U.S. v. One Twin Engine Beech Airplane, FAA Reg. No. N-9826Z Serial No. AF-305

• Decision Date: 15 March 1976
• Docket Number: SERIAL,No. 74-3256,AF-305,N-9826,74-3256
• Citation: 533 F.2d 1106
• Parties: UNITED STATES of America, Plaintiff and Appellant, v. ONE TWIN ENGINE BEECH AIRPLANE, FAA REG. NO.NO., its inventory, equipment, tools, and accessories, Defendant, Sherman Marshall Ellison, Robert Nelson Paris, Claimants and Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1106

533 F.2d 1106

UNITED STATES of America, Plaintiff and Appellant, v. ONE TWIN ENGINE BEECH AIRPLANE, FAA REG. NO. N-9826Z, SERIAL NO. AF-305, its inventory, equipment, tools, and accessories, Defendant Sherman Marshall Ellison, Robert Nelson Paris, Claimants and Appellees.

No. 74-3256.

United States Court of Appeals Ninth Circuit.

March 15, 1976.

As Amended on Denial of Rehearing April 23, 1976.

Stephen J. Peterson, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellant.

Geoffrey Bogeaus (argued), of Ellison, Weitzman, Litwack & Chier, Beverly Hills, Cal., for claimants-appellees.

OPINION

Before GOODWIN and SNEED, Circuit Judges, and JAMESON, ^* District Judge.

PER CURIAM:

In this forfeiture proceeding, the government appeals the district court's holding that the government did not establish probable cause to believe that the subject airplane was used in a marijuana smuggling operation. We agree with the government, and reverse.

The initial proceeding was instituted under 19 U.S.C. § 1595a(a), which empowers the government to forfeit vehicles used to evade customs duties, and 21 U.S.C. § 881, which empowers the government to forfeit vehicles used to import controlled substances.

Unlike most civil and criminal proceedings, the burden of proof is on the "accused" owner or possessor, provided that the government first make a preliminary showing of probable cause to believe that the vehicle was used in the smuggling operation. 19 U.S.C. § 1615. The district court held that the evidence adduced by the government was insufficient to support a conclusion that such probable cause existed.

Our first question involves the standard of review for forfeiture cases. Fed.R.Civ.P. 52 compels us to affirm findings of fact unless clearly erroneous, and this circuit has extended that standard of review to factual inferences derived from basic facts. Collman v. Commissioner of Internal Revenue, 511 F.2d 1263, 1267 (9th Cir. 1975); Rivas v. Jefferson,412 F.2d 769 (9th Cir. 1969); Snider v. England, 374 F.2d 717 (9th Cir. 1967); Lundgren v. Freeman, 307 F.2d 104 (9th Cir. 1962). Deference to the determinations of the fact-finder has been justified because the fact-finder can best observe the demeanor of witnesses and the nuances of the evidence. However, the selection and application of a rule of law to the established facts and to reasonable inferences enjoys no such deference; the trial court's "conclusions of law" stand or fall according to legal rules. See, 5A J. Moore, Federal Practice P 52.03(2) (2d ed. 1975); Lundgren v. Freeman, 307 F.2d at 115; 4 K. Davis, Administrative Law Treatise §§ 30.01 et seq.

Whether the existence of probable cause is a "factual inference" or a "conclusion of law" depends, in a given case, upon the historical facts measured by a "legal" rule. Probable cause is defined as facts and circumstances which would lead (by inferences) a prudent person to believe that a crime was committed and that the subject of the investigation was connected with the crime. From the "raw data", the magistrate infers, directly or through successive inferences, that criminal activity is or is not connected with the subject of the inquiry. Probable cause is grounded on the prudent person's informed evaluation of factual probabilities. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879, 1890 (1949). That is, the application of the legal standard of probable cause directs the court to make inferences.

At some point in the process of abstracting "ultimate facts" from " basic facts", the trial court crosses the line from making findings of fact to making conclusions of law. 2 K. Davis, Administrative Law Treatise, § 16.06. Definition of the demarcation line should be made pragmatically: if the inferences depend on the credibility of the witnesses or the persuasiveness of the evidence, the trier of fact is said to have made findings of fact; if not, the facts are relatively free from doubt and their consequences call for a conclusion of law. In reviewing determinations of probable cause in a criminal setting, the Supreme Court has indicated that it (and presumably other appellate courts) should not hesitate to re-evaluate the primary evidence:

" * * * While this court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental i. e., constitutional criteria established by this Court have been respected. The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet 'the practical demands of effective criminal investigation and law enforcement' in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. See Jones v. United States, 362 U.S. 257 (80 S.Ct. 725, 4 L.Ed.2d 697) (1960). Such a standard implies no derogation of uniformity in applying federal constitutional guarantees but is only recognition that conditions and circumstances vary just as do investigative and enforcement techniques." Ker v. California, 374 U.S. 23, at 34, 83 S.Ct. 1623, at 1630, 10 L.Ed.2d 726 (1963), quoted in Beck v. Ohio, 379 U.S. 89, 92, 85 S.Ct. 223, 226, 13 L.Ed.2d 142, 145 (1964).

As a matter of routine practice, this circuit recites and evaluates primary evidence whenever reviewing a question of probable cause in a criminal case. E. g., Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1962); United States v. McLaughlin, 525 F.2d 517, 520-21 (9th Cir. 1975). We have granted some deference in favor of upholding an issuance of a warrant based...