Supreme Judicial Court (February 9, 2010)

Where the Commonwealth, under G. L. c. 94C, § 47 (f) (1), has obtained an ex parte preliminary order to seize or secure property pending final adjudication of the forfeiture proceeding, a person claiming ownership of the property is entitled to an adversary hearing to challenge the issuance of the order.

The defendant was charged with drug offenses. At the time of arrest, the police seized the defendant's automobile and $4,359 cash. Following the arrest, the police obtained a search warrant for the defendant's bank account and consequently froze funds totaling $226,511.92. The Commonwealth brought a civil forfeiture action under G.L. c. 94C, §47 (a) (3), (5) (d), alleging the vehicle, cash, and bank account funds were related to the defendant's illegal drug distribution. The Commonwealth also moved ex parte for a preliminary order to secure the frozen bank funds pending final adjudication. The order was granted. The defendant then made a motion to intervene and the judge subsequently allowed his motion to dismiss the complaint in regards to the bank funds, finding no nexus existed between the funds and the illegal drug activity. After appeals by both the Commonwealth and the defendant, the case went before the Supreme Judicial Court.

The standard to be applied to a motion to dismiss:
The SJC answered a question of first impression by articulating the standard applicable to a motion to dismiss a civil forfeiture action. "A civil forfeiture complaint under G.L. c. 94C, § 47 (d), will survive a motion to dismiss if the Commonwealth pleads facts sufficient to support a reasonable belief that, at trial, the Commonwealth can show probable cause to believe the property is subject to forfeiture. "

Challenge to a preliminary order of seizure:
The defendant then argues that this variant of the motion to dismiss standard, while more demanding than the usual standard, is inadequate in civil forfeiture actions because a motion to dismiss is the only means by which the owner of the property at issue may challenge the preliminary seizure of the property. Acknowledging that a defendant in a criminal case may bring a motion to suppress and if successful, the seized property is promptly returned, the SJC created an alternative remedy to challenge the seizure of property in a civil forfeiture proceeding:

Prior to trial, a claimant may file a motion and memorandum, supported by affidavits, to vacate the order of preliminary seizure by:
1. Demonstrating that the evidence in the Commonwealth's affidavits in support of its ex parte motion, even if true, was legally insufficient to justify a finding of probable cause;
2. Showing that material facts in the Commonwealth's affidavits were inaccurate; or
3. Providing additional information that, had it been before the judge at the time of the Commonwealth's motion, would have demonstrated a lack of probable cause to seize.

"By allowing an individual whose property has been preliminarily seized an opportunity to be heard on the issue of probable cause to seize prior to the forfeiture trial, we strike a balance between the Commonwealth's interest in seizing property that it reasonably believes is subject to forfeiture and the entitlement of an individual deprived of property to a prompt and objective determination of the validity of that preliminary seizure."