                               [J-68A-B-2016]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT

       SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.


COMMONWEALTH OF PENNSYLVANIA,             :   No. 29 EAP 2015
                                          :
                   Appellant              :   Appeal from the Order of the
                                          :   Commonwealth Court dated December
                                          :   17, 2014 at No. 1990 CD 2012,
            v.                            :   reversing the Order of the Court of
                                          :   Common Pleas of Philadelphia County,
                                          :   Criminal Division, dated May 1, 2012 at
1997 CHEVROLET AND CONTENTS               :   No. CP-51-MD-0013471-2010
SEIZED FROM JAMES YOUNG                   :
[ELIZABETH YOUNG],                        :   ARGUED: May 11, 2016
                                          :
                   Appellee               :

COMMONWEALTH OF PENNSYLVANIA,             :   No. 30 EAP 2015
                                          :
                   Appellant              :   Appeal from the Order of
                                          :   Commonwealth Court dated December
                                          :   17, 2014 at No. 1995 CD 2012,
            v.                            :   reversing the Order of the Court of
                                          :   Common Pleas of Philadelphia County,
                                          :   Criminal Division, dated May 1, 2012 at
THE REAL PROPERTY AND                     :   No. CP-51-MD-002972-2010
IMPROVEMENTS KNOWN AS 416 S.              :
62ND STREET, PHILADELPHIA, PA             :   ARGUED: May 11, 2016
19143 [ELIZABETH YOUNG],                  :
                                          :
                   Appellee               :


                                     OPINION


JUSTICE TODD                                               DECIDED: May 25, 2017
      The Eighth Amendment to the United States Constitution guarantees citizens

protection against the government by limiting its power to punish. In this appeal by
allowance, we consider, inter alia, the constitutional limitations on civil in rem forfeiture

in Pennsylvania under the Excessive Fines Clause of the Eighth Amendment,1 where

the government attempts to seize through forfeiture a home and vehicle not based on

any criminal conduct by the property owner — here, a 71-year-old grandmother — but

upon the illegal conduct of a third party — her adult son. In doing so, we attempt to

reconcile the uncertain constitutional jurisprudence underlying civil in rem forfeiture and

provide clarity and uniformity regarding the appropriate constitutional standard to be

applied to excessive fines challenges to civil in rem forfeitures in our Commonwealth.

       As more fully explained below, we find the proper constitutional construct in

determining whether an in rem forfeiture violates the Excessive Fines Clause of the

Eighth Amendment requires an initial determination regarding the relationship between

the forfeited property and the underlying offense — the instrumentality prong. If this

threshold prong is satisfied, the next step of the analysis is a proportionality inquiry in

which the value of the property sought to be forfeited is compared to the gravity of the

underlying offense to determine whether the forfeiture is grossly disproportional to the

gravity of the offense.     For the reasons that follow, we affirm the order of the

Commonwealth Court, which remanded the matter to the trial court, for further

proceedings consistent with our decision.



                        I. Factual and Procedural Background

       Appellee Elizabeth Young is a 71-year-old grandmother who owned and resided

at a house at 416 South 62nd Street in West Philadelphia, Pennsylvania.2 Appellee

1
  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII.
2
  As explained below, the oddity in civil in rem forfeiture is that the subject of the
forfeiture, and the focus of the litigation, is on the property sought to be forfeited;
(continued…)

                             [J-68A-2016 and J-68B-2016] - 2
owned her house for four decades, since the 1970s. In 2006, Appellee purchased a

1997 Chevrolet Venture minivan to meet her transportation needs. In October 2009,

Appellee suffered two blood clots in her lungs and was hospitalized through November

2009.    Upon her release, Appellee was placed on bedrest and prescribed several

medications. During this time, Donald Graham, Appellee’s son, then age 50, and two of

her grandchildren, resided with her at the house.

        On November 10, 2009, Officer Robert Billups, a member of the Narcotics North

Division of the Philadelphia Police Department, was conducting an investigation in

relation to illegal drug sales from Appellee’s house. On that date, Officer Billups and his

partner, Officer Kevin Williams, met with a confidential informant who subsequently was

observed giving Graham, who was exiting the house, $40 in pre-recorded money in

exchange for a small bag of marijuana. Four days later, on November 14, 2009, the

officers, with the confidential informant, observed Graham arrive at the house in a grey

Chevrolet vehicle, later determined to be Appellee’s minivan. After exiting the vehicle,

Graham gave the informant another small bag of marijuana in exchange for $40. A

similar transaction occurred two days later on November 16, 2009.

        On November 19, 2009, members of the Narcotics North Division served and

executed a search warrant on the house. During the course of their search of the

premises, the officers confiscated a letter addressed to Graham, a scale, numerous new

and used plastic packets, and six baggies of marijuana. While Graham was not present

at the house when the search was executed, Appellee was present.              The officers

explained to Appellee, who was provided with a copy of the search warrant, that her son



(…continued)
however, as owner of the subject property, Appellee is the party of interest, and, thus, is
the active participant in these proceedings.



                            [J-68A-2016 and J-68B-2016] - 3
had sold drugs from the house and used a vehicle in connection with the sales on

several occasions. The officers did not, however, arrest Graham on that date, and he

was not charged with a crime based upon these sales.

       On December 4, 2009, Officer Nathan London was conducting an investigation of

drug dealings from the house and observed an informant approach it. The informant

met with Graham at the door of the house, where the informant provided Graham an

unknown amount of currency. Graham momentarily re-entered the house, and then

handed the informant certain small objects, which later tested positive for marijuana.

Approximately one month later, on January 5, 2010, a similar transaction occurred:

after an informant met with Officers McClain and Coaxum, he went to the house,

Graham exited the side door of the residence, and both men entered Appellee’s vehicle.

Thereafter, the informant exited the van with a small item which contained a green weed

substance. The next day, Officer London returned to the house with Officer Coaxum

and observed a similar transaction take place. Specifically, an informant knocked on

the door of the house, Graham answered, and allowed the informant to come into the

house. Graham exited the house, went to Appellee’s van, remained in the vehicle for

several minutes, then exited and returned to the house.          Shortly thereafter, the

informant left the house and provided the officers with a baggie containing small objects

which testing later identified as marijuana.

       The next day, January 7, 2010, at approximately 4:40 p.m., Officer McClain met

with an informant who approached the house, and a similar drug transaction occurred

resulting in the informant providing officers with two baggies containing marijuana.

Immediately thereafter, at 4:45 p.m., Officer Robinson approached Graham and

arrested him. Officer Robinson recovered a sandwich bag containing 4.6 grams of

marijuana, one cellular telephone, $176.00 in unmarked currency, and $60.00 in pre-




                            [J-68A-2016 and J-68B-2016] - 4
recorded currency. The police also took from Graham the keys to Appellee’s van. The

officers then executed a search warrant on the house and recovered 1.3 grams of

marijuana from the living room and 8.5 grams from the van. Graham pled guilty to

possession of marijuana and possession of marijuana with intent to deliver, and was

sentenced to 11 to 23 months house arrest. 35 P.S. §§ 780-113(a)(16), (30).3 The trial

court imposed no fine on Graham.4

         While the Commonwealth never charged Appellee with any crime, on October

20, 2010, the Commonwealth filed a petition for the forfeiture of Appellee’s house and

her vehicle under the Controlled Substances Forfeiture Act (“Forfeiture Act”).         42

Pa.C.S. §§ 6801-6802. On May 1, 2012, the Philadelphia County Court of Common

Pleas held a hearing, and ultimately ordered the forfeiture of Appellee’s house and

vehicle.

         The trial court determined that the Commonwealth established a nexus between

the seized house and the violations of the Controlled Substance, Drug, Device and

Cosmetic Act (“Drug Act”).5 In doing so, the court reasoned that, in determining whether

a nexus existed, forfeitures are allowed where the Commonwealth demonstrates that

the property owner facilitated the sale of drugs or stored the drugs and paraphernalia on

his or her property. The court found that Appellee’s house and vehicle were used to

facilitate illegal drug sales, as the police had observed several drug transactions inside

or around Appellee’s house and van, and Appellee’s son Graham was selling illegal

drugs on a regular basis, and, thus, forfeiture of the property was proper.

3
    The specific charges filed against Graham are not contained in the record.
4
  Appellee asserts Graham was also charged with criminal use of a communication
facility, 18 Pa.C.S. § 7512(a), but this offense does not justify forfeiture under the
Controlled Substances Forfeiture Act.
5
    35 P.S. §§ 780-101 et seq.



                              [J-68A-2016 and J-68B-2016] - 5
      The trial court also rejected Appellee’s statutory innocent owner defense afforded

by the Forfeiture Act because, after the police notified Appellee of Graham’s drug

activities, through the service of search warrants on the property and personally

informing Appellee of the activities, she “refused to take any proactive measures or

steps to demonstrate her lack of consent to this illegal activity.” Trial Court Opinion,

4/3/2013, at 11-12. Further, the trial court offered that Appellee did not leave or vacate

the property, or restrict her son’s access to her property. Moreover, the court concluded

that Appellee “either knew of or consented to her son’s illegal activities on the subject

properties. . . . [and at best] turned a blind eye to her son’s illegal conduct on the

property and allowed it to continue over a prolonged period of time.” Id. at 14. The

court explained that it observed Appellee’s demeanor and behavior during the hearing

and “simply did not believe [Appellee’s] testimony due to blatant inconsistencies.” Id.

      Additionally, the trial court ruled that the forfeiture did not violate the Eighth

Amendment to the United States Constitution as the forfeiture was not grossly

disproportionate to the gravity of Graham’s offenses, and the court had already found

Appellee failed to sustain her burden of establishing an innocent owner defense. In

doing so, the court relied upon this Court’s case law, discussed below, and looked to

the penalty imposed as compared to the maximum penalty allowed, whether the

violation was part of a pattern of unlawful behavior, and the harm resulting from the

crime charged. The court rejected as irrelevant that Appellee herself was not charged

with or convicted of a violation of the Drug Act; it found that for the relevant offenses

Graham theoretically could have been charged with, he faced maximum criminal

penalties of $80,000, which, according to the trial court, exceeded the combined

appraised value of Appellee’s home and vehicle. The court noted that, for several

years, Graham had continually sold illegal drugs from the property, and that this activity




                            [J-68A-2016 and J-68B-2016] - 6
put “not only Mr. Graham’s neighbors in harm’s way, but also the officers investigating

his unlawful activities and serving warrants in connection with that illegal conduct.” Id.

The trial court deemed this relevant time period as beginning in November 2009 and

continuing until April 2011.6 Thus, the trial court rejected Appellee’s statutory defense

and constitutional challenge to its order allowing forfeiture of her house and vehicle.

       Appellee appealed to the Commonwealth Court, which reversed the trial court,

concluding that the lower tribunal applied an erroneous standard for determining

whether the forfeiture violated the Eighth Amendment, and that it failed to consider all

relevant circumstances in rejecting Appellee’s innocent owner defense. Thereafter, we

granted review on both issues, which we discuss in turn.

                                       II. Analysis

                                      A. Forfeiture

       1. Legal Background

6
  Over a year after the initial arrest, on April 25, 2011, Officer Jeffrey Walker conducted
a third investigation involving Appellee’s house. On that date, another individual who
was not related to Appellee was observed selling marijuana from the premises,
ultimately resulting in the search of the premises and the discovery of marijuana and
packaging paraphernalia. These events were initially part of the Commonwealth’s
forfeiture action as set forth above. However, on October 9, 2013, on appeal before the
Commonwealth Court, Appellee applied for extraordinary relief on the basis that Officer
Walker, whose testimony had been credited by the trial court, had been indicted on
corruption charges that involved planting drugs on suspects. As Officer Walker had
conducted the April 25, 2011 search of Appellee’s house, the court believed that
“fairness” required a remand so that the trial court could re-examine its prior decision.
Commonwealth v. 1997 Chevrolet, 106 A.3d 836, 847 (Pa. Cmwlth. 2014). The
Commonwealth opposed the application for extraordinary relief, claiming that the
testimony of Officers Billups and London regarding Graham’s seven controlled buys
was sufficient to warrant the forfeiture of Appellee’s house. On February 19, 2014, the
Commonwealth Court listed the appeal for an en banc oral argument and, thereafter,
the court denied Appellee’s application for extraordinary relief. Before our Court, the
Commonwealth takes the position that it is not relying upon the events surrounding the
third investigation involving Officer Walker, who pled guilty in federal court to crimes
committed while on duty as a police officer.



                            [J-68A-2016 and J-68B-2016] - 7
      Before reviewing in full the Commonwealth Court’s decision below, it is

advantageous, and indeed, necessary, to consider the legal background of the Eighth

Amendment with respect to forfeitures, including the United States Supreme Court’s two

foundational decisions upon which its Eighth Amendment jurisprudence is grounded, as

well as our Court’s pronouncements in this area of the law.7

      The historical underpinnings of forfeiture law and the Excessive Fines Clause as

it has been interpreted by the United States Supreme Court as well as our Court

provides a rich, but yet not entirely lucid, backdrop regarding the constitutionality of

property forfeiture. Generally speaking, forfeiture involves a taking of property through

a forfeiture statute which provides that, when an item is possessed or used in violation

of the law, private ownership of the property ceases, and the government becomes the

owner of the property. Caleb Nelson The Constitutionality of Civil Forfeiture, 125 Yale

L.J. 2446, 2456 (2016) (hereinafter “Nelson”). Forfeitures fall into two broad categories:

criminal in personam forfeitures and civil in rem forfeitures.     Criminal in personam

forfeitures arise from criminal proceedings in which the property owner is convicted of a

crime. In contrast to the ancient concept of civil in rem forfeiture, criminal in personam

forfeiture is a more recent legal means by which to confiscate property, with the first

federal criminal forfeiture statute being the Racketeer Influenced and Corrupt

Organizations Act of 1970. 18 U.S.C. § 1963. Conversely, civil in rem proceedings,

which maintain a centuries-old focus on the property as the offender, do not require a

criminal conviction, or even a criminal charge, as demonstrated in the case sub judice.8

7
  The Eighth Amendment, and, specifically, the Excessive Fines Clause, is made
applicable to the states through the Fourteenth Amendment to the United States
Constitution. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
433-34 (2001).
8
  Indeed, because the focus in civil in rem forfeiture is on property, legal proceedings
arising from this fiction often come with odd captions, such as United States v. 144,774
(continued…)

                            [J-68A-2016 and J-68B-2016] - 8
Thus, criminal in personam and civil in rem forfeiture are a powerful means by which the

state can seize private property. While, in this matter, the forfeiture concerns a civil in

rem proceeding, the distinction between the two types of forfeiture has played, and

continues to play, an important role in this area.

       The type of property at issue, at least to some extent, informs a forfeiture

analysis.    “Contraband” connotes property that is inherently illegal, the mere

“possession of which, without more, constitutes a crime.” One 1958 Plymouth Sedan v.

Pennsylvania, 380 U.S. 693, 699 (1965). Forfeiture of contraband is not subject to

Eighth Amendment scrutiny, as removal of such illegal or dangerous property from

society is deemed to be purely remedial in nature.            See United States v. One

Assortment of 89 Firearms, 465 U.S. 354, 364 (1984). Conversely, property that is

“tainted” by unlawful use, but which is not otherwise illegal to possess, has come to be

known as an “instrumentality” of the offense, and, as discussed below, has been a

subject of contention as to whether such property is subject to Eighth Amendment

protections. Whether property is an instrumentality is determined by evaluating the

relationship of the property to the underlying criminal offense.

       As noted above, the Eighth Amendment to the United States Constitution

prohibits, inter alia, the government imposing excessive fines upon the citizenry.       It

states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend. VIII. While the “cruel and

unusual punishment” clause has generated a significant amount of litigation, the United

States Supreme Court has interpreted the Excessive Fines Clause only on rare



(…continued)
Pounds of Blue King Crab, more or less, 410 F.3d 1131, 1132 (9th Cir. 2005), or the
caption in this case.



                             [J-68A-2016 and J-68B-2016] - 9
occasions, and, for many years, that Clause with respect to civil in rem forfeitures went

unexplored.

