State ex rel. Fuhr v. Carrier

PREWITT, Presiding Judge. Pursuant to § 195.145, RSMo 1986, the trial court ordered the forfeiture of appel [672] lant’s 1977 Chevrolet pickup truck. Appellant contends that the forfeiture was invalid because § 195.145 was not complied with in several particulars. The facts were stipulated. On April 22, 1987, Don Fuhr, a Springfield police officer who instituted this action, conducted a search pursuant to a search warrant at a residence known as 1011 East Stanford in Springfield. Present upon his arrival were two male teenagers. During the search marihuana was found. Shortly after finding the marihuana, a 1977 Chevrolet pickup truck was “observed” by Fuhr pulling into the driveway at 1011 E. Stanford. Appellant and another person left the vehicle and entered the residence. They were arrested there by Corporal Larry Robinson of the Springfield Police Department for possession of the marihuana found at the residence. Robinson then searched the pickup and found 31 hand rolled cigarette butts containing 1.59 grams of marihuana. Fuhr then seized the vehicle on that day. The record does not show how long it was after the search of the vehicle that the seizure occurred. Fuhr thereafter brought this action under § '195.145.1. That section provides that any vehicle, vessel or aircraft used in violation of § 195.025, RSMo 1986, shall be forfeited to the state and shall be seized by “any peace officer of the state, upon making or attempting to make an arrest for a violation of this law”. As we view one of appellant’s points with merit and as being dispositive of the case, we do not address the remaining contentions. In that point appellant contends that the seizure of her vehicle was improper because the officer seizing the vehicle had not made or attempted to make an arrest as required by § 195.145.1. Respondent counters that the law should not be construed so narrowly and that the seizure by Fuhr was valid. Certain principles are applicable here. Forfeitures are not favorites of the law and should be enforced only when within both the letter and spirit of the law. State v. Jones, 637 S.W.2d 337, 338 (Mo.App.1982); State ex rel. Reid v. Kemp, 574 S.W.2d 695, 697 (Mo.App.1978). In construing a statute, courts are to accord words their plain and ordinary meaning. State v. Bachman, 675 S.W.2d 41, 46 (Mo.App. 1984). However, courts may look beyond the plain meaning when what appears to be the plain meaning would lead to an illogical result defeating the purpose of the law. State ex rel. Maryland Heights Fire Protection Dt. v. Campbell, 736 S.W.2d 383, 387 (Mo. banc 1987). Appellant was arrested by Robinson who then searched the vehicle, but the vehicle was seized by Fuhr. There is nothing in the record to indicate that Fuhr assisted in the arrest or that Robinson assisted in the seizure of the vehicle. Also, whether Fuhr and Robinson went there together, or whether Robinson aided in the search of the house, is not in the record. Whether those facts might have changed the result it is not necessary to decide. Nor is it necessary to decide whether evidence that marihuana was found in the vehicle could have been excluded because the search of the vehicle might have been improper. See One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); United States v. One 1978 Mercedes Benz, 711 F.2d 1297 (5th Cir.1983); United States v. One 1976 Cadillac Seville, ATI F.Supp. 879 (E.D.Mich.1979). The statute states that an officer making or attempting to make an arrest shall seize the vehicle. This law grants the right to seize a vehicle only to the peace officer who makes or attempts an arrest for violation of chapter 195. State ex rel. Hannaford v. Allen, 683 S.W.2d 297, 298 (Mo. App.1984); State ex rel. Whitener v. Kixmiller, 664 S.W.2d 220, 222 (Mo.App.1984). As in Allen and Kixmiller, the record here does not establish that the officer seizing the vehicle participated in the arrest of the vehicle’s owner. Respondent argues that an “interpretation that the peace officer who seizes the vehicle must be the same peace officer who makes the arrest for a violation of the Narcotic Drug Act overlooks the realistic element of law enforcement which has [673] peace officers operating as teams and separating tasks, both for efficiency and their own safety.” This argument fails for two reasons, (1) the record does not show that Fuhr and Robinson were a “team” and (2) even if that might be a fair inference from other facts in the record, it is for the legislature to decide who can make the seizure and the statute clearly limits that right to the arresting officer. Requiring that the officer who makes the arrest be the one who can seize the vehicle does not lead to an illogical result which defeats the purpose of the law. To have officers seizing the vehicle who did not make the arrest could broaden the statute beyond the intent of the legislature. To have seizures beyond the time of the arrest or attempted arrest or by officers other than the arresting officer could lead to the mistaken or otherwise improper confiscation of vehicles. Allowing it only at the time of arrest or attempted arrest by an officer with firsthand knowledge would reduce the possibility of that occurring. The officer who makes the arrest can effectively carry out the law by making the seizure. The judgment is reversed and the cause remanded for entry of judgment in favor of appellant. HOGAN, J., concurs. MAUS, J., dissents and files dissenting opinion.