is still persuasive mandatory authority on this Court. While

Plymouth Sedan

is a 1965 case, it has not been explicitly overruled by the Supreme Court.” Accordingly, the trial court ruled that the drugs illegally seized from the automobile could not be admitted at the forfeiture proceeding and dismissed the State’s complaint. From that dismissal the State appeals.

No ruling was made with respect to the State’s alternative theory of forfeiture, to wit, that the vehicle was “a proceed traceable to the profits made from the illegal sales of Controlled Dangerous Substances.”

II.

The Issue

The single issue before us is that of whether the Exclusionary Rule of

Mapp

should have been applied in the drug-related automobile forfeiture proceeding before the trial court in this case. That question, however, actually transforms itself into one of whether the Supreme Court decision of

One 1958 Plymouth Sedan v. Pennsylvania,

380 U.S. 693 , 85 S.Ct. 1246 , 14 L.Ed.2d 170 (1965), today dictates (or ever dictated) that Mapp’s Exclusionary Rule must apply in all drug-related forfeiture cases. As we shall analyze at some length, it is clear that absent an unequivocal holding to that effect by

One 1958 Plymouth Sedan ,

the Exclusionary Rule would not otherwise apply. Everything turns on the current effect of

One 1958 Plymouth Sedan .

*699

The evidence for our conclusion that the Exclusionary Rule does not apply to a drug-related automobile forfeiture in Maryland and that

One 1958 Plymouth Sedan

does not compel a contrary result is massive. It is, however, circumstantial and needs, therefore, an extensive recounting. For the formal obituary of

One 1958 Plymouth Sedan

(devoutly to be wished), what has been sadly missing is one single, clean stake to the heart. Absent that

coup de grace,

we must undertake the longer analysis.

III.

The High Water Mark of Mapp v. Ohio

Withholding for the moment our look at

One 1958 Plymouth Sedan

itself, our otherwise uninterrupted view is that of an unrelenting juggernaut that has, at least since the late 1960’s, trampled before it any suggestion that Mapp’s Exclusionary Rule would be extended to any situation other than that involved in the

Mapp

case itself — the exclusion of evidence obtained in violation of the Fourth Amendment from direct use in a criminal case as part of the State’s case in chief on the literal merits of guilt or innocence. In a very real sense, the 1961 filing of the

Mapp

opinion was the high water mark for the

Mapp

philosophy.

In popular usage, particularly among the disenchanted, however, what has happened, at least in the last thirty years, has been characterized as a “retreat from

Mapp”

or as a “receding from Mapp’s high water mark.” Such characterizations, of course, are not true. Nothing in

Mapp

has been overruled. It stands today for precisely the thing it stood for in June of 1961, neither more nor less. If there has been any sort of a “retreat” or a “receding,” it has not been from what

Mapp

was, but only from what many hoped

Mapp

might become. There had been, to be sure, in the immediate and euphoric aftermath of

Mapp ,

great expectations in libertarian and defense-oriented circles that the new Exclusionary Rule would soon be extended from one new situation to another. Those expectations may not have been fulfilled, but there has

*700

been no retreat from the literal holding of

Mapp

itself. Neither, however, has there been any advance and that is the larger perspective that must be appreciated to place our present inquiry in its proper historic context.

To understand better the inertia that has restrained any growth by the Exclusionary Rule, one must remember that the Supreme Court arrived at its

Mapp

decision only very reluctantly and only for the lack of a viable alternative. “[Without the ... rule the assurances against unreasonable ... searches and seizures would be ‘a form of words.’ ”

Mapp,

367 U.S. at 655 , 81 S.Ct. at 1691 . It had been but twelve years since

Wolf v. Colorado,

338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949), had declined to assign constitutional stature to its federal Exclusionary Rule, adopted by it in

Weeks v. United States,

232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914), only pursuant to its supervisory power over the lower federal courts, and had held that the Exclusionary Rule, therefore, did not apply to the states. The

Mapp

Court was sensitive to the stinging criticisms of the exclusionary principle, including the stern rebuke by Chief Judge Cardozo (later Justice of the Supreme Court), as he declined to adopt an exclusionary rule for the State of New York in

People v. Defore,

242 N.Y. 13, 21 , 150 N.E. 585, 587 (1926), that it was absurd that “the criminal go free because the constable has blundered.”

The Supreme Court was also alert to the criticism that it was perpetrating one ill in order to cure another,

3

that in the best of all worlds the criminal would go to jail for his crime, which competent evidence, however obtained, demonstrated that he had committed, and that some alternative sanction would be devised to punish the officer who violated the Constitution. The undisputed master of the law of evidence,

*701

Dean John Henry Wigmore, had railed against perverting the rules of evidence, designed to serve only an intrinsic policy of facilitating the search for truth within the courtroom, in order to serve some extrinsic policy (such as making the police behave). Wigmore had impaled the operation of the Exclusionary Rule on his famous parody:

Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the Constitution. Titus ought to suffer imprisonment for crime, and Flavius for contempt. But no! We shall let you

both

go free. We shall not punish Flavius directly, but shall do so by reversing Titus’ conviction. This is our way of teaching people like Flavius to behave, and of teaching people like Titus to behave, and incidentally of securing respect for the Constitution. Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.

8

Wigmore on Evidence

§ 2184a (McNaughton ed., 1961), at 31 (Emphasis in original).

Mapp’s decision to impose the Exclusionary Rule on the states was made only by a five-to-four vote. Three Justices (Harlan, Frankfurter, and Whittaker) complained bitterly that so seminal a Fourth Amendment decision should not have been taken in a case where the possibility of a federally imposed Exclusionary Rule had not even been raised at the Ohio trial court, in the Ohio Supreme Court, in the application for

certiorari,

in the grant of

certiorari,

in the appellate briefs of the two primary parties (it was urged peripherally in one amicus brief), or in oral argument before the Supreme Court.

4

All the way up the line, the propriety of the conviction had

*702

been challenged exclusively on First Amendment grounds.

5

One Justice (Stewart) concurred in the decision that Dollree Mapp’s conviction should be reversed, but he did so exclusively on First Amendment grounds. He agreed with the three dissenters that the Fourth Amendment issue was not ripe for consideration.

Mapp,

367 U.S. at 686 , 81 S.Ct. at 1708 (concurring and dissenting opinion by Stewart, J.)

Even among the five justices who voted to impose the Exclusionary Rule on the states, only four believed that it was a sanction implicit in the Fourth Amendment. Justice Black could find no charter for the Exclusionary Rule within the four corners of the Fourth Amendment but relied on the so-called “mystic union” between the Fourth and the Fifth Amendments, an idea directly traceable to

Boyd v. United States,

116 U.S. 616, 630 , 6 S.Ct. 524, 532 , 29 L.Ed. 746 (1886)

6

and since thoroughly discredited.

IV.

Holding the Line Against Mapp’s Expansion

Mapp

ignited a firestorm of opposition. Because it had been a decision made with serious misgivings even by the

*703

Mapp

Court itself, its germinating capacity was stunted from its very outset. Dashing the hopes of many that it would expand and enjoy numerous more peripheral applications, the Exclusionary Rule essentially froze in its tracks in its infancy, if not literally at its birth.

In a doctrinal sense, the Supreme Court decision that essentially foreclosed any meaningful growth on the part of the Exclusionary Rule was

Linkletter v. Walker,

381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965). For our present purpose of analyzing both the meaning and the viability of

One 1958 Plymouth Sedan ,

the chronological relationship between it and

Linkletter

has some significance.

One 1958 Plymouth Sedan

was decided on April 29, 1965.

Linkletter

was handed down five weeks later on June 7,1965.

The issue before the Supreme Court in

Linkletter

was that of whether the new rule of

Mapp

(the overruling of

Wolf v.

Colorado) should be applied retroactively or only prospectively. During the decade of the 1960’s, to wit, the criminal law phase of the larger Warren Court revolution, the retroactivity — prospectivity issue arose frequently because of the large number of Supreme Court decisions which overturned prior decisions of diametrically different import. As a general rule of thumb, it was determined that if the new constitutional rule was something that went to “the very integrity of the fact-finding process,”

Linkletter,

381 U.S. at 639 , 85 S.Ct. at 1743 , the new rule would be applied with full retroactivity no matter what the administrative cost involved or how great the dislocation.

See, e.g., Gideon v. Wainwright,

372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). If, on the other hand, the purpose of the new rule served only a prophylactic function, then there would be no reason gratuitously to incur the cost of retroactive application with no corresponding benefit.

To apply that general rule of thumb to Mapp’s Exclusionary Rule, it became necessary to identify the purpose of the Exclusionary Rule. Academically recognized rationales for an exclusionary rule were three in number: 1) to serve the remedial purpose of “making the defendant whole” based on

*704

the notion that the right to have unconstitutionally seized evidence excluded was part of the constitutional entitlement of the defendant himself; 2) the imperative of judicial integrity, to make sure that the judicial system itself did not suffer “unclean hands” by virtue of receiving tainted evidence; and 3) the prophylactic purpose of deterring the police from future Fourth Amendment violations, thereby protecting the innocent as well as the guilty, by eliminating the police incentive to violate the Fourth Amendment. The problem, it turned out, was that

Mapp

had imposed the Exclusionary Rule on the states without ever expressly stating what purpose the Exclusionary Rule was supposed to serve. Identifying the purpose, of course, was indispensable to resolving the retroactivityprospectivity issue. That glaring gap in the decisional process had to be closed by

Linkletter .

“We must look to the purpose of the

Mapp

rule.”

Linkletter,

381 U.S. at 636 , 85 S.Ct. at 1741 .

Linkletter

made it emphatically clear that Mapp’s “purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.”

Id.

at 637 , 85 S.Ct. at 1742. It declared that the Exclusionary Rule “was the only effective deterrent to lawless police action” and that all of the post-WoZ/ Supreme Court cases “requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.”

Id.

at 636-37, 85 S.Ct. at 1741.

In explaining why there was nothing to be achieved by applying the Rule retroactively, the

Linkletter

Court disdained the notion that retrospective exclusion would serve a remedial purpose. “The misconduct of the police prior to

Mapp

had already occurred and will not be corrected by releasing the prisoners involved.”

Id.

at 637, 85 S.Ct. at 1742.

7

*705

The absence of an Exclusionary Rule, moreover, did not derogate from the integrity of the fact-finding process. “To thus legitimate such an extraordinary procedural weapon [the Exclusionary Rule] that has no bearing on guilt would seriously disrupt the administration of justice.” 381 U.S. at 637-38 , 85 S.Ct. at 1742. “All that the petitioner attacks is the admissibility of evidence, the reliability and relevance of which is not questioned.” 381 U.S. at 639 , 85 S.Ct. at 1743.

A. The Exclusionary Rule Does Not Apply to Grand Jury Proceedings

Once

Linkletter

had held that Mapp’s purpose was only to deter future police violations of the Fourth Amendment, the doctrinal predicate was established that would keep the Exclusionary Rule fixed firmly within its original boundaries. In

United States v. Calandra,

414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), the Supreme Court declined to apply the Exclusionary Rule to proceedings before a grand jury, notwithstanding the fact that the grand jury was considering the same criminal offense from the subsequent trial of which evidence could be excluded. Justice Powell reiterated the limited purpose of the Exclusionary Rule:

[T]he rule is

a judicially created remedy

designed to safeguard Fourth Amendment rights generally through its deterrent effect,

rather than a personal constitutional right

of the party aggrieved.

414 U.S. at 348 , 94 S.Ct. at 620 (Footnote omitted; emphasis supplied). The Supreme Court went on to hold that extending the Exclusionary Rule to grand jury proceedings would achieve, at most, a merely incremental deterrent effect that was not worth the cost:

Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal____ We therefore decline to embrace a view

*706

that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury.

414 U.S. at 351-52 , 94 S.Ct. at 621-22 (Footnote omitted).

8

B. The Exclusionary Rule Is Not a Factor in Federal

Habeas Corpus

Review

In

Stone v. Powell,

428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), the Supreme Court declined to apply the Exclusionary Rule to federal

habeas corpus

review of state court criminal convictions. The opinion first directed its attention specifically to the third rationale for exclusion, the so-called “imperative of judicial integrity,” and concluded that it had a “limited role ... in the determination whether to apply the rule in a particular context.” 428 U.S. at 485 , 96 S.Ct. at 3048 . “[T]his concern has limited force as a justification for the exclusion of highly probative evidence.”

Id.

Through Justice Powell, the Court then reiterated that the purpose of the Exclusionary Rule is a deterrent one and not the protection of a constitutional right of the defendant:

The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights.

Post-Mapp

decisions have established that

the rule is not a personal constitutional right.

428 U.S. at 486 , 96 S.Ct. at 3048 (Emphasis supplied).

The

Stone v. Powell

opinion, perhaps more than any other, described the heavy societal price that is paid when the Exclusionary Rule is applied:

*707

The costs of applying the exclusionary rule even at trial and on direct review are well known: the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. Moreover,

the physical evidence sought to be excluded is typically reliable

and often the most probative information bearing on the guilt or innocence of the defendant....

Application of the rule thus deflects the truthfinding process and often frees the guilty.

The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.

428 U.S. at 489-90 , 96 S.Ct. at 3050 (Footnotes omitted; emphasis supplied).

C. The Exclusionary Rule Does Not Apply To Tax Forfeitures of Gambling Proceeds

In

United States v. Janis,

428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976), a police search of a bookmaking parlor in Los Angeles produced $4,940 in cash as well as certain wagering records. Prior to the criminal trial of the defendant for violating the gambling laws, a suppression hearing ruled that the search had violated the Fourth Amendment. All of the evidence, including the cash, was excluded from the criminal trial and the prosecution had no choice but to

nol pros

the case against the defendant.

Notwithstanding that adjudication of a clear Fourth Amendment violation, the Internal Revenue Service seized the $4,940 and, using it as a multiplier, assessed the defendant $89,026.09 for unpaid wagering taxes plus interest. They levied directly upon the $4,940 as partial satisfaction of the assessment against the defendant. A federal district judge applied the Exclusionary Rule and determined that the government could neither use the $4,940 as evidence to assess the larger amount nor seize the $4,940 directly. The United States Court of

*708

Appeals for the Ninth Circuit affirmed the suppression for the Fourth Amendment violation.

In reversing, the Supreme Court held that the Exclusionary Rule did not apply to the civil case brought by the IRS either for the larger assessment or for the direct forfeiture of the $4,940 itself. Justice Blackmun’s opinion reiterated the limited purpose of the Exclusionary Rule:

The debate within the Court on the exclusionary rule has always been a warm one. It has been unaided, unhappily, by any convincing empirical evidence on the effects of the rule. The Court, however, has established that

the “prime purpose” of the rule, if not the sole one, “is to deter future unlawful police conduct.”

428 U.S. at 446, 96 S.Ct. at 3028 (Footnote omitted; emphasis supplied).

He went on to point out that the Supreme Court

“never has applied [the Exclusionary Rule] to exclude evidence from a civil

proceeding, federal or state.” 428 U.S. at 447, 96 S.Ct. at 3029 (Emphasis supplied). The Supreme Court concluded that the Exclusionary Rule does not have to be applied to such a civil proceeding in order to achieve its deterrent purpose:

If the exclusionary rule is the strong medicine that its proponents claim it to be, then its use in the situations in which it is now applied (resulting, for example, in this case in frustration of the Los Angeles police officers’ good-faith duties as enforcers of the criminal laws) must be assumed to be a substantial and efficient deterrent. Assuming this efficacy,

the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation.

