State v. One 2010 Nissan Altima, 2013AP2176, District 2, 6/11/14 (not recommended for publication); case activity
Daughter’s possession of and control over a car titled and registered in her father’s name made her the “owner” of the car for purposes of the property forfeiture law, so the circuit court properly rejected her father’s claim that he was the “innocent owner.”
Unbeknownst to John, her father, Melanie used the car she had with her at college to sell drugs to a CI. When the state sought forfeiture of the car under § 961.55(1)(d) John argued he was the “innocent owner” under § 961.55(1)(d)2., which provides “[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner’s knowledge or consent.” (¶¶3-7, 9).
Under State v. Kirch, 222 Wis. 2d 598, 606-07, 587 N.W.2d 919 (Ct. App. 1998), determining whether a person is the owner of property for purposes of the statute involves a fact-intensive inquiry that considers the factors of “possession, title, control and financial stake.” It was undisputed that John had title to the car and had the “financial stake” in the car because he paid for it. (¶11). Nonetheless, the circuit court found Melanie to be the owner based on her possession and control of the car, and this finding is not clearly erroneous:
¶12 While John testified that he had his own set of keys to the Altima, would drive it “from time to time,” and he and anyone else in the family could use it, he did not dispute that Melanie was the main driver of the vehicle and when she was at school—an hour away from John’s home—it would be kept in a specified university parking lot. He also acknowledged that he had not driven the Altima in well over a month prior to its seizure. And while John may have had a rule that Melanie was not to have drugs in the Altima, he had limited contact with the vehicle, as the court found, such that between the last time he drove the Altima and its seizure on May 9, Melanie was able to freely use it to sell illegal drugs on at least three occasions. The testimony of both the detective and John, as well as the exhibits, support the court’s finding that nearly everything in the vehicle—personal, financial, and health-related items, as well as pay stubs, a law enforcement citation, and illegal drugs and drug-related items (some in the center console)—belonged to Melanie. Further, the undisputed testimony was that each member of the family had their own individual car to use.
Kirch applied § 973.075(1)(b)2. (1995-96) [now § 973.075(1)(b)2m.b.], but in doing so it drew on § 961.55(1)(d)2. because it concluded the legislature intended the two statutes to create the same “innocent owner” defense. 222 Wis. 2d at 604-05. (¶10 n.3).
Also, note that the circuit court considered, as “[r]elated to financial stake as well as possession and control,” the fact that Melanie would be the one who would ultimately suffer from the forfeiture of the vehicle because she’d no longer to use the vehicle for transportation. While the court of appeals “adhere[s] to the four factors referenced in Kirch,” it also holds that, in the context of those factors, “who would ultimately suffer from the forfeiture is an appropriate consideration,” and cites federal cases taking the same approach. (¶13).
It appears to me that the Court’s rationale effectively repeals the innocent owner defense in any case except where the car is stolen. The same rationale (basing the decision on possession and use rather than the common sense meaning of actual ownership) would deny the innocent owner defense to car rental agencies as well. It is one thing to say that the drug dealer would be the one to suffer the consequences of the forfeiture when, unlike in this case, titling the car in someone else’s name was a mere formality or where the car is gifted to the drug dealer. It is quite something else when, as here, all the evidence demonstrates that the innocent father is the actual owner although he allows the daughter to use it at school. A lot of suburban parents with kids in college would be quite surprised at the counter-intuitive result in this case.