       In 1993, however, in Austin v. United States, 509 U.S. 602 (1991), the United

States Supreme Court considered the Excessive Fines Clause in the context of a civil in

rem forfeiture, finding such forfeiture is subject to the limitations imposed by the Eighth

Amendment if it is punitive in nature. In that matter, Richard Lyle Austin was indicted on

four counts of violating South Dakota’s drug laws. After Austin pled guilty to one count

of possessing cocaine with intent to distribute and was sentenced to seven years

imprisonment, the United States filed a civil in rem proceeding seeking forfeiture of

Austin’s mobile home and auto body shop, under the applicable federal forfeiture

statute. The forfeiture was based upon Austin bringing two grams of cocaine from his

mobile home to the auto body shop where he sold the cocaine to a buyer. The high

Court granted certiorari to determine whether the Eighth Amendment’s Excessive Fines

Clause applied to civil in rem forfeitures.

       Writing for the majority, Justice Harry Blackmun rejected the United States’

assertion that the Eighth Amendment does not limit the government’s conduct in civil

proceedings unless the challenged governmental action would have been recognized

as a criminal punishment at the time of its adoption and unless that proceeding is so

punitive that it must be considered criminal. The Court first noted that, unlike other

provisions found in the Bill of Rights, the Eighth Amendment by its terms was not limited

to criminal cases. The Court proceeded to consider the purpose behind the Eighth

Amendment, which it stated was to “limit the government’s power to punish,” and that

punishment applied to both civil and criminal law. Austin, 509 U.S. at 609-10. Thus, the

Court found that the focus was on whether the forfeiture was punishment.




                            [J-68A-2016 and J-68B-2016] - 10
       After tracing the three kinds of forfeiture established in England at the time the

Eighth Amendment was ratified — deodand, forfeiture upon conviction for a felony or

treason, and statutory forfeiture — the Court reasoned that each was understood as

imposing punishment, at least in part. Tracing its prior case law, the Court found that it

had recognized for some time that statutory in rem forfeiture imposed punishment,

along with the legal fiction that the “thing is primarily considered the offender.” Id. at

615 (quoting J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 511 (1921)).

Indeed, this fiction enabled courts to expand their reach as, in situations typically arising

in admiralty proceedings, courts lacked in personam jurisdiction over the owner of the

property. Austin, 509 U.S. at 616 (citing Republic National Bank of Miami v. United

States, 506 U.S. 80, 87 (1992)). Yet, the Court observed that the fiction that the object

was the offender rested upon “the notion that the owner who allows his property to

become involved in an offense has been negligent.” Austin, 509 U.S. at 616. Thus, the

Court reasoned that, even though it had rejected the “innocence” of the owner as a

common-law defense to forfeiture, it had recognized that forfeiture generally, and

statutory in rem forfeiture specifically, had historically intended, at least in part, to punish

the owner. Accordingly, the Court concluded that the drug offense forfeiture statutes at

issue constituted punishment.

       The United States argued that the forfeiture statutes at issue were not punitive,

but were remedial, because they removed the “instruments” of the drug trade, thus,

protecting the community from ongoing drug dealing. Accordingly, the United States

maintained the statutes were not subject to Eighth Amendment scrutiny. The Supreme

Court, however, rejected any extension of the idea of a statute being remedial beyond

the application to the contraband seized. Consistent therewith, the Court went on to

find the mobile home and auto shop at issue, like the automobile at issue in its earlier




                             [J-68A-2016 and J-68B-2016] - 11
decision involving the transportation of illegal liquor, not immune from Excessive Fines

Clause examination. Austin, 509 U.S. at 621; One 1958 Plymouth Sedan, 380 U.S. at

699.9

        Ultimately, the Court reasoned that forfeiture that “constitutes ‘payment to a

sovereign as punishment for some offense’” is subject to the protections and limitations

found in the Excessive Fines Clause of the Eighth Amendment. Austin, 509 U.S. at

622. Critically, however, the Court declined to establish a definitive test for determining

when a forfeiture is constitutionally excessive, but remanded the matter, leaving the

development of the applicable considerations for evolution in the lower courts.

        Important to our Commonwealth’s experience in interpreting the Excessive Fines

Clause, and our analogous Pennsylvania Constitution provision, Justice Antonin Scalia

penned an opinion concurring in part and concurring in the judgment. He first explained

that, at the time of the drafting of the Eighth Amendment, fines were understood to be a

payment to a sovereign as punishment for some offense, and that the taking of lawful

property must be considered, in part or in whole, punitive. Justice Scalia, however,

went further than the majority and offered that, in his view, the test for constitutional

excessiveness was straight forward. He opined that whether in rem forfeiture violated


9
  In One 1958 Plymouth Sedan, where an automobile, carrying 31 cases of liquor not
bearing Pennsylvania tax seals, was stopped without probable cause or reasonable
suspicion, the United States Supreme Court determined that, while technically a civil
proceeding, the forfeiture in substance and effect was criminal in nature; rejected the
argument that the exclusionary rule applied only to criminal prosecutions and was not
applicable in forfeiture proceedings; and concluded that the exclusionary rule was
applicable to such forfeiture proceedings. One 1958 Plymouth Sedan, 380 U.S. at 702.
In doing so, the high Court specifically rejected the Commonwealth’s contention that the
automobile was contraband, finding “[t]here is nothing even remotely criminal in
possessing an automobile. It is only the alleged use to which this particular automobile
was put that subjects [the property owner] to its possible loss [as compared to the
forfeiture of the illegal liquor itself].” Id. at 699.



                           [J-68A-2016 and J-68B-2016] - 12
the Eighth Amendment turned solely on whether the confiscated property had a close

relationship to the offense. As discussed in greater detail below, in Justice Scalia’s

view, the value of the property was irrelevant, and if there existed a close enough

relationship between the property and the offense, the forfeiture passed constitutional

muster.

       Five years later, in United States v. Bajakajian, 524 U.S. 321 (1998), the high

Court again spoke to the Excessive Fines Clause, albeit in the context of a criminal in

personam forfeiture statute. In that matter, Hosep Bajakajian attempted to leave the

United States with $357,144 in currency without reporting the funds as required by

federal law.   See 31 U.S.C. § 5316(a)(1)(A) (requiring the reporting of the transfer

outside of the United States of monies in excess of $10,000). Federal forfeiture law

provided that an individual convicted of willfully violating the reporting provision should

forfeit to the government “any property . . . involved in such offense.”         18 U.S.C.

§ 982(a)(1). The United States sought forfeiture of the entire $357,144, and Bajakajian

challenged the forfeiture as violative of the Excessive Fines Clause. The federal district

court determined that the entire amount was subject to forfeiture, as it was “involved in”

the offense, even though the funds were not connected to any other crime and even

though they were being transported to repay a lawful debt. The district court, however,

determined that such forfeiture would be “extraordinarily harsh” and “grossly

disproportionate to the offense in question,” and, thus, violated the Excessive Fines

Clause.    Bajakajian, 524 U.S. at 326.      Instead, the court ordered the forfeiture of

$15,000.

       On appeal, the Court of Appeals for the Ninth Circuit affirmed. The circuit court

reasoned that a forfeiture must fulfill two conditions: first, the property forfeited must be

an instrumentality of the crime committed, and, second, the value of the property must




                            [J-68A-2016 and J-68B-2016] - 13
be proportional to the culpability of the owner. The circuit court concluded that the

currency was not an instrumentality of the reporting crime, as it was the withholding of

information, rather than the possession of the money, that ran afoul of the law.

According to the circuit court, the forfeiture statute involving currency could never satisfy

the Excessive Fines Clause, and thus it was unnecessary to consider the proportionality

condition. The Supreme Court granted certiorari to consider the per se nature of the

court of appeals’ holding, which invalidated a portion of the statute.

       In a 5-4 decision, with Justice Clarence Thomas writing for the majority, the

United States Supreme Court affirmed.          The high Court first made clear that the

forfeiture of currency pursuant to Section 982(a)(1) constituted punishment, thus

implicating the Excessive Fines Clause. Id. at 329. The Court reached this conclusion

by tracing the history of forfeitures, and concluding that, because in rem forfeitures were

traditionally viewed as non-punitive, and the conduct of the property owner irrelevant as

the focus of the action was on the property, they were not encompassed by the

Excessive Fines Clause. The Court went on, however, to find that the forfeiture in the

matter before it “does not bear any of the hallmarks of traditional civil in rem forfeitures,”

id. at 331, but, rather, was born from a criminal in personam forfeiture, and imposed at

the culmination of criminal proceedings. Thus, for purposes of the threshold issue of

Eighth Amendment protection, the Court reasoned that, while instrumentalities were

historically considered a form of “guilty” property, here, the forfeiture was a criminal in

personam proceeding; thus, it was irrelevant whether Bajakajian’s currency was an

instrumentality.10 The Court concluded, however, that, in any event, the currency was

10
   The Court noted, however, that, because recent forfeiture laws blurred the civil in rem
and criminal in personam distinction, a modern statutory forfeiture is a “fine” for
purposes of the Eighth Amendment if it constitutes punishment, even in part, regardless
of its label, citing Austin. Bajakajian, 524 U.S. at 331 n.6.



                            [J-68A-2016 and J-68B-2016] - 14
not an instrumentality. Rather, the Court found that the forfeiture was punitive, and that

being the case, the test for excessiveness of a punitive forfeiture involved “solely a

proportionality determination.” Id. at 333-34.

       The Court explained the proportionality concept by offering that “[t]he amount of

the forfeiture must bear some relationship to the gravity of the offense that it is designed

to punish,” and, more specifically, “a punitive forfeiture violates the Excessive Fines

Clause if it is grossly disproportional to the gravity of a defendant’s offense.” Id. at 334.

Finding that neither the text of the Excessive Fines Clause, nor the history behind it,

identified how proportional to a criminal offense the fine must be, the court went on to

find “particularly relevant” two factors to be considered in divining constitutional

excessiveness: first, judgments about the appropriate punishment for an offense belong

in the first instance to the legislature; and, second, any judicial determination regarding

the gravity of a particular criminal offense will be inherently imprecise. Together, these

considerations counseled against requiring any strict proportionality between the

amount of the punitive forfeiture and the gravity of the criminal offense, leading to the

adoption of the grossly disproportionate standard. Id. at 336.

       Applying this standard, the Court concluded that the forfeiture of the entire

$357,144 would have been excessive, as Bajakajian’s crime was merely one of a failure

to report, and his violation was unrelated to any other criminal activity.       The Court

looked to the sentencing guidelines, offering that the maximum sentence Bajakajian

faced under the federal sentencing guidelines was six months imprisonment and the

maximum fine was $5,000. Id. at 338. Indeed, the Court rejected the United States’

argument that the proper approach focused on the maximum statutory penalty

permitted, and, its argument that the forfeiture was not excessive, as Congress

authorized a maximum fine of $250,000 plus five years imprisonment for willfully




                            [J-68A-2016 and J-68B-2016] - 15
violating the reporting requirements. Instead, the Court reasoned that the fact that the

maximum punishment that Bajakajian faced under the guidelines was but a fraction of

the penalties authorized by the statute demonstrated his culpability relative to other

potential violators of the reporting provision — such as “tax evaders, drug kingpins, or

money launderers” — was small. Id. at 339 n.14. Further, the Court offered that the

harm that Bajakajian caused was minor, as it impacted only the government, and in

relatively minimal fashion. Thus, the Court concluded that, when comparing the gravity

of Bajakajian’s crime with the $357,144 sought by the government for forfeiture, such a

forfeiture would be grossly disproportionate.     Finally, the Court rejected the United

States’ reliance upon early statutory enactments requiring full forfeiture of goods

involved in customs offenses, as such statutes were not considered punishment for a

criminal offense because they rested upon the theory of guilty property; thus, according

to the Court, they revealed nothing about the proportionality of the punitive forfeiture at

issue in the matter before it.

       It is these two United States Supreme Court pronouncements considering the

Excessive Fines Clause that serve as the bedrock constitutional foundation regarding

forfeiture from which any analysis must be based. With these decisions in mind, we

turn to the decisions of our Court which have applied them.

       After Austin, but prior to Bajakajian, this Court decided In re King Properties, 635

A.2d 128 (Pa. 1993). In an opinion authored by Justice John Flaherty, we considered

the question of whether Article I, Section 13 of the Pennsylvania Constitution — our

Commonwealth’s excessive fines clause — mandated that owners of real property

forfeited under the Forfeiture Act be permitted to redeem their property in order for the




                             [J-68A-2016 and J-68B-2016] - 16
statute to pass constitutional muster.11 In In re King Properties, police found a large

sum of cash and items commonly used in the selling of illegal drugs in Coy King’s

home. The Commonwealth sought the forfeiture of the house, and, while the trial court

found that King’s entire interest in the house was subject to forfeiture, it granted King

the right to redeem the property for $30,000. On appeal, the Commonwealth Court

reversed, finding the trial court was not authorized to permit King’s redemption.

      In contemplating this question of authority on appeal, our Court first considered

whether redemption is required by our Constitution’s prohibition on excessive fines.

The Court noted the Eighth Amendment and Article I, Section 13 were virtually identical,

and, thus, looked to federal treatment of the United States Constitution’s excessive fines

provision. Our Court, relying upon Austin, determined that the forfeiture before it, which

was similar to that at issue in Austin, was punitive, and, thus, subject to the protections

of the Pennsylvania Constitution.      Turning to consideration of what factors were

appropriate under Article I, Section 13, the Court adopted Justice Scalia’s standard for

determining whether a forfeiture was excessive — that the inquiry does not concern the

value of the property forfeited, but, rather, the nexus between the offense and the

subject property. Placing the burden on the Commonwealth to establish the relevant

pattern of criminal conduct, the Court found that there was “clear and convincing

evidence that King was involved in an ongoing drug business for which he used his

house as a base of operations. King admitted involvement in unlawful drug sales and

was in the possession of large amounts of cash, drugs, and drug paraphernalia, all of

which were found either in his house or his car.” 635 A.2d at 133. This, according to

the Court, established a sufficient connection between the criminal conduct in question

11
  Redemption refers to the right of the former property owner to regain ownership of his
or her property through payment to the Commonwealth.



                           [J-68A-2016 and J-68B-2016] - 17
and King’s house, and, thus, the forfeiture of this property (without the right of

redemption) was not an excessive fine under the Pennsylvania Constitution.12

      A decade later, after the United States Supreme Court rendered its decision in

Bajakajian, our Court revisited this area of the law in Commonwealth v. 5444 Spruce

Street, 832 A.2d 396 (Pa. 2003). In 5444 Spruce Street, with Justice William Lamb

writing for the Court, we considered whether the civil in rem forfeiture of a house in

Philadelphia owned by Elizabeth Lewis, who pled guilty to a single charge of possession

with intent to deliver a controlled substance and who was sentenced to two years

probation, was unconstitutional.    Again, accepting that Article I, Section 13 of the

Pennsylvania Constitution was coextensive with the Eighth Amendment to the United

States Constitution, the Court analyzed the issue under our state constitution using

Eighth Amendment jurisprudence. The Court surveyed our prior decisions, noting that

they turned on whether the forfeited property was significantly related to the underlying

criminal activity. Specifically, the Court drew the distinction, based upon pre-Bajakajian

case law, that we had allowed forfeiture when the property forfeited was “significantly

related to the criminal offense,” but disallowed it when the property forfeited was “not

significantly related to the criminal activity.” Id. at 400. Recognizing that Bajakajian

involved a criminal in personam forfeiture, the Court nevertheless considered whether

the Bajakajian gross disproportionality test applied to a punitive civil in rem forfeiture

“where the government has established a significant relationship between the property

sought to be forfeited and the underlying criminal offense.” Id.




12
   Moreover, the Court found that there was no statutory language permitting
redemption, and, thus, that the only way for one to obtain the forfeited property was by
purchasing it at a subsequent sale. Id.



