Appeals Court (December 16, 2008)

The Commonwealth must demonstrate the existence of probable cause at the forfeiture trial only; it does not have to demonstrate the existence of probable cause in its forfeiture complaint. It is sufficient that the Commonwealth plead sufficient facts to state a cause of action for a claim of forfeiture pursuant to c. 94C, §47(a)(5).

The Commonwealth filed a civil complaint for forfeiture of the defendant's 2004 Audi Sedan automobile, $4,350 cash, and $226,511.92 in a local Bank of America account pursuant to c. 94C, §47(a)(3) and (5) and (d), all allegedly related to the defendant's illegal internet steroid distribution operation. The Commonwealth's ex parte motion for a preliminary order of custody was allowed. The defendant successfully moved to intervene and filed a motion to dismiss pursuant to Mass.R.Civ. P. 12(b)(6). The defendant argued that the complaint and supporting affidavits did not demonstrate the existence of probable cause to institute the action as required by c. 94C, §47 (d). The Superior Court allowed the motion and the Commonwealth petitioned a single justice seeking leave to file an interlocutory appeal, which was granted.

In a matter of first impression, the Appeals Court agreed with the Commonwealth that the Superior Court committed error in requiring the Commonwealth to establish probable cause at the complaint stage. General Laws c. 94C, §47 (d) states in pertinent part:

"In all such suits where the property is claimed by any person, other than the Commonwealth, the Commonwealth shall have the burden of proving to the court the existence of probable cause to institute the action, and any such claimant shall then have the burden of proving that the property is not forfeitable . . . ."

Recognizing that the Massachusetts forfeiture statute parallels the federal statute, the Court held a forfeiture complaint did not have to demonstrate probable cause at the complaint stage; it simply needs to establish a "reasonable belief" that the government can show probable cause for forfeiture at trial. Probable cause must be shown at trial only. The Commonwealth's burden was met in this case.

The Court also held that pleadings are sufficient pursuant to the Mass. Rules of Civil Procedure if the complaint provides enough information to give the defendant notice of what the dispute is about and asserts a right to recovery cognizable on some acceptable legal theory. In this case, the Commonwealth pleaded sufficient facts to state a cause of action for a claim of forfeiture pursuant to c. 94C, §47(a)(5). The order of the Superior Court was vacated and the case was remanded for further proceedings.