If, on the other hand, the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted. Under either assumption, therefore,

the extension of the rule is unjustified.

428 U.S. at 453-54, 96 S.Ct. at 3032 (Footnotes omitted; emphasis supplied).

*709

D. The Exclusionary Rule Does Not Apply to Civil Deportation Proceedings

In holding that the Exclusionary Rule did not apply to yet another type of civil proceeding — a deportation hearing — the case of

Immigration and Naturalization Service v. Lopez-Mendoza,

468 U.S. 1032 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984), built on the foundation of

Janis .

One of the deportees in the

Lopez-Mendoza

case had been subjected to a Fourth Amendment-violative seizure of his person. He then made incriminating statements as the unattenuated result of that unconstitutional seizure. The United States Court of Appeals for the Ninth Circuit reversed the deportation order and ruled that the Exclusionary Rule should have barred the use of the evidence. The Supreme Court reversed the Ninth Circuit and held that the Exclusionary Rule was not to be applied in such a civil proceeding.

Although the deportation was a direct result of an earlier criminal act, the unlawful entry into the country, the opinion of Justice O’Connor separated the civil consequence of deportation from the earlier criminal act:

A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry ...

468 U.S. at 1038 , 104 S.Ct. at 3483 . The opinion went on to stress the difference between a civil proceeding and a criminal proceeding, notwithstanding the fact that there is some factual overlap between the two:

A deportation hearing is held before an immigration judge. The judge’s sole power is to order deportation;

the judge cannot adjudicate guilt or punish the respondent for any crime

related to unlawful entry into or presence in this country.

Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply

in a deportation hearing.

Id.

(Emphasis supplied).

Justice O’Connor repeated the earlier observation in

Janis

that the Supreme Court had never applied the Exclusionary Rule to a civil proceeding:

*710

At stake in

Jams

was application of the exclusionary rule in a federal civil tax assessment proceeding following the unlawful seizure of evidence by state ... officials. The Court noted at the outset that

“[i]n the complex and turbulent history of the rule, the Court never has applied it to exclude evidence from a civil proceeding,

federal or state.”

468 U.S. at 1041-42 , 104 S.Ct. at 3485 (Emphasis supplied).

Even after noting that the “arresting officer’s primary objective, in practice, will be to use the evidence in the civil deportation proceeding,” 468 U.S. at 1043 , 104 S.Ct. at 3485 , the Supreme Court nonetheless concluded that the Exclusionary Rule had no applicability in a civil deportation proceeding:

[W]e conclude that application of the rule in INS civil deportation proceedings, as in the circumstances discussed in

Janis ,

“is unlikely to provide significant, much less substantial, additional deterrence.”

Important as it is to protect the Fourth Amendment rights of all persons, there is no convincing indication that application of the exclusionary rule in civil deportation proceedings will contribute materially to that end.

468 U.S. at 1046 , 104 S.Ct. at 3487 (Citation omitted; emphasis supplied).

As early as 1923, the Supreme Court, speaking through Justice Brandeis, held in

United States ex rel. Bilokumsky v. Tod,

263 U.S. 149 , 44 S.Ct. 54 , 68 L.Ed. 221 (1923), that even when a deportation petition is the direct consequence of a criminal violation, the deportation hearing itself is civil in nature. As an inherent aspect of the civil proceeding, the protections that ordinarily attend a criminal trial — in that case the privilege against compelled self-incrimination — are not applicable.

E. The Exclusionary Rule Does Not Apply to Live Witnesses Discovered in the Course of a Fourth Amendment Violation

In

United States v. Ceccolini,

435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978), the Supreme Court declined to apply the

*711

Exclusionary Rule even to certain aspects of the criminal trial itself. The appellant was convicted of a gambling violation. A clear Fourth Amendment violation — picking up an envelope from a cash register, opening it, and discovering both money and policy slips — led to the discovery of a key witness against the appellant. Utilizing a “fruit of the poisonous tree” analysis, the United States District Court ruled that the testimony of the witness should be excluded because the government’s awareness of the witness’s identity and value was the product of the Fourth Amendment violation. The United States Court of Appeals for the Second Circuit affirmed the suppression ruling.

The Supreme Court reversed that suppression, holding that the Exclusionary Rule under the circumstances of that case should not extend to barring the use of a. live witness even from the criminal trial itself.

F. The Exclusionary Rule Does Not Apply to the Impeachment in Rebuttal of Testimonial Credibility

In

United States v. Havens,

446 U.S. 620 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 (1980), the Supreme Court further limited the applicability of the Exclusionary Rule even in the trial of the criminal case itself.

9

The appellant, an attorney, was convicted of importing illegal drugs into the United States from Peru. The warrantless search of his suitcase at the Miami airport was so flagrantly a violation of the Fourth Amendment that the government did not even attempt to offer the product of that search in its case in chief. After the appellant made certain responses in the course of his cross-examination, however, the government sought to use the products of that search in rebuttal for the purpose of impeaching his testimonial credibility. The United States Court of Appeals for the Fifth Circuit reversed the appellant’s conviction, ruling that

*712

the unconstitutionally seized evidence should have been suppressed.

The Supreme Court, in turn, reversed the Fifth Circuit, holding that the Exclusionary Rule should not bar the use of Fourth Amendment-violative evidence for the purpose of impeaching testimonial credibility, regardless of whether the testimony to be impeached emanated from direct examination or cross-examination. Justice White reasoned for the Court:

We also think that the policies of the exclusionary rule no more bar impeachment here than they did in

Walder

[v.

United States,

347 U.S. 62 , 74 S.Ct. 354 , 98 L.Ed. 503 (1954)],

Harris [v. New York,

401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971)], and

[Oregon v.] Hass

[ 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975)]. In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained that is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.

446 U.S. at 627-28 , 100 S.Ct. at 1916-17 .

10

G. The “Good Faith Exception” to the Application of the Exclusionary Rule

With the promulgation of the “good faith exception” to the Exclusionary Rule in

Massachusetts v. Sheppard,

468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984) and

United States

*713

v. Leon,

468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), the Supreme Court did, to be sure, not simply hold the line against further expansion of the Exclusionary Rule but actually cut back on its applicability.

That cutback, of course, had been logically foreshadowed from as early as 1965 when

Linkletter v. Walker

held that the only generative purpose behind the Rule was that of deterrence and that that deterrence, moreover, was aimed only at the police. It followed from that limited purpose that the Rule should only be applied in those situations where it would truly deter Fourth Amendment violations by the police rather than on every occasion when the Fourth Amendment was actually violated. In

Sheppard

and

Leon

the police were deemed to have acted reasonably and, therefore, to have been in no need of deterrence where they had relied in good faith on judicially issued search and seizure warrants. In deferring to the judicial branch of government, the police had acted with quintessential reasonableness. The judge who issued the warrant may have made a mistake but the Exclusionary Rule is not aimed at deterring judicial mistakes.

11

The “good faith exception” expanded further three years later when

Illinois v. Krull,

480 U.S. 340 , 107 S.Ct. 1160 , 94 L.Ed.2d 364 (1987), held that the police had acted reasonably and were, therefore, in no need of deterrence where they had relied in good faith on a duly enacted Illinois statute, notwithstanding the fact that the statute was later determined to have authorized violations of the Fourth Amendment. The “good faith exception” continued to expand when

Arizona v. Evans,

514 U.S. 1 , 115 S.Ct. 1185 , 131 L.Ed.2d 34 (1995), held that the police had acted reasonably and were, therefore, in no need of deterrence when they had relied in good faith on computerized misinformation and where the source of the misinformation had been clerical mistakes in the judicial branch of government.

For present purposes, the significance of the opinion in

United States v. Leon

is in Justice White’s thorough analysis

*714

of the purpose and the scope of Mapp’s Exclusionary Rule. He made it unmistakably clear that the Rule is a judicially created prophylactic remedy and not part of the constitutional entitlement of the defendant:

The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure “work[s] no new Fourth Amendment wrong.” The wrong condemned by the Amendment is “fully accomplished” by the unlawful search or seizure itself, and the exclusionary rule is neither intended nor able to “cure the invasion of the defendant’s rights which he has already suffered.”

The rule thus operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”

468 U.S. at 906, 104 S.Ct. at 3411-12 (Citations omitted; emphasis supplied). The Supreme Court again pointed out the heavy societal cost exacted by the Rule as the reason why it should be restricted to those cases where it is absolutely necessary:

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. “Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.”

468 U.S. at 907, 104 S.Ct. at 3412.

Whatever the earlier and looser rhetoric of the Supreme Court may have been, the

Leon

opinion pointed out that “close attention” to the purpose sought to be accomplished by the Rule “has characterized our recent decisions concerning the scope of the Fourth Amendment exclusionary rule.” 468 U.S. at 908, 104 S.Ct. at 3413. In keeping a constant eye on the purpose to be served, the Supreme Court had consistently

*715

declined to extend the Exclusionary Rule to proceedings other than the criminal trial itself. The

Leon

Court reiterated that in

Janis

it had declined to extend the Rule to civil proceedings:

Proposed extensions of the exclusionary rule to proceedings other than the criminal trial itself have been evaluated and rejected

under the same analytic approach----[I]n

United States v. Janis

we permitted the use in federal civil proceedings of evidence illegally seized by state officials since the likelihood of deterring police misconduct through such an extension of the exclusionary rule was insufficient to outweigh its substantial social costs.

468 U.S. at 909, 104 S.Ct. at 3413 (Citation omitted; emphasis supplied).

V.

Maryland Cases Recognizing the Limited Reach of Mapp’s Exclusionary Rule

On at least six occasions the appellate courts of Maryland have been called on to determine whether

Mapp v. Ohio’s

Exclusionary Rule has any applicability beyond the literal adjudication of guilt or innocence at the criminal trial itself. On each such occasion, the answer has been “No.”

A. The Exclusionary Rule Does Not Apply to Sentencing Proceedings

In

Logan v. State,

289 Md. 460 , 425 A.2d 632 (1981), the Court of Appeals considered the applicability of the Rule to a sentencing proceeding. At the sentencing of a defendant for housebreaking, evidence was introduced of six other offenses which the defendant had committed but for which he had not been tried. The proof that the defendant had committed those uncharged offenses was a series of six confessions by him. The confessions, however, had been forthcoming only when the defendant was confronted with a set of master keys that had been unconstitutionally seized by the police.

The appellant sought to convince the Court of Appeals that

Mapp’s

Exclusionary Rule “is applicable not solely to the

*716

‘guilt determination’ stage of a criminal trial, but also to the sentencing phase.” 289 Md. at 488 , 425 A.2d 682 . In rejecting the argument, Judge Digges pointed out “[t]hat the exclusionary rule is a judicially-created requirement of policy calculated to prevent, not to repair.”

Id.

After analyzing the Supreme Court’s historical rejection of other rationales in favor of that of deterrence, 289 Md. at 488-84 , 425 A.2d 682 , he concluded the summary:

In keeping with

this narrowing conception of the application and utility of the rule,

the Supreme Court has consistently refused to extend its reach beyond the area traditionally within the rule’s purview.

289 Md. at 484 , 425 A.2d 632 (Emphasis added).

After examining at length the Supreme Court philosophy expressed in

Calandra

and noting that “[m]ost illegally-obtained evidence is not inherently unreliable,” 289 Md. at 485 , 425 A.2d 632 , the Court of Appeals concluded that the “Supreme Court doctrine does not extend to the sentencing stage of a criminal case.” 289 Md. at 486 , 425 A.2d 632 .

B. The Exclusionary Rule Does Not Apply to Criminal Contempt

In

Whitaker v. Prince George’s County,

307 Md. 368 , 514 A.2d 4 (1986), the appellants, who had been enjoined from continuing to operate a public nuisance (a bawdy-house), were found to be in criminal contempt for flouting that injunction. On appeal, they claimed that they had been denied the opportunity even to litigate the Fourth Amendment propriety of the police search that had produced the evidence against them. Speaking through Judge Couch, the Court of Appeals held that the propriety of the search was immaterial because, good search or bad search, the Exclusionary Rule did not apply:

[Tjhough the consequences of the County’s suit may be grave, it is not a criminal proceeding and

in no sense is the action vindictive or punitive.

Rather, the proceedings only seek determination of whether appellants engaged in prostitution-related activities and, if so, whether those activities

*717

should be enjoined, and whether those activities were violative of certain court orders. In such a case

the use in evidence of that which might be excluded in a criminal trial does not involve a constitutionally protected interest.

307 Md. at 383 , 514 A.2d 4 (Emphasis supplied).

The Court of Appeals pointed out that the Supreme Court’s

Janis

opinion had “severely undermined” earlier state and federal decisions which had applied the Exclusionary Rule to civil proceedings:

While the Supreme Court has never directly applied the exclusionary rule in a civil case, it ruled in

Janis, supra,

that evidence illegally seized by state agents in good faith and in reliance on a warrant may be used in a federal civil tax proceedings.

Though the ruling cannot be said to stand for the proposition that evidence may never be excluded in a civil proceeding, it nonetheless severely undermined those cases in lower courts which applied the exclusionary rule to civil proceedings.

307 Md. at 382 , 514 A.2d 4 (Emphasis supplied).

After noting “the cost to society in excluding what might concededly be relevant and reliable evidence,” 307 Md. at 383 , 514 A.2d 4 , the Court opined as to the emerging intention of the Supreme Court in terms of confining the Exclusionary Rule:

The language of Calandra, coupled with the Court’s refusal to extend the exclusionary rule to a civil proceeding in Janis,

albeit upon a rationale which is not applicable in the instant case, supports this conclusion and

is suggestive of that Court’s intention to limit the applicability of the exclusionary rule to criminal proceedings.

307 Md. at 384 , 514 A.2d 4 (Emphasis supplied).

C. The Exclusionary Rule Does Not Apply to Probation Revocation Proceedings

In

Chase v. State,

68 Md.App. 413 , 511 A.2d 1128 (1986), this Court stated the issue at the very outset of the opinion:

Under current Constitutional doctrine, evidence seized by a policeman without a warrant and in violation of a person’s

*718

Fourth Amendment rights ordinarily may not be used by the State to convict the person of a criminal offense.

The principal question in this appeal is. whether such evidence may be used in a probation revocation proceeding

for the purpose of showing that the person has violated a condition of his probation.

68 Md.App. at 414-15 , 511 A.2d 1128 (Emphasis supplied).

The appellant, a probationer for an earlier conviction, was arrested and indicted for a fresh crime. A suppression hearing judge found the warrantless arrest of the appellant to have been without probable cause and, therefore, ordered all evidence of a drug transaction excluded from the appellant’s pending criminal trial. As a direct result of that ruling, the State dismissed all criminal charges. It persisted, however, with its petition to revoke the appellant’s probation based on the very same evidence.

