Request By:
Mr. E. D. Attkisson
General Counsel
Department of Mines and Minerals
P.O. Box 680
Lexington, Kentucky 40586
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: David K. Martin, Assistant Attorney General
In ancient English law, a deodand was any personal chattel which was the immediate occasion of the death of any reasonable creature. The value of the deodand was forfeited to the Crown to be applied to pious uses, and distributed in alms by the high almoner. To the superstitious basis for the rule of deodand Blackstone added "that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punishable by such forfeiture. "
Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S. Ct. 189, 65 L. Ed. 376 (1921). While the common law rule of deodand has been abolished in this country, many specific statutes are similar to the ancient doctrine in that they recognize that some forms of property are facilities to commit certain crimes, and therefore the legislative body interposes the care and responsibility of their owners in aid of the law by ascribing to the property a certain personality, a power of complicity and guilt in the wrong. Id., 254 U.S. 510. Thus, a procedure for forfeiture of property used in the commission of a crime is by its nature an action in rem against the offending article rather than an action in personam against the owner of the property.
14 Console Type Slot Machines v. Commonwealth, Ky., 273 S.W.2d 582 (1954).
Given the nature of forfeiture proceedings against instrumentalities of crimes as outlined above, it is difficult to conceive of any circumstance in which a search warrant would be required in order to seize equipment being used for the unlicensed mining of coal pursuant to Ky. Acts 1982, ch. 371. KRS 351.140(8) expressly authorizes mine inspectors to enter upon the premises of any coal or clay mine at any reasonable time. The purpose of the search warrant requirements of the state and feaeral constitutions is to protect against unreasonable invasions of privacy. It is highly unlikely that any reasonable expectation of privacy would be violated by the inspection of an unlicensed coal mine. KRS 351.177(3), effective July 15, 1982, authorizes members of the special task force for illegal mining to seize equipment being used for the purpose of illegal mining of coal. This new statute makes no mention of a warrant requirement prior to the actual seizure of the property, and there appears to be no reason to infer such a requirement. Actions in rem, which is what the law deems forfeiture actions to be, are normally instituted by seizure of the property. Moreover, the problem the new law was meant to address was wildcat mining, in which miners, equipment and coal often moved faster than the legal process meant to control such activity. A warrant requirement would cause delays which would permit equipment to be moved to escape forfeiture.
The only question posed by the seizure of equipment prior to any judicial determination of probable cause would be whether persons with a legal interest in the property could be deprived thereof prior to notice of the forfeiture and an opportunity to be heard on the question of forfeiture. Seizure of an instrumentality of a crime without prior notice to the true owner was approved of in
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974). In that case, a ship carrying marijuana was seized and forfeited to the Commonwealth of Puerto Rico without any actual notice to the owner of the vessel. The lessee of the vessel was given notice only after the seizure had occurred. The court in Calero-Toledo recognized that immediate seizure without notice is constitutionally permissible when the seizure is necessary to secure an important governmental or public interest and when there is a need for prompt action. As in Calero-Toledo, immediate seizure of mining equipment is necessary to institute in rem forfeiture proceedings, to prevent removal of the offending property from the reach of the law, and to prevent continued illicit use of the property.
Accordingly, there does not appear to be any constitutional bar to the immediate seizure of equipment used in unlicensed mining operations pursuant to KRS 151.177.