                           [J-68A-2016 and J-68B-2016] - 18
       After tracing the legal construct adopted by the United States Supreme Court in

Bajakajian, our Court offered that both Bajakajian and our decision in In re King

Properties began at the same point — that forfeitures are fines for Eighth Amendment

purposes if they constitute punishment for an offense, regardless of whether the action

is characterized as in rem or in personam. The 5444 Spruce Street Court continued

that the next step was consideration of whether the fine — here, the forfeiture — was

excessive. We noted that the Bajakajian Court found that the amount of the forfeiture

must bear some relationship to the gravity of the offense that it is designed to punish,

ultimately determining that a punitive forfeiture violates the Excessive Fines Clause if it

is grossly disproportionate to the gravity of a defendant’s offense. In conducting this

disproportionality analysis, we interpreted the Bajakajian Court as placing the primary

emphasis on the culpability of the defendant, rather than on the severity of the crime in

the abstract. Id. at 401.

       The high Court’s analysis, we explained, warranted consideration of three

factors, each of which were focused on the conduct of the defendant: “the penalty

imposed as compared to the maximum penalty available; whether the violation was

isolated or part of a pattern of misbehavior; and, the harm resulting from the crime

charged.”    Id. at 402.    Ultimately, our Court did not adopt specific factors to be

considered in an excessiveness analysis, concluding that the question of the proper

approach had not gone through the “sharpening and annealing process of litigation in

the lower courts.”    Id. at 402 n.7.   Nevertheless, we held that Bajakajian’s gross

disproportionality test applied to all punitive forfeitures regardless of the form of the

underlying proceedings, and overruled In re King Properties to the extent it held

otherwise.




                            [J-68A-2016 and J-68B-2016] - 19
       Deconstructing the above seminal decisions by the United States Supreme Court

and our Court, we observe that certain concrete principles emerge, while other issues

remain open. Specifically, it is now accepted that the Eighth Amendment’s Excessive

Fines Clause applies to civil in rem forfeitures that are punitive and criminal in personam

forfeitures. Austin; Bajakajian. With respect to criminal in personam forfeitures, an

Excessive Fines Clause inquiry focuses on proportionality, and, specifically, to survive

an excessiveness challenge, the amount of the forfeiture must bear some relationship to

the gravity of the offense that it is designed to punish. Bajakajian, 524 U.S. at 334.

Whether a criminal in personam forfeiture is excessive requires consideration of

whether the forfeiture is “grossly disproportional” to the gravity of a defendant’s offense.

Id. With regard to the gross disproportionality standard, the Bajakajian Court warned

that judgments regarding the appropriate punishment for an offense belong initially to

the legislature, and judicial determinations regarding the gravity of an offense will be

“inherently imprecise.” Id. at 336. In applying the gross disproportionality standard, the

amount of the forfeiture is compared to the gravity of the offense, and if the amount is

grossly disproportionate, it is unconstitutional. In judging the gravity of the offense, we

look to the culpability of the defendant rather than the severity of the crime in the

abstract.   5444 Spruce Street, 832 A.2d at 401.             In Pennsylvania, the gross

disproportionality test is applicable to all punitive forfeitures, including civil in rem

proceedings. Id. at 403. In this regard, the following three, non-exhaustive, factors

have been considered: the penalties that the legislature has authorized compared to

those to which the defendant was subjected; whether the violation was isolated or part

of a pattern of misbehavior; and the nature of the harm caused by the defendant.

Bajakajian, 524 U.S. at 338-39; 5444 Spruce Street, 832 A.2d at 402.




                            [J-68A-2016 and J-68B-2016] - 20
       In the wake of Bajakajian and 5444 Spruce Street, however, certain issues

remain open. First, answering the question of whether, as part of the excessiveness

analysis, a court must find as a threshold matter that the property sought to be forfeited

is an instrumentality of the underlying offense is not clear cut. Further, federal and state

courts have adopted a variety of considerations in determining whether a forfeiture is

constitutionally excessive. Critically, while many courts have relied, in whole or in part,

on the factors articulated in Bajakajian, no definitive set of factors has emerged to be

used in making the grossly disproportionate analysis. Id. at 402.



       2. Commonwealth Court Decision

       With this background in mind, we turn to the Commonwealth Court’s decision in

the matter sub judice. On December 17, 2014, an en banc Commonwealth Court, in a

published opinion authored by then-Judge, now President Judge Mary Hannah Leavitt,

and over a dissent, reversed the trial court’s granting of the Commonwealth’s petition for

forfeiture. Commonwealth v. 1997 Chevrolet, 106 A.3d 836 (Pa. Cmwlth. 2014).

       The court initially set forth the factual predicate for both the criminal activity

underlying the forfeiture, and the testimony regarding Appellee’s role as property owner.

The court, noting that the Eighth Amendment serves to limit the power of the

government to punish its citizens, offered that the central question in the appeal was

whether the forfeiture of Appellee’s home and vehicle imposed an excessive fine on her.

The Commonwealth Court went on to survey the above case law from the United States

Supreme Court as well as our Court’s decisions interpreting the Eighth Amendment.

Reconciling these decisions, the Commonwealth Court found that, for a civil forfeiture

brought under the Forfeiture Act to survive an Eighth Amendment challenge, the

Commonwealth must show, initially, that the forfeitable property was the instrumentality




                            [J-68A-2016 and J-68B-2016] - 21
of the offense. 1997 Chevrolet, 106 A.3d at 858-59, 866. The Commonwealth Court

also found it necessary to consider the property owner’s level of involvement —

culpability — in the criminal activity, relying upon the Second Circuit Court of Appeals’

decision in von Hofe v. United States, 492 F.3d 175 (2d Cir. 2007), discussed below.

1997 Chevrolet, 106 A.3d at 859-862, 866.

       Next, the court noted that the Commonwealth must show that the amount of the

forfeiture, or punishment, is proportional to the gravity of the offense, determined by

using what the Commonwealth Court characterized as the Bajakajian “three-prong test,”

id. at 850, 863-64 — that is, “the penalty imposed as compared to the maximum penalty

available; whether the violation was isolated or part of a pattern of misbehavior; and, the

harm resulting from the crime charged.” 5444 Spruce Street, 832 A.2d at 402.

       The Commonwealth Court went on to reconsider the method for establishing the

gravity of the offense aspect of the analysis, as well as how to apply the Bajakajian test

where the owner of the forfeited property was not charged with, or convicted of, a crime.

After considering, and rejecting, its own decisional law, the Commonwealth Court

opined that the amount of the forfeiture — the value of the property — is not the

“penalty” for the assessment of the first factor in determining the gravity of the offense.

Rather, the penalty in this context is the criminal penalty actually imposed for the related

offense. 1997 Chevrolet, 106 A.3d at 864. The court reasoned that it is only after the

gravity of the offense is established that the actual amount of the forfeiture is compared

to the gravity of the offense. Thus, the court found the Commonwealth must present

evidence as to Graham’s actual criminal history, i.e., the charges filed against Graham,

the actual penalty imposed, and the maximum penalty on the charges for which Graham

was convicted. Id. at 683. Turning to the second factor, the court found the trial court

needed to consider whether Graham’s conduct was extensive in space and time and




                            [J-68A-2016 and J-68B-2016] - 22
had to relate the misbehavior to the subject property. Additionally, the trial court was

instructed to consider to what extent Graham’s pattern of misbehavior was due to the

police sending its informant to Appellee’s house, rather than a distinct location. Further,

regarding the third factor, the court concluded that evidence is required of the specific

harm caused by the offense, including the type and quantity of drugs sold, the use of

illegal drugs by purchasers, and the impact of the sales upon the neighborhood, without

reliance upon general or “self-evident” harm.      Ultimately, the Commonwealth Court

rejected the trial court’s gravity of the offense analysis and determined that a proper

Eighth Amendment analysis required an initial assessment of instrumentality, Appellee’s

culpability, and a determination of the gravity of the defendant’s offense by analyzing

the actual penalty imposed upon the defendant, the extensiveness of the defendant’s

conduct, and the actual harm caused by the illegal conduct. As there was insufficient

evidence of record regarding this approach, and the trial court did not analyze the

excessive fines inquiry in these terms, the Commonwealth Court remanded for further

proceedings consistent with its opinion.13

      Judge Robert Simpson authored a dissenting opinion, joined by Judge Bonnie

Brigance Leadbetter. The dissenters objected to what they believed to be the overruling

of the court’s prior en banc decision in Commonwealth v. 542 Ontario Street, 989 A.2d

411 (Pa. Cmwlth. 2010), and would have embraced that decision’s approach, which

examines the property owner’s conduct and the value of the property in comparison to


13
   Then-President Judge Dan Pellegrini penned a concurring opinion offering that the
Commonwealth should meet its burden in a forfeiture case by clear and convincing
evidence, rather than the preponderance of the evidence standard, but acknowledged
that answering that issue was unnecessary to the resolution of the appeal. The majority
did not address the issue, as it was not squarely raised. As the issue was not
addressed below, and not challenged on appeal, we decline to address any change in
the current preponderance of the evidence standard.



                           [J-68A-2016 and J-68B-2016] - 23
the maximum statutory penalty for the underlying criminal conduct. 1997 Chevrolet, 106

A.3d at 882 (Simpson, J., dissenting).

        As noted, we accepted allocatur to address the appropriate standard for

determining whether a civil in rem forfeiture violates the Excessive Fines Clause of the

United States Constitution. This constitutional issue raises a pure question of law, and,

thus, our standard of review is de novo and our scope of review is plenary. 5444

Spruce Street, 832 A.2d at 398.          We begin by reviewing the parties’ respective

arguments.



        3. Argument of the Parties

        As Appellant, the Commonwealth initially stresses that Appellee owned the

property from which her adult son repeatedly sold marijuana, and that, after the police

informed her of this activity, she did not take any steps to terminate the sales, justifying

the forfeiture of her home and vehicle.          The Commonwealth characterizes the

Commonwealth Court’s decision below as inventing a new test for an excessive fine

analysis under the Eighth Amendment, and, like the dissent below, accuses the lower

court of imposing "new, baseless standards for reviewing a challenge to a statutory

forfeiture under the Excessive Fines Clause . . . . [and claiming the] Commonwealth

Court’s real agenda is to imperil civil forfeiture in the absence of a criminal conviction,

contrary to settled law.” Commonwealth’s Brief at 14. The Commonwealth emphasizes

that, while forfeiture statutes have certain punitive aspects, they also serve non-punitive

goals such as encouraging owners to properly manage their property, ensuring that it is

not used for illegal purposes, and ensuring that persons do not profit from illegal

activities.   The Commonwealth warns that the lower court’s undermining of civil

forfeiture law will be suffered by “the innocent neighbors of drug peddlers.” Id.




                            [J-68A-2016 and J-68B-2016] - 24
       Specifically, the Commonwealth maintains that the Excessive Fines Clauses of

the United States and Pennsylvania Constitutions are coextensive, and that the United

States Supreme Court in Bajakajian found forfeiture to be constitutionally impermissible

only if the forfeited amount was grossly disproportional to the gravity of the offense on

which the forfeiture was based. Stated another way, the Commonwealth asserts that

the Constitution permits civil in rem forfeiture if the res is an instrumentality or its value

is not grossly disproportional to the gravity of the underlying offense.                  The

Commonwealth contends that our Court has applied the Bajakajian standard to all

punitive forfeitures, and made this the exclusive test in Pennsylvania, citing 5444

Spruce Street.    According to the Commonwealth, the Supreme Court in Bajakajian

specifically rejected a requirement that the forfeited property had to be an

instrumentality of the crime.     Thus, the Commonwealth claims that the appropriate

standard as articulated by the United States Supreme Court, and our Court, is that a

statutorily-permitted forfeiture is constitutional if the property is either an instrumentality

of the crime committed — that is, the forfeiture is non-punitive and, thus, not subject to

constitutional scrutiny as it is remedial in nature — or satisfies the gross

disproportionality test. The Commonwealth goes on to argue that the Commonwealth

Court improperly limited Bajakajian’s rejection of the property having to be an

instrumentality of the underlying offense to criminal in personam forfeitures, and asserts

that, to the contrary, the Bajakajian approach applies to both civil in rem and criminal in

personam forfeitures, which was made clear by our Court in 5444 Spruce Street. Thus,

the Commonwealth urges that, consistent with Bajakajian, our Court should reiterate

that a civil in rem forfeiture passes constitutional muster if the property is either an

instrumentality or the forfeiture is not grossly disproportional to the gravity of the

offense.




                             [J-68A-2016 and J-68B-2016] - 25
       With respect to the gross disproportionality test, and, specifically, consideration

of the culpability of the property owner, the Commonwealth develops that the

Commonwealth Court’s standard is unworkable, and accuses the Commonwealth Court

of legislating by imposing a culpability requirement that requires direct knowledge and

active participation in the underlying offense by the property owner. More precisely, the

Commonwealth offers that justification for civil in rem forfeiture of non-instrumentalities

rests on the notion that the owner of the property is negligent.            Thus, in the

Commonwealth’s view, where the property owner has done all that he or she can

reasonably do to prevent the criminal use of his or her property, forfeiture should be

denied. This standard, according to the Commonwealth, would induce the owner to

exercise greater care in allowing his or her property to be used by those who may

commit a crime.       Moreover, the Commonwealth offers that owner culpability is

accounted for in the Forfeiture Act through the innocent owner defense, as the property

is exempt from forfeiture if the owner did not know about or consent to the properties’

illegal use.   42 Pa.C.S. §§ 6801(a)(6)(ii), 6802(j).   Accordingly, the Commonwealth

contends that it would be duplicative to make relative culpability a factor in the

Bajakajian balancing analysis where the innocent owner defense is available, and

maintains that, where the innocent owner defense has been defeated, the

constitutionally mandated level of negligence has been established.

       The Commonwealth also argues that von Hofe, the Second Circuit Court of

Appeals decision relied upon by the Commonwealth Court which introduced

consideration of owner culpability, is inapplicable to the extant circumstances, and

should not have been adopted by the Commonwealth Court, as, here, the property

owner was willfully blind to the drug activity on her property, thus, satisfying the

requirement of at least negligence.       Further, the Commonwealth claims that the




                            [J-68A-2016 and J-68B-2016] - 26
Commonwealth Court actually expanded the von Hofe construct, requiring it to establish

that the property owner “participated in the offense” prior to forfeiture, 1997 Chevrolet,

106 A.3d at 862, and that such participation was significant. Commonwealth’s Brief at

27.     In this regard, the Commonwealth maintains that Appellee had the ability to

“prohibit the drug sales from her property, but chose to permit them instead, even after

being warned by a police officer” of her son’s activities.             According to the

Commonwealth, rather than doing what “she reasonably could under the circumstances,

she did nothing. By failing to responsibly exercise control over her property, [Appellee]

forfeited her right as the owner.” Id. at 28.     The Commonwealth asserts it had an

“enforceable interest” to protect “the truly innocent property owners in the neighborhood

from [Appellee’s] enablement of drug peddling.” Id.14

         Moreover,   the   Commonwealth      challenges   the   Commonwealth       Court’s

introduction of a subjective test for constitutional excessiveness.15     Specifically, the

Commonwealth offers that our Court, in 5444 Spruce Street, recognized various

approaches to the United States Supreme Court’s balancing test: “(1) a ‘multi-faceted

measuring’ of the value of the property to the gravity of the offense; (2) a comparison of

the value of the property to a ‘subjective estimation of the gravity of the offense;’ (3) a

‘more objective standard’ which ‘look[s] first to the legislative body which has specified

the maximum permissible fine for a given offense, holding that if the value of forfeited


14
     We discuss this “innocent owner” defense below.
15
    The Attorney General writing in support of the Commonwealth also takes the
Commonwealth Court to task, suggesting that, in its opinion, it “re-writes the controlling
test for excessive fines” and warns that the detrimental effects of the lower court’s
decision will include the “likely increase in the number of sham or strawman owners in
forfeiture cases.” Attorney General’s Brief at 8. The Attorney General also points to the
laudable goals of the Forfeiture Act, including the elimination of economic incentives of
drug-related activity and the discouragement of such conduct.



