Section 8: Prosecution for illegal possession, etc.
Section 8. A deputy sheriff, chief of police, deputy chief of police, city marshal, deputy or assistant marshal, police officer, including a state police officer or a special police officer appointed under section twenty-six, or constable, or, in the county of Dukes or Nantucket, the sheriff anywhere within his county, may without a warrant arrest any person whom he finds in the act of illegally transporting, delivering or possessing cigarettes, which have not been returned and are not returnable under section sixteen of chapter sixty-two C, by a licensee, and seize the said cigarettes, the vending machines, receptacles, boxes or cartons in which the same are contained, hereinafter called the container or containers, in the possession of such person, any vehicle used in the illegal transportation of cigarettes and any records relating to the purchase and sale of cigarettes, and detain them until a warrant for the arrest of such person, and a warrant for the seizure of said cigarettes, vehicle, the container or containers and the records, can be procured. Such cigarettes, vehicle, the container or containers and the records shall be forfeited to the commonwealth and proceedings shall be had as provided hereinafter and in sections fifty to fifty-five, inclusive, of chapter one hundred and thirty-eight in the case of alcoholic beverages. Such officers shall enforce or cause to be enforced the penalties provided by law against every person who is guilty of a violation of any law relative to the possession of such cigarettes, vehicle and container or containers of which they can obtain reasonable proof.
If the commissioner, his authorized agents, or other police officers shall make complaint to a district court or trial justice, or to a justice of the peace authorized to issue warrants in criminal cases, that he has reason to believe and does believe that cigarettes, which have not been returned and are not returnable under section six, by a licensee, and which are described in the complaint, are kept or deposited by a person named therein in a store, shop, warehouse, building, vehicle, steamboat, vessel or place, such court or justice, if it appears that there is probable cause to believe said complaint to be true, shall issue a search warrant to an officer qualified to serve criminal process, commanding him to search the premises in which it is alleged that such cigarettes are kept or deposited, and to seize such cigarettes and vehicle, and the container or containers, and securely keep such cigarettes, vehicle, container or containers and the records until final action thereon, and to return the warrant with his doings thereon, as soon as may be, to a district court or trial justice having jurisdiction in the place in which such cigarettes, vehicle, container or containers and the records are alleged to be kept or deposited.
The complaint shall particularly designate the building, structure or other place to be searched, the cigarettes, vehicle, container or containers and the records to be seized, the person by whom they are owned, kept or possessed and shall allege that such cigarettes are illegally kept or possessed. The warrant shall allege that probable cause has been shown for the issuing thereof; and the place to be searched, the cigarettes, vehicle, container or containers and the records to be seized, and the person believed to be the owner, possessor or keeper of such cigarettes, vehicle, container or containers and the records, shall be designated therein with the same particularity as in the complaint and the complainant shall be summoned to appear as a witness.
The officer to whom the warrant is committed shall search the premises and seize the cigarettes, vehicle, container or containers and the records described in the warrant, if they are found in or upon said premises, and shall convey the same to some other place of security, where he shall keep the cigarettes, vehicle, container or containers and the records until final action is had thereon.
The court or trial justice before whom the warrant is returned shall, within forty-eight hours after the seizure thereunder of the cigarettes, vehicle, container or containers, and the records, issue a notice, under seal, and signed by the justice or the clerk of said court, or by the trial justice, commanding the person complained against as the keeper of the cigarettes, vehicle, container or containers and the records seized and all other persons who claim any interest therein to appear before said court or trial justice, at a time and place therein named, to answer to said complaint and show cause why such cigarettes, vehicle, container or containers and the records should not be forfeited.
The notice shall contain a description of the number and kind of container or containers, the quantity and kind of cigarettes, the vehicle and the records seized, as nearly as may be, and shall state when and where they were seized. It shall, not less than fourteen days before the time appointed for the trial, be served by a sheriff, deputy sheriff, constable or police officer upon the person charged with being the keeper thereof by leaving an attested copy thereof with him personally or at his usual place of abode, if he is an inhabitant of the commonwealth, and by posting an attested copy on the building in which the cigarettes, vehicle, container or containers and the records were seized, if they were found in a building; otherwise in a public place in the city or town in which they were seized.
At the time and place designated in the notice, the person complained against, or any person claiming an interest in the cigarettes, vehicle, container or containers and the records seized, or any part thereof, may appear and make his claim orally or in writing, and a record of his appearance and claim shall be made, and he shall be admitted as a party to the trial. Whether or not a claim as aforesaid is made, the court or trial justice shall proceed to try, hear and determine the allegations of such complaint, and whether said cigarettes, vehicle and container or containers, records or any part thereof, are forfeited. If it appears that the cigarettes, vehicle, container or containers and the records or any part thereof, were at the time of making the complaint owned or kept by the person alleged therein in violation of law, the court or trial justice shall render judgment that such and so much of the cigarettes so seized as were so unlawfully kept, and the vehicle, container or containers and the records, shall, except as hereinafter provided, be forfeited to the commonwealth.
If it is not proved on the trial that all or part of the cigarettes seized were kept contrary to law, the court or trial justice shall issue a written order to the officer having the same in custody to return so many thereof as were not proved to be so kept or deposited, the container or containers in which such cigarettes were contained, and the vehicle and the records seized, to the place as nearly as may be from which they were taken, or to deliver them to the person entitled to receive them. After executing such order, the officer shall return it to the court or trial justice with his doings endorsed thereon.
If no person appears and is admitted as a party as aforesaid, or if judgment is rendered in favor of all the claimants who appear, the cost of the proceedings shall be paid as in other criminal cases. If only one party appearing fails to sustain his claim, he shall pay all the costs except the expense of seizing and keeping the cigarettes, the container or containers, vehicle, and the records, and an execution shall be issued against him therefor. If judgment is rendered against two or more claimants of distinct interests in the cigarettes, container or containers, vehicle, or records, the costs shall, according to the discretion of the court or trial justice, be apportioned among such parties, and executions shall be issued against them severally. If any such execution is not forthwith paid, the defendant therein named shall be committed to jail, and shall not be discharged therefrom until he has paid the same and the costs of commitment, or until he has been imprisoned thirty days.
A claimant whose claim is not allowed as aforesaid, and the person complained against, shall each have the same right of appeal to the superior court as if he had been convicted of crime; but before his appeal is allowed he shall recognize to the commonwealth in the sum of two hundred dollars, with sufficient surety or sureties, to prosecute his appeal to the superior court and to abide the sentence of the court thereon. Upon such appeal, any question of fact shall be tried by a jury. On the judgment of the court after verdict, whether a forfeiture of the whole or any part of the cigarettes, container or containers, vehicle, and the records seized, or otherwise, similar proceedings shall be had as are directed in sections fifty to fifty-five, inclusive, of chapter one hundred and thirty-eight, except that the sale of any such property shall be conducted by the commissioner.