Property Clerk of Police Department v. Harris

OPINION OF THE COURT

In this appeal we are asked to determine whether the Property Clerk of the Police Department of the City of New York, in order to establish the right to impound a vehicle during the pendency of a civil forfeiture proceeding, is required to prove, at a postseizure retention hearing, that the co-owner of a seized vehicle is not an “innocent owner.” We conclude that the City does not bear that burden, but building upon the holdings of County of Nassau v Canavan (1 NY3d 134 [2003]) and Krimstock v Kelly (306 F3d 40 [2d Cir 2002]) we also conclude that due process requires that an innocent co-owner1 be given an opportunity to demonstrate that his or her present possessory *240interest in a seized vehicle outweighs the City’s interest in continuing impoundment.

I.

Along with her husband, Merv Harris, respondent, Delores Newton Harris, is the co-owner of a 2002 Mitsubishi Montero. The Harrises acquired the Montero in March 2002 and registered it in Virginia. Since that time, the couple has made monthly payments of $600 drawn from a joint checking account to discharge their remaining debt on the vehicle. At the time these proceedings were initiated in December 2004, the Montero had a fair market value of $16,000.

On the evening of October 20, 2004, an individual working in concert with undercover New York City Police Department (NYPD) officers allegedly called Mr. Harris and asked him to deliver cocaine to 94th Street and Columbus Avenue in Manhattan. A short time later, Mr. Harris arrived in the Montero. The man approached the Montero with $40 in prerecorded buy money, gave that money to Mr. Harris, and returned to the undercover officer with a quantity of cocaine. Mr. Harris drove off but was stopped by other NYPD officers who recovered four bags of cocaine from his pants pocket and the $40 in buy money. The police arrested him, charged him with criminal sale and possession of a controlled substance in the third degree, seized the Montero and impounded it.* 2

As permitted under section 14-140 (b) of the Administrative Code of the City of New York, the NYPD’s Property Clerk has retained the seized Montero as “property . . . suspected of having been used as a means of committing crime or employed in aid or furtherance [thereof].” The Property Clerk has also instituted a civil forfeiture proceeding seeking to confiscate the Montero in order to sell it at an auction (see 38 RCNY 12-36). As required under Krimstock, the City informed Mr. Harris of its intent to impound the Montero throughout the forfeiture proceeding (see 306 F3d at 68). Mr. Harris then made a timely demand for a “Krimstock” hearing,3 where it is the City’s burden to establish its right to continued impoundment by a *241preponderance of the evidence (see Krimstock v Kelly, 2005 US Dist LEXIS 43845, *4).* **4

On December 21, 2004, both Harrises appeared at the Krimstock hearing before an administrative law judge of the City’s Office of Administrative Trials and Hearings (OATH).5 In addition to evidence regarding the alleged October 20 cocaine transaction, the City presented evidence that, over a span of 15 years, ending in 1997, Mr. Harris had been arrested 10 times and served two prison terms for drug-related offenses. After offering evidence regarding Mr. Harris’s culpability, the City called respondent to testify in anticipation of her husband’s claim that the vehicle should be returned to his wife because of her status as an innocent co-owner.

During her direct testimony, respondent stated that she married Mr. Harris in 2002 and was aware both that her husband was involved in at least one “drug case” and imprisoned for a drug offense prior to their marriage. She further testified that Mr. Harris had been arrested on “drug charges” during their marriage and that she posted bond in connection with those charges.6 Turning to her use of the Montero, she testified that she drove the vehicle “[ejvery so often,” usually on a “weekly *242basis.” She also offered testimony regarding the schedule of payments for the Montero and stated that she and her husband had made timely $600 monthly payments, drawn from their joint checking account.

Following the hearing, OATH ordered the Montero released to respondent even though it found that the City had established each of the three prongs of the Krimstock analysis against Mr. Harris.7 But that showing was immaterial, OATH held, because the City failed to discharge its additional “burden of proof that [respondent] was not an innocent owner.” According to OATH, release was appropriate because the City offered no evidence that she “knew or should have known that her husband was going to use the vehicle to sell narcotics.”8 The City then commenced a CPLR article 78 proceeding in Supreme Court seeking to annul OATH’s determination as “arbitrary, capricious, and contrary to law.”

Supreme Court upheld OATH’s ruling, finding that Krimstock “made it crystal clear that the [City] has to anticipate and test the merits of a potential innocent owner defense” at a retention hearing (7 Misc 3d 1032[A], 2005 NY Slip Op 50848[U], *4). Accordingly, Supreme Court denied the City’s article 78 petition, lifted a stay enjoining release of the vehicle to respondent and dismissed the proceeding. The Appellate Division reversed. It concluded that the City was entitled to retain the vehicle during the pendency of the forfeiture proceeding de*243spite respondent’s claims of innocent ownership because it “made the requisite showing against Mr. Harris” (34 AD3d 215, 217 [1st Dept 2006]).