The opinion of Judge Wilner (now of the Court of Appeals) joined in by Judge Robert M. Bell (now Chief Judge of the Court of Appeals) thoroughly analyzed the development of the Supreme Court’s attitude toward the Exclusionary Rule from

Mapp v. Ohio

(1961) through

United States v. Leon

(1984). 68 Md.App. at 418-21 , 511 A.2d 1128 . After noting that

Mapp

had “spoke[n] in rather dogmatic terms,” 68 Md.App. at 418 , 511 A.2d 1128 , but that the Supreme Court had, early on, “viewed the exclusionary rule as a deterrent, rather than a redressive measure,” 68 Md.App. at 419 , 511 A.2d 1128 , the opinion described the growing stinginess of the Supreme Court in applying the Exclusionary Rule:

Upon that rationale, and

despite the broad doctrinal language in Mapp, the Court,

while periodically reaffirming the need for and continued existence of the exclusionary rule in Fourth Amendment cases, eventually

began to open some holes in the Constitutional net it had thrown over improperly seized evidence.

68 Md.App. at 419 , 511 A.2d 1128 (Emphasis supplied).

Notwithstanding the

in personam

nature of a probation revocation proceeding, contrasted with the

in rem

character of

*719

a forfeiture proceeding, and notwithstanding the inevitably penal effect on one whose probation has been revoked, the Court declined to impose the Exclusionary Rule:

We align ourselves with the majority of courts that have declined to extend in any general fashion the Fourth Amendment exclusionary rule to probation revocation proceedings. We agree, as a general proposition, that the deterrent effect of such an application will be minimal and that whatever marginal deterrent benefit might accrue would be far outweighed by the harmful effect of denying access to relevant information concerning a probationer’s behavior.

68 Md.App. at 425 , 511 A.2d 1128 .

In

Chase v. State,

309 Md. 224 , 522 A.2d 1348 (1987), the Court of Appeals affirmed. The opinion of Judge Orth held that “[i]n Maryland, the revocation of probation is considered to be a civil proceeding” notwithstanding the fact that it “relates directly to the criminal case of the substantive offense.” 309 Md. at 238 , 522 A.2d 1348 . Looking to

Howlett v. State,

295 Md. 419 , 456 A.2d 375 (1983) and

Minnesota v. Murphy,

465 U.S. 420 , 104 S.Ct. 1136 , 79 L.Ed.2d 409 (1984), the Court of Appeals noted:

It is firmly established as a civil action, and, as we have noticed above,

the probationer is not cloaked with the full panoply of constitutional rights and procedural safeguards enjoyed by a defendant in a criminal cause.

309 Md. at 239 , 522 A.2d 1348 (Emphasis supplied). The holding of the Court was clear:

[T]he mere fact that the evidence sought to be admitted at the revocation hearing was suppressed as illegally seized at the criminal trial

of Chase

provides,

in itself,

no sound reason to exclude it at his revocation hearing.

Nor, as we have seen, does the fact that Chase was not convicted of the criminal charges arising from the evidence, render the evidence inadmissible at his revocation hearing.

309 Md. at 243 , 522 A.2d 1348 (Emphasis supplied).

Highly pertinent for present purposes is Judge Orth’s in-depth examination of the evolving Supreme Court attitude

*720

toward the Exclusionary Rule. He observed that “[i]n a revealing opinion in

United States v. Leon,

” the Supreme Court “laid to rest [Mapp’s] notion that the exclusionary rule is a necessary corollary of the Fourth Amendment or that the rule is required by the conjunction of the Fourth and Fifth Amendments.” 309 Md. at 244-45 , 522 A.2d 1348 . Significantly, the Court of Appeals further noted that the “imprimatur of the Supreme Court on

the application of the exclusionary rule has been confined to criminal trials,

and within those trials, to the prosecution’s case in chief on the merits of guilt or innocence.” 309 Md. at 245-46 , 522 A.2d 1348 (Emphasis supplied). The Court of Appeals based its conclusion that the Supreme Court, would not apply the Exclusionary Rule to probation revocation proceedings on the fact that the Supreme Court had consistently rejected the application of the Rule to any proceedings other than the criminal trial itself:

[I]ts evaluation and rejection of the application of the rule to proceedings other than the criminal trial itself

leads to a logical conclusion that, consistent with its other decisions, the rule would not generally apply to our revocation proceedings.

309 Md. at 249 , 522 A.2d 1348 (Emphasis supplied).

D. The Exclusionary Rule Does Not Apply to the Termination of Employment for the Commission of a Crime

In

Sheetz v. City of Baltimore,

72 Md.App. 51 , 527 A.2d 787 (1987), a correctional officer was arrested for trafficking in narcotic drugs. In the criminal case, the evidence was suppressed for its having been unconstitutionally seized. As a result, the State dropped all criminal charges. In a subsequent civil proceeding, however, the Warden of the Baltimore City Jail succeeded in having the defendant’s employment terminated on the basis of that criminal offense. Notwithstanding our determination that “[depriving an individual of his employment is a penalty of serious magnitude,” 72 Md. App. at 58 , 527 A.2d 787 , this Court, after surveying both the Supreme Court and the Court of Appeals cases on the subject,

*721

declined to apply the Exclusionary Rule to the employment termination proceedings:

We recognize that the administrative disciplinary proceeding now before us is neither the revocation of probation proceeding of

Chase

nor the public nuisance-contempt action of

Whitaker. The Court’s refusal,

however,

to extend the exclusionary rule beyond proceedings, the object of which is purely punitive, is a strong indication that the rule should not be applied here.

72 Md.App. at 62 , 527 A.2d 787 (Emphasis supplied).

In

Sheetz v. City of Baltimore,

315 Md. 208 , 553 A.2d 1281 (1989), the Court of Appeals affirmed, observing:

The police are responsible for punishing criminals by enforcing criminal laws. Thus they are not, as a general rule, primarily concerned with regulating the quality of employment at a particular governmental agency. Because their primary interest is not typically in discharge proceedings, the police are not especially tempted to violate the fourth amendment in order to obtain evidence for such proceedings. Therefore, in this context, the exclusionary rule, designed to deter such violations, is not particularly useful. Because we find that the exclusionary rule offers only minimal deterrent benefits in this particular context, we conclude that the rule does not generally apply to administrative discharge proceedings.

315 Md. at 215 , 553 A.2d 1281 (Footnote omitted).

VI.

The Issue

As

Viewed Through the Lens of History

As thus refracted through one-third of a century of increasingly sophisticated Exclusionary Rule analysis and doctrinal refinement, the precise issue before us — that of whether

Mapp

applies to a civil

in rem

drug-related automobile forfeiture proceeding in Maryland — takes on a very different coloration than it might have if viewed in an uncritical vacuum. No previous Maryland decision has ever squarely addressed this issue. Passing reference to

One 1958 Plymouth Sedan

*722

has, to be sure, been made but only by way of

dicta

and only in the course of considering (and rejecting) other possible applications of the Exclusionary Rule.

To the extent to which that 1965 Supreme Court opinion is presently susceptible of fresh examination and analysis, the tidal flow of history has been relentlessly away from applying the Exclusionary Rule in a civil forfeiture proceeding. That tidal flow of history is immaterial, of course, if the unequivocal holding of

One 1958 Plymouth Sedan

absolutely forecloses any interpretation other than one mandating the application of the Exclusionary Rule to every crime-related forfeiture proceeding at all times and under all circumstances.

Because such a result would be so freakishly aberrational

12

and inconsistent with what is now the long prevailing Supreme

*723

Court attitude, however, an in-depth examination of

One 1958 Plymouth Sedan

is appropriate. Was the decision in actual fact a sweeping statement of universal applicability? If so,

stare decisis

gives us no option but to apply it, no matter how aberrational. Or did that opinion hinge, perhaps, on the special facts, the special circumstances, and/or the special intermediate premises arrived at and syllogistically relied on in the course of the opinion? If so, that would present a very different picture. If the thrust of the decision is ambiguously problematic, moreover, the currently prevailing doctrinal climate would dictate that it be given a narrow reading so as to minimize any incongruity with its surrounding context rather than a broad one that would highlight its anomalous character. At the very least, the actual holding of

One 1958 Plymouth Sedan

is a subject for legitimate, and long overdue, inquiry. Our concern, of course, must be not with how the headnotes

*724

and the annotations have simplisticaUy distilled the case into a single sentence (and with how most courts,, therefore, have applied it) but with

what

the opinion itself actually says and, •most especially, with

why

it says it.

VIL

One 1958 Plymouth Sedan

The majority opinion of Justice Goldberg consisted of nine pages in the United States Reports.

13

Two and one-half of those pages was devoted to the factual and procedural history of the case. 380 U.S. at 694-96 , 85 S.Ct. at 1247 — 48. Two officers of the Pennsylvania Liquor Control Board, noticing that George McGonigle’s 1958 Plymouth sedan was riding “low in the rear, quite low,” stopped it just after it crossed the Benjamin Franklin Bridge from Camden, New Jersey, into Philadelphia. The officers warrantlessly searched the car and recovered, from the rear and from the trunk, 31 cases of liquor not bearing Pennsylvania tax seals. Both the car and the liquor were seized. McGonigle was arrested and charged with a violation of Pennsylvania law.

The Commonwealth also petitioned for the forfeiture of the 1958 Plymouth under a statute which authorized the forfeiture of,

inter alia,

“any ... vehicle ... used in the illegal ... transportation of liquor.” McGonigle sought to have the petition dismissed on the ground that the case for forfeiture depended on the admission of evidence unconstitutionally obtained in violation of the Fourth Amendment. The trial judge agreed and dismissed the petition, ruling that the officers had acted without probable cause. The intermediate appellate court reversed the trial court, holding that probable cause had been shown.

14

The Supreme Court of Pennsylvania affirmed

*725

the reversal, but for a different reason, holding that the Exclusionary Rule of

Mapp

did not apply to a forfeiture proceeding which that court deemed to be civil in nature.

15

Of the six and one-half pages then devoted to a discussion of the law, no less than four and one-half of those pages consisted exclusively of 1) the citation to

Boyd v. United States,

116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), as the “leading case on the subject of search and seizure;” 2) a complete summary of

Boyd ;

and 3) extensive quotation, with approval, from

Boyd. 380

U.S. at 696-700 , 85 S.Ct. at 1248-51. The remaining two pages dispositively analogized the forfeiture in

One 1958 Plymouth Sedan

to the 1884 forfeiture proceeding, labeled as “quasi-criminal in character,” with which

Boyd

had dealt. 380 U.S. at 700-02 , 85 S.Ct. at 1250-52.

A cursory reading of

One 1958 Plymouth Sedan

reveals the self-evident truism that its rationale rests so completely and exclusively on the foundation of

Boyd

that 1) if

Boyd

is still good law, then so is

One 1958 Plymouth Sedan ;

but 2) if

Boyd

is no longer good law, then neither is

One 1958 Plymouth Sedan .

Our conclusion that

One 1958 Plymouth Sedan

does not mandate the application of Mapp’s Exclusionary Rule to the present forfeiture proceeding rests on either of two alternative and independent bases. The first is that the doctrinal foundation of

Boyd ,

on which

One 1958 Plymouth Sedan

was erected and on which it depends, has been completely undermined.

One 1958 Plymouth Sedan

was built on a foundation of sand and the sand has totally washed away.

The second basis for our conclusion is that

One 1958 Plymouth Sedan

did not presume to announce a sweeping proposition with respect to all forfeitures, regardless of whether they might ultimately be deemed criminal or civil in character. It was rather the case that the Supreme Court, relying on some fact-specific circumstances that it recounted in detail, treated the particular forfeiture before it as criminal and punitive in

*726

character. It is true that the Pennsylvania Supreme Court had labeled the forfeiture proceeding as civil, but the Supreme Court, relying both on the

Boyd

analogy and the special fact that the automobile to be forfeited had twice the monetary value of the maximum fine that could be imposed, overrode the Pennsylvania court’s determination in that regard. In

United States v. Janis,

428 U.S. 438 , 447, 96 S.Ct. 3021, 3029 , 49 L.Ed.2d 1046, 1057 (1976), the Supreme Court, after making the unqualified statement,

“In the complex and turbulent history of the [Exclusionary Rule],

the Court never has applied it to exclude evidence from a civil proceeding,

federal or state,”

(Footnote omitted; emphasis supplied) then explained away the apparent exception of

One 1958 Plymouth Sedan

as no true exception at all.

Janis

interpreted its earlier decision as one expressly dependent on the criminal nature of that particular forfeiture:

There [in

One 1958 Plymouth Sedan] it [the Court] expressly relied on the fact that “forfeiture is clearly a penalty for the criminal offense

” and “[i]t would be anomalous indeed,

under these circumstances,

to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible.”

428 U.S. at 447, n. 17, 96 S.Ct. at 3029, n. 17 (Emphasis supplied).

One 1958 Plymouth Sedan ,

thus refracted through the prism of

Janis,

is reduced to a very narrow and fact-specific holding, indeed. The holding that

that particular forfeiture proceeding

was criminal in nature does not dictate the conclusion that

all forfeiture proceedings

must always be deemed criminal in nature.

VIII.

Boyd v. United States Has Been Completely Repudiated

We will examine, individually, each of those alternative bases for our ultimate conclusion. The first inquiry concerns

One 1958 Plymouth Sedan’s

total reliance on

Boyd

and,

*727

inevitably, concerns the efficacy of relying on a case that has since been completely drained of whatever vitality it may have possessed in 1965.

Although a series of Supreme Court decisions in the 1970’s “sounded the death knell for

Boyd [v. United States,

116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886) ]”

16

and in 1984

United States v. Leon,

468 U.S. 897, 906 , 104 S.Ct. 3405, 3411-12 , 82 L.Ed.2d 677 , concluded that

Boyd’s

doctrinal underpinnings had “not withstood critical analysis or the test of time,”

17

the

Boyd

opinion was nonetheless one that for the first eighty years of its life enjoyed almost hallowed status. In 1928, Justice Brandéis described it as “a case that will be remembered as long as civil liberty lives in the United States.”

18

One 1958 Plymouth Sedan ,

now under review, began its legal analysis by deferring to

Boyd

as “the leading case on the subject of search and seizure.” 380 U.S. at 696 , 85 S.Ct. at 1248.

The irony of Boyd’s having been described as “the leading case on ... search and seizure” is that the governmental activity which it was reviewing did not involve anything that the modern world would even recognize as a search or a seizure. The United States Attorney for the Southern District of New York had petitioned to have thirty-five cases of plate glass forfeited to the United States on the ground that they had been imported into the United States without the required customs duty having been paid. In order to prove its case against the company of E.A. Boyd

&

Sons, the government persuaded the federal judge to issue a

subpoena duces tecum

on E.A. Boyd & Sons requiring it to produce the invoice for twenty-nine cases of previously imported plate glass. The

*728

Boyd Company complied with the court order and produced the invoice. Over objection, the invoice was admitted in evidence. The jury returned a verdict in favor of the United States, condemning the thirty-five cases of plate glass as subject to forfeiture. On appeal, the Supreme Court reversed the decision of the trial court.

There was no contention that every procedural nicety had not been punctiliously observed. The only claim made by Boyd was that compliance with the judicially issued subpoena would have required the company to incriminate itself. There was, therefore, nothing before the Supreme Court that would have raised, to the modern eye, any question remotely involving a Fourth Amendment search and seizure, let alone an unreasonable search and seizure. Under prevailing present-day law,

Boyd

cannot be characterized as a Fourth Amendment case.

