by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

FORFEITURE; "INNOCENT OWNER" DEFENSE: In order for real property to be subject to forfeiture uner state Forfeiture Act, the owner must have knowledge of drug activity at the property and consent to such activity - mere "acquiescence" is not enough. Commonwealth v. $2,523.48 U.S. Currency, 949 A.2d 658 (Pa. 1994). The owner of a tavern had asserted the innocent owner defense in a forfeiture action by the Commonwealth. There was substantial evidence indicating that the owner was aware of illicit drug activity in the tavern and outside of it.

The trial court had found that, by failing to report or take steps to curtail the activity, the owner had acquiesced in it and given his consent. Therefore, the trial court said, the tavern owner had failed to support his claim that he was entitled to the protection of the innocent owner defense.

On appeal, the court held that the question of consent was subject to a reasonableness standard, to be applied in light of the surrounding circumstances. The court refused to require that the property owner become an adjunct to the law enforcement community, or that he endanger his life or the lives of others in preventing the illegal activity of third parties. The owner's actions to prevent illegal drug activity once he becomes aware of it must only be reasonable considering the circumstances. Evidence merely establishing knowledge of illegal drug activity does not in and of itself automatically establish consent.

Comment: This is potentially a very important decision. Landowners of properties in high crime areas frequently have information concerning criminal activity, but are concerned that if they confront that activity directly they are risking at least the security of their property and possibly life and limb. This is particularly true of resident managers of apartment houses. If it would be physically dangerous for the manager to try to evict or control the criminals, this case may stand for the proposition that there will be no forfeiture. If that is so, it is a salutary and long overdue development.

It would be wonderful if every owner's manager scrupulously reported every crime promptly to the police. But there are a million reasons, good bad and indifferent, as to why this does not occur. It seems inappropriate for the owner to stand the risk of loss of the entire property over the manager's inaction in such cases, so long as the manager is not actually contributing to, supporting, or actually consenting to the criminal enterprise.

Note that this is a state court case and does not necessarily reflect the federal standard.

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