Further, the Appellate Division reasoned that if the City were required to release vehicles to innocent co-owners, its right to a share of future proceeds from an auction of seized vehicles “would, as a practical matter, be destroyed” (34 AD3d at 217). Thus, the court concluded that “[r]egardless of Ms. Harris’s innocence . . . the City is entitled to the protection of its potential right to forfeiture of Mr. Harris’s interest in the vehicle” through continued impoundment (id.). A contrary conclusion, the court stated, would make forfeiture “virtually impossible” and was unnecessary because innocent co-owners, like respondent, are entitled to a share of auction proceeds corresponding to their interest in the vehicle (id. at 218). We granted leave to appeal and now affirm, for different reasons.

II.

Relying upon our decision in Canavan and the Second Circuit’s decision in Krimstock, respondent argues that due process requires that OATH balance the hardship that would befall an innocent co-owner due to the loss of a present possessory interest in using an impounded vehicle against the City’s need to retain that vehicle. Petitioner contends, however, that the only process due innocent co-owners is that established in Canavan and Krimstock, namely a prompt retention hearing wherein the City must establish that “probable cause existed for the defendant’s initial warrantless arrest, that it is likely to succeed on the merits of the forfeiture action, and that retention is necessary to preserve the vehicle from destruction or sale during the pendency of the [forfeiture] proceeding” (Canavan, 1 NY3d at 144-145, citing Krimstock, 306 F3d at 67; see also Krimstock, 2005 US Dist LEXIS 43845, *4). Petitioner claims that once these findings are made against a “criminal co-owner,” innocent co-ownership “makes no difference.”

Because we agree with respondent that an innocent co-owner’s present possessory interest in an impounded vehicle may, in particular circumstances, be constitutionally significant, we conclude that such co-owners are also entitled to notice and *244the opportunity to be heard at a Krimstock hearing.9 But we hold that an innocent co-owner has the burden of proving that a present possessory interest outweighs the City’s need to impound the vehicle to (i) deter future criminal conduct, and to (ii) safeguard its right to future auction proceeds by preventing theft, sale, destruction or loss. Respondent did not carry that burden here.

The City has broad authority to retain property following seizure (see Administrative Code of City of NY § 14-140 [b]). It is entitled to retain “all property . . . suspected of having been used as a means of committing crime or employed in aid or furtherance of crime” (id.). Section 14-140 (b) “applies to all levels of crime, not just felonies, and to all types of crimes” (Krimstock, 306 F3d at 44). Although the City is required to institute a civil forfeiture proceeding within 25 days after a “claimant”10 makes a formal demand for return of seized property, that proceeding is commonly stayed until the conclusion of the underyling criminal action (see 38 RCNY 12-36 [a] [i]-[ii] [stay may be requested even if forfeiture proceeding was initiated “before . . . criminal proceedings”]). Thus, seized vehicles may be impounded for many months (see e.g. Krimstock, 306 F3d at 46 [citing examples in which cars remained impounded between 2V2 and 11 months during forfeiture proceeding]).

In Canavan, we struck down a county’s civil forfeiture statute on due process grounds because it “contain[ed] no limitation of *245forfeiture liability for innocent owners” (Canavan, 1 NY3d at 143, quoting Krimstock, 306 F3d at 57). In addition, we held that due process required that “defendants” be afforded a prompt postseizure retention hearing. Although our holding referred only to “defendants[’]” rights, it was predicated largely upon the potentially “significant” interest that innocent owners, and household members, have in impounded vehicles subject to lengthy impoundments (Canavan, 1 NY3d at 142-143 [“(T)he private interest affected by the deprivation of an automobile may be significant. When cars are owned by others or shared among household members . . . seizure may affect not only a culpable defendant, but also other innocent parties”]; see also id. at 144 [reasoning that “a hearing (is) required to ensure that . . . innocent owners are not deprived for months or years of cars ultimately proved not to be subject to forfeiture”]).

Our concern for the interest of innocent owners echoed that of the Second Circuit in Krimstock. In ruling that due process required a prompt postseizure retention hearing, the Second Circuit emphasized the “plight of innocent owners” and explained that the risk of erroneous deprivation is heightened because section 14-140 (b) permits the City to retain seized vehicles without giving such owners the opportunity to prove that they did not “permit” or “suffer” the criminal use of their vehicles (see Krimstock, 306 F3d at 48, 56-58, 63).