By no stretch of reasoning, moreover, may

Boyd

today serve as the justification or the authorization for the Fourth Amendment’s Exclusionary Rule. The very notion of an Exclusionary Rule was not even considered by the Supreme Court until its decision in

Weeks v. United States,

232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914), twenty-eight years after the

Boyd

case was decided. The Exclusionary Rule is a judicially created prophylactic device aimed exclusively at deterring and thereby preventing

Fourth Amendment

violations. Nothing in

Boyd

had anything to do with serving that deterrent purpose. Boyd’s holding that the invoice should never have been received in evidence was based on its conclusion that the use of the invoice, following its compulsory production, violated Boyd’s

Fifth Amendment

privilege against compelled self-incrimination. That Fifth Amendment consideration, which has not itself stood the test of time, is not conceivably a predicate for the Fourth Amendment’s Exclusionary Rule.

A. The Intimate Relation of the Fourth and Fifth Amendments

At the most fundamental level,

One 1958 Plymouth Sedan

relied on

Boyd

for the proposition that the Fourth Amend

*729

ment’s Exclusionary Rule applied to a forfeiture proceeding.

Boyd ,

of course, did not involve any consideration of the Exclusionary Rule;

Boyd

was decided 28 years ago before the Supreme Court first even considered the Exclusionary Rule in a true Fourth Amendment context in

Weeks v. United States,

232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914). What

One 1958 Plymouth Sedan

did was to confect a Fourth Amendment Exclusionary Rule out of what had been, in

Boyd ,

a holding that a proceeding could not be affirmed if it was based on evidence that was inadmissible because it compelled an individual to be a witness against himself in contravention of the Fifth Amendment privilege against compelled self-incrimination.

That latter-day confection of the Exclusionary Rule was possible because of

Boyd's

now repudiated commingling of the Fourth and Fifth Amendments. Involved in

Boyd

was a procedurally impeccable

subpoena duces tecum

for documentary records.

Boyd

began its commingling of the two amendments by asserting that the serving of a

subpoena duces tecum

on an individual for documentary records was,

ipso facto,

a Fourth Amendment search and seizure. The next premise in the syllogism was that compliance with such a subpoena would amount to compelled self-incrimination, thereby making the search and seizure an unreasonable one. Justice Bradley’s opinion acknowledged that such a constructive “search and seizure” might be less aggravating than an actual one but that the two amendments nonetheless “run almost into each other:”

Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard

the Fourth and Fifth Amendments run almost into each other.

116 U.S. at 630 , 6 S.Ct. at 532 (Emphasis supplied).

Justice Bradley pursued the “intimate relation” between the two amendments:

*730

We have already noticed

the intimate relation between the two amendments.

They throw great light on each other. For the “unreasonable searches and seizures” condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and

compelling a man “in a criminal case to be a witness against himself,”

which is condemned in the Fifth Amendment,

throws light on the question as to what is an “unreasonable search and seizure” within the meaning of the Fourth Amendment.

116 U.S. at 633 , 6 S.Ct. at 534 (Emphasis supplied).

The heart of the

Boyd

holding — 1) that the compelled production of private papers is a search and seizure, 2) that it is compelled self-incrimination, and 3) that it is, therefore, an unreasonable search and seizure — is found at 116 U.S. at 622 , 6 S.Ct. at 527 -28:

It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man’s house and searching amongst his papers, are wanting, and to this extent the proceeding under the act of 1874 is a mitigation of that which was authorized by the former acts; but it' accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that

a compulsory production of a man’s private papers

to establish a criminal charge against him, or to forfeit his property,

is within the scope of the Fourth Amendment

to the Constitution,

in all cases in which a search and seizure would be;

because it is a material ingredient, and affects the sole object and purpose of search and seizure.

(Emphasis supplied).

Early on, the Supreme Court began backing away from this conflating of the Fourth and the Fifth Amendments.

Adams v. New York,

192 U.S. 585 , 24 S.Ct. 372 , 48 L.Ed. 575 (1904). In

Hale v. Henkel,

201 U.S. 43, 72 , 26 S.Ct. 370, 378 , 50 L.Ed. 652 (1906), the Court observed:

*731

Subsequent cases treat the 4th and 5th Amendments as quite distinct, having different histories, and performing separate functions.

The great master of evidence, John Henry Wigmore, was merciless in his criticism of this part of the

Boyd

opinion. He referred to it as a “dangerous heresy.” With respect to the inappropriateness of

Boyd’s

even referring to the Fourth Amendment, he observed:

The Fourth Amendment, as pointed out in the concurring opinion by Miller, J., was of course not involved in the case. There was no search.

The Supreme Court has to a large extent recanted that part of the

Boyd

dicta which would apply the Fourth Amendment to an order to produce a document, properly a Fifth Amendment concern.

The fact is that there is

no

“intimate relation” between the Fourth and Fifth Amendments.

8

Wigmore on Evidence

(McNaughton Rev.1961) § 2264 n. 4 (Emphasis in original).

After observing with respect to

Boyd

that “[t]he opinion [is] an unsatisfactory one,” Dean Wigmore stressed the mutual exclusivity of the Fourth and Fifth Amendments:

The opinion of the Court,

however,

asserted two fallacious conclusions:

First, that even though there was no search,

“compulsory production of private books and papers ... is the equivalent of a search and seizure, and an unreasonable search and seizure, within the meaning of the Fourth Amendment.” ...

It was not long before the Supreme Court largely repudiated the first fallacy, recanting that part of the

Boyd

opinion which would apply the Fourth Amendment to an order to produce a document, a matter properly in the Fifth Amendment’s exclusive domain.

8

Wigmore on Evidence

(McNaughton Rev.1961), § 2184a (Footnotes omitted; emphasis supplied).

*732

The official obituary for Boyd’s “intimate relation” between the Fourth and Fifth Amendments came in 1976 with the cases of

Fisher v. United States,

425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976) and

Andresen v. Maryland,

427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976). The

Fisher

opinion undercut

Boyd

in several different respects. With regard to

Boyd’s

commingling of the Fourth and Fifth Amendments, one academic commentator noted the effect of

Fisher :

The opinion of the Court, delivered by Justice White, began by formally recognizing the death of the doctrine of the “intimate relation” between the fourth and fifth amendments.

Comment,

The Life and Times of Boyd v. United States (1886-1976),

76 Mich. L.Rev. 184, 207 (1977).

In

Andresen v. Maryland,

State investigators searched the private law office and the private business office of the defendant and seized incriminating personal records. The defendant sought, unsuccessfully, to invoke Boyd’s union of the two amendments.

Boyd

had held that the subpoenaing of incriminating documentary records was tantamount to a search for and seizures of such records. In

Andresen

there was an actual search for and seizure of such records. The Supreme Court, however, declined to follow earlier doctrine equating a search and seizure of personal papers with compelled self-incrimination:

He bases his argument,

naturally,

on dicta in a number of cases which imply, or state, that the search for and seizure of a person’s private papers violate the privilege against self-incrimination.

Thus in

Boyd v. United States,

the Court said: “[W]e have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.”

We do not agree,

however,

that these broad statements compel suppression of this petitioner’s business records as a violation of the Fifth Amendment.

*733

427 U.S. at 471-72 , 96 S.Ct. at 2744 (Citations omitted; emphasis supplied).

In

Andresen ,

the Supreme Court referred to the doctrinal erosion that had been taking place:

In the very recent case of

Fisher v. United States.

[w]e recognized that

the continued validity of the broad statements contained in some of the Court’s earlier

cases

[19]

had been discredited by later opinions.

In those earlier cases, the legal predicate for the inadmissibility of the evidence seized was a violation of the Fourth Amendment.

427 U.S. at 472 , 96 S.Ct. at 2744 (Emphasis supplied).

In severing the cord between the two amendments, the Supreme Court concluded that no matter how incriminating the personal records might be, no compulsion had been brought to bear on the person of the defendant,

compelling him

to be a

witness

against himself. The Fifth Amendment, therefore, was not implicated by the Fourth Amendment search and seizure:

[PJetitioner was not asked to say or to do anything. ... The search

for

and seizure

of those records

were conducted by law enforcement personnel. ...

[AJlthough the Fifth Amendment may protect an individual from complying with a subpoena

for the production of his personal records in his possession because the very act of product may constitute a compulsory authentication of incriminating information,

a seizure of the same materials by law enforcement officers differs in a crucial respect

— the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.

427 U.S. at 473-74 , 96 S.Ct. at 2745 (Emphasis supplied).

If a formal obituary were required for Boyd’s “intimate relation” between the Fourth and Fifth Amendments, it was

*734

certainly delivered by

United States v. Leon,

468 U.S. 897, 905-06 , 104 S.Ct. 3405, 3411 , 82 L.Ed.2d 677 (1984):

Language in opinions of this Court

and of individual Justices

has sometimes implied that the exclusionary rule ... is required by the conjunction of the Fourth and Fijih Amendments.

These implications need not detain us long.

The Fifth Amendment theory has not withstood critical analysis or the test of time, and the Fourth Amendment “has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.”

(Emphasis supplied).

Boyd’s

intimate relation between the Fourth and Fifth Amendments has suffered an apparently irreconcilable estrangement.

B.

Boyd’s

Application of the Fifth Amendment Privilege

In addition to equating a subpoena for documentary evidence with a search and seizure,

Boyd

stood for two other closely related and very basic principles, both of which have also been repudiated in the last thirty years. After holding that a subpoena for documentary records was tantamount to a search and seizure, it was necessary for the

Boyd

Court further to find that such a search and seizure had been unreasonable in order to hold such evidence inadmissible.

Boyd

advanced two reasons for such a further finding.

The first was that compelling a suspect to produce incriminating personal papers or documentary records violated that suspect’s Fifth Amendment privilege against compelled self-incrimination.

Boyd

first announced that the seizure of private books and papers constituted compelled self-incrimination within the contemplation of the Fifth Amendment:

[W]e have been unable to perceive that

the seizure of a man’s private books and papers to be used in evidence against him is

substantially different from

compelling him to be a witness against himself.

We think it is within the clear intent and meaning of those terms.

*735

116 U.S. at 633 , 6 S.Ct. at 534 (Emphasis supplied).

Boyd

then held that for that very reason, such a seizure was

ipso facto

unreasonable:

[W]e are further of opinion that

a compulsory production of the private books and papers

of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and

is the equivalent of a search and seizure

— and

an unreasonable search and seizure

— within the meaning of the Fourth Amendment.

116 U.S. at 634-35 , 6 S.Ct. at 534-35 (Emphasis supplied).

1. Fifth Amendment Privilege Limited to Criminal Cases

That particular holding of

Boyd

has suffered erosion in two separate regards. In holding that the privilege of not being compelled to incriminate oneself had applicability to a forfeiture proceeding,

Boyd

failed to circumscribe the scope of the Fifth Amendment privilege nearly as austerely as subsequent case law indisputably circumscribed it.

In

United States ex rel. Bilokumsky v. Tod,

263 U.S. 149 , 44 S.Ct. 54 , 68 L.Ed. 221 (1923), Bilokumsky was ordered deported from the country because of his commission of a criminal offense. The deportation was contingent upon the criminal offense. Notwithstanding the fact that the deportation proceeding was certainly as “quasi criminal” as would have been a forfeiture proceeding, the Supreme Court held that because the deportation proceeding itself was not criminal, the Fifth Amendment privilege against compelled self-incrimination did not apply. In proving the necessary fact of alienage, the government used, and the hearing officer relied on, Bilokumsky’s silence when confronted with the contention that he was an alien:

To prove alienage the inspector called Bilokumsky as a witness. He was sworn, but, when questioned by the

*736

immigration inspector, under advice of counsel, stood mute, refusing even to state his name.

263 U.S. at 152 , 44 S.Ct. at 55 .

It was Justice Brandéis who wrote for the Court as it held that there was no Fifth Amendment prohibition on the use of Bilokumsky’s silence against him:

Silence is often evidence of the most persuasive character.

[H]is failure to claim that he was a citizen and his refusal to testify on this subject had a tendency to prove that he was an alien.

...

[TJhere is no rule of law which prohibits

officers charged with the administration of the immigration law from

drawing an inference from, the silence of one who is called upon to speak. Deportation proceedings are civil in their nature. ...

There is no provision which forbids drawing an adverse inference from the fact of standing mute—

Since the proceeding was not a criminal one, Bilokumsky might have been compelled by legal process to testify whether or not he was an alien.

263 U.S. at 153-55 , 44 S.Ct. at 56 (Emphasis supplied).

Whatever vitality there might once have been in Boyd’s notion that characterizing a proceeding as “quasi criminal”

ipso facto

brings it under the umbrella of those constitutional protections available for truly criminal proceedings could hardly have survived

Baxter v. Palmigiano,

425 U.S. 308 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976). It is difficult to conceive of an ostensibly civil proceeding that could be any more “quasi criminal” in nature than the one involved in that case. It was certainly more criminal in character than a forfeiture proceeding. Palmigiano, serving a life sentence for murder in a Rhode Island prison, was charged by the prison officials with inciting a disturbance and with disrupting prison operations, two acts which could have been presented as state crimes. Following a hearing, at which his silence was used as evidence against him, he was placed in

“punitive segregation”

for thirty days.

*737

Prior to his disciplinary hearing, Palmigiano was informed that he had a right to remain silent but that if he remained silent, his silence could and probably would be held against him. Palmigiano chose to remain silent. At the disciplinary hearing, “his silence was given [the] value [that] was warranted by the facts surrounding his case.” With respect to the advisement that had been given him, the Supreme Court commented:

The advice given inmates by the decision-makers is merely a realistic reflection of the evidentiary significance of the choice to remain silent.

425 U.S. at 318, 96 S.Ct. at 1558. After pointing out that a prison disciplinary proceeding is not a criminal case, the Supreme Court concluded:

Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment “does not preclude the inference where the privilege is claimed by a

party to a civil cause.”

Id.

(Emphasis in original).

In

United States v. Ward,

448 U.S. 242 , 100 S.Ct. 2636 , 65 L.Ed.2d 742 (1980), the Supreme Court was dealing with a situation where lessees of facilities in the area of the Arkansas River System were required, under the threat of fíne or imprisonment for failing to do so, to report any discharge of oil into that river system. Under that compulsion to report, L.O. Ward reported a spillage of oil and was subjected to a civil penalty of $500. The law actually permitted civil citations of up to $5,000 for each such discharge of oil.

The United States Court of Appeals for the 10th Circuit reversed the citation, holding that the law was sufficiently punitive to engage the gears of the Fifth Amendment’s privilege against compelled self-incrimination. The Supreme Court, in turn, reversed the 10th Circuit. Applying a test that

Boyd v. United States

had not even considered when it,

sua sponte,

declared the forfeiture before it to be “quasi criminal,”

*738

the Supreme Court exhibited significant deference to legislative intent.

It noted but did not find dispositive the fact that “Congress may impose both a criminal and a civil sanction in respect to the same act or omission.” 448 U.S. at 250 , 100 S.Ct. at 2642. The opinion of Justice Rehnquist recognized that the respondent was invoking the “quasi criminal” notion of

Boyd :

Respondent asserts that, even if the penalty imposed upon him was not sufficiently criminal in nature to trigger other guarantees, it was “quasi-criminal,” and therefore sufficient to implicate the Fifth Amendment’s protection against compulsory self-incrimination. He relies primarily in this regard upon

Boyd v. United States

and later cases quoting its language.