                            [J-68A-2016 and J-68B-2016] - 27
property is within the range of fines prescribed . . . a strong presumption arises that the

forfeiture is constitutional;’ and (4) an outlier approach adopted in Utah that ‘considered

the effect of the forfeiture on the’ claimant and which had been ‘specifically rejected’ in

more jurisdictions than it had been adopted.” 5444 Spruce Street, 832 A.2d at 402 n.7;

Commonwealth’s Brief at 29-30.

       The Commonwealth traces the experience of these tests in the Commonwealth

Court, noting that the court has rejected its prior “objective” test, based upon statutory

maximum penalties embraced most recently in 542 Ontario Street, and replaced it with

the more subjective test followed in Utah, State v. Real Property at 633 East 640 North,

Orem, Utah, 994 P.2d 1254, 1257 (Utah 2000). Yet, the Commonwealth highlights that

this subjective standard, which includes weighing the effect of the forfeiture on the

owner, was not only originally adopted before the Supreme Court’s decision in

Bajakajian, but was similar to the Ninth Circuit’s decision in Bajakajian which the high

Court rejected. Moreover, the Commonwealth offers, as noted above, that our Court in

5444 Spruce Street had expressed reservations about such a subjective approach,

including the weighing of the effect of the forfeiture on the owner, as it had been

adopted only in a minority of jurisdictions. The Commonwealth claims that such an

approach is not faithful to Bajakajian, which, as noted above, offered that the

appropriate punishment was initially for the legislature, and that any determination by

the courts regarding the gravity of a particular offense will be “inherently imprecise.”

Commonwealth’s Brief at 33 (quoting Bajakajian, 524 U.S. at 336). The Commonwealth

ultimately advocates that, where the value of the property is below the statutory

maximum fine applicable to the drug crime the property facilitated, the forfeiture is

constitutional, and this, according to the Commonwealth, places an effective limit on

forfeitures.




                           [J-68A-2016 and J-68B-2016] - 28
       The Commonwealth also takes issue with the Commonwealth Court requiring

specific harm from the underlying offense, and its suggestion that the drug sales at

issue in this appeal were not harmful due to the use of confidential informants. The

Commonwealth urges that the legislature made drug sales illegal because they harmed

individuals and society as a whole, and that such harm must have some weight in favor

of forfeiture. Moreover, the Commonwealth asserts the Commonwealth Court’s finding

of less harm due to the sale of drugs to informants illogically assumes that in this matter

Appellee’s son sold only to buyers who were informants and that he intended to sell

only to them, rather than to others.

       Consistent with this approach, the Commonwealth further challenges the

Commonwealth Court’s comparison of the fine imposed in the underlying criminal

offense to the statutory maximum to assess the relative gravity of the crime charged for

purposes of forfeiture, and instead urges the “main” comparison should be between the

amount of the forfeiture and the statutory maximum fine for the underlying criminal

offense. Commonwealth’s Brief at 38-39.

       The Commonwealth offers that the trial court, by conducting an objective

balancing test, properly considered only whether the amount of the forfeiture was

grossly disproportionate to the gravity of the defendant’s offense for purposes of

constitutional challenge. According to the Commonwealth, the amount of the forfeiture

need bear only some relationship to the gravity of the offense and not an exact one.

The Commonwealth submits that the proper balancing test compares the fair market

value of the forfeiture to the applicable fine. Under this approach, the Commonwealth

asserts that Appellee’s appraisal of her house in the amount of $54,000 (which it

contends is the high-end estimate) is compared to the maximum statutory fine for the

crime of possession with intent to sell marijuana, $15,000, and the maximum




                            [J-68A-2016 and J-68B-2016] - 29
imprisonment for the crime of five years. 35 P.S. § 780-113(f)(2). According to the

Commonwealth, this aggregate applicable fine for each of the proven sales (seven

sales) totals $105,000. The Commonwealth submits that, even if the sales were limited

to the period of December 2009 through January 2010, when the Commonwealth

claims Appellee was on notice of her son’s selling of marijuana from her house, the

aggregate maximum applicable fine would be $45,000 for the illegal drug sales from the

house, and an additional $15,000 for each sale from the vehicle and the bulk marijuana

found in the living room when the search warrant was executed. These aggregate fines

were in excess of $75,000, which, according to the Commonwealth, were substantially

less than the statutory maximums for the underlying crimes, but exceeded the value of

the house and van. Thus, in its view, this first inquiry weighs in favor of finding the

forfeiture to be permissible.

       The Commonwealth turns to the second factor under Bajakajian, which is the

connection of the property to the crime. The Commonwealth points to a pattern of

selling drugs from Appellee’s house from November 2009 through January 2010, that it

was used to facilitate at least seven sales during two police investigations, and that the

vehicle was used for three transactions. The Commonwealth maintains that it took

multiple police investigations and two search warrants to disrupt the sale of illegal drugs

from the house, which supports the conclusion that the house was the focus of the drug

trade and substantially connected to the illegal activity, thus, weighing in favor of

forfeiture.   The Commonwealth goes on to argue that the trial court’s rejection of

Appellee’s innocent owner defense gives rise to a presumption that Appellee was

responsible for the manner in which the house was used, and, this, according to the

Commonwealth, is buttressed by Appellee’s failure to provide any evidence that she

tried to stop the sale of drugs from her house. Moreover, the Commonwealth contends




                            [J-68A-2016 and J-68B-2016] - 30
that the trial court found sufficient evidence of substantial harm caused by the

underlying crimes, including neighbors and police being placed in harm’s way, and the

intransigent nature of the sale of drugs from the house requiring a need for repeated

police surveillance. Additionally, the Commonwealth presses it is proper to accept an

inference of harm from drug trafficking in a residential neighborhood, and all of these

considerations weigh in favor of forfeiture.16

       Appellee counters, initially offering that the Commonwealth Court properly

required the property to be an instrumentality of the underlying crime. First, Appellee

argues that civil in rem forfeitures, as discussed above, were historically limited to

instrumentalities of the underlying offense, stemming from the idea that the property

itself was guilty of the crime, and that this notion persists in the United States Supreme

Court’s jurisprudence, as the Bajakajian Court noted civil in rem forfeiture proceedings

subjected the property to forfeiture because it was the actual means by which the

offense was committed. Bajakajian, 524 U.S. at 333 n.8. Appellee stresses that the

instrumentality requirement serves to maintain the distinction between civil in rem and

criminal in personam forfeitures, noting that criminal in personam forfeitures carry with

them substantial constitutional protections for a criminal defendant which a civil in rem

forfeiture property owner does not enjoy.          Appellee points to Justice Scalia’s

concurrence in Austin, which urged that excessiveness for civil in rem forfeitures

depended only upon the relationship between the property and the underlying crime,

and the fact that the Austin majority specifically left open the issue of an instrumentality

requirement. Appellee also maintains that the Commonwealth Court was correct when

it opined that Bajakajian did not rule out an instrumentality requirement for civil in rem

16
  Amicus District Attorney’s Association has also filed a brief which largely tracks the
arguments made by the Commonwealth and the Attorney General.



                            [J-68A-2016 and J-68B-2016] - 31
procedures, but, rather, only clarified that it was not a consideration in criminal in

personam forfeitures.

      Moreover, Appellee contends that the Bajakajian Court went to great lengths to

distinguish civil in rem and criminal in personam forfeitures.       As the forfeiture in

Bajakajian was a criminal in personam forfeiture, according to Appellee, the Court found

it to be irrelevant whether the currency was an instrumentality. Regarding our Court’s

case law, Appellee argues that our Court adopted Justice Scalia’s concurrence in In re

King Properties, 635 A.2d at 133, and contends that in 5444 Spruce Street, we

premised our post-Bajakajian analysis on the notion that an in rem forfeiture was

constitutional only if there was a “significant relationship” between the property and the

underlying criminal offense. 5444 Spruce Street, 832 A.2d at 429-30. According to

Appellee, the 5444 Spruce Street Court retained the In re King Properties “significant

relationship” requirement as a threshold issue, and adopted the Bajakajian gross

disproportionality test as an additional requirement for Excessive Fines Clause

purposes.

      Appellee also offers that other courts have retained the instrumentality

requirement for civil forfeitures post-Bajakajian.   Specifically, Appellee points to the

Second Circuit’s decision in von Hofe in which the court required that, when considering

“the property’s guilt, then, one needs to examine the relationship between the property

and the criminal offense.” von Hofe, 492 F.3d at 184-85. Similarly, Appellee points to

the Utah Supreme Court’s decision in Real Property at 633 East 640 North, supra, in

which the court found the instrumentality question to be the starting point, followed by

the gross disproportionality test. Finally, Appellee adds in the alternative that, even if

not a threshold requirement, whether the property was an instrumentality in the

underlying crime is properly considered a factor in an excessive fine analysis.




                           [J-68A-2016 and J-68B-2016] - 32
       With respect to culpability, Appellee argues that the Commonwealth Court

properly determined that the Excessive Fines Clause requires consideration of the

relative culpability of the property owner, and not just that of the criminal defendant, and

that, here the trial court failed to engage in such an analysis. Appellee asserts that the

Commonwealth has offered a circumscribed gross disproportionality test focusing only

three objective factors: the maximum penalties available, whether the violation was

related to other illegal activities, and the resulting harm, citing Commonwealth’s Brief at

29. According to Appellee, our Court in 5444 Spruce Street did not place any such

limitations on what a trial court may consider, instead allowing for further “sharpening

and annealing” of relevant factors in the lower courts. 832 A.2d at 402 n.7. Appellee

offers that the Commonwealth Court recognized the desirability of a flexible test in

ascertaining whether the property owner deserves the punishment of forfeiture.

Appellee stresses that the degree of culpability of the property owner must be

considered, rejecting the Commonwealth’s focus on a comparison of the objective value

of the property against the maximum statutory fine applicable to the criminal activity that

the property facilitated.

       Furthermore, Appellee challenges the Commonwealth’s contention that a

property owner is culpable when merely negligent and that this mandate is satisfied by a

trial court’s rejection of the statutory innocent owner defense. Specifically, Appellee

offers that, historically, courts did not consider whether the property owner was

negligent when another person used his or her property for criminal activity, but, rather,

the criminal use of the property led ipso facto to the conclusion that the property owner

was negligent.     According to Appellee, this legal justification for forfeiture of one’s

property, however, is not synonymous with holding a property owner culpable for

purposes of the Eighth Amendment whenever property is used in a crime. Moreover,




                            [J-68A-2016 and J-68B-2016] - 33
Appellee claims that, an Eighth Amendment analysis is independent from any statutory

defense and that a forfeiture that survives an asserted statutory innocent owner defense

may nevertheless violate the Constitution. In making this point, Appellee draws the

distinction between the legislature’s intention to protect innocent property owners and

the constitutional protection of an individual against excessive punishment.

       Appellee maintains the excessive fines analysis is not limited to objective criteria

as asserted by the Commonwealth, as pure objectivity ignores the significant interest

that individuals have in their property, upon which their livelihood often depends.

Rather, Appellee claims the excessiveness inquiry requires a subjective proportionality

analysis specific to the crime committed and the property’s role therein. Appellee goes

on to contend that, even if the factors expressly offered in Bajakajian were the exclusive

elements of an Excessive Fines Clause analysis, the Commonwealth Court correctly

reversed the trial court’s application of that test. Specifically, Appellee asserts that both

our Court and the United States Supreme Court consider the gravity of the specific

offense committed — the actual penalty imposed rather than the maximum penalty

available — and not the penalty in the abstract.17 According to Appellee, the trial court

did not consider that Appellee’s son paid no fine and was subject only to house arrest

as a result of his plea deal, and Appellee urges that we affirm the Commonwealth

Court’s remand for such examination.

       Appellee further offers that the Commonwealth Court properly remanded for the

trial court’s consideration of whether Appellee’s son had engaged in a pattern of

misbehavior. As noted above, the trial court’s review of the time period during which

17
   It appears that the trial court, in considering the maximum penalty available,
considered what crimes Graham could have been convicted of — specifically, use of
communication facility — which would have added additional potential fines, even
though he was not convicted of this crime.



                            [J-68A-2016 and J-68B-2016] - 34
Graham had used Appellee’s home to sell illegal drugs was based upon evidence that

the Commonwealth agrees should not have been considered as the investigation was

tainted by Officer Walker’s involvement. See supra note 6. According to Appellee, at

best, the trial court could have inferred a two-month period of sales. Appellee stresses

that her vehicle was used as part of drug sales on only two occasions.

       Related thereto, Appellee argues that the trial court improperly relied solely on an

unspecified harm to society when conducting its analysis, and that our Court in 5444

Spruce Street specifically rejected such a consideration. 832 A.2d at 402. Appellee

takes issue with the Commonwealth’s position that general costs and risks associated

with police investigations are permissible factors, as, according to Appellee, they are

akin to the “general harm to society” considerations this Court has held to be insufficient

to uphold a civil forfeiture.   Appellee’s Brief at 50.    Further, according to Appellee,

consideration of these generic harms ignores the unrebutted testimony that Appellee’s

neighbors were unaware of Appellee’s son’s sale of illegal drugs and that the only

documented drug sales were to confidential informants. Finally, Appellee asserts that,

while consideration of controlled buys, and the harm therefrom, could constitute actual

harm, the trial court here undertook no such analysis.18



       4. Forfeiture Analysis

       We begin our analysis by recognizing the important nature of the matter before

us, as it implicates protection of both the rights of the individual and his or her property

18
   Amici, Pennsylvania Association of Criminal Defense Lawyers, The Philadelphia Bar
Association, The Hispanic Bar Association of Pennsylvania, the Barristers’ Association
of Philadelphia, The Institute for Justice, American Civil Liberties Union of Pennsylvania,
Community Legal Services, Philadelphia NAACP, Philadelphia Legal Assistance,
Philadelphia Volunteers for the Indigent, and SeniorLaw Center, also filed briefs in
support of Appellee.



                            [J-68A-2016 and J-68B-2016] - 35
interests: “Individual freedom finds tangible expression in property rights. At stake in

this and many other forfeiture cases are the security and privacy of the home and those

who take shelter within it.” United States v. James Daniel Good Real Property, 510

U.S. 43, 61 (1993). Indeed, in our society, a home and a vehicle are often essential to

one’s life and livelihood.   This is why “[f]orfeitures are not favored; they should be

enforced only when within both [the] letter and spirit of the law.” United States v. One

1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226 (1939). Yet, forfeiture serves

laudable goals, including the removal of illegal items from circulation in society, as well

as dislodging the property used to facilitate illegal enterprises from the hands of

criminals.   The forfeiture of property can serve as an important aid in the fight

communities wage against crime and encourages property owners to prevent their

property from being used for criminal activities. Finally, forfeiture assists in funding the

costs of law enforcement.19 Thus, a tension exists between the undeniable goals of

protecting our citizens’ property rights and freedoms, and deterring and terminating

criminal enterprises. As noted by courts and in academia, there is a large degree of




19
    Indeed, in Pennsylvania, 100% of forfeiture proceeds go to law enforcement
agencies. 42 Pa.C.S. § 6801(e)-(h). As a result, some have suggested there is a
financial incentive to maximize the seizure of forfeitable property. 1997 Chevrolet, 106
A.3d at 877 (Pellegrini, J., concurring); Leonard v. Texas, 2017 U.S. LEXIS 1573, *3-4
(U.S. 2017) (Thomas, J., statement respecting the denial of certiorari) (“Partially as a
result of this distinct legal regime, civil forfeiture has in recent decades become
widespread and highly profitable. And because the law enforcement entity responsible
for seizing the property often keeps it, these entities have strong incentives to pursue
forfeiture.” (citations omitted)); Bennis v. Michigan, 516 U.S. 442, 456 (1996) (Thomas,
J., concurring) (offering that “[f]orfeiture could become more like a roulette wheel
employed to raise revenue from innocent but hapless owners . . . or a tool wielded to
punish those who associate with criminals, than a component of a system of justice”);
See generally Office of Inspector Gen., U.S. Dept. of Justice, Review of the
Department’s Oversight of Cash Seizure and Forfeiture Activities (March 2017).



