Cite as State v. McLoud, No. 97-E-207, (Superior Court, N.H., February 6, 1998) THE STATE OF NEW HAMPSHIRE BELKNAP, SS. SUPERIOR COURT The State of New Hampshire v. James McLoud No. 97-E-207 ORDER ON STATE'S PETITION FOR FORFEITURE AND RESPONDENT'S MOTION TO DISMISS The State petitions this Court to order the respondent, James McLoud, to forfeit his Thompson Center Contender Handgun ("handgun" or "weapon"), as currently configured, and to allow the law enforcement division of the New Hampshire Fish and Game Department to retain possession of the weapon. The respondent objects to forfeiture and moves to dismiss the petition. In support thereof the respondent contends that the Court lacks jurisdiction to order forfeiture of the weapon. The respondent also contends that the weapon, presently in the possession of the Fish and Game Department, should be returned to him because the weapon and/or its corresponding parts do not constitute contraband. After a final hearing, the Court GRANTS the State's petition for forfeiture, in part, and DENIES the respondent's motion for dismissal. On November 14, 1996, officers of the Fish and Game Department arrested the respondent, charging him with illegal night hunting and use of a silenced weapon. The weapon allegedly used by the respondent for these illegal purposes was not recovered at the time of his arrest. The officers subsequently searched for the weapon at the home of an uncle with whom the respondent was visiting. As a result of their search, the officers seized the weapon at issue. The weapon had been modified by the respondent, a licensed manufacturer of firearms, in the following respects. First, the respondent removed the sights from the weapon and fitted it - 2 - with a device to lessen the sound of its discharge. The sound lessening device had an independent sight. Second, the respondent fitted the weapon with a night scope. The night scope provided a second sight for the weapon. Finally, the defendant fitted the weapon with a bipod support. On October 17, 1997, the Laconia District Court tried the respondent on the aforementioned charges. During the trial, the respondent moved to suppress evidence of the weapon, asserting that the Fish and Game Department had unconstitutionally seized it. The district court (Huot, J.) agreed with the respondent's assertion and suppressed the evidence. The respondent then successfully moved to dismiss all charges against him. However, the Fish and Game Department retained possession of the weapon and continues to hold it today. The State now petitions this Court to order the respondent to forfeit the weapon. In support of its petition, the State argues that the Fish and Game Department should retain possession of the weapon because it is contraband and cannot be legally possessed by the respondent. Alternatively, the State cites RSA 595-A:6 and RSA 617:2 in support of its petition for forfeiture. Although the respondent acknowledges that he would be required to forfeit the weapon if it constituted contraband, he disputes the contraband characterization. In addition the respondent asserts that a jury should make such a determination. Finally, the respondent contends that the Court lacks authority to order forfeiture under the statutes cited by the State. As a preliminary matter, the Court observes that the respondent is not entitled to a jury trial on the issue of whether the weapon constitutes contraband, contrary to RSA 207:4. The general provisions of the Fish and Game Department authorize the Court to make this determination. See RSA 207.4 and 207:46. The same provisions authorize the Court to order - 3 - forfeiture upon finding that a weapon constitutes contraband. See RSA 207:46. Specifically, the statute provides that "[a]ny person who violates the provisions of RSA 207:4 shall be guilty of a misdemeanor and shall forfeit such firearms and silencing devices." Id. (emphasis added). The use of the word "and" in RSA 207:46 manifests an intent to allow court ordered forfeiture of contraband even though possession of the same did not result in a criminal conviction by a jury. This interpretation of RSA 207:46 is consistent with a reading of RSA 207 et seq as a whole. See Appeal of Mascoma Valley Reg. School Dist., 141 N.H. 98, 100 (1996) (applying rules of statutory construction). As is evidenced by RSA 207:10, the legislature knew how to draft language requiring a criminal conviction prior to forfeiture of contraband. See RSA 207:10 (statute expressly requires a conviction for illegal night hunting prior to forfeiture). The legislature chose not to include such language here. Indeed, the Court's interpretation prevents the type of absurd result that would he reached with a contrary reading of the statute. See State v. Kay, 115 N.H. 696, 698 (1975). In essence, such a reading would require the State to risk the safety and welfare of the