448 U.S. at 251 , 100 S.Ct. at 2642 (Citation omitted). The Supreme Court declined to give

Boyd

a broad reading:

Read broadly,

Boyd

might control the present case. This Court has declined, however, to give full scope to the reasoning and dicta in

Boyd ,

noting on at least one occasion that “[s]everal of

Boyd’s

express or implied declarations have not stood the test of time.”

448 U.S. at 253 , 100 S.Ct. at 2643. In holding that the proceeding in question was not criminal in nature and that the Fifth Amendment privilege, therefore, did not apply, the Supreme Court relied primarily on legislative intent:

[I]n the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that § 311(b)(6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read

Boyd

as requiring a contrary conclusion.

448 U.S. at 254 , 100 S.Ct. at 2644.

In

Allen v. Illinois,

478 U.S. 364 , 106 S.Ct. 2988 , 92 L.Ed.2d 296 (1986), the petitioner was institutionalized indefinitely under the Illinois Sexually Dangerous Persons Act. The provi

*739

sions of the Act did not apply to all persons who might qualify as being sexually dangerous. They applied only to those who had actually committed criminal acts of sexual assault. Under the Act, the petitioner was required to be interviewed by two State psychiatrists. He was subsequently found to be a sexually dangerous person and institutionalized largely on the testimony of those psychiatrists.

The petitioner claimed that the sexually-dangerous-person proceeding was itself “criminal” and that his Fifth Amendment privilege against compelled self-incrimination had, therefore, been violated. The Supreme Court held that the proceeding was not criminal in nature and that the privilege did not apply. Once again, it indicated that the resolution of the civil-criminal question was largely to be determined by legislative intent:

The question

whether a particular proceeding is criminal for the purposes of the Self-Incrimination Clause

is first of all a question of statutory construction.

... As petitioner correctly points out, however, the civil label is not always dispositive. Where a defendant has provided “the clearest proof’ that “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention” that the proceeding be civil, it must be considered criminal and the privilege against self-incrimination must be applied. We think that petitioner has failed to provide such proof in this case.

478 U.S. at 368-69 , 106 S.Ct. at 2992 (Citations omitted; emphasis supplied).

Certain judicial proceedings obviously possess both civil and criminal characteristics. One hundred twelve years ago, the Supreme Court was content in

Boyd

to place the label “quasi criminal” on certain mixed proceedings and to rule that in such a situation the Fifth Amendment privilege against compelled self-incrimination would apply. Over the course of recent decades, however, the Court no longer presumes to make such a judgment

sua sponte

but instead defers to legislative intent on the question of whether a given proceeding shall be deemed civil or criminal. Only in extreme circum

*740

stances will the Court override or “trump” that legislative determination. If, relying largely on the legislative intent, the proceeding is deemed to be substantially civil notwithstanding its mixed quality, the Fifth Amendment privilege will not be applied.

2. Personal Papers and Documentary Records No Longer Enjoy a Fifth Amendment Privilege

Quite aside from the question of whether the adverse or incriminating evidence is being used in a criminal case (something forbidden by the Fifth Amendment privilege) or in a civil case (something as to which the Fifth Amendment privilege is indifferent),

Boyd's

Fifth Amendment reasoning has been eroded away in yet another respect.

Boyd

had held that no matter how meticulously correct the investigative or summonsing procedures may have been, an individual’s personal documentary records enjoyed absolute immunity from being offered in court against that individual.

The reasons for that immunity were two-fold. One was based on Boyd’s articulation of what came to be known as the “mere evidence rule,” the subject of a separate erosion to be explored in the next subsection. The reasoning behind that theory of immunity was that the government could not assert any proprietary interest in “mere evidence” and could not, therefore, seize it from its rightful owner. A second line of reasoning supporting the immunity enjoyed by documentary evidence was that using an individual’s writings or personal records to incriminate him was a form of compulsory self-incrimination expressly forbidden by the Fifth Amendment privilege.

The

Boyd

opinion itself was very emphatic in this regard: [A]ny forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment.

116 U.S. at 630 , 6 S.Ct. at 532 .

[W]e have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence

*741

against him is substantially different from compelling him to be a witness against himself.

116 U.S. at 633 , 6 S.Ct. at 534 .

[W]e are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment.

116 U.S. at 634-35 , 6 S.Ct. at 534 .

Although that view of the testimonial character of personal papers and documents would not be formally abandoned for almost ninety years after its first articulation in

Boyd ,

distant rumblings were heard as early as 1927. In

Marron v. United States,

275 U.S. 192 , 48 S.Ct. 74 , 72 L.Ed. 231 (1927), personal books and papers, indistinguishable from those afforded protection in

Boyd ,

were used against Marrón with Supreme Court approval. The circumstances, if anything, were far harsher than in

Boyd .

The records were seized not pursuant to a judicially-issued

subpoena duces tecum

but in a warrant-less search and seizure in the course of a police raid. The records were used, moreover, not in a peripheral forfeiture proceeding but in a direct criminal prosecution. The Supreme Court was able to avoid the “mere evidence rule” by declaring that the records were actually an

instrumentality

for conducting a bootlegging operation, thereby giving the government a superior proprietary claim. The Court did not touch directly the applicability of the Fifth Amendment privilege

per se.

The handwriting on the wall for the subsequent removal of personal papers and records from the protection of the Fifth Amendment privilege could well have been discerned in

Schmerber v. California,

384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966). Although that case did not involve papers or records but, rather, the taking of a blood sample from a suspect, the opinion of Justice Brennan in

Schmerber

emphatically established that the Fifth Amendment is not a broad right against all compelled self-incrimination but a limited privilege against being compelled to be a

witness

against

*742

oneself. It is a privilege only against compelled

testimonial

self-incrimination. Unless, therefore, the incriminating evidence that is being compelled can be deemed communicative or testimonial in character, it enjoys no Fifth Amendment protection:

The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.

384 U.S. at 764 , 86 S.Ct. at 1832 .

It was

Fisher v. United

States, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976), that sounded the death knell for Boyd’s holding that the contents of personal documentary records enjoy the protection of the Fifth Amendment privilege. The stage for the

Fisher

holding, however, was first set by

Couch v. United States,

409 U.S. 322 , 93 S.Ct. 611 , 34 L.Ed.2d 548 (1973). At stake in

Couch

were taxpayer records that potentially incriminated the petitioner Lillian Couch. A

subpoena duces tecum

for the records was served on Mrs. Couch’s accountant. In rejecting her Fifth Amendment claim, the Supreme Court emphasized that the “privilege is a personal one: it adheres basically to the person, not to information that may incriminate him.” 409 U.S. at 328 , 93 S.Ct. at 616 . The Court emphasized that the heart of the Fifth Amendment protection is that it guards against

compulsion

brought to bear on the person enjoying the privilege. The privilege did not apply to Mrs. Couch because no compulsion was brought to bear on her. The compulsion, to wit, the threat of contempt for non-compliance with the court order, was brought to bear only on her accountant.

In the

Fisher

case, the potentially incriminating records in question were in the hands of Fisher’s attorney and the subpoena was served on the attorney. Under the clear authority of

Couch ,

there was no direct violation of the Fifth Amendment privilege of Fisher because the compulsion was brought to bear not upon him but upon his attorney.

Fisher ,

*743

however, went on to claim a different protection based on the Sixth Amendment right to counsel and its related attorney-client privilege.

To resolve that question, the Supreme Court had to ask and answer a hypothetical Fifth Amendment question. If Fisher could not have been compelled to respond to the

subpoena duces tecum,

for his records had they been in his direct possession, then they would similarly be protected, under the attorney-client privilege, when in his attorney’s possession. If, on the other hand, Fisher could have been compelled to produce the records had they been in his possession, then those records would not have acquired a greater protection simply because they had been transferred from him to his attorney.

This Court and the lower courts have thus uniformly held that

pre-existing documents which could have been obtained by court process from the client

when he was in possession

may also be obtained from the attorney

by similar process following transfer by the client in order to obtain more informed legal advice.

425 U.S. at 403-04, 96 S.Ct. at 1577 (Emphasis supplied). The question, albeit hypothetical, was clear:

We accordingly proceed to the question whether the documents could have been obtained by summons addressed to the taxpayer while the documents were in his possession.

425 U.S. at 405, 96 S.Ct. at 1578.

In response to the hypothetical question, the Supreme Court held that an individual is not privileged to withhold incriminating personal papers, records, and documents even when they are in his direct possession. The Court’s reasoning was that for the privilege to apply, there must be,

inter alia,

both the element of compulsion and the testimonial element and that those elements must coincide in time. When an individual compiles or writes out his own records or documents (including, theoretically, the confiding of his thoughts to his diary), he may well be doing a testimonial act. Such an act, however, at that time is a purely voluntary one rather

*744

than something compelled. When at some later time he is compelled to produce those -writings, he is not being compelled to do something which is then testimonial but only to produce a thing, a written artifact. It is no different than if he were required to produce a gun or a suit of clothing.

The Supreme Court acknowledged that

Boyd

would have dictated an opposite result. It summarized the

Boyd

holding in that regard:

The Court went on to hold that the accused in a criminal case or the deféndant in a forfeiture action could not be forced to produce evidentiary items without violating the Fifth Amendment ... More specifically, the Court declared, “a compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself within the meaning of the Fifth Amendment.”

425 U.S. at 406-07, 96 S.Ct. at 1579.

After declaring that “[s]everal of Boyd’s express or implicit declarations have not stood the test of time,” the Supreme Court held squarely that, contrary to

Boyd ,

the compelled production of incriminating evidence is not unconstitutional unless the evidence compelled is actually testimonial:

It is also clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating.

425 U.S. at 408, 96 S.Ct. at 1579. The Supreme Court went on to indicate that the

Boyd

rationale no longer had any viability:

To the extent ... that the rale against compelling production of private papers rested on the proposition that seizures of or subpoenas for “mere evidence,” including documents, violated the Fourth Amendment and therefore also transgressed the Fifth ...

the foundations for the rule have been washed away.

In consequence,

the prohibition against forcing the production of private papers has long been a rule searching for a rationale

consistent with the proscrip

*745

tions of the Fifth Amendment against compelling a person to give “testimony” that incriminates him.

425 U.S. at 409, 96 S.Ct. at 1580 (Emphasis supplied).

The holding of

Fisher

is the diametric opposite of what

Boyd

had held ninety years before:

[T]he Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications____

The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing,

whether his own or that of someone else.

425 U.S. at 409-10, 96 S.Ct. at 1580-81 (Emphasis supplied).

In

United States v. Doe,

465 U.S. 605, 610-11 , 104 S.Ct. 1237, 1241 , 79 L.Ed.2d 552 (1984), the Supreme Court reconfirmed its holding in

Fisher

that the Fifth Amendment privilege is not involved unless the element of compulsion and the testimonial element coincide in time:

[T]he Fifth Amendment only protects the person asserting the privilege from

compelled

self-incrimination Where the preparation of business records is voluntary, no compulsion is present. A subpoena that demands production of documents “does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.”

(Emphasis in original; citation and footnote omitted).

Justice O’Connor explained the current state of the law with unmistakable clarity:

[T]he Fifth Amendment provides absolutely no protection for the contents of private papers of any kind.

United States v. Doe,

465 U.S. 605, 618 , 104 S.Ct. 1237, 1245 , 79 L.Ed.2d 552 (1984) (concurring opinion by O’Connor, J.)

*746

C. The Repudiation of Boyd’s “Mere Evidence Rule”

The central support beam for

Boyd v. United States

was the “mere evidence rule.” That doctrinal undergirding was completely dismantled by the Supreme Court in 1967.

After equating the

subpoena duces tecum

for private books and records with a search for and seizure of such books and records,

Boyd

had held that such a search and seizure was unreasonable for an additional reason other than the Fifth Amendment compulsion discussed above. The books and records were, aside from any other consideration, the

private property

of the Boyd brothers and, therefore, could not be taken from them by any conceivable procedure or court order.

Boyd

quoted with approval Lord Camden in the historic case of

Entick v. Carrington,

19 Howell’s State Trials 1029 (1765):

Papers are the owner’s goods and chattels; they are his dearest property;

and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass ... Where is the written law that gives any magistrate such a power? I can safely answer, there is none.

116 U.S. at 627-28 , 6 S.Ct. at 531 (Emphasis supplied).

That was the first American recognition of what came to be known as the “mere evidence rule,” an incredible doctrine to the modern mind that would reach its high water mark in

Gouled v. United States,

255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 (1921). That doctrine was the product of the 18th and 19th Century political philosophy that the right of property was superior to all other rights. It was articulately stated in Boyd’s quotation from

Entick v. Carrington:

The great end for which men entered into society was to secure their property. That right is preserved sacred

and incommunicable in all instances where it has not been taken

*747

away or abridged by some public law for the good of the whole.

116 U.S. at 627 , 6 S.Ct. at 530 (Emphasis supplied).

There were only several limited ways in which that “sacred” right of property could be “taken away or abridged” so that the property could, coincidentally, be used as evidence. The first concerned stolen goods or what was then generally referred to as the “fruits of crime.” The true owner, of course, had a superior property right to that of the thief. The State, in obtaining a warrant for the stolen goods (the first type of warrant countenanced by the common law), was simply acting as the replevin agent of the true owner and, as such, also enjoyed the owner’s superior property right.

Boyd

contrasted such a permitted seizure with the forbidden seizure of personal property over which the government could not assert a superior property interest:

The search for and seizure of stolen or forfeited goods,

or goods liable to duties and concealed to avoid the payment thereof,

are totally different things from a search for and seizure of a man’s private books and papers for the purpose of

obtaining information therein contained, or of

using them as evidence

against him...

.In the one case, the government is entitled to the possession of the property; in the other it is not.

The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government.

116 U.S. at 623 , 6 S.Ct. at 528 (Footnote omitted; emphasis supplied).

A second category of property over which the State could establish a superior property right was contraband, such as forbidden firearms, untaxed whiskey, or narcotic drugs. The law forbids a private citizen to own or possess contraband.

*748

The citizen, therefore, cannot assert a defensive property claim when the government seizes contraband:

So, also, the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within this category. Many other things of this character might be enumerated.

116 U.S. at 624 , 6 S.Ct. at 529 (Citation omitted).

The last of the categories as to which the State developed a superior property theory' so as to justify a seizure was for “instrumentalities of crime.” That theory was based on the old common law concept of deodands.

(Deo dandum:

“It shall be given to God.”) Any inanimate object that had been an instrumentality by which a crime was committed was subject to forfeiture (initially to God; after 1536, to the King; and after 1776, to the state).

If, however, property, such as the books and records of the Boyd brothers, could not be characterized as stolen goods, contraband, or instrumentalities but only as “mere evidence,” the State could assert no superior property right and, therefore, could not seize it by any conceivable procedure. The protection afforded such private property was not a procedural protection and did not involve due process. It was, rather, the notion that personal property in which the government could not assert a superior property interest enjoyed an absolute immunity from search or seizure or use as evidence. As one academic commentator characterized Boyd’s position in that regard:

Justice Bradley concluded that

the owner’s “indefeasible” natural law property rights,

enshrined in the common law and protected by the reasonableness clause of the fourth amendment,

placed his private papers and other property absolutely beyond the reach of government agents seeking evidence of crime.