                             [J-68A-2016 and J-68B-2016] - 36
uncertainty regarding current excessive fines jurisprudence.20 We endeavor to provide

some clarity and uniformity to this area of the law.



         a. Instrumentality



         Our first area of inquiry concerns the nexus — the relevance and import — of the

property to the offense. Specifically, we examine whether the Commonwealth Court

properly construed the Excessive Fines Clause to require, as a threshold matter, the

property at issue to be an instrumentality of the underlying offense. As noted above, the

Commonwealth Court determined that, independent of proportionality, to “survive an

Eighth Amendment Challenge, the Commonwealth must show, initially, that the

forfeitable property was the instrumentality of the offense.” 1997 Chevrolet, 106 A.3d at

854. According to the Commonwealth Court, only once an instrumentality relationship

is demonstrated does the examination turn to whether the amount of the forfeiture is

grossly disproportionate to the gravity of the offense. Id. at 854, 859.

         We begin our analysis of the instrumentality question with a review of the

historical underpinnings of the distinctions between in rem and in personam forfeitures,

then consider relevant case law from both the United States Supreme Court and our

Court.    In personam forfeitures result from criminal conviction, and proceed directly

against an individual. Such forfeitures “have historically been treated as punitive, being

part of the punishment imposed for felonies and treason in the Middle Ages and at


20
  See, e.g., Beth A. Colgan Reviving the Excessive Fines Clause, 102 Cal. L. Rev. 277,
295 & n.92 (2014) (describing lower courts’ treatment of Excessive Fines Clause after
Bajakajian as “disorder” and “a quagmire”) (hereinafter “Colgan”).




                              [J-68A-2016 and J-68B-2016] - 37
common law.”       Bajakajian, 524 U.S. at 332.      Statutes that authorize in personam

forfeiture make the forfeiture part of a defendant’s sentence, like the statute at issue in

Bajakajian, which directed a court, in imposing its sentence, to order the forfeiture of

property “involved in” the offense. 18 U.S.C. § 982(a)(1). As the Bajakajian Court

explained, “[t]he forfeiture is thus imposed at the culmination of a criminal proceeding

and requires conviction of an underlying felony, and it cannot be imposed upon an

innocent owner . . . but only upon a person who has himself been convicted.” 524 U.S.

at 328.

       In rem forfeitures are qualitatively different from in personam forfeitures. In rem

forfeitures proceed against the property itself, are deemed to be civil in nature, are not

dependent upon a criminal prosecution, and traditionally, at least prior to Austin, serve

primarily or ostensibly remedial, rather than punitive, ends, regardless of the impact

upon the property owner. See Origet v. United States, 125 U.S. 240, 246 (1888) (“[T]he

merchandise is to be forfeited irrespective of any criminal prosecution. . . . The person

punished for the offence may be an entirely different person from the owner of the

merchandise, or any person interested in it.”); Taylor v. United States, 44 U.S. 197, 210

(1845) (“In one sense, every law imposing a penalty or forfeiture may be deemed a

penal law; in another sense, such laws are often deemed, and truly deserve to be

called, remedial.”). The theory behind such forfeitures “was the fiction that the action

was directed against ‘guilty property,’ rather than against the offender himself.”

Bajakajian, 524 U.S. at 330. Thus, the “guilty property” concept which serves to permit

the taking by the state of property, even that of a non-offender, is the cornerstone of in

rem forfeiture.

          The origins of civil in rem forfeiture may be traced to Judeo-Christian teachings,

which conceived of property itself as committing a wrong. See Andrew Crawford, Civil




                             [J-68A-2016 and J-68B-2016] - 38
Asset Forfeiture in Massachusetts: A Flawed Incentive Structure and its Impact on

Indigent Property Owners, 35 B.C. J.L. & Soc. Just. 257, 260-61 n.32 (2015) (citing

Exodus 21:28 (English Standard Version) (“When an ox gores a man or a woman to

death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox

shall not be liable.”)).

       By the 11th Century, the English Common Law, as later noted by Sir Edward

Coke and Sir William Blackstone, embraced the notion of property committing a wrong

through the concept of the “deodands.” Id. at 261; Brent Skorup, Ensuring the Eighth

Amendment Protection From Excessive Fines in Civil Asset Forfeiture Cases, 22 Geo.

Mason U. C.R. L.J. 427, 432-33 (2012) (hereinafter “Skorup”). A jury determined that

property was a deodand if it directly caused the death of a person and, if so, it was

forfeited to the crown. Id. at 432; see generally Barclay Thomas Johnson, Restoring

Civility - the Civil Asset Forfeiture Reform Act of 2000: Baby Steps Towards a More

Civilized Civil Forfeiture System, 35 Ind. L. Rev. 1045, 1047-48 (2001/2002).

Deodands, as well as forfeiture upon conviction of felony or treason, and statutory

forfeiture, served as the three primary kinds of forfeiture established in England at the

time the Eighth Amendment was ratified.       While the concept of deodands laid the

foundation for modern forfeiture law, it did not become part of the common law tradition

in America. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974).

Rather, common law courts exercised civil in rem jurisdiction purely through forfeiture

statutes. Id. at 683.

       The earliest civil in rem forfeiture statutes in the United States, allowing the

federal government to seize property in the colonies, were patterned after English law.

Upon independence, civil in rem forfeiture statutes largely focused on admiralty matters

— customs offenses, piracy, and slave trafficking — resulting in the forfeiture of ship




                           [J-68A-2016 and J-68B-2016] - 39
and cargo. Even early on, these forfeitures were viewed as serving, at least in part,

punitive purposes. Indeed, consistent with its ancient origins, civil in rem forfeiture

proceeded under the legal fiction that the property used in furtherance of some criminal

activity is, itself, “guilty” of the crime, as evinced by Justice Joseph Story’s explanation

in the United States Supreme Court’s seminal decision in The Palmyra, 25 U.S. 1, 14-

15 (1827) (“The thing is here primarily considered as the offender . . . . But the practice

has been, and so this Court understand the law to be, that the proceeding in rem stands

independent of, and wholly unaffected by any criminal proceeding in personam.”).

Thus, because it was the “guilty” property itself that was the sole focus of the

malfeasance, historically, in rem forfeitures were limited to instrumentalities of the

underlying offenses, as the property was “subject to forfeiture because it was the actual

means by which an offense was committed.” Bajakajian, 524 U.S. at 333 n.8; see also

Austin, 509 U.S. at 628 (Scalia, J., concurring in part and concurring in the judgment)

(“[I]n the case of deodands, juries were careful to confiscate only the instrument of

death and not more. Thus, if a man was killed by a moving cart, the cart and its horses

were deodands, but if the man died when he fell from a wheel of an immobile cart, only

the wheel was treated as a deodand, since only the wheel could be regarded as the

cause of death.”). See generally Nelson at 2457-75.21

21
   As noted above, generally speaking, America’s importation of forfeiture law from
England did not include the common law notion of the deodands, but, rather, our courts
exercised in rem jurisdiction through forfeiture statutes. Section 6801 of Pennsylvania’s
current civil in rem forfeiture statute states in pertinent part:
              (a) Forfeitures generally. The following shall be subject to
              forfeiture to the Commonwealth and no property right shall
              exist in them:
                 (6)(i) All of the following:
                                      ***
(continued…)

                            [J-68A-2016 and J-68B-2016] - 40
      Indeed, this historical concentration on the tainted property itself has a long

legacy, spanning the centuries and becoming an integral part of the appropriate

excessiveness standard. As Justice Oliver Wendell Holmes opined, “a page of history

is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

His adage is particularly apropos here, as the focus on the relationship between the

property and the underlying offense has deep roots in both English and American law.

      While, in Austin, Justice Scalia’s strict focus on the relationship of the property to

the crime did not carry the day as discussed above, it certainly informs our analysis of

the instrumentality question. Justice Scalia stressed that, in his view, the Constitution

has not required negligence, or any other degree of culpability, to support a forfeiture,

and to impose such a culpability requirement would erase the difference between



(…continued)
                    (C) Real property used or intended to be used to
                    facilitate any violation of the Controlled Substance,
                    Drug, Device and Cosmetic Act, including structures
                    or other improvements thereon, . . . which is used, or
                    intended to be used, in any manner or part, to
                    commit, or to facilitate the commission of, a violation
                    of The Controlled Substance, Drug, Device and
                    Cosmetic Act.

42 Pa.C.S. § 6801(a)(6)(i)(C).
Whether there exists a common law basis for forfeiture in Pennsylvania has not been
definitively decided by our Court, and lower court pronouncements have been
inconsistent. Compare Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207 (Pa.
Cmwlth. 2006) (finding common law forfeiture exists in Pennsylvania) with
Commonwealth v. Crosby, 568 A.2d 233 (Pa. Super. 1990) (criticizing notion of
common law forfeiture, but bound to follow prior Superior Court precedent). While we
make no pronouncement on this issue in this appeal, recent case law from the
Commonwealth Court has embraced the historical limitation on the source of civil in rem
forfeiture, holding common law forfeiture does not exist in Pennsylvania, and, thus, that
the Commonwealth has no legal basis, absent statutory authority, for civil seizure.
Commonwealth v. Irland, 153 A.3d 469 (Pa. Cmwlth. 2017).



                           [J-68A-2016 and J-68B-2016] - 41
traditional in rem forfeiture and traditional in personam forfeiture. Austin, 509 U.S. at

625-26 (Scalia, J., concurring in part and concurring in the judgment). He concluded

that an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment

permits only if the property cannot be regarded as an instrumentality of the offense,

offering the example of a building from which an isolated illegal drug sale occurs.

According to Justice Scalia, the forfeiture of such property would constitute an

excessive fine, as the relevant inquiry revolved around not the value of the confiscated

property, but, rather, whether the confiscated property had a close relationship to the

offense:      “[T]he relevant inquiry for an excessive forfeiture under [21 U.S.C. §

881(a)(4)(C)] is the relationship of the property to the offense: Was it close enough to

render the property, under traditional standards, ‘guilty’ and hence forfeitable?” Id. at

627-28.       To make the point concrete, Justice Scalia’s offered a “gold scales”

hypothetical to illustrate his “close enough relationship” test, opining that scales used to

measure illegal drugs were forfeitable, “whether made of the purest gold or the basest

metal.” Id.

       Subsequently, in Bajakajian, while considering the Excessive Fines Clause in the

context of a criminal in personam forfeiture, the Supreme Court suggested that it was

not erasing the distinctions between civil in rem and criminal in personam forfeitures, or

removing instrumentality as an element of in rem forfeiture, as the Court referred to the

class of in rem forfeitures of “guilty property” as “instrumentality forfeitures.” After a

somewhat lengthy discussion of the history of civil in rem forfeiture, the Bajakajian Court

rejected instrumentality only as a requirement of criminal in personam forfeitures.

Indeed, the Court found that, because the forfeiture before it was not in rem, it was

“irrelevant whether respondent’s currency is an instrumentality.” 524 U.S. at 333. Thus,

rather than embracing a proportionality inquiry for all excessiveness challenges, the




                            [J-68A-2016 and J-68B-2016] - 42
Bajakajian Court seemingly preserved the critical distinctions between criminal in

personam and civil in rem forfeitures.

       The Supreme Court continued to distinguish between tainted property —i.e,

guilty property — and untainted property in the context of the Sixth Amendment. In Luis

v. United States, 136 S.C.t 1083 (2016), a criminal defendant accused of violating

federal health care and banking laws challenged, under the Sixth Amendment, a court’s

pre-trial freezing of his assets. The high Court held such pre-trial deprivation violated

the Sixth Amendment, noting, “[t]he relevant difference consists of the fact that the

property here is untainted; i.e., it belongs to the defendant pure and simple. In this

respect it differs from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other

property associated with the planning, implementing, or concealing of a crime.” Id. at

1090. Indeed, the Luis Court offered that it “found no decision of this Court authorizing

unfettered, pretrial forfeiture of the defendant’s own ‘innocent’ property -- property with

no connection to the charged crime.” Id. at 1094. Similarly, in a concurring opinion,

Justice Thomas, the author of Bajakajian, offered that the common law permitted the

government to seize tainted assets before trial, but “such forfeitures were traditionally

‘fixed . . . by determining what property has been ‘tainted’ by unlawful use.’. . . So the

civil in rem forfeiture tradition tracks the tainted-untainted line. It provides no support for

the asset freeze here.” Id. at 1100.

       Even more recently, Justice Thomas authored a statement to the high Court’s

denial of certiorari in an appeal involving a challenge to a civil forfeiture statute as

violative of due process, and therein further illuminating the continued focus on the

nexus between the property sought to be forfeited and the underlying offense. See

Leonard v. Texas, 2017 U.S. LEXIS 1573 (U.S. 2017) (Thomas, J., statement

respecting the denial of certiorari). In his statement, Justice Thomas again emphasized




                             [J-68A-2016 and J-68B-2016] - 43
the distinction between in personam proceedings and in rem proceedings, stressing that

the United States Supreme Court “has justified its unique constitutional treatment of civil

forfeiture largely by reference to a discrete historical practice that existed at the time of

the founding,” providing for statutory forfeitures of property “under the fiction that the

thing itself, rather than the owner, was guilty of the crime.” Id. at *5-6. Moreover,

Justice Thomas offered that, in the absence of this historical approach to forfeiture, “the

Constitution presumably would require the Court to align its distinct doctrine governing

civil forfeiture with its doctrines governing other forms of punitive state action and

property deprivation.” Id. at *6 (citation omitted). Indeed, Justice Thomas was clearly

skeptical whether even this historical approach was capable of sustaining modern civil

forfeiture practice, noting that early forfeiture laws were narrower than modern statutes,

and highlighting the limited nature of the type of property covered: “only the

instrumentalities of the crime (such as the vessel used to transport the goods), not the

derivative proceeds of the crime (such as property purchased with money from the sale

of the illegal goods)” were forfeitable. Id. at *7-8.

       Based upon the rich history of in rem forfeiture both in England and our country,

and the clear demarcation between criminal in personam proceedings and those

brought civilly in rem, as well as more recent pronouncements by the United States

Supreme Court, it is evident to us that the “guilty property” fiction which serves as the

basis for civil in rem forfeiture logically demands that the property sought to be forfeited

be an instrumentality of the offense.22


22
   We recognize that, in Austin, the Court indicated that the property at issue was not an
“instrument” of the underlying crime, but nevertheless remanded the matter for
consideration of constitutional excessiveness. As emphasized by the Commonwealth,
this contemplation of other factors suggests that the question of whether property
subject to civil in rem forfeiture is an instrumentality is not dispositive of the
excessiveness inquiry. We disagree. First, the Austin Court expressed no opinion on
(continued…)

                             [J-68A-2016 and J-68B-2016] - 44
       Our Court’s prior decisions support this view. In considering what factors were

appropriate under an excessive fines analysis, our Court indicated, pre-Bajakajian, that

the inquiry does not concern the value of the property forfeited, but, rather, the nexus

between the offense and the subject property, in essence, adopting Justice Scalia’s

approach in Austin. We stated: “if the forfeited property was significantly used in the

commission of the offense, the item may be forfeited regardless of its value.” In re King

Properties, 635 A.2d at 133.       We further opined, “[w]here the evidence is that the

criminal incident on which the forfeiture is based is not part of a pattern of similar

incidents, there is no ‘significant’ relationship between the property sought to be

forfeited and the offense.” Id.; see also Commonwealth v. Wingait Farms, 690 A.2d

222, 227 (Pa. 1997).

       Ten years later, and post-Bajakajian, in 5444 Spruce Street, our Court re-

evaluated the applicable excessiveness standard, and offered that we had not

addressed the issue of whether the gross disproportionality test adopted in Bajakajian

applied to in rem forfeitures “where the government has established a significant

relationship between the property sought to be forfeited and the underlying criminal

offense,” 832 A.2d at 430, firmly indicating that a significant relationship between the

property and the crime was a necessary prerequisite to a constitutional forfeiture. Even



(…continued)
the constitutional requisites of civil in rem forfeiture, expressly limiting its decision to its
conclusion that in rem forfeitures could be subject to an Excessive Fines Clause
challenge. Moreover, in offering that the property at issue was not an instrumentality, it
did so in rejecting the government’s argument that statutes which authorized forfeiture
of “instruments” of the drug trade were “remedial,” rather than punitive, such that the
Excessive Fines Clause should not apply. Thus, the Court was not relying upon the
understanding of “instrumentality” as that term would develop in subsequent cases, but
was deeming the property at issue — a mobile home and auto body shop — not to be
“contraband,” and, thus, subject to an Eighth Amendment challenge.