public by: (1) returning contraband in its possession to the owner; (2) arresting the owner for his/her possession of same; (3) seizing the contraband, again; (4) charging the owner with illegal possession of same, and (5) convicting him/her prior to pursuing forfeiture proceedings. Even assuming arguendo, the general provisions of the Fish and Game Department do not authorize the Court to order forfeiture absent a criminal conviction, the Court has broad equitable powers with which to order a forfeiture in this case. See RSA 498:1 (defining equitable powers of the superior court). The Court's broad grant of equitable power is not withdrawn simply because factual issues may arise in the exercise of such power. Keshishian v. CMC - 4 - Radiologists, 141 N.H. 168, 179 (1997) (trial judge may act as trier of fact when issue is equitable in nature). Having resolved this preliminary matter, the Court turns to the substantive issue of whether the weapon constitutes contraband. RSA 207:4 guides the Court's analysis in this regard. The statute prohibits the possession of "any gun, pistol, or other firearm fitted or contrived with any silencer or device for deadening the sound of the explosion", RSA 207:4. Thus, in the present case, to the extent that the respondent's weapon is fitted with a silencer or a sound deadening device, the weapon constitutes contraband. RSA 207:4 does not define the term "silencer" or the phrase "device for deadening sound." The Court must therefore look to the plain meaning of the language. Appeal of Mascoma Valley Reg. School Dist., 141 N.H. at 100. In so doing, the Court strives to apply the statute consistent with legislative intent and consistent with the policies sought to be advanced by the statutory scheme. Id. The term "silencer" commonly means, "a device for deadening the report of a firearm." RANDOM HOUSE UNABRIDGED DICTIONARY 1780 (2d ed. 1993). A device used to "deaden" the report of a firearm or a "device for deadening sound" commonly means that which makes sound "less sensitive, active, energetic, or forcible; [to] weaken [the sound]." Id at 511. Thus, to the extent that the respondent's weapon is fitted with a device to weaken the sound of the explosion, the weapon constitutes contraband. Here, the respondent acknowledged at the final hearing that the device on his weapon serves the purpose of reducing the sound of the weapon's explosion. In fact, the respondent himself referred to the device as a sound "suppressor." By this acknowledgment, the respondent essentially admits that the weapon, as contrived, is contraband. The Court agrees with the - 5 - respondent's characterization. Because the Court finds that the respondent's weapon constitutes contraband, contrary to RSA 207:4, the Court concludes that it must take action to prevent the respondent from regaining possession of the weapon. The Court's conclusion is consistent with what the parties' agree is the likely legislative intent off RSA 207:4--to prevent hunters from escaping detection by the Fish and Game Department. The Court's finding, is also consistent with the policies sought to be advanced by the general provisions--"to protect, propagate[,] and preserve the fish, game[,] and wildlife resources of the state." RSA 206:10 (powers and duties of Fish and Game Commission) The Court shall therefore turn to the forfeiture procedure of RSA 207:46. As stated above, RSA 207:46, II authorizes forfeiture of weapons which are contrived with devices to deaden sound, contrary to RSA 207:4. The extent of forfeiture under this provision is limited by the extent to which the weapon constitutes contraband; namely, the weapon and the device used to deaden sound. Here, the weapon subject to forfeiture consists of a handgun, a sound deadening device, and a night scope. Contrary to the respondent's contention at the final hearing the weapon cannot be broken down into its component parts, except for the bipod support. The respondent intentionally integrated the device used to deaden sound and the night scope with the handgun, creating one weapon. Given the removal of the manufactured sights, the firearm cannot be aimed without the night scope, thus, the handgun is not operational without the "component parts." Accordingly, the State's Petition for Forfeiture or Request for Order Pursuant to RSA 595:A-6 is GRANTED to the extent the State seeks forfeiture of the handgun, the device used for deadening its sound, and the night scope. However, the State's Petition for Forfeiture or Request -6- for Order Pursuant to RSA 595:A-6 is DENIED to the extent the State seeks forfeiture of the bipod support. The respondent's Motion to Dismiss is DENIED. Consistent with the Court's ruling, the State is ORDERED to return the bipod support to the respondent within ten (10) days of this Order. So ORDERED. Date: February 6, 1998 [signed] LARRY M. SMUKLER PRESIDING JUSTICE