Note,

Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments,

90

*749

Harv. L.Rev. 945, 953 (1977) (Emphasis supplied). For that reason, the seizure of the books in

Boyd

was deemed unreasonable.

The “mere evidence rule” reached its apogee in

Gouled v. United States,

255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 (1921). A conviction was there reversed because the government had seized and used at trial private papers that were “mere evidence.”

Gouled

built on

Boyd

and held:

[I]t is clear that, at common law and as the result of the

Boyd

and

Weeks

Cases ...

[search warrants] may not be used

as a means of gaining access to a man’s house or office and papers

solely for the purpose

of making search

to secure evidence

to be used against him in a criminal or penal proceeding, but that

they may be resorted to only when a primary right

to such search and seizure

may be found in the interest which the public

or the complainant

may have in the property

to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken.

Boyd

Case.

255 U.S. at 309 , 41 S.Ct. at 265 (Citation omitted; emphasis supplied).

That 19th Century Zeitgeist of property as “the great end for which man entered into society” was at last exorcized by

Warden of Maryland Penitentiary v. Hayden,

387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967).

20

Justice Brennan’s opinion stated the broad issue before the Court:

We review in this case

the validity of the proposition that there is under the Fourth Amendment a “distinction between merely evidentiary materials,

on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest,

and

on the other hand,

those objects which may validly be seized

including the instrumentalities and means by which a

*750

crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.”

387 U.S. at 295-96 , 87 S.Ct. at 1644 (Footnote omitted; emphasis supplied).

In a Baltimore City trial for armed robbery, the State had introduced a cap, a jacket, and trousers belonging to the defendant. On federál

habeas corpus

review, the Fourth Circuit reversed Hayden’s conviction,

Hayden v. Warden,

363 F.2d 647 (4th Cir.1966), relying on the “mere evidence rule.” After recognizing that the Fourth Circuit had felt bound by the rule, the Supreme Court expressly rejected it:

The distinction made by some of our cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband has been criticized by courts and commentators. The Court of Appeals, however, felt “obligated to adhere to it.” 363 F.2d at 655 .

We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.

387 U.S. at 300-01 , 87 S.Ct. at 1646-47 (Footnotes omitted; emphasis supplied).

After noting that “[njothing in the language of the Fourth Amendment supports the distinction between ‘mere evidence’ and instrumentalities, fruits of crime, or contraband,” the Supreme Court traced the “mere evidence rule” through

Gouled

to

Boyd :

In

Gouled v. United States,

the Court said that search warrants “may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding....” The Court derived from

Boyd v. United States ...

the proposition that warrants “may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid

*751

exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken,” that is, when the property is an instrumentality or fruit of crime, or contraband.

387 U.S. at 302 , 87 S.Ct. at 1647-48 (Citations omitted).

Justice Brennan’s opinion recognized that

Boyd v. United States

and the “mere evidence rule” were thoroughly grounded in the 19th Century’s veneration of the right of property:

The common law of search and seizure after

Entick v. Carrington

reflected Lord Camden’s view, derived no doubt from the political thought of his time, that the “great end, for which men entered into society, was to secure their property.” Warrants were “allowed only where the primary right to such a search and seizure is in the interest which the public or complainant may have in the property seized.” ... No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted.

387 U.S. at 303 , 87 S.Ct. at 1648 (Citations omitted).

See also

Kaplan,

Search and Seizure: A No-Man’s Land in the Criminal Law,

49 Calif. L.Rev. 474, 475 (1961); Lasson,

The History and Development of the Fourth Amendment to the United States Constitution

(1937), 133-34; Landynski,

Search and Seizure and the Supreme Court

(1966); Comment,

The Life and Times of Boyd v. United States (1886-1976),

76 Mich. L.Rev. 184 (1977).

By 1967, however, there had been a seismic upheaval in the Fourth Amendment substructure. Privacy, not property, became the touchstone. The diametric difference in outlook between the late 19th Century and the late 20th Century— between

Boyd v. United States

and

Warden v. Hayden

— was the perception of the core value being protected by the Fourth Amendment as an interest in privacy rather than an interest in property:

The premise that property interests control

the right of the Government to search and seize

has been discredited. ...

We have recognized that

the principal object of the

*752

Fourth Amendment is the protection of privacy rather than property,

and have increasingly discarded fictional and procedural barriers rested on property concepts.

[21]

387 U.S. at 304 , 87 S.Ct. at 1648 (Emphasis supplied).

In rejecting, as well, the so-called “intimate relation” between the Fourth and Fifth Amendments,

Warden v. Hayden

also dismissed the defendant’s claim based on the privilege against compelled testimonial self-incrimination:

The items of clothing involved in this case are not “testimonial” or “communicative” in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment.

387 U.S. at 302-03 , 87 S.Ct. at 1648 .

Both this Court and the Court of Appeals have recognized the prior existence and the demise of the “mere evidence rule.”

In re Special Investigation No. 228,

54 Md.App. 149, 170-74 , 458 A.2d 820 (1983);

State v. Intercontinental, Ltd.,

302 Md. 132, 138-40 , 486 A.2d 174 (1985).

Special Investigation No. 228

described how the rule had operated:

Until the promulgation of

Warden v. Hayden

(1967), the right of the State to seek and to use evidence was strictly contingent on its ability to establish a superior property right in the evidence. Under the long prevailing “mere evidence rule,” the State was entitled to search for, to seize, and to use (1) the fruits of crime (stolen goods), (2) instrumentalities of crime, and (3) contraband, because the State was able to establish a property right in such evidence superior to that of the defendant.

The State could not seize

*753

and use, on the other hand, “mere evidence” of crime, even under a constitutionally unassailable search warrant, because there was no known theory under which it could assert a superior property right.

54 Md.App. at 170 , 458 A.2d 820 (Citation and footnote omitted; emphasis supplied).

We recognized that the “whole theory of the entitlement of the State to seize, to retain, and to use personal property that has utility as evidence of crime changed drastically” as

Warden v. Hayden

“squarely abolished the ‘mere evidence rule’ and recognized that whatever historical validity the old property theories might once have had, they were totally obsolete.” 54 Md.App. at 172 , 458 A.2d 820 .

The new dispensation was clear:

What emerges is the governmental policy that ... the State derives its entitlement to seize, to hold, and to use personal property from the very utility of that property as evidence of crime.

Utility as evidence is all the justification the State needs to assert control over the property.

Stolen goods are seized primarily to prove larceny, not to recover the chattels for the victim. Contraband is seized primarily to prove unlawful possession, not to destroy it. The instrumentality of death is seized primarily to prove the murder, not to forfeit it to God, King, or State. With the new analysis,

all evidence,

including what had once been “mere evidence,”

is controllable by the State simply by virtue of its evidentiary utility.

54 Md.App. at 173-74 , 458 A.2d 820 (Emphasis supplied). In

State v. Intercontinental, Ltd.,

Chief Judge Murphy observed:

Maryland law no longer restricts the type of property which is subject to seizure. We have adopted the

Warden v. Hayden

formulation that fruits or instrumentalities of a crime, contraband, or mere evidence is property subject to seizure under the law of Maryland.

See State v. Boone,

284

*754

Md. 1, 11, 393 A.2d 1361 (1978);

State v. Wilson,

279 Md. 189, 196 , 367 A.2d 1223 (1977).

302 Md. at 140, n. 4 , 486 A.2d 174 .

D. The Literal

Boyd

Decision Itself Has Been Implicitly Overruled

Not only have the broad doctrinal pronouncements of

Boyd ,

which dominated American jurisprudence for three quarters of a century, been completely repudiated one by one, but the narrow and literal decision in the

Boyd

case itself has been implicitly overruled by

Bellis v. United States,

417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 (1974). The

Boyd

decision itself is completely vague as to precisely who or what the party was that claimed the constitutional violation.

22

The thirty-five cases of plate glass that were the subject of the forfeiture proceeding were the property of a partnership, E.A. Boyd and Sons. The invoice for twenty-nine other cases of plate glass, which was the subject of the

subpoena duces tecum,

was a business record of the partnership, E.A. Boyd and Sons. The “claimants” were presumably the two Boyd brothers, who were the two partners of E.A. Boyd and Sons.

Under the “collective entity” rule, it is now clear that the partnership, the owner of the goods subject to forfeiture in

Boyd ,

had no Fifth Amendment privilege to assert. It is equally clear that the partners themselves were not privileged to withhold the partnership’s records.

The development of the “collective entity” rule and the corresponding erosion of

Boyd

began with

Hale v. Henkel,

201 U.S. 43 , 26 S.Ct. 370 , 50 L.Ed. 652 (1906). That case held that a corporation enjoyed no Fifth Amendment protection. The effect of

Hale v. Henkel

was described in

Braswell v. United States,

487 U.S. 99, 105 , 108 S.Ct. 2284, 2288 , 101 L.Ed.2d 98 (1988):

*755

The ruling in

Hale

represented a limitation on the prior holding in

Boyd v. United States,

which involved a court order directing partners to produce an invoice received by the partnership. The partners had produced the invoice, but steadfastly maintained that the court order ran afoul of the Fifth Amendment. This Court agreed----[T]he Court declared: “[A] compulsory production of the

private

books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment.”

Hale

carved an exception out of

Boyd

by establishing that corporate books and records are not “private papers” protected by the Fifth Amendment.

The “collective entity” exemption from Fifth Amendment protection grew steadily during the years from 1906 through 1974.

See, e.g., Wilson v. United States,

221 U.S. 361 , 31 S.Ct. 538 , 55 L.Ed. 771 (1911);

Dreier v. United States,

221 U.S. 394 , 31 S.Ct. 550 , 55 L.Ed. 784 (1911); and

United States v. White,

322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 (1944).

Beilis

made it clear for the first time that partnerships, large or small, were included within the “collective entity” exemption from Fifth Amendment coverage. It reiterated the basic principle that the Fifth Amendment privilege is available only for natural persons and not for artificial entities such as partnerships:

These decisions reflect the Court’s constant view that the privilege against compulsory self-incrimination should be “limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.”

417 U.S. at 89-90 , 94 S.Ct. at 2184.

Beilis

also made it clear that an individual partner may not assert his own Fifth Amendment privilege in order to avoid producing the partnership books or records when they are the subject of a court order:

[A]n individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his

*756

possession in a representative capacity, even if these records might incriminate him personally.

417 U.S. at 88 , 94 S.Ct. at 2183.

Braswell v. United States,

487 U.S. at 108-09 , 108 S.Ct. at 2290 , explained the impact of

Beilis:

The plain mandate of these decisions is that without regard to whether the subpoena is addressed to the corporation, or as here, to the individual in his capacity as a custodian, see ...

Beilis, supra,

a corporate custodian such as petitioner may not resist a subpoena for corporate records on Fifth Amendment grounds.

It is now clear that neither E.A. Boyd and Sons, the partnership, nor the two Boyd brothers, as partners, enjoyed in the first place a Fifth Amendment right that could have been violated. As to what would happen, therefore, to the

Boyd

case today, were it before the Supreme Court as of first impression,

Fisher v. United States,

425 U.S. at 408, 96 S.Ct. at 1580, was very clear:

[Djespite

Boyd ,

neither a partnership nor the individual partners are shielded from compelled production of partnership records on self-incrimination grounds.

Beilis v. United States.

It would appear that under that case the precise claim sustained in

Boyd

would now be rejected for reasons not there considered.

(Citation omitted).

D.

Boyd v. United States: The Final Requiem

Our reason for such an exhaustive, and exhausting, examination of

Boyd v. United States

is that

One 1958 Plymouth Sedan

so totally relied on

Boyd

rather than engaging in any independent analysis of its own that its vitality self-evidently depends on the continuing vitality or now recognized morbidity of

Boyd. One 1958 Plymouth Sedan

never independently decided that a forfeiture proceeding was an appropriate venue for the Exclusionary Rule. It simply operated on the assumption that

Boyd

had already made such a decision, which, of course,

Boyd

had not.

*757

The post-mortem of

Boyd

is an imposing task because the opinion dominated both Fourth Amendment analysis and Fifth Amendment analysis for almost a century.

Boyd

was so hydra-headed in its pronouncements, moreover, that its repudiation has necessarily been sufficiently fragmented as to leave its total repudiation in doubt unless all of the partial repudiations can be collected in a single place. It is our effort to do this that is our excuse for the inordinate length of our opinion.

As of

Andresen

in 1976 and

Leon

in 1984, Boyd’s “intimate relation” between the Fourth and Fifth Amendments had been totally repudiated. As of

Fisher

in 1976, Boyd’s notion that the forced production of personal records and documents violated the Fifth Amendment privilege had been totally repudiated. As of

Warden v. Hayden

in 1967,

Boyd's

“mere evidence rule” had been totally repudiated. As of

Beilis v. United States

in 1974, moreover, it was clear that even a narrow decision on the literal facts of the

Boyd

case itself would have been the exact opposite of what

Boyd

decided in 1886.

23

It will also be noted that each of these rejections of

Boyd

came after

One 1958 Plymouth Sedan

had been decided in 1965.

*758

The closest the Supreme Court has come to a single official obituary for

Boyd

was the concurring opinion of Justice O’Connor in

United States v. Doe,

465 U.S. 605, 618 , 104 S.Ct. 1237, 1245 , 79 L.Ed.2d 552, 563-64 (1984):

I write separately ... just to make explicit what is implicit in the analysis of that opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in

Boyd v. United States

(1886), but our decision in

Fisher v. United States

(1976), sounded the death knell for

Boyd .

“Several of Boyd’s express or implicit declamations [had] not stood the test of time,” and its privacy of papers concept “ha[d] long been a rule searching for a rationale.... ” Today’s decision puts a long overdue end to that fruitless search.

(Citations omitted). The academic commentators have been, if anything, more definitive in writing Boyd’s epitaph. “In the last two decades, the Court has so seriously eroded both the holding and the reasoning of

Boyd

that nothing may remain of either.”

24

“Boyd

in all of its aspects has been overruled.”

25

“Boyd

is dead.”

26

It is clear that nothing remains of

Boyd

except the poetry of Justice Bradley’s expression. It is only because of that poetic resonance that echoes of

Boyd

still occasionally reverberate in unexpected places at unexpected times. All that remains, however, is the poetry and not the substance.

The inadaptability of Boyd’s fundamental political philosophy to the modern juridical world can best, perhaps, be illustrated by two examples of the bizarre results that would

*759

accrue if one even attempted to apply the

Boyd

decision itself, in its original 1886 rigor, to the situation before us in this case.

1. What Boyd Would Do That Would Not Today Be Done

Let us assume that the Baltimore police eschewed making a warrantless stop of Holmes’s 1995 Corvette in this case. Let us assume that they, instead, slowly and surely developed unassailable probable cause that Holmes kept hidden in the glove compartment of the Corvette records of his narcotics transactions that showed indisputably 1) that the Corvette was regularly used for transporting narcotics and 2) that the Corvette had been purchased with the proceeds of earlier narcotics transactions. Supporting their application with sworn affidavits, the police obtained a judicially-issued search warrant for the glove compartment of the Corvette, particularly describing the records to be seized. Let us assume that they executed the search warrant in broad daylight in the presence of Holmes’s attorney.