                             [J-68A-2016 and J-68B-2016] - 45
further, we traced the high Court’s pre-Bajakajian decisions, discerning a pointed

distinction between forfeitures which were upheld because they exhibited a significant

relationship between the property and the crime, and those where the property forfeited

was not significantly related to the criminal activity, and in which the forfeiture was not

upheld. 5444 Spruce Street, 832 A.2d at 429-30.23 Thus, while our Court did not

expressly require a nexus between the property and the underlying offense, through its

inventory of prior case law drawing a distinction based upon nexus, we strongly implied

that only those properties with a significant relationship to the offense —

instrumentalities — were forfeitable, and that this was a necessary precursor to any

gross disproportionality test.    Ultimately, as noted above, while our Court did not

embrace express factors to be considered in an excessiveness analysis, nevertheless,

we held that Bajakajian’s gross disproportionality test applied to all punitive forfeitures

regardless of the form of the underlying proceedings, and overruled In re King

Properties, but only to the extent it held otherwise.

       Further, while the United States Supreme Court in Austin expressly limited its

holding to a determination that civil in rem forfeitures can be subject to the protections of

the Excessive Fines Clause, with respect to the nuts and bolts of the excessiveness

inquiry, however, the Court majority plainly left open the idea that such an inquiry in the

23
    Rather than purely a constitutional threshold, we note that the “significant
relationship” requirement is also a vestige of our Court’s interpretation of the Forfeiture
Act’s requirement that the property be used or intended to be used to “facilitate” any
violation of the Controlled Substance Act. 42 Pa.C.S. § 6801(a)(6). Commonwealth v.
502-504 Gordon Street, 607 A.2d 839, 842 (Pa. Cmwlth. 1992) (“In interpreting the term
“facilitate,” Pennsylvania courts require that the Commonwealth show a sufficient or
substantial nexus between the property and the prohibited activity ‘to mitigate the
potentially harsh results of permitting the Commonwealth to penalize a citizen by a civil
action against his property rather than a criminal action against his person.’” (citations
omitted)). Thus, the required nexus between the property and the underlying crime has
both a constitutional dimension, as well as a statutory one under the Forfeiture Act.



                            [J-68A-2016 and J-68B-2016] - 46
civil context should consider the nexus between the property and the underlying

offense. Austin, 509 U.S. at 623 n.15 (“We do not rule out the possibility that the

connection between the property and the offense may be relevant, but our decision

today in no way limits the Court of Appeals from considering other factors in determining

whether the forfeiture of Austin’s property was excessive”).        We find this lack of

limitation on courts “from considering other factors” suggests that the question of

whether property subject to civil in rem forfeiture is an instrumentality could be the

foundation upon which other factors regarding excessiveness would be considered.

While the United States Supreme Court has not directly addressed in rem forfeiture

since Austin, post-Austin statements by the high Court surely perpetuate the history,

and essential nature, of this distinction between tainted and untainted property. Luis;

Bajakajian.

       The instrumentality requirement necessitates the establishment of a “significant

relationship” between the offense and the property sought to be forfeited — the property

was “significantly used in the commission of the offense.” King Properties, 635 A.2d at

133.24 This significant relationship is what “taints” the property and renders it “guilty,”

such that it becomes subject to in rem forfeiture.           Without an instrumentality

requirement, the distinction between civil in rem forfeiture and criminal in personam

forfeiture would be vitiated, something neither the United States Supreme Court nor our

Court has embraced.        In 5444 Spruce Street, we did not reject a threshold

instrumentality determination when we adopted the Bajakajian grossly disproportional

test. Instead, as the initial part of our analysis, we surveyed our prior case law, noting


24
  Accord Commonwealth v. 5043 Anderson Rd., Buckingham Township, Bucks County,
728 A.2d 907 (Pa. 1999); Wingait Farms; Commonwealth v. 4029 Beale Avenue,
Altoona, Blair County, 680 A.2d 1128 (Pa. 1996).



                           [J-68A-2016 and J-68B-2016] - 47
those decisions in which the forfeiture had been upheld were also those where there

was a nexus between the property and the offense. Finally, while, in 5444 Spruce

Street, we overruled our prior decision in In re King Properties, we did so only to the

extent that decision differed with the gross disproportionality test.

       As established above, all forfeitures, whether criminal in personam or civil in rem,

are predicated upon the commission of a criminal offense. In an in personam forfeiture,

that offense is established by a criminal conviction demonstrating the guilt of an

individual that may be punished by property forfeiture as a term of the sentence. In an

in rem forfeiture, however, the “guilt” of the property must be established by proof of its

illicit use. Thus, as one commentator has observed, “[t]his distinction makes sense

because, if a court considers only proportionality, an in rem civil forfeiture becomes

equivalent to in personam punishment by disregarding the res—which is a legal

incongruity because civil forfeiture does not require a guilty owner of the res, only a

guilty res.”   Skorup at 448-49.        Instrumentality is not a necessary element of in

personam forfeitures because such forfeitures do not depend upon the “guilty property”

fiction, but rather, upon the guilt of the individual.

       Based upon the ancestry of civil in rem forfeiture, the teachings of United States

Supreme Court and our precedent, we find that the concept of guilty or tainted property

has been a long-standing and consistent theme with respect to civil in rem forfeiture,

and remains vital today. Indeed, if nexus were merely a factor to be considered in

determining whether the forfeiture was excessive, the “guilty property” fiction that has

served as the cornerstone of in rem forfeiture for hundreds of years would be nullified.

       Therefore, we hold that an instrumentality analysis, which considers the

relationship between the property to be forfeited and the underlying criminal activity,

must be a threshold inquiry in addressing an excessiveness challenge to a civil in rem




                             [J-68A-2016 and J-68B-2016] - 48
forfeiture. Accordingly, we affirm the Commonwealth Court’s conclusion that the Eighth

Amendment requires a property subject to civil in rem forfeiture be an instrumentality of

the underlying offense.25

       Having determined that, when faced with an Excessive Fines Clause challenge

to a civil in rem forfeiture, courts must engage in a threshold instrumentality analysis, we

set forth factors to be considered in making that determination.                To be an

instrumentality, the property itself is required to be “significantly utilized in the

commission” of the offense. Wingait Farms, 690 A.2d at 227. Indeed, there may be

property that is connected to a crime, but is not significantly used in the crime.

Considerations regarding this “significant utilization” assessment include: whether the

property was integral to the commission of the offense — i.e., uniquely important to the

success of the illegal activity; whether the use of the property was deliberate and

planned or was merely incidental and fortuitous to the illegal enterprise; whether the

illegal use of the property was an isolated event, or repeated; whether the purpose of

acquiring, maintaining or using the property was to carry out the offense; and whether



25
   The Commonwealth revisits the idea of instrumentality being purely remedial, and,
thus, not subject to an Eighth Amendment inquiry. In Austin, as noted above, while
recognizing that the forfeiture of “contraband” could be characterized as remedial — as
such forfeiture removed dangerous or illegal items from society, and, thus, was not
subject to Eighth Amendment scrutiny — the Court rejected the assertion that
conveyances used to transport illegal liquor were such contraband; accordingly, the
Court found that the forfeiture of such property did not escape review under the
Excessive Fines Clause. Thus, under the Supreme Court’s case law, forfeiture of both
instrumentalities and non-instrumentalities may be punitive and subject to Excessive
Fines Clause analysis. See Bajakajian, 524 U.S. at 331 n.6. On that basis, we readily
reject the Commonwealth’s assertion that a civil in rem forfeiture is ipso facto
constitutionally permitted where the property is an instrumentality of the criminal
offense. See Bajakajian; Austin; In re King Properties; see also United States v. Ferro,
681 F.3d 1105, 1113-14 (9th Cir. 2012) (finding, in light of Austin, modern forfeiture
statutes served to punish the owner at least in part, and, thus, with the exception of the
forfeiture of contraband, instrumentalities are protected by the Eighth Amendment).



                            [J-68A-2016 and J-68B-2016] - 49
the illegal use of the property was extensive spatially and/or temporally. See United

States v. Milbrand, 58 F.3d 841, 846, 848 (2d. Cir. 1995).

        Finally, consistent with the historical notion of the deonands, we caution that

property is divisible.26 Where a significant relationship to an offense is established with

regard to only a portion of property which is “practicably divisible” from the rest, only the

offending portion of the property may be forfeited; but if the property is not divisible, the

entire property is forfeited. 5043 Anderson Rd., 728 A.2d at 909. Thus, in making the

instrumentality assessment, a court must closely examine not only the nexus between

the property and the offense, but the specific aspect of the property at issue.

        In sum, an analysis of whether a civil in rem forfeiture violates the Eighth

Amendment requires a threshold inquiry into whether the specific property sought to be

forfeited is an instrumentality of the underlying offense. If the property sought to be

forfeited is an instrumentality of the underlying offense, the inquiry continues to an

examination of proportionality. If not, the forfeiture cannot withstand Eighth Amendment

scrutiny and the inquiry ends. Having addressed this threshold inquiry, we turn to the

question of proportionality.27



26
     See United States v. Chandler, 36 F.3d 358, 364 (4th Cir. 1994).
27
    Most courts have not limited the excessiveness determination to only the
instrumentality inquiry, but have utilized both an instrumentality and proportionality test.
See, e.g., Utah v. Real Property at 633 East 640 North, Orem, 994 P.2d 1254, 1257
(Utah 2000) (“We similarly hold that the threshold test in real property forfeitures is
whether the defendant property is an instrumentality of the offense. If instrumentality is
proven, we must then examine whether the ordered forfeiture is “grossly
disproportionate” to the offense.”); United States v. 6380 Little Canyon Rd., El Dorado,
Cal., 59 F.3d 974, 983 (9th Cir. 1995) (“Although any forfeiture must meet the
instrumentality test, its potentially harsh results, when applied alone, make us hesitate
to accept it as the sole test for applying the command of Austin. We accept the
proportionality test as a check on the instrumentality approach.”).



                            [J-68A-2016 and J-68B-2016] - 50
       b. Proportionality

       We begin with the premise that “[t]he touchstone of the constitutional inquiry

under the Excessive Fines Clause is the principle of proportionality.” Bajakajian, 524

U.S. at 334. Although, as noted above, Bajakajian involved a criminal in personam

forfeiture, the Court did not limit its gross disproportionality test to such proceedings,

and our Court, in 5444 Spruce Street, expressly applied that standard to all punitive

forfeiture proceedings, including civil in rem forfeitures. 5444 Spruce Street, 832 A.2d

at 403.

       Broadly speaking, when engaging in a proportionality review, a court compares

the amount of the forfeiture to the gravity of the offense. If the amount of the forfeiture

is grossly disproportional to the gravity of the offense, it is unconstitutional. Bajakajian,

524 U.S. at 336-37. While the overarching standard to be applied is not in dispute, the

specifics of this comparison have yet to be expressed by either the federal high Court or

our Court.

       Specifically, based upon the background and arguments offered by the parties

and amici, it is clear that there are no established guidelines to be employed for a

proportionality analysis. The United States Supreme Court in Austin left it to the lower

federal tribunals to flush out the relevant factors for determining whether a forfeiture was

excessive, and, in Bajakajian, the Court noted that the analysis was inherently

subjective and imprecise. Even the factors offered in Bajakajian were not prescribed as

a rigid test.   Moreover, our Court has observed that other courts have considered

factors beyond the monetary value of the property seized in determining whether the

forfeiture was an excessive fine; yet, we did not determine what approach was

preferable, but left it to the “sharpening and annealing process of litigation in the lower

courts.”   5444 Spruce Street, 832 A.2d at 402 n.7.         Indeed, since Bajakajian was




                            [J-68A-2016 and J-68B-2016] - 51
decided in 1998, various courts have promoted flexibility, identifying various potential

considerations in making the gross disproportionality inquiry. See, e.g., United States v.

Viloski, 814 F.3d 104, 110 (2nd Cir. 2016) (“Our unwillingness in past cases to describe

the Bajakajian factors as exhaustive reflects Bajakajian itself, which never prescribed

those factors as a rigid test.”); Collins v. SEC, 736 F.3d 512, 527 (D.C. Cir 2013) (“[T]he

four factors derived from Bajakajian hardly establish a discrete analytic process.”);

United States v. $100,348 in Currency, 354 F.3d 1110, 1121 (9th Cir. 2004) (offering

that, in assessing whether a fine is excessive, courts are “not required to consider ‘any

rigid set of factors’”). Thus, we must determine what factors define the contours of the

gross proportionality examination in civil in rem proceedings in Pennsylvania.

       The Commonwealth urges the application of a constricted standard based upon

its reading of Bajakajian, with emphasis on comparing the assessed value of the

property against the maximum statutory penalty. Yet, this approach has not been the

teaching of the United States Supreme Court or our Court; while the excessiveness

analysis looks to the proportionality between the forfeited property and the gravity of the

underlying offense, it is accomplished through a more nuanced inquiry.

       Indeed, initially, we observe that, in civil in rem forfeitures, the owner of the

property and the offender may not be the same. The potential harshness of a forfeiture

against a property owner with no alleged criminal conduct, or minor culpability, however,

must be recognized in any excessiveness inquiry, and we find doing so comfortably fits

within the United States Supreme Court’s gross disproportionality test. Therefore, we

must be wary of forfeiture imposing greater punishment than appropriate for the

underlying crime itself. Indeed, a civil in rem proceeding can be viewed in one way as a

“super criminal” proceeding, in which a property owner is punished through the seizure

of his or her property, but without all the safeguards associated with criminal




                           [J-68A-2016 and J-68B-2016] - 52
proceedings. While Fourth and Fifth Amendment protections are applicable to civil

forfeiture proceedings, One 1958 Plymouth Sedan, 380 U.S. at 702 (Fourth

Amendment); United States v. United States Coin & Currency, 401 U.S. 715, 721

(1971) (Fifth Amendment), there is no right to counsel for individuals subjected to

forfeiture proceedings. Further, while not presently challenged, we note that the burden

of proof on the Commonwealth for civil forfeiture, including of one’s home, is merely the

preponderance of the evidence standard. Finally, and critically, while we discuss the

procedures under the Forfeiture Act more fully below, we observe that there is no

presumption of innocence, but rather, a presumption of culpability once the

Commonwealth has established a nexus between the property and the crime, and

certainly no presumption of innocence with regard to the innocent owner defense. For

these reasons, we conclude it is appropriate to consider the harshness of the forfeiture

on the individual property owner as a part of the excessiveness analysis, which may be

manifested in an assessment of both the value of the property and the gravity of the

underlying offense factors. Thus, we first turn to address the appraisal of the property

sought to be forfeited.

       Regarding proper valuation of the property, in Bajakajian, the property sought to

be forfeited was the currency that Bajakajian failed to report.        Thus, the Court

understandably spoke in terms of the “amount” of the forfeiture, Bajakajian 524 U.S. at

336-37, ultimately comparing the gravity of the offense with “the $357,144 forfeiture”

sought by the government. Id. at 339. While our Court in 5444 Spruce Street was

faced with the forfeiture of a house, and spoke of the need to determine the “value” of

the property, 832 A.2d at 403, we did not expand upon what went into such

assessment.




                           [J-68A-2016 and J-68B-2016] - 53
       In our view, in the realm of civil in rem forfeiture, both an objective pecuniary and

subjective non-pecuniary valuation of the property is necessary. While a simple market

value may be appropriate in some instances, as noted above, certain property — such

as a residence, a vehicle, or other similar necessities in our daily life — carry additional

value to the owner and possibly others, and, thus, call for a subjective non-pecuniary

evaluation of the property sought to be forfeited. Such a valuation would consider

whether the property is a family residence, or is essential to the owner. See, e.g.,

United States v. 45 Claremont Street, 395 F.3d 1, 6 (1st Cir. 2004) (noting harshness of

forfeiture on property owner due to living in residence with four young children and

rental of upper-floor apartments for supplemental income, but outweighed by owners

direct involvement in drug transactions).

