445 F.2d 1064 (3rd Cir. 1971), 17363, United States v. 1964 Ford Thunderbird, Motor and Serial No. 4Y85Z156657
|Docket Nº:||Civ. A. 17363.|
|Citation:||445 F.2d 1064|
|Party Name:||UNITED STATES of America v. 1964 FORD THUNDERBIRD, MOTOR AND SERIAL NUMBER 4Y85Z156657. Appeal of Webster BIVENS, Claimant.|
|Case Date:||June 25, 1971|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Argued Dec. 3, 1968.
[Copyrighted Material Omitted]
Norman Schulaner, Sachar, Sachar & Bernstein, Plainfield, N.J., for appellant.
Elliot Scher, Asst. U.S. Atty., Newark, N.J., for appellee.
Before HASTIE, Chief Judge, and KALODNER and VAN DUSEN, Circuit judges.
VAN DUSEN, Circuit Judge.
This is an appeal from an April 19, 1968, order of the United States District Court for the District of New Jersey decreeing the forfeiture of a 1964 Ford Thunderbird automobile, motor and serial number 4Y85Z156657, pursuant to 49 U.S.C. §§ 781-82 (1964), and dismissing a counterclaim for money damages. 1 49 U.S.C. § 781 (1964) provides in relevant part:
(a) It shall be unlawful (1) to transport * * * any contraband article in, upon, or by means of any * * * vehicle * * *; (2) to conceal or possess any contraband article in or upon any * * * vehicle * * *; or (3) to use any * * * vehicle * * * to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
(b) As used in this section, the term 'contraband article' means--
(1) any narcotic drug which has been or is possessed with intent to sell or offer for sale in violation of any laws or regulations of the United States dealing therewith; or which has been acquired or is possessed, sold, transferred or offered for sale, in violation of any laws of the United States dealing therewith; * * * or which does not bear appropriate tax-paid internal-revenue stamps as required by law or regulations. * * *
49 U.S.C. § 782 (1964) provides in relevant part:
Any * * * vehicle * * * which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited * * *.
On the evening of September 1, 1964, agents of the Federal Bureau of Narcotics and Dangerous Drugs were conducting a surveillance in New York City in the vicinity of Seventh Avenue and 135th Street as a part of a major narcotics investigation. One of the objects of the surveillance was one Webster Bivens, the appellant, who owned the automobile ordered forfeited in this case. The primary object of the surveillance was one Leroy Gaines, also known as Leroy Davis, who was thought to be a major narcotics violator in Harlem. The agents testified that they observed Bivens and Gaines converse on the sidewalk, and then get inside the automobile ordered forfeited, which was parked in the early morning hours of September 2 at the scene of the surveillance. According to the testimony, Gaines and an unidentified young lady got in the front seat, and Bivens got in the back seat. One of the agents, Agent Feldman, testified that Bivens and the automobile ordered forfeited were known to the agents conducting the surveillance, because on a prior occasion Bivens had made a sale of heroin from the automobile to one Agent Scott. The agents testified
that the automobile with its three occupants drove away from the scene of the surveillance, and was followed by the agents. An agent testified that the automobile ran through several red lights, made several U-turns, and travelled at inordinately fluctuating rates of speed in an area consisting of several blocks, and then returned to the scene of the original surveillance and stopped. Throughout much of this unusual trip, Bivens was observed peering out of the rear window of the automobile. Agent Feldman testified that he then observed Gaines lean over the back of the front seat, and 'touch hands' with Bivens. Gaines and the young lady then left the automobile, and Bivens got into the front seat of the automobile and drove off. Agent Feldman and other agents followed Bivens, who, according to the agents' testimony, drove the wrong way down one-way streets, speeded up the automobile to 'about eighty miles an hour,' and crossed the George Washington Bridge which leads into New Jersey 'at a speed of about ninety to one hundred miles per hour.' Once into New Jersey, the agents stopped the automobile, arrested Bivens, and searched the automobile. The search turned up two glassine envelopes of heroin, neither of which bore the federal tax stamps required by 26 U.S.C. §§ 4701, 4771(a)(1) (1964). 2 Since these packages of heroin did not bear the required federal tax stamps, they constituted contraband under 49 U.S.C.§ 781 (1964), supra. The forfeiture was predicated upon the presence of this contraband in the automobile, and ordered pursuant to 49 U.S.C. § 782 (1964), supra.
THE ARREST AND SEARCH
The agents did not have a warrant for the arrest of Bivens for a search of the automobile subsequently ordered forfeited. The Government argues, and the district court agreed, that the agents' testimony regarding the events of the early morning of September 2, combined with Agent Feldman's testimony that Bivens had on a prior occasion sold heroin from the automobile to one Agent Scott, establishes that the agents had probable cause to arrest Bivens without a warrant. It follows from this, the Government argues, that the arrest and search incident to the arrest were lawful. If the Government is correct about the existence of probable cause, it is correct that the arrest and search incident to the arrest were lawful, and that the evidence regarding the presence of heroin in the automobile was admissible in the forfeiture proceeding. Indeed, Bivens does not contend that the arrest and search would be unlawful, and the evidence regarding the heroin inadmissible, despite the existence of probable cause. Instead, Bivens contends that the Government did not successfully establish that the agents had probable cause to arrest him, that the arrest and search incident to the arrest were therefore unlawful, and that the evidence regarding the presence of heroin in the automobile was therefore inadmissible in the forfeiture proceedings.
In order to justify the arrest and search incident to the arrest, the Government must prove that its agents possessed sufficient information at the time of the arrest to support an independent
judgment that there was probable cause to believe that the federal narcotics laws were being or had been violated. 3 The determination of...
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