The

Boyd

holding, in its pristine 1886 form, would dictate that such records enjoyed an absolute immunity from seizure and could not be introduced in evidence, no matter how impeccable the police procedures that produced them might have been. In today’s world, such a decision would be bizarre.

2. What Boyd Would Not Do That Could Today Be Done

Let us now apply the literal

Boyd

holding, in its pristine 1886 form, to the very facts we have before us in the present case. The documents and records that were protected by

Boyd were

protected, in major measure, because they were “mere evidence” rather than the fruits of crime, an instrumentality of crime, or contraband. The narcotics discovered by the Baltimore City police in this case, by dramatic contrast, was undisputed contraband and thus beyond the pale of Boyd’s protection. Even the 1995 Corvette itself, if its character were somehow pertinent, was an instrumentality of crime and thus also beyond the pale of Boyd’s protection. In today’s world, such a decision would be bizarre.

*760

The two illustrations demonstrate the foolhardiness of attempting to decide the propriety of the forfeiture of either the 1995 Corvette in this case or the 1958 Plymouth Sedan in 1965 on the basis of

Boyd v. United States,

a case which simply has no applicability to the modern world. The forfeitures in those two cases were predicated on the discovery, respectively, of contraband. narcotics and contraband untaxed whiskey. Unlike the documentary evidence immunized from seizure by

Boyd ,

contraband would not in that case have enjoyed any Fifth Amendment protection and would not have enjoyed the then-current immunity of the “mere evidence rule.”

What does all of this portend for

One 1958 Plymouth Sedan?

As a syllogism worthy of precedential value, it is an empty shell. It is, at most, a dangling and invalid conclusion with no supporting premises. The decision of

One 1958 Plymouth Sedan

cannot be supported by principled argument, at least by none thus far enunciated. If it can be supported at all, it can only be by fiat: “It is because it says it is.”

IX.

The “Quasi Criminal” Characterization In One 1958 Plymouth Sedan Was Ad-Hoc

But precisely what is it that

One 1958 Plymouth Sedan

says it is? Even if its holding were to be uncritically accepted as a fiat,

One 1958 Plymouth Sedan

still leaves us in a state of doubt as to precisely how broad or how narrow that holding actually is. The Court stated that the question before it was “whether the constitutional exclusionary rule enunciated in

Mapp

applies to forfeiture proceedings

of the character involved here.”

380 U.S. at 696 , 85 S.Ct. at 1248 (Emphasis supplied). It answered that the “exclusionary rule does apply to

such

forfeiture proceedings.”

Id.

(Emphasis supplied). The “such” in the answer clearly has reference to the modifying phrase “of the character involved here” in the question. The ultimate issue is the extent to which the unquestionably modifying phrase “of the character involved here” limits the more generic category of “forfeiture proceedings.”

*761

As Justice Goldberg’s opinion then embarked on its supporting analysis for its holding, however broad or narrow that might be, it quoted at length, and with approval, from

Boyd v. United States,

as

Boyd

explained why the forfeiture that it was considering was treated as something “quasi-criminal” in nature. The reliance of

One 1958 Plymouth Sedan

on

Boyd

was made clear by the first sentence that followed the quotation from

Boyd :

“This authoritative statement and the holding by the Court in

Boyd

... would seem to be dispositive of this case.” 380 U.S. at 698 , 85 S.Ct. at 1249. It went on to add, “[T]he basic holding of

Boyd

applies with equal, if not greater, force to the case before us.”

Id.

That portion of the

Boyd

opinion relied on by

One 1958 Plymouth Sedan

pointed out that the forfeiture, along with imprisonment and a fine, was simply one of the available sanctions spelled out in the very statutory provision that created the crime:

We are also clearly of opinion that

proceedings instituted for

the purpose of declaring

the forfeiture of a man’s property

by reason of offenses committed by him,

though they may be civil inform, are in their nature criminal.

In this very case the ground of forfeiture ... consists of certain acts of fraud committed against the public revenue in relation to imported merchandise, which are made criminal by the statute; and it is declared, that the offender shall be fined not exceeding $5,000, nor less than $50, or be imprisoned not exceeding two years, or both; and in addition to such fine such merchandise shall be forfeited.

These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them.

If an indictment had been presented against the claimants, upon conviction the forfeiture of the goods could have been included in the judgment____

The information, though technically a civil proceeding, is in substance and effect a criminal one.

As, therefore,

suits for penalties and forfeitures

incurred by the commission of offenses against the law,

are of this quasi criminal nature,

we think that they are within the

*762

reason of criminal proceedings for all the purposes of the fourth amendment of the constitution.

380 U.S. at 697-98 , 85 S.Ct. at 1249 (Emphasis supplied), quoting from

Boyd v. United States,

116 U.S. at 633-34 , 6 S.Ct. at 534 .

The significance of “the character [of the forfeiture] involved [t]here” became clear in

United States v. Ward,

448 U.S. 242 , 100 S.Ct. 2636 , 65 L.Ed.2d 742 (1980). The issue in

Ward was

whether a provision of the Federal Water Pollution Control Act permitting the imposition of a “civil penalty” of up to $5,000 for each violation of the Act was sufficiently criminal to engage the gears of the privilege against compelled self-incrimination. The United States Court of Appeals for the 10th Circuit had ruled that such a provision “was sufficiently punitive to intrude upon the Fifth Amendment’s protections.” 448 U.S. at 247-48 , 100 S.Ct. at 2641. The Supreme Court reversed, holding that “the question whether a particular statutorily-defined penalty is civil or criminal is a matter of statutory construction” and that the legislative purpose will only be overridden by the courts when “the statutory scheme [is] so punitive either in purpose or effect as to negate that intention.” 448 U.S. at 248-49 ,100 S.Ct. at 2641.

The respondent in that case argued that the penalty imposed was “quasi-criminal” and “relie[d] primarily in this regard upon

Boyd v. United States

and later cases quoting its language.” 448 U.S. at 251 , 100 S.Ct. at 2642. The Supreme Court pointed out that “[r]ead broadly,

Boyd

might control the present case. This Court has declined, however, to give fall scope to the reasoning and dicta in

Boyd.”

448 U.S. at 253 , 100 S.Ct. at 2643. The

Ward

Court then compared the loose relationship between the civil sanction and the underlying criminal offense there before it with the inextricably close relationship between the forfeiture sanction and the underlying criminal offense in the

Boyd

case itself and found.the difference to be dispositive:

Moreover, the statute under scrutiny in

Boyd

listed forfeiture along with fine and imprisonment as one possible

*763

punishment for customs fraud, a fact of some significance to the

Boyd

Court. Here, as previously stated, the civil remedy and the criminal remedy are contained in separate statutes enacted 70 years apart.

448 U.S. at 254 , 100 S.Ct. at 2644 (Citation omitted). Indeed,

Boyd

itself had expressly noted the symbiotic relationship among its sanctions:

These are the penalties affixed to the criminal acts; the forfeiture sought by this suit being one of them. If an indictment had been presented against the claimants, upon conviction the forfeiture of the goods could have been included in the judgment.

116 U.S. at 634 , 6 S.Ct. at 534 . Immediately before stating that forfeitures “are of this quasi-criminal nature,”

Boyd

had specifically referred to “the close relation between the

civil and criminal proceedings on the same statute.” Id.

(Emphasis supplied).

In this regard we note that the forfeiture proceeding in the case now before us was “of the character involved” in

Ward

and not “of the character involved” in

Boyd .

Unlike

Boyd ,

the forfeiture provision here was not a part of the statute creating the criminal offense itself. Unlike

Boyd ,

forfeiture was not simply one of the sanctions automatically available for a conviction of the criminal offense. As in

Ward ,

by contrast, the forfeiture provision and the criminal provision in this case are to be found in separate statutes, the direct lineal antecedents of which had been enacted sixteen years apart. The drug-related forfeiture provision of the law is now found in Art. 27, § 297. It has been through a series of statutory changes but ultimately traces back to Laws of 1951, ch. 471, § 352A. The criminal statute under which Holmes could have been charged in this case is Art. 27, § 286. It too has been through a series of statutory changes but ultimately traces back to Laws of 1935, ch. 59.

In this very significant regard, therefore, the automobile forfeiture in this case was not “of the character involved” in the

Boyd

case. The direct reliance of

One 1958 Plymouth

*764

Sedan

on the “nature” of the particular forfeiture proceeding “described by”

Boyd

could not have been more clear. Justice Goldberg’s opinion for the Court emphasized that reliance:

In sum, we conclude that

the nature of a forfeiture proceeding, so well described by Mr. Justice Bradley

in

Boyd, ... support[s] the conclusion

that the exclusionary rule is applicable to forfeiture proceedings such as the one involved here.

380 U.S. at 702 , 85 S.Ct. at 1251 (Emphasis supplied).

Whereas

Boyd

had used the term “quasi-criminal” to characterize a particular forfeiture sanction that was part of the criminal statute itself,

One 1958 Plymouth Sedan ,

advertently or inadvertently, lifted the term out of its originating context and seemed to endow it with a broad talismanic capacity:

Finally as Mr. Justice Bradley aptly pointed out in

Boyd ,

a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law.

380 U.S. at 700 , 85 S.Ct. at 1250.

Even

One 1958 Plymouth Sedan ,

however, did not presume to hold that the Exclusionary Rule must be applied, categorically, to all crime-related forfeitures no matter what the circumstances or characteristics of a particular forfeiture law. It went to great pains to justify its labeling of the particular automobile forfeiture before it as punitive in character. In a very fact-specific and

ad hoc

analysis, it gave significance to the fact that the maximum criminal penalty there would be a $500 fine, whereas the forfeiture was of an automobile worth $1,000. The anomaly of the forfeiture sanction’s being twice as severe as the criminal sanction obviously had impact on the Court’s ultimate determination:

If convicted of any one of the possible offenses involved, however, he would be subject, if a first offender, to a minimum penalty of a $100 fine and

a maximum penalty of a $500 fine. In this forfeiture proceeding he was subject to the loss of his automobile, which

at the time involved

had an estimated value of approximately $1,000, a higher

*765

amount than the maximum fine in the criminal proceeding.

It would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible. That

the forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment

than the criminal prosecution has in fact been recognized by the Pennsylvania courts.

380 U.S. at 700-01 , 85 S.Ct. at 1251 (Emphasis supplied).

In sharp contrast, the forfeiture in this case is not “of the character involved” in

One 1958 Plymouth Sedan ,

as it was there described. In that case, a conviction for the underlying crime threatened no jail time at all. The maximum risk of a $500 fine paled beside the loss of a $1,000 automobile. In the case before us, the value of the 1995 Corvette subject to forfeiture, $35,000, was high. As a sanction, however, it could not compare with what Holmes would have faced if convicted of the underlying crime. Under Art. 27, § 286(b)(1), he could have faced imprisonment for up to twenty years and a fine of up to $25,000 or both. As one who possessed more than 448 grains of cocaine, moreover, it would have been mandatory for the Court, pursuant to § 286(f)(3), to impose a sentence of no less than five years imprisonment with the further proviso that that mandatory minimum term could not be suspended and that for that term, Holmes would have been ineligible for parole. The forfeiture provision is furthermore available for second offenders for this offense who, pursuant to § 293, would be eligible for a term of imprisonment of up to forty years or a fine of up to $50,000, or both. The anomaly between the sanctions that the Supreme Court found significant in

One 1958 Plymouth Sedan

is not remotely present in this case. This forfeiture is not “of the character involved” in that one.

What emerged from

United States v. Janis,

428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976), was that the Supreme Court did not interpret

One 1958 Plymouth Sedan

as having

*766

established an absolute rule applying the Exclusionary Rule to all crime-related forfeiture cases. The Supreme Court treated

One 1958 Plymouth Sedan

as having held only that the Exclusionary Rule applies to those forfeiture proceedings that may fairly be characterized as criminal rather than civil.

Following a gambling raid by local Los Angeles police, federal authorities in

Janis

seized $4,940 in cash that had been taken in the gambling raid. Although the seizure by the Internal Revenue Service was, in practical effect, a forfeiture of the cash, the cash was technically used 1) as evidence to establish a tax assessment against Janis for unpaid wagering taxes and 2) as the object of a levy in partial satisfaction of that assessment. After evidence was introduced showing that the initial police search and seizure had been in violation of the Fourth Amendment, the federal District Court ruled that the cash would be suppressed in the tax assessment proceeding. The judge ruled that all of the evidence against Janis “was obtained directly or indirectly as a result of the search pursuant to the defective search warrant” and that the subsequent assessment, therefore, “was based in substantial part, if not completely, on illegally procured evidence ... in violation of [respondent’s] Fourth Amendment rights to be free from unreasonable searches and seizures.” 428 U.S. at 439, 96 S.Ct. at 3025. The United States Court of Appeals for the 9th Circuit affirmed the District Court’s decision to suppress any use of the $4,940 as evidence and to order its return to Janis.

In holding that the Exclusionary Rule had no applicability to such civil proceedings, the Supreme Court made the following blanket and unqualified statement:

In the complex and turbulent history of the rule,

the Court never has applied it to exclude evidence from a civil proceeding,

federal or state.

428 U.S. at 447, 96 S.Ct. at 3029 (Footnote omitted; emphasis supplied).

In a footnote, the Supreme Court acknowledged the existence of

One 1958 Plymouth Sedan

but did not treat that case as an exception to its statement that the Rule had

never

been

*767

applied to a civil proceeding. The Court explained away

One 1958 Plymouth Sedan

as a case dependent on the express finding that the forfeiture proceeding which it was reviewing was, in fact, criminal rather than civil:

The Court has applied the exclusionary rule in a proceeding for forfeiture of an article used in violation of the criminal law.

Plymouth Sedan v. Pennsylvania. There it expressly relied on the fact that “forfeiture is clearly a penalty for the criminal offense”

and “[i]t would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible.” See also

Boyd v. United States,

where a forfeiture proceeding was characterized as “quasi-criminal.”

428 U.S. at 447 n. 17, 96 S.Ct. at 3029 n. 17 (Citations omitted; emphasis supplied).

Forfeiture proceedings come in all shapes and sizes and from different legislative bodies with different legislative purposes. Janis’s characterization of

One 1958 Plymouth Sedan

made it clear that that case’s extension of the Exclusionary Rule could only apply to those forfeitures which can legitimately be found to be “a penalty for the criminal offense,” to wit, that can be deemed “quasi-criminal.”

One 1958 Plymouth Sedan ,

as thus characterized by

Janis,

contemplates that the State must prove the actual commission of a criminal act. As will be more fully discussed, the Maryland forfeiture action under review does not require proof of the actual commission of a crime.

Eight years after

Janis,

the Supreme Court decided

Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S.

1032, 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984), a case that also declined to apply the Exclusionary Rule to a civil proceeding (a deportation hearing). That case reaffirmed Janis’s earlier observation that the Exclusionary Rule had never been applied to any sort of a civil proceeding:

*768

At stake in

Janis

was application of the exclusionary rule in a federal civil tax assessment proceeding following the unlawful seizure of evidence by state ... officials. The Court noted at the outset that “[i]n the complex and turbulent history of the rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.”

468 U.S. at 1041-42, 104 S.Ct. at 3485.

In

Whitaker v. Prince George’s County,

307 Md. 368 , 514 A.2d 4 (1986), the Court of Appeals ruled that the Exclusionary Rule did not apply to a proceeding seeking to enjoin the operation of a bawdyhouse. The operators of the bawdyhouse urged on the Court the case of

One 1958 Plymouth Sedan

as support for their argument that the Rule should apply. In rejecting the argument, the Court of Appeals pointed out that

One 1958 Plymouth Sedan

is limited to those cases where the “forfeiture is clearly a penalty for the criminal offense”:

For this proposition, appellants rely on the 1965 case of

One Plymouth Sedan v. Pennsylvania,

380 U.S. 693 , 85 S.Ct. 1246 , 14 L.Ed.2d 170 . There, the Supreme Court applied the exclusionary rule in a proceeding for forfeiture of an automobile used in violation of the criminal law. In so doing, the Court expressly relied on the fact that “forfeiture is clearly a penalty for the criminal offense ...”

307 Md. at 380 , 514 A.2d 4 .

Whitaker

found

One 1958 Plymouth Sedan

to be inapposite because the County’s proposed action in

Whitaker,

unlike the forfeiture in

One Plymouth Sedan,

was not “vindictive or punitive” in purpose. 307 Md. at 383 , 514 A.2d 4 .

In

Chase v. State,

309 Md. 224, 247 , 522 A.2d 1348 (1987), the Court of Appeals held that “[i]n our revocation of probation proceedings the revocation is ‘not a penalty for the criminal offense’ even though the new criminal offense may be the basis for the revocation.” That internal quotation was placed there to distinguish Maryland’s probation revocation proceedings from the necessary predicate on which

One Plymouth Sedan

relied in order to extend the Exclusionary Rule to the forfeiture proceeding before it. In pinpointing that interi-

*769

or holding of

One Plymouth Sedan

as the

sine qua non

of its larger holding, the opinion of Judge Orth quoted with approval from

United States v.

Janis’s interpretation of

One 1958 Plymouth Sedan.

309 Md. at 247-48 , 522 A.2d 1348 . Judge Orth concluded his analysis:

For further support that

Plymouth Sedan v. Pennsylvania

provides no sound basis for applying the exclusionary rule to civil or administrative proceedings,

see

W. LaFave and J. Israel,

Criminal Procedure,

§ 3.1(g). There it is pointed out that the courts which hold that the exclusionary rule applies in forfeiture proceedings rely on

Plymouth’s reasoning that the rule applies to proceedings which are “quasi-criminal” in that their object is to penalize for the commission of an offense

against the law and could result in even greater punishment than the criminal prosecution.

309 Md. at 248 , 522 A.2d 1348 (Emphasis supplied).

The determination of which crime-related forfeiture proceedings are subject to the apparent rule of

One 1958 Plymouth Sedan

is of necessity an

ad hoc

determination, because it necessarily depends upon an antecedent determination of whether the purpose and the effect of a given forfeiture proceeding is, in the last analysis, criminal or civil in its basic nature. Much will inevitably depend on the expression of a particular legislative intent. A forfeiture such as that in

Boyd v. United States,

where the criminal statute itself included forfeiture in its list of automatically available sanctions, might easily be classified as criminal in nature. Other forfeitures, on the other hand, such as where the proceeds from the forfeited goods are earmarked to recompense the State for its larger investigative efforts or where the owner subject to the forfeiture need not even have been the perpetrator of the offense which triggers the forfeiture, are decidedly far more civil in their natures. When dealing with so many different forfeiture laws with so many different characteristics from so many different jurisdictions, no simple single categorization is possible.

One 1958 Plymouth Sedan

itself went out of its way, for instance, to distinguish the forfeiture before it from other situations involving the forfeiture of contraband.

One 1958

*770

Plymouth Sedan

did not purport to speak in universal terms, though many have since read it that way. It is clear that some

ad hoc

determination is called for, forfeiture law by forfeiture law.

In making the determination of whether a particular proceeding is criminal or civil in its fundamental nature, our decisional criteria are now far more sophisticated than they were when

Boyd

was decided in 1886 or even when

One 1958 Plymouth Sedan

was decided in 1965. Those cases were from an era when appellate courts, including the Supreme Court, did not hesitate to shoot from the hip when projecting labels like civil, criminal, and quasi-criminal. Today the necessary analysis is far more refined and the labeling is far more tightly circumscribed.

X.

The Currently Controlling Criteria For What Is “Criminal” and What Is “Civil”

One 1958 Plymouth Sedan

expressly enunciated as its

ratio decidendi

“the nature of a forfeiture proceeding, so well described by Mr. Justice Bradley in Boyd,” as “quasi-criminal in character.” 380 U.S. at 700, 702 , 85 S.Ct. at 1250-51. The very notion that a court will, except in extreme circumstances, override a legislative determination that a particular proceeding is civil on the basis of the court’s characterization of the proceeding as “quasi-criminal,” or, in part at least, penal or punitive in purpose or effect and will, therefore, treat the proceeding as criminal, with the attendant, attachment of constitutional protections, has now been completely superseded.

United States v. Calandra, Stone v. Powell, United States v. Janis, United States v. Havens,

and

United States v. Ceccolini

all dealt with proceedings that were “quasi-criminal in character,” but that fact did not call for the automatic application of the Exclusionary Rule. There was rather a “cost-benefit” balancing between the impairment to the truth-seeking process, on the one hand, and incremental deterrence,

*771

on the other, a balancing process which

One 1958 Plymouth Sedan

did not apply and to which it did not even allude.

The concurring opinion of Justice Kennedy in

United States v. Ursery,

518 U.S. 267, 293 , 116 S.Ct. 2135, 2150 , 135 L.Ed.2d 549, 571 (1996), stated emphatically that the statements in both

Boyd

and

One 1958 Plymouth Sedan

that forfeiture proceedings were penal or punitive in nature were no longer, if they ever were, authoritative:

Although there is language in our cases to the contrary,

see One 1958 Plymouth Sedan v. Pennsylvania,

380 U.S. 693, 700 , 85 S.Ct. 1246, 1250 , 14 L.Ed.2d 170 (1965);

Boyd v. United States,

116 U.S. 616, 634 , 6 S.Ct. 524, 534 , 29 L.Ed. 746 (1886),

civil in rem forfeiture is not punishment of the wrongdoer for his criminal offense.

(Emphasis supplied).

The now well settled law is that the determination of whether a particular legal proceeding shall be civil, with its attendant procedural incidents, or criminal, with its attendant procedural incidents and constitutional protections, is in the first instance a legislative determination. The most articulate statement of the principle is probably that in

United States v. Ward,

448 U.S. 242, 248 , 100 S.Ct. 2636, 2641 , 65 L.Ed.2d 742 (1980):

This Court has often stated that the question

whether a particular statutorily-defined penalty is civil or criminal is a matter of statutory construction.

Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.

448 U.S. at 248 , 100 S.Ct. at 2641 (Citations omitted; emphasis supplied).

See also One Lot Emerald Cut Stones v. United States,

409 U.S. 232, 236-37 , 93 S.Ct. 489, 492-93 , 34 L.Ed.2d 438 (1972);

Allen v. Illinois,

478 U.S. 364, 368 , 106 S.Ct. 2988, 2991-92 , 92 L.Ed.2d 296 (1986);

United States v. Ursery,

518 U.S. 267, 278 , 116 S.Ct. 2135, 2142 , 135 L.Ed.2d 549 (1996);

*772

Hudson v. United States,

522 U.S.-, 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997).

In applying that first prong of the

Ward

test, strong indications of legislative intent may be found in the procedures prescribed for the litigation in question.

Helvering v. Mitchell,

303 U.S. 391, 402-04 , 58 S.Ct. 630, 634-35 , 82 L.Ed. 917 (1938), observed in this regard:

Civil procedure is incompatible with the accepted rules and constitutional guaranties governing the trial of criminal prosecutions, and where civil procedure is prescribed for the enforcement of remedial sanctions, those rules and guaranties do not apply____ [I]f the prescribed proceeding is in the form of a civil suit, a verdict may be directed against the defendant; there is no burden upon the Government to prove its case beyond a reasonable doubt, and it may appeal from an adverse decision; furthermore, the defendant has no constitutional right to be confronted with the witnesses against him, or to refuse to testify.

(Footnotes omitted).

In

United States v. One Assortment of 89 Firearms,

465 U.S. 354, 363 , 104 S.Ct. 1099, 1105 , 79 L.Ed.2d 361 (1984), the Supreme Court concluded that the proceeding under review was civil in nature in significant measure because the statute creating the proceeding established civil procedural mechanisms for adjudicating it:

Applying the first prong of the

Ward

test to the facts of the instant case, we conclude that Congress designed forfeiture under § 924(d) as a remedial civil sanction.

Congress’ intent in this regard is most clearly demonstrated by the ‘procedural mechanisms published for enforcing forfeitures under the

statute... In contrast to the

in personam

nature of criminal actions, actions

in rem

have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object----

By creating such distinctly civil procedures for forfeitures

under § 924(d),

*773

Congress has “indicate[d] clearly that it intended a civil, not a criminal, sanction. ”

(Emphasis supplied).

Although the expressed intent of the legislative body-on the “civil” versus “criminal” question is due significant deference, it is by no means immune from judicial review. There will be cases where, notwithstanding legislative intent, a statutory scheme may be deemed so penal in purpose or effect as to override legislative intent to the contrary and to require that protections surrounding criminal proceedings be afforded. There is, however, a heavy burden of proof on the party seeking to override the voice of the legislature.

United States v. Ward,

448 U.S. at 248-49 , 100 S.Ct. at 2641 , explained the judicial “trumping” mechanism:

Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further

whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. In regard to this latter inquiry, we have noted that “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.”

(Citation omitted; emphasis supplied’).

The benchmark case for determining when ostensibly civil sanctions are so punitive in nature as to require a court to overrule a legislative intent to the contrary is

Kennedy v. Mendoza-Martinez,

372 U.S. 144 , 83 S.Ct. 554 , 9 L.Ed.2d 644 (1963). The

Kennedy v. Mendoza-Martinez

case set out a list of factors that are pertinent when making that determination. 372 U.S. at 168-69, 83 S.Ct. at 567-68.

See also Allen v. Illinois,

478 U.S. at 369 , 106 S.Ct. at 2992 ;

United States v. Ursery,

518 U.S. at 278 , 116 S.Ct. at 2142 ;

Hudson v. United States,

522 U.S. at-, 118 S.Ct. at 493 .

Lest anyone be skeptical as to the general applicability of the “civil” versus “criminal” test for legislative intent because most of the recent statements on that subject have been in the exclusive context of the double jeopardy clause, let it be noted that

United States v. Ward

was dealing with the implications

*774

of the civil-criminal issue on the applicability of the Fifth Amendment privilege and that

Kennedy v. Mendoza-Martinez

was dealing with the implications of that question for a whole panoply of Sixth Amendment rights, including notice, confrontation, compulsory process for obtaining witnesses, trial by jury, and assistance of counsel. 372 U.S. at 164, 83 S.Ct. at 565. The test is generic and its application not limited to double jeopardy law.

XI.

Statutory Forfeitures Generally

As

Civil In Rem Actions

Statutory forfeiture laws cover a wide variety of subjects and situations and implicate various adjudicative procedures and legislative purposes. As a broad general rule, however, they possess the common denominator of being civil

in rem

actions directed at an offending object itself. They are not primarily part of the punishment of a criminal offender and, indeed, are not dependent on the fact that the owner of the goods to be forfeited committed any offense at all.

The first occasion the Supreme Court had to consider forfeiture was in the case of

The Palmyra,

12 Wheat. 1 , 25 U.S. 1 , 6 L.Ed. 531 (1827). The opinion of Justice Story examined the basic nature of forfeitures, contrasting earlier common law forfeitures with later statutory forfeitures. Justice Story pointed out that at the common law, conviction itself for many felonies included as one of its automatic penalties the forfeiture of the felon’s goods and chattels to the Crown. That type of forfeiture was clearly

in personam

in character and punitive in effect. Albeit in a statutory context, the automatically available forfeiture penalty as part of the criminal statute itself was the thing being dealt with by

Boyd v. United States.

The forfeiture action was inextricably intertwined with the criminal culpability of the owner or the possessor of the chattel subject to the forfeiture.

Justice Story then pointed out that, in dramatic and diametric contrast, statutory forfeiture laws are generally of a very different nature:

*775

But this doctrine never was applied to seizures and forfeitures, created by statute,

in rem ...

The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing ... [T]he practice has been, and so this Court understand the law to be, that

the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam.

This doctrine is deduced from a fair interpretation of the legislative intention apparent upon its enactments.

25 U.S. at 14-15 (Emphasis supplied).

A. The Innocent Owner Cases

It was in the case of

United States v. Brig Malek Adhel,

2 How. 210 , 43 U.S. 210 , 11 L.Ed. 239 (1844), that the Supreme Court first squarely asserted that the innocence of the owner of the chattel subject to forfeiture is no defense to the forfeiture action. The brig “Malek Adhel” was forfeited to the United States because it had been used as the instrumentality for several acts of piracy on the high seas. Although the captain of the vessel was obviously at fault, it was conceded that the owners, a shipping firm in New York, were completely free of guilt. As to them, Justice Story’s opinion observed:

The owners are confessedly innocent of all intentional or meditated wrong. They are free from any imputation of guilt, and every suspicion of connivance with the master in his hostile acts and wanton misconduct.

43 U.S. at 237 .

The Supreme Court went on to hold, however, that the innocence of the owner was no bar to the forfeiture of the vessel:

The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation ... Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches,

*776

without any reference whatsoever to the character or conduct of the owner.

43 U.S. at 233 .

In

Dobbins’ Distillery v. United States,

96 U.S. 395 , 24 L.Ed. 637 (1877), the lessee of a distillery failed to keep proper business records and made false entries in the books with the intent to defraud the United States of revenue. In an attempt to defend against the forfeiture of the distillery and the real property on which it sat, the owner averred that he had no knowledge of the fact that his lessee was making fraudulent entries on the books of his distilling business. In affirming the propriety of jury instructions to that effect, the Supreme Court held that the innocence of the owner was no defense to the forfeiture. In its discussion, the Supreme Court contrasted forfeiture proceedings that are of a criminal character with forfeiture proceedings that are of a civil nature:

Cases arise, undoubtedly, where the judgment of forfeiture necessarily carries with it, and as part of the sentence, a conviction and judgment against the person for the crime committed; and

in that state of the pleadings it is clear that the proceeding is one of a criminal character; but where the information,

as in this case,

does not involve the personal conviction of the wrong-doer for the offence charged, the remedy of forfeiture claimed is plainly one of a civil nature; as the conviction of the wrong-doer must be obtained,

if at all,

in another and wholly independent proceeding.

96 U.S. at 399 (Emphasis supplied).

The Court reiterated that the innocence of the owner was no bar to the forfeiture action in the civil

in rem

proceeding under review:

Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault.

96 U.S. at 401 .

See also J.W. Goldsmith, Jr.-Grant Co. v. United States,

254 U.S. 505 , 41 S.Ct. 189 , 65 L.Ed. 376 (1921) (Innocent condi

*777

tional vendor of a Hudson automobile suffered forfeiture of it because the purchaser taxicab operator used it to conceal 58 gallons of untaxed whiskey);

Van Oster v. Kansas,

272 U.S. 465 , 47 S.Ct. 133 ,

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