Canavan and Krimstock do not refer specifically to the due process rights of innocent co-owners, the issue with which we are confronted here. Instead, Canavan held that “defendants”— who presumably could be sole owners, co-owners, or merely in lawful possession of a seized vehicle—had a due process right to a hearing (1 NY3d at 144). And Krimstock refers to the due process right of “claimants” {e.g. 306 F3d at 68, 69) who are defined in the order currently governing Krimstock hearings as “either the person from whom the vehicle was seized ... or [its] owner” (2005 US Dist LEXIS 43845, at *7).

Nonetheless, both of these cases strongly suggest that innocent co-owners’ interests must be fully considered at a Krimstock hearing. For example, the Krimstock court defined the term “innocent owner” as “a person who has an ownership interest in property threatened with civil forfeiture but who neither participated in nor permitted or suffered the alleged illegal use of the property” (306 F3d at 48 n 9 [emphasis added]). Similarly, we noted the potentially significant interest at stake *246when impounded vehicles “are owned by others” (Canavan, 1 NY3d at 142). Despite these strong indications, however, to determine what process is due an innocent co-owner of an impounded vehicle, we must consider “(1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and (3) the government’s interest” (Canavan, 1 NY3d at 142, citing Mathews v Eldridge, 424 US 319, 335 [1976]). Each of these factors militates in favor of permitting innocent co-owners to contest impoundment.

III.

As to the first consideration, an innocent co-owner’s present possessory interest in a vehicle “may be significant” (see Canavan, 1 NY3d at 142). “[A]utomobiles are often an essential form of transportation and, in some cases, critical to life necessities, earning a livelihood and obtaining education” (id. at 143). This interest is not diminished by the fact that title to the vehicle is held jointly (see id. at 142-143 [noting that “(w)hen cars are owned by others or shared among household members . . . seizure may affect not only a culpable defendant, but also other innocent parties”]; Fuentes v Shevin, 407 US 67, 86 [1972] [due process protection extends to “any significant property interest” (emphasis added)]; Bennis v Michigan, 516 US 442, 473 [1996, Kennedy, J., dissenting] [concluding that “the automobile . . . is a practical necessity in modern life for so many people” and that “nothing supports the suggestion that the value of. . . co-ownership is so insignificant as to be beneath the law’s protection”]). Indeed, the Second Circuit recently held that a lienholder’s contingent possessory interest in a seized vehicle is “considerable” and that lienholders have a due process right to be heard in forfeiture proceedings brought under 38 RCNY 12-36 (Ford Motor Credit Co. v NYC Police Dept., 503 F3d 186, 194 [2d Cir 2007]). That conclusion only underscores the potential importance of the present possessory interest of innocent co-owners.

Contrary to the Appellate Division’s view, the prospect of a proportional payment of future forfeiture proceeds does not, in most cases, sufficiently protect innocent co-owners. That payment may not compensate for an innocent co-owner’s “interest in continued possession and use” of the vehicle during impoundment (Fuentes, 407 US at 86; see also Krimstock, 306 F3d at 64 [“(A)n owner cannot recover the lost use of a vehicle by prevail*247ing in a forfeiture proceeding”]; cf. Ford Motor Credit, 503 F3d at 191 [rejecting City’s contention that lienholder’s only cognizable interest was that of “sale proceeds” because lienholders “ha(ve) a property interest in the present value of a seized vehicle”]).

As a second consideration, if an innocent co-owner is not permitted to contest impoundment, there is a substantial risk that erroneous deprivation of a present possessory interest in a vehicle will occur. A postseizure retention hearing is meant not only to determine whether probable cause exists for the initial seizure of the vehicle, but also “whether other measures, short of continued impoundment, would satisfy the legitimate interests of the City in protecting . . . vehicles from sale or destruction” (Krimstock, 306 F3d at 68). The answer to the second inquiry depends, in part, upon whether “less drastic measures than deprivation pendente lite are available and appropriate” (see id. at 44).

Innocent co-owners possess highly relevant evidence—unknown to the City—as to that inquiry. For example, impoundment may be inappropriate if an innocent co-owner relies upon continued use of the impounded vehicle to perform essential daily activities—such as earning a livelihood, obtaining an education, or receiving necessary medical care (cf. Canavan, 1 NY3d at 143; see also Krimstock, 306 F3d at 49 [“the City might succeed in showing . . . probable cause for seizing the vehicle . . . yet be unable to establish the probable validity of continued deprivation ... in the face of proof of innocent ownership”]). Innocent co-owners are entitled to present and OATH is required to consider such highly relevant evidence to “protect against an erroneous deprivation of a claimant’s possessory interest” (Krimstock, 306 F3d at 62; see also United States v James Daniel Good Real Property, 510 US 43, 55 [1993] [“No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case . . . and opportunity to meet it”]). This is especially true here, because, as we noted in Canavan, “greater procedural safeguards are of particular importance where . . . the [government has a direct pecuniary interest in the outcome of the proceeding” (1 NY3d at 143 [internal quotation marks omitted]).