       Related thereto, we believe it proper to consider the financial or other

consequences of forfeiture upon the property owner, and any innocent third parties.

See, e.g., United States v. 6380 Little Canyon Road, El Dorado California, 59 F.3d 974

(9th Cir. 1995) (considering fair market value, subjective value including whether family

residence, and hardship to the property owner, including effect of forfeiture on owner’s

family or financial condition); Real Property at 633 East 640 North, Orem, 994 P.2d at

1258-60 (adopting Ninth Circuit consideration of hardship to property owner); People v.

One 2000 GMC YG169852, 829 N.E.2d 437, 442 (Ill. App. 2005) (considering the

impact of the forfeiture on the claimant in light of the claimant’s circumstances, noting

that the claimant was “a person of limited means and assets”).

       Finally, we address one additional aspect of the value of the property inquiry:

whether the forfeiture would deprive the property owner of his or her livelihood.

Specifically, as noted above, the Eighth Amendment Excessive Fines Clause arose

from the English constitutional tradition including Magna Carta. See United States v.




                            [J-68A-2016 and J-68B-2016] - 54
Viloski, 814 F.3d 104, 111 (2nd Cir. 2016). The Great Charter which serves as the

cornerstone of our own constitutional jurisprudence, required that a fine “should not

deprive a wrongdoer of his livelihood.”     Bajakajian, 524 U.S. at 335 (citing Magna

Carta);28 see also Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.,

492 U.S. 257, 269 & 271 (1989) (noting Magna Carta’s mandate that an “amercement”

— payment to the Crown as a penalty for an offense — “not be so large as to deprive

[the wrongdoer] of his livelihood.”).29 These English roots, and the concomitant hostility

to such onerous fines that would deprive one of his or her means of living, became

“deeply rooted” in Anglo-American constitutional thought and played a significant role in

shaping the Eighth Amendment. United States v. Levesque, 546 F.3d 78, 84 (1st Cir.

2008); see also Colgan at 330-35 (concluding “the idea of saving defendants from

persistent impoverishment was a guiding principle reaching back to the days of the

Magna Carta and the English Bill of Rights, and enduring through the ratification of the

Eighth Amendment.”); Nicholas M. McLean, Livelihood, Ability to Pay, and the Original

Meaning of the Excessive Fines Clause, 40 Hastings Const. L. Q. 833, 896-900 (2013)

(offering that consideration of personal circumstances — including the ability to maintain

some minimal level of economic subsistence, protection of the homestead, and impact

of a forfeiture on an individual’s children — when undertaking an Excessive Fines

Clause inquiry is grounded in Magna Carta, consistent with Bajakajian, and should be a

core Eighth Amendment norm).



28
  The Supreme Court did not answer whether this was an appropriate inquiry in
Bajakajian, because it found Bajakajian did not raise the question and the district court
made no factual findings on the issue. Id. at 340 n.15.
29
  See also Commonwealth v. Carela-Tolentino, 48 A.3d 1221, 1226 n.6 (Pa. 2012)
(Castille, C.J., dissenting statement).



                           [J-68A-2016 and J-68B-2016] - 55
       We find such consideration — whether the forfeiture would deprive the property

owner of his or her livelihood, i.e., his current or “future ability to earn a living,”

Levesque, 546 F.3d at 85 — to be entirely appropriate and consistent with the teachings

of Bajakajian and 5444 Spruce Street. Thus, we find that both a pecuniary objective

valuation as well as a non-pecuniary subjective valuation are necessary to assess in full

measure the value of the property sought to be forfeited in an excessiveness analysis.

This comprehensive value of the property must then be compared to the gravity of the

offense.

       Assessing the gravity of the offense has engendered wide discussion and

approaches regarding the appropriate factors for making this determination. The United

States Supreme Court in Bajakajian, while arising in the criminal in personam context,

set forth certain considerations in its analysis. First, the Court considered the nature of

the crime. The Court found that, because the offense underlying the forfeiture was

merely a reporting offense, and that it was permissible to transport money out of the

country after reporting, the gravity was relatively low. Bajakajian, 524 U.S. at 337.

Additionally, the court considered the relation of the violation to any other illegal activity,

finding that the money was used to repay a lawful debt, and that Bajakajian did not fit

into the class of persons for whom the statute was designed, such as a money

launderer, a drug trafficker, or a tax evader. Id. at 338. The Court also considered the

maximum sentence and fine that could have been imposed on Bajakajian, concluding

that such penalties were a fraction of the “penalties authorized,” and confirmed a

minimum level of culpability. Id. at 339 n.14. Finally, the high Court looked to the harm

that was caused. The Court found that the failure to report the money affected only one

party, the federal government, and in relatively minor fashion. Id. at 339.




                             [J-68A-2016 and J-68B-2016] - 56
       Our Court in 5444 Spruce Street, in adopting the Bajakajian gross

disproportionality construct, characterized the high Court’s approach as defendant-

culpability focused, rather than centered on the severity of the crime in the abstract.

5444 Spruce Street, 832 A.2d at 401. Our Court observed that the Bajakajian Court

enumerated three factors to measure the gravity of the crime, but limited these to the

conduct of the defendant: “the penalty imposed as compared to the maximum penalty

available; whether the violation was isolated or part of a pattern of misbehavior; and, the

harm resulting from the crime charged.” Id. at 402. As noted above, however, our

Court did not limit itself to these factors, or determine which factors were to be

employed.

       Thus, in our view, in analyzing the gravity of the offense, a court must consider

these Bajakajian factors. In doing so, a court must consider the essence of the crime —

that is, the nature of the underlying offense. Related thereto, the relation of the offense

to any other illegal activity and whether the offender fit into the class of persons for

whom the offense was designed should be considered. Further, the court should take

into account the maximum penalty as compared to the penalty imposed upon the

criminal offender. In making this assessment, the actual penalty imposed (sentence,

fine) upon the offender giving rise to the forfeiture is compared to the maximum

authorized sentence for the underlying offenses for which the offender was convicted.

Moreover, the regularity of the criminal conduct must be considered, including whether

the illegal acts were isolated or frequent, constituting a pattern of misbehavior. Finally,

a court must take into account the harm resulting from the crime charged. Contrary to

the Commonwealth’s argument, we find generic considerations of harm to be largely

unhelpful in this regard, as all crimes have a negative impact in some general way to

society.




                           [J-68A-2016 and J-68B-2016] - 57
       Additionally, various federal and state courts have augmented these core

considerations with attention on the property owner’s culpability. See, e.g., Ferro, 681

F.3d at 1116; von Hofe, 492 F.3d at 188-89; People v. 2010 Harley-Davidson, 64

N.E.3d 716 (Ill. App. 2016), appeal granted, 2017 Ill. LEXIS 199 (Jan. 25, 2017). Thus,

we turn to the propriety of consideration of the property owner’s culpability.

       As detailed above, the Commonwealth contends that, under the Excessive Fines

Clause, a civil in rem forfeiture does not require criminal culpability, but rests upon the

idea that the owner has been negligent in allowing his or her property to be misused,

and is being punished for such negligence. In this view, where the property owner has

done all that he or she can reasonably do to prevent the use of the property for criminal

purposes, forfeiture is impermissible.       Forfeiture thus serves as an incentive to

responsibly manage one’s property. Further, the Commonwealth offers that the owner’s

culpability is accounted for under the Forfeiture Act’s innocent owner defense, which, as

discussed more fully below, exempts from forfeiture property which the property owner

did not know was being used illegally, or did not consent to being so used. 42 Pa.C.S.

§ 6802(j). According to the Commonwealth, it would be duplicative to make relative

culpability a factor in a gross disproportionality test where it is a defense in a statutory in

rem proceeding.

       As noted, the Supreme Court’s decision in Bajakajian arose from a criminal in

personam forfeiture in which the property owner was charged with the underlying crime.

Thus, the culpability of the property owner was established.             Indeed, a criminal

conviction is a prerequisite for an in personam forfeiture. Bajakajian, 524 U.S. at 328.

By contrast, neither the commencement of criminal proceedings nor a conviction is

required for a civil in rem forfeiture.    Nevertheless, the Excessive Fines Clause is

implicated because forfeiture is viewed, at least in part, as punishment. That is, the




                             [J-68A-2016 and J-68B-2016] - 58
government is seeking to punish the property owner for criminal conduct he or she

allowed to transpire in or with the property. Austin, 509 U.S. at 622; von Hofe, 492 F.3d

at 185. Therefore, we find the degree to which the property owner allowed the property

to be employed in criminal activity — i.e., his or her culpability — to be a factor

concerning whether the forfeiture of the owner’s property is grossly disproportional. 30 In

this regard, we conclude appropriate considerations are: whether the owner was

negligent or reckless in allowing the illegal use of the property, and whether the owner

was directly involved in the illegal activity and to what extent. See Real Property at 633

East 640 North, Orem, Utah, 994 P.2d at 1259.

       As poignantly offered by Justice Anthony Kennedy in his concurring opinion in

Austin, “[a]t some point, we may have to confront the constitutional question whether

forfeiture is permitted when the owner has committed no wrong of any sort, intentional

or negligent. That for me would raise a serious question.” Austin, 509 U.S. at 629

(Kennedy, J., concurring); see also id. at 617. While a forfeiture may be especially

troubling for a completely innocent property owner, contrary to the Commonwealth’s

assertions, the degree of culpability is significant even if the trial court determines that

the property owner did not satisfy a statutory innocent owner defense. Constitutional

protections are independent from statutory safeguards. Indeed, the legislature’s desire

to protect an innocent property owner is not necessarily co-extensive with the

constitution’s protection against excessive sanctions. As a constitutional matter, we find

that assessing the gravity of the offense includes a determination of the degree of


30
   See Ferro, 681 F.3d at 1115 (“Where, as here, the person who committed the sole
crime charged which gave rise to forfeitability is not the property’s owner, the culpability
of the owner must be considered in the analysis. We must remember that [the property
owner] was not charged with any crime, much less a crime which in some way enabled
or caused [the offender’s] crime.”).



                            [J-68A-2016 and J-68B-2016] - 59
knowledge of a property owner.        Even a property owner, while not wholly without

knowledge or granting consent, may lack full knowledge of criminal activity, or may bear

only nominal or token blame for the illegal conduct serving as the foundation for the

forfeiture.



       c. Summary

       In conclusion, we hold that, for purposes of an Excessive Fines Clause challenge

to a civil in rem forfeiture, a court must first assess whether the property sought to be

forfeited is an instrumentality of the underlying offense. If the property is not found to be

an instrumentality of the criminal conduct, the inquiry is dispositive and ends, and the

forfeiture is unconstitutional. If the property is an instrumentality, the inquiry continues

to the proportionality prong and an assessment of whether the value of the property

sought to be forfeited is grossly disproportional to the gravity of the underlying offense.

If it is grossly disproportional, the forfeiture is unconstitutional. As discussed in detail

above, and summarized below, we find various factors to be relevant in resolving an

excessive fines challenge to a civil in rem forfeiture. We caution, however that these

factors are not meant to be exhaustive, and that additional factors, when relevant, may

be considered by a court, depending upon the particular circumstances at issue.

       In making the instrumentality determination, a court should consider, inter alia:

       (1) whether the property was uniquely important to the success of the
       illegal activity;
       (2) whether the use of the property was deliberate and planned or was
       merely incidental and fortuitous to the illegal enterprise;
       (3) whether the illegal use of the property was an isolated event or
       repeated;
       (4) whether the purpose of acquiring, maintaining or using the property
       was to carry out the offense;




                            [J-68A-2016 and J-68B-2016] - 60
      (5) whether the illegal use of the property was extensive spatially and/or
      temporally; and
      (6) whether the property is divisible with respect to the subject of forfeiture,
      allowing forfeiture of only that discrete property which has a significant
      relationship to the underlying offense.

The factors, among others, to be considered in assessing the value of the property are:

      (1) the fair market value of the property;
      (2) the subjective value of the property taking into account whether the
      property is a family residence or if the property is essential to the owner’s
      livelihood;
      (3) the harm forfeiture would bring to the owner or innocent third parties;
      and
      (4) whether the forfeiture would deprive the property owner of his or her
      livelihood.

The factors to be considered in gauging the gravity of the offense include:

      (1) the nature of the underlying offense;
      (2) the relation of the violation of the offense to any other illegal activity
      and whether the offender fit into the class of persons for whom the offense
      was designed should be considered;
      (3) the maximum authorized penalty as compared to the actual penalty
      imposed upon the criminal offender;
      (4) the regularity of the criminal conduct — whether the illegal acts were
      isolated or frequent, constituting a pattern of misbehavior;
      (5) the actual harm resulting from the crime charged, beyond a
      generalized harm to society; and
      (6) the culpability of the property owner.

      In this case, the trial court considered the three factors set forth in Bajakajian, as

discussed above, but, in doing so, first compared the maximum penalty allowable for

possession with intent to distribute, Graham’s offense, as well as other maximum

penalties for crimes which Graham could have been convicted, with the fair market

value of the property. The court further opined that, for several years, Graham had sold

drugs from the property and that his behavior put his neighbors, and police officers



                           [J-68A-2016 and J-68B-2016] - 61
investigating and serving search warrants, “in harm’s way.”           Trial Court Opinion,

4/3/2013, at 14. Thus, the court concluded, based upon these considerations which we

now find to be flawed, that the forfeited property was not grossly disproportionate to the

gravity of the offense. As the trial court did not have the benefit of our explication of the

proper proportionality assessment, we remand the matter to the Commonwealth Court,

for remand to the trial court, for reconsideration of Appellee’s Excessive Fines Clause

challenge in light of our opinion.31



                                  B. Innocent Owner Defense

       We also granted allocatur to consider the statutory question of whether the

Commonwealth Court erroneously interpreted the innocent owner defense and

improperly reweighed the evidence as found by the trial court.            In assessing our

standard of review over this question, we note that it concerns examination of the

findings of fact made by the trial court to determine if they are supported by the

substantial competent evidence, and whether the trial court abused its discretion or

committed an error of law. Commonwealth v. 605 University Drive, 104 A.3d 411, 420

(Pa. 2014). This issue also involves, in part, a question of statutory construction, for

which our standard of review is de novo, and our scope of review is plenary. See 5444

Spruce Street, 832 A.2d at 398.         Finally, forfeiture statutes are subject to strict

construction. Commonwealth v. $6,425.00 Seized From Richard Esquilin, 880 A.2d

523, 529 n.6 (Pa. 2005).




31
   Of course, if the court, however, first determines that Appellee met her burden of
proving her “innocent owner defense,” discussed below, then the court would have no
reason to reach the merits of her constitutional challenge.



                             [J-68A-2016 and J-68B-2016] - 62
         As noted above, the Forfeiture Act allows the Commonwealth to petition to seize

an owner’s property by meeting certain requirements. The Commonwealth has the

initial burden of demonstrating that there is a “sufficient or substantial nexus between

the property and the prohibited activity,” and, thereafter, the burden shifts to the

property owner to demonstrate that he or she did not know of the conduct giving rise to

the forfeiture; or that the unlawful use or possession of the property was without his or

her consent. Commonwealth v. $2,523.48 U.S. Currency, 649 A.2d 658, 659-60 (Pa.

1994); 42 Pa.C.S. § 6802(j).32 This safeguard, known as the “innocent owner defense,”

serves as a “means of protecting a property owner from the harsh result of forfeiture

because of illegal drug use to which the owner did not consent.” 649 A.2d at 661.

         With this enactment, modern forfeiture law departed from traditional forfeiture, as

historically, “an owner’s interest in property [could] be forfeited by reason of the use to

which the property is put even though the owner did not know that it was to be put to

32
     42 Pa.C.S. § 6802(j) provides:
                Owner’s burden of proof.—At the time of the hearing, if the
                Commonwealth produces evidence that the property in
                question was unlawfully used, possessed or otherwise
                subject to forfeiture under section 6801(a) or 6801.1(a), the
                burden shall be upon the claimant to show:
                (1) That the claimant is the owner of the property or the
                holder of a chattel mortgage or contract of conditional sale
                thereon.
                (2) That the claimant lawfully acquired the property.
                (3) That it was not unlawfully used or possessed by him. In
                the event that it shall appear that the property was unlawfully
                used or possessed by a person other than the claimant, then
                the claimant shall show that the unlawful use or possession
                was without his knowledge or consent. Such absence of
                knowledge or consent must be reasonable under the
                circumstances presented.



