676 F.2d 183 (5th Cir. 1982), 81-1259, Vance v. United States

Docket Nº:81-1259.
Citation:676 F.2d 183
Party Name:Fred M. VANCE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:May 20, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 183

676 F.2d 183 (5th Cir. 1982)

Fred M. VANCE, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 81-1259.

United States Court of Appeals, Fifth Circuit

May 20, 1982

Page 184

McDonald, Karam & Guyer, Ronald P. Guyer, San Antonio, Tex., for plaintiff-appellant.

Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARZA, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

On December 31, 1979, Officer Meck of the Universal City, Texas Police Department stopped a 1973 Chevrolet van because the boat trailer it was pulling was not equipped with proper trailing lights. The van belonged to Fred M. Vance but was being driven by Jerry Gaunt. Finding Gaunt's license expired, Officer Meck, following what he described as standard procedure, impounded the vehicle. Meck inventoried the van's contents prior to permitting a wrecker to tow it to the police impoundment garage, where it would remain until delivered to a licensed driver with proof of ownership.

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During the inventory of the van, Officer Meck found no contraband. The van was seized solely because of the Universal City Police Department's practice of impounding any vehicle being operated by a driver without a current license.

Although the record contains significant gaps, it appears that four days after impoundment, firemen were called to check the van; chemical odors reportedly were emanating from its interior. The firemen determined that no danger was posed by volatile chemicals and a federal Drug Enforcement Agency agent was summoned. At this point, the van was suspected of housing a methamphetamine laboratory. The DEA agent examined the contents of the van, which the firemen had placed on the ground nearby, opening boxes and other closed containers. Subsequently, although the precise time is not supplied by the record, the DEA agent, accompanied by a DEA chemist, again examined the van's contents, taking samples of residue from a stove and from various containers. Warrant authorization for these searches and seizