State v. Gaines , 82 Ohio App. 3d 467 ( 1992 )

The "forfeiture" provisions permitted by R.C. 2933.41 et seq. are laudable, but I am concerned that some law enforcement agencies are seizing property to enhance their allocated budgetary funds in cases where the seized "contraband" is unrelated to a criminal act. It seems to be a convenient way to supplement the budget without involving the expenditure of tax money. The forfeiture of contraband involved in the sale of drugs, for example, helps the local police department and hurts the drug dealer. So far, well and good. It is crystal clear that a "cigar" speedboat, with speed capable of outrunning the U.S. Coast Guard, when used for the transportation of drugs to Florida coasts, constitutes contraband, in that it is directly related to the sale and distribution of illegal drugs. It is equally clear that the vehicle used by drug dealers to transport their filthy product from Florida to Cleveland can and should be seized by Ohio authorities when intercepted on I-75. The forfeiture concept becomes somewhat cloudy, however, with respect to criminal convictions where there is no direct connection with the property seized and the crime committed.

In the case sub judice, there is simply no direct connection between the seized firearms and the crime of dogfighting, or for that matter, the sale of marijuana.² The lower court held: "This court is satisfied from the manner in which these firearms were distributed throughout the residence in a loaded condition that they were `used in the commission of the offense' of possession with intent to distribute marijuana."

Does the trial judge believe the firearms were contraband because of "the manner in which these firearms were distributed throughout the residence," or because they were "in a loaded condition"? Property is subject to forfeiture under R.C. 2933.41 if the trial court determines "it is unlawful for the individual to acquire or possess the property, in light of its nature or the circumstances of the offender." State v. Gaines (1990),64 Ohio App.3d 230, 236, 580 N.E.2d 1158, 1161. It is not illegal to possess loaded firearms and distribute them in various rooms of one's residence. The Second Amendment to the United States Constitution has not (yet) been abrogated.

The only possible connection between the firearms seized as contraband and the crime of dogfighting is appellant's statement to undercover agents that "dogs which did not perform were destroyed by shooting them." Perhaps the gun actually used to shoot a cowardly fighting dog might be contraband, but even that is doubtful. In any event, there is absolutely no evidence that the seizure of the firearms had "anything to do with the illegal fighting of dogs" as required by our remand in Gaines. We previously held that "it was incorrect to order a forfeiture of the guns unless it is demonstrated that appellant used them in connection with the violation of R.C. 959.16." Id.,64 Ohio App.3d at 237, 580 N.E.2d at 1162. Now, as then, this language aptly reflects the erroneous nature of the trial court's order. The court's order declaring forfeiture of the guns should be reversed and final judgment entered for appellant.

I accordingly dissent.

² We reversed the initial order of forfeiture and remanded the case to the trial court "for a determination of which items seized during the June 16, 1988 search had `anything to do with the illegal fighting of dogs.'" The remand neither required nor permitted the lower court to consider the separate conviction in federal court with respect to the marijuana charge. Accordingly, the trial court's finding that the firearms are somehow related to the federal charge is not germane to the remand.