                             [J-68A-2016 and J-68B-2016] - 63
such use.” Bennis v. Michigan, 516 U.S. 442, 446 (1996). The innocent owner defense

reflects a balance between effective forfeiture laws and their laudable impact on illegal

trade, and the protection of an innocent owner. $2,523.48 U.S. Currency, 649 A.2d at

661. Yet, because forfeiture proceedings are burdensome upon the property owner,

many of whom are unrepresented by counsel, these statutes are to be strictly construed

against forfeiture. Id. at 630.

       In addressing Appellee’s claim that the trial court erred in rejecting her innocent

owner defense, the Commonwealth Court found that the trial court erred in its analysis

as it did not consider all the circumstances surrounding Appellee’s actions. Id. at 867-

70.   Thus, the Commonwealth Court remanded the matter to the trial court for

consideration of these circumstances. In particular, the Commonwealth Court focused

upon Appellee’s contention that she did not have knowledge of or give her consent to

the criminal activity which served as the basis for the government’s forfeiture of her

house and vehicle.     Specifically, the Commonwealth Court found that, because the

police officers informed Appellee that her son was selling marijuana from her house and

provided her with a search warrant, she acquired knowledge of the illegal activities.

However, the court first reasoned that Appellee was not required to believe the police

allegations regarding her son when they executed their search warrant at Appellee’s

house, and that the trial court made no reference to specific allegations contained in the

search warrant.    Ultimately, the Commonwealth Court concluded that the trial court

failed to consider all of the circumstances surrounding Appellee’s actions, or lack of

action, in determining knowledge and consent to the underlying criminal activity, and

whether Appellee’s actions were reasonable. Elaborating, the Commonwealth Court

determined that it was not necessarily reasonable, as proffered by the Commonwealth,

for a parent to evict a child, even an adult child, in order to show a lack of consent to the




                             [J-68A-2016 and J-68B-2016] - 64
child’s illegal activities.   Related thereto, the court rejected the Commonwealth’s

assertion that Appellee should have invited the police to her residence, as a property

owner does not have to become a de facto police officer to establish a lack of consent.

Thus, finding it not enough for a court to dismiss an innocent owner defense by simply

disbelieving the property owner, the Commonwealth Court instructed the trial court, on

remand, to identify the circumstances justifying a reasonable inference that the property

owner had actual knowledge of and consented to the criminal activities underlying the

forfeiture.

       The Commonwealth contends that the Commonwealth Court rewrote the

innocent owner defense by creating a per se rule that an owner-parent never has to

evict an adult child, which the Commonwealth contends is contrary to the statute’s case-

by-case consideration of what is reasonable under the circumstances.33                The

Commonwealth offers that it has the initial burden of proving a nexus between the

property and the illegal activity, and, here, Appellee’s house and vehicle were used to

facilitate the sale of illegal drugs, as marijuana was regularly sold from the house and

the vehicle was used to store drugs. The burden of proof then shifted to Appellee to


33
   The Attorney General, as amicus in support of the Commonwealth, offers that the
Commonwealth Court’s decision will result in “the impairment of the Commonwealth’s
ability to prevail in any forfeiture matter where an innocent owner defense is pursued.”
Attorney General’s Brief at 8-9. The Attorney General further contends that, although
the burden is on the property owner to establish that he or she did not have knowledge
or give consent to use the property in an illegal manner, the Commonwealth Court,
required the trial court to identify circumstances that made it reasonable to infer that
Appellee had actual knowledge and did not consent to the use of the property for illegal
conduct. This, according to the Attorney General, impermissibly shifts the burden to the
Commonwealth to demonstrate that the property owner had knowledge of illegal
activity. Thus, the Attorney General avers that, contrary to legislative intent, under the
Commonwealth Court’s decision, the Commonwealth must now not only establish a
nexus between the illegal activity and the property at issue, but also is required to
essentially disprove an innocent owner defense.



                              [J-68A-2016 and J-68B-2016] - 65
prove an affirmative defense and to persuade the fact finder that she did not know about

the illegal drug trade on her property or did not consent to it, and that her lack of

knowledge or consent was reasonable under the circumstances. 42 Pa.C.S. § 6802(j).

Here, the Commonwealth offers that Appellee claimed that she did not know about the

sale of drugs, but the court disbelieved that assertion based upon the warnings offered

by police. According to the Commonwealth, the Commonwealth Court, in rejecting the

trial court’s ability to simply find Appellee’s testimony to be incredible as a basis to

dismiss Appellee’s innocent owner defense, improperly reversed the burden of proof by

placing the burden on the Commonwealth to establish by affirmative evidence the lack

of an innocent owner defense. Rather, the Commonwealth submits that the burden to

establish an innocent owner defense is on the property owner, that incredible testimony

does not establish an affirmative defense, and that the trial court was within its authority

to make a negative credibility finding to reject that defense.

       The Commonwealth maintains that Appellee’s action was akin to claiming that

the verdict was against the weight of the evidence, a conclusion that is only appropriate

when the verdict is so contrary to the evidence as to shock one’s sense of justice. As

the trial court’s ruling was consistent with the record evidence, and testimony was

presented that police informed Appellee that her son was selling illegal drugs from the

premises, the Commonwealth contends Appellee was required to establish that she

expressed a lack of consent to selling the drugs, and that she failed to do so. Further,

the Commonwealth accuses the lower court of creating a per se rule that a parent is

never required to evict a drug dealing child, and submits that Appellee’s innocent owner

defense failed because she knew of the drug dealing and yet failed to take any action to

stop it. While in some circumstances eviction could be an appropriate expectation, the

Commonwealth offers that it was unreasonable for Appellee to do nothing, and the




                            [J-68A-2016 and J-68B-2016] - 66
Forfeiture Act requires a property owner who knows of drug dealing to do all he or she

reasonably can under the circumstances.       Ultimately, the Commonwealth maintains

that, because it was Appellee’s obligation to establish that her lack of knowledge or

consent was reasonable under the circumstances, the trial court’s rejection of

Appellee’s affirmative defense was proper.

      Appellee counters that the trial court erred when it required her to establish both

her lack of knowledge and lack of consent to the unlawful use of her property, as the

Forfeiture Act requires that a property owner establish either a lack of knowledge or a

lack of consent to the unlawful use of the property. 42 Pa.C.S. § 6802(j). Specifically,

Appellee highlights what she considers to be an inadequate review of her innocent

owner defense, as the trial court rejected it based on the Commonwealth’s establishing

that “Ms. Young either knew of or consented to her son’s illegal activities on the subject

properties.” Trial Court Opinion, 4/3/2013, at 14. According to Appellee, this distorts

the statutory requirements for the innocent owner defense, as it is unclear whether the

trial court’s resolution of that defense included whether she consented to her son using

her property to sell drugs and her knowledge of the sale of drugs. Appellee proffers that

evidence which establishes knowledge does not automatically establish consent, citing

$2,523.48 U.S. Currency, 649 A.2d at 661.

      Appellee maintains that, with respect to her knowledge of her son selling drugs

from her property, and whether her actions were reasonable, the Commonwealth Court

properly remanded with instructions that all of the circumstances be considered. She

asserts that these circumstances include: Appellee’s testimony that she was on bedrest

during the relevant time period; that the police did not arrest Appellee’s son Graham

after their November search which could have impacted whether Appellee actually

believed Graham was selling drugs; that the police did not show her evidence




                           [J-68A-2016 and J-68B-2016] - 67
implicating her son, despite promises to do so; the lack of drugs or drug paraphernalia

in plain view in Appellee’s home or vehicle; neighbor testimony that there was no

indication of drug activity at her home; and Appellee’s prior experience with her son.

Appellee offers that, when multiple sources supported her testimony that she did not

know her son was selling drugs from her home, the trial court erred by rejecting just one

of those sources in reaching its conclusion that she did have such knowledge.

      Finally, Appellee offers that she did not consent to her son selling drugs from her

property. Citing $2,523.48 U.S. Currency, Appellee contends that the innocent owner

defense does not require that a property owner take any affirmative steps to stop the

illegal use of the owner’s property, id. at 660, and that our Court expressly rejected any

suggestion that a property owner must do everything possible to prove a lack of

consent; rather, the standard is one of reasonableness, and what is reasonable for one

property owner may not be reasonable for another. Id. at 558-59. Appellee presses

that the trial court rejected her innocent owner defense based on its finding that she did

not either force her son to move out, or vacate the property herself. Yet, according to

Appellee, the trial court failed to consider whether either option was reasonable, ignored

her testimony that she feared inviting the police back into her home after their

November encounter, and did not address what steps she did take, including ejecting

her son from her home when he was a teenager, asking the police for evidence of his

drug dealings, and confronting him about the November investigation. Thus, Appellee

counters that, rather than the Commonwealth Court creating a per se rule that a parent

is never required to evict an adult child from her home, as asserted by the

Commonwealth, the Commonwealth Court here merely followed our Court’s prior

precedent that a trial court must consider all the circumstances in determining whether it




                           [J-68A-2016 and J-68B-2016] - 68
was reasonable for a parent to evict a child to demonstrate non-consent to the use of

his or her property for the illegal sale of drugs.

       In $2,523.48 U.S. Currency, we construed the innocent owner defense provision,

indicating: “what is reasonable for one property owner may not be reasonable for

another. All of the circumstances surrounding the property owner’s actions, or lack of

action, must be considered in determining if they were reasonable.” Id. at 662. On

review, we find that the trial court did not consider all of the relevant circumstances in

this matter.

       First, we reject the Commonwealth’s assertion that the Commonwealth Court

promulgated a per se rule that a property owner never is required to evict an adult child

from his or her property; rather, we view its decision as requiring this possibility, along

with all other circumstances, be considered in determining whether a property owner

knows of, or consents to, the underlying illegal activities supporting the forfeiture. The

Commonwealth Court did not foreclose the possibility that a property owner may be

required to evict an adult child from a residence in order to satisfy the lack-of-consent

aspect of the innocent owner defense.

       Second, we find that, based upon the plain statutory language of the innocent

owner defense, the Forfeiture Act requires that a property owner establish either a lack

of knowledge or a lack of consent to the unlawful use of the property. 42 Pa.C.S.

§ 6802(j) (“In the event that it shall appear that the property was unlawfully used or

possessed by a person other than the claimant, then the claimant shall show that the

unlawful use or possession was without his knowledge or consent. Such absence of

knowledge or consent must be reasonable under the circumstances.”). Thus, in its

analysis, a trial court must, as relevant, speak to both the knowledge of the property

owner, and his or her consent (if placed at issue by the owner, and the court finds




                             [J-68A-2016 and J-68B-2016] - 69
knowledge). Knowledge does not establish consent. Here, we find that the trial court

seemingly blurred the two independent considerations, and, on remand, should engage

in an independent analysis of Appellee’s knowledge and consent.

      Related thereto, we conclude the Commonwealth Court did not err when it

determined a trial court, when evaluating the sufficiency of the evidence to support an

innocent owner defense, must consider all the evidence and “identify the circumstances

that make it reasonable to infer that the property owner had actual knowledge and did

consent to the violation of the Drug Act.” 1997 Chevrolet, 106 A.3d at 870. This

assessment must recognize the difficult burden on a property owner to establish a

negative — that he or she had no knowledge or gave no consent. Indeed, courts have

generally recognized the inherent difficulties in meeting this burden.               See

Commonwealth v. DeHart, 516 A.2d 656, 668 (Pa. 1986) (noting the virtually impossible

burden of establishing a negative); United States v. Wilgus, 638 F.3d 1274, 1288-89

(10th Cir. 2011) (recognizing “inherently difficult” task of proving a negative); United

States v. Ollie, 442 F.3d 1135, 1143 (8th Cir. 2006) (offering that the “law generally

frowns on requiring a party to prove a negative”). Compounding this difficulty is that

property owners may face forfeiture proceedings without the assistance of counsel,

inasmuch, as noted above, there is no constitutional right to counsel in such

proceedings.

      Finally, we mandate this rigorous consideration of all the circumstances because,

as in this case, a property owner’s residence may be the subject of the civil forfeiture.

In Pennsylvania, as elsewhere, the home is an especially significant type of property.

The loss of one’s home, regardless of its monetary value, not only impacts the owner,

but may impact other family members, and one’s livelihood. Indeed, the home is where

one expects the greatest freedom from governmental intrusion; it not only occupies a




                           [J-68A-2016 and J-68B-2016] - 70
special place in our law, but the most exacting process is demanded before the

government may seize it.

      Turning to the matter before us, while the trial court generally offered that “the

record in no way supports [the] contention” that Appellee lacked knowledge of the illegal

activities in her home, and noted that the search warrant offered to Appellee informed

her of her son’s illegal activities, we find that the court did not engage in the probing

inquiry necessary before coming to a full and reasoned conclusion. Trial Court Opinion,

4/3/2013, at 11. As noted by the Commonwealth, various parts of the record were not

considered, or at least addressed, by the trial court. Specifically, the court did not

address Appellee’s past dealings with her son when she discovered drug usage; her

contention that she did not see any drugs in her home or van; her explanation that she

only allowed her son to return home due to her belief that he had stopped using illegal

drugs; her assertions that, if she had found drugs in her home, she would have evicted

her son; that no neighbors or the block captain reported knowledge of drug dealing from

the home or problems with Appellee’s son; that she requested from police some proof

that her son was selling drugs, but that no proof was ever proffered; and the failure of

the police to arrest her son after executing a search warrant on the home in November

2009. All of these circumstances should have been accounted for and considered by

the trial court in rendering its decision. Furthermore, the prospect of evicting Appellee’s

son needed to be contemplated in the context of an elderly widow with serious health

challenges who relied upon her son for living assistance. The trial court should have

considered what was reasonable under these circumstances. See United States v.

6625 Zumirez Drive, Malibu, California, 845 F.Supp. 725, 736 (C.D. Cal. 1994)

(“Parents should [not] be shielded from the forfeiture laws; rather, it means that the




                           [J-68A-2016 and J-68B-2016] - 71
Court considers the relationship between the parties in evaluating the gravity of the

landowner’s conduct.”).

      Ultimately, we agree with the Commonwealth Court that it is not enough to simply

reject the testimony of the property owner if there is other evidence of record as well.

Instead, especially in this area of the law, we hold that the trial court must faithfully

identify the circumstances that make it reasonable to infer that the property owner had

actual knowledge of the illegal use of the property or consented to the underlying

criminal activity. 1997 Chevrolet, 106 A.3d at 870.     We have indicated that, in this

area, exacting review is required. See $6,425.00 Seized From Richard Esquilin, 880

A.2d at 535 (“The trial court found appellee’s evidence unpersuasive, carefully

explaining its reasons for discounting the varied claims.” (emphasis added)). In sum, the

trial court must consider all of the circumstances before rejecting an innocent owner

defense.34   Therefore, we affirm the Commonwealth Court’s order, remanding the

matter to the trial court, for consideration of all of the relevant circumstances in

evaluating Appellee’s evidence proffered in support of her innocent owner defense.



                                    III. Conclusion

      Thus, for all of the above reasons, we affirm the order of the Commonwealth

Court, which remanded the matter to the trial court, for further proceedings, but

consistent with our decision.

      Jurisdiction relinquished.


34
  In requiring such review, we are not upsetting the statutory burdens of proof found in
the Forfeiture Act as asserted by the Commonwealth. Rather, we are mandating
compliance with that statute and our case law, and ensuring that innocent property
owners are not dispossessed of what may be essential possessions — even though not
convicted of or even charged with a crime — without rigorous scrutiny by the courts.



                           [J-68A-2016 and J-68B-2016] - 72
      Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Wecht join the

opinion.




                         [J-68A-2016 and J-68B-2016] - 73
