Forfeiture – Procedural requirements

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Where a judge issued a forfeiture decree for property seized pursuant to a search warrant, the judge was required to follow the procedural requirements set forth in G.L.c. 276, §§4-8.

Vacated and remanded.

“This case raises a question of statutory interpretation: whether a judge may issue a forfeiture decree for property seized pursuant to a search warrant under G.L.c. 276, §3, based solely on the judge’s determination forfeiture would be in the ‘public interest,’ or whether the judge must instead follow the procedural requirements set forth in G.L.c. 276, §§4 to 8, before any forfeiture decree may issue. For the reasons that follow, we conclude the latter interpretation should apply. Accordingly, we vacate the Superior Court orders insofar as they denied the return of certain property to the defendant, and we remand the case for further proceedings consistent with this opinion. …

“We now proceed to address the primary question in this case: whether there is any interplay between G.L.c. 276, §3, on the one hand, and §§4 to 8, on the other. …

“The Commonwealth asks us to construe the phrase ‘as the public interest requires’ in §3 as a stand-alone provision unrelated to the ensuing procedural requirements of §§4 to 8. The defendant counters that the Commonwealth and the courts must strictly adhere to the procedural requirements of §§4 to 8 before seized property can be lawfully forfeited pursuant to §3. We conclude the Legislature intended for the procedural safeguards laid out in §§4 to 8 to apply whenever a decree of forfeiture is issued under §3. …

“… When the Commonwealth seizes property pursuant to a search warrant, unless another statute governs forfeiture or the property falls under one of the exceptions enumerated in §3, the procedural requirements of the ensuing sections must be complied with before a forfeiture decree may be entered. …

“Having determined the procedural requirements of §§4 to 8 must be followed prior to a determination whether forfeiture is in the ‘public interest’ under §3, we take this opportunity to clarify the standard of proof to be applied under the search warrant statute, as the statute does not specify the applicable standard. We hold that a preponderance of the evidence standard, as the general standard in civil cases, applies here and the burden of proof falls upon the Commonwealth. … Therefore, in a forfeiture action brought under the search warrant statute, the Commonwealth has the burden of proving by a preponderance of the evidence that ‘the public interest requires’ forfeiture. …

“To balance all the competing interests, what is required are appropriate proceedings in accordance with G.L.c. 276, §§4 to 8, including notice and a trial, so a judge may evaluate, on a full factual record, the merits of the competing arguments to determine if a forfeiture decree is in the ‘public interest’ under §3. Indeed, this case hinges on numerous factual disputes and thus requires a fact finder to resolve them. To be clear, we do not suggest it would be impossible or even unlikely for the Commonwealth to demonstrate the hard drives contain child pornography or forfeiture is not otherwise in the public interest; we conclude only that proceedings consistent with the requirements of §§4 to 8 are necessary for a judge to make such a determination.”

Commonwealth v. James (Lawyers Weekly No. 10-048-24) (24 pages) (Georges, J.) A motion for return of property was heard by Robert C. Cosgrove, J., and a second motion for return of property was considered by him. Patrick Levin for the defendant; Michael McGee for the commonwealth (Docket No. SJC-13395) (April 23, 2024).

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