Turning to the third consideration, we acknowledge that the government’s interests in preventing an impounded vehicle’s future use as the instrumentality of a crime and preventing *248against loss, theft, sale, or destruction are significant. But these interests will not always trump an innocent co-owner’s present possessory interest. Instead, OATH must balance both sets of interests to determine whether continued retention to prevent future criminality is “justifiable” and whether means other than retention such as posting a bond or a temporary restraining order prohibiting the sale or destruction of the vehicle would adequately protect the government’s interest in future forfeiture proceeds (see Canavan, 1 NY3d at 144).

In concluding that innocent co-owners have a due process right to contest impoundment of their vehicles, we reject the Appellate Division’s claim that recognizing such a right would “as a practical matter . . . destroy! ]” the City’s interest in seized vehicles and make forfeiture “virtually impossible” (34 AD3d at 217, 218). Due process requires a balancing of interests. Just as the City’s interests must be considered, so too must an innocent co-owner’s. Exclusion of either would threaten “[t]he purpose of an adversary hearing!, which] is to ensure the requisite neutrality that must inform all governmental decision-making” (James Daniel Good, 510 US at 55).

Thus, we hold that an innocent co-owner may be entitled to release of an impounded vehicle if such a co-owner can demonstrate by a preponderance of the evidence that he or she: (i) is a registered and/or titled co-owner; (ii) was not a “participant or accomplice” in the underlying offense and did not “permit! ]” or “suffer! ]” the vehicle to be “used as a means of committing crime or employed in aid or furtherance of crime” (see Administrative Code of City of NY § 14-140 [b], [e] [1]); and that (iii) continued deprivation would substantially interfere with his or her ability to obtain critical life necessities, such as earning a livelihood, obtaining an education, or receiving necessary medical care.

Although we acknowledge that application of this test is inherently fact-intensive, some general guideposts are useful. With respect to the second inquiry, regarding complicity, we have explained in a different context that “[s]ufferance . . . implies knowledge or the opportunity through reasonable diligence to acquire knowledge” (People ex rel. Price v Sheffield FarmsSlawson-Decker Co., 225 NY 25, 30 [1918, Cardozo, J.]). As regards continued deprivation, a showing of undue prejudice is required. Thus, OATH must determine whether an innocent co-owner has adequate access to other means of transportation in order to accurately determine whether continued impoundment will substantially interfere with critical life necessities.

*249Our decision here is a narrow one, concerned only with due process protection of innocent co-owners’ present possessory interest in the use of impounded vehicles to obtain critical life necessities. We are not being called upon to consider the practice at forfeiture proceedings, where—as both parties acknowledge—an innocent co-owner may prove an entitlement to a share of auction proceeds, but be unable to obtain release of a seized vehicle. The authority of the government to confiscate property even if that property is owned in whole or part by an innocent owner is well settled and we do not seek to cast doubt upon it here.

IV

Applying the standard announced above to the present case, we conclude that the City established a prima facie case for impoundment by showing probable cause for the Montero’s seizure, a likelihood of success in the forfeiture proceeding and the necessity for continued impoundment. Having made this showing as against Mr. Harris, it does not bear the burden of proving that respondent was not an innocent co-owner. Rather, the burden of proof shifted to respondent and it was incumbent upon her to prove by a preponderance of the evidence that she was an innocent co-owner who would suffer a substantial hardship due to continued impoundment. This she failed to do.

Here, the evidence was sufficient to establish respondent’s co-ownership. In addition, the evidence supported the conclusion that respondent was not complicit in the narcotics transaction because there was no proof that she knew or reasonably should have known that the Montero was being used to distribute cocaine in 2004, more than seven years after Mr. Harris’s last drug-related arrest. But respondent failed to show that her access to critical life necessities would suffer substantially as a result of continued impoundment. When asked to describe her use of the Montero, respondent testified that “[i]t vari[ed]” and that she used the car “[e]very so often . . . [m]aybe [on] a weekly basis.” Thus, respondent failed to show that she depended on the Montero as an “essential form of transportation . . . critical to life necessities” (Canavan, 1 NY3d at 143). Accordingly, in this case, the City’s interest in deterrence of future criminal conduct involving the Montero and in preserving it for sale at a later auction outweighed Ms. Harris’s present possessory interest. Therefore, the Appellate Division was correct to hold that release is not warranted here.

*250Accordingly, the order of the Appellate Division should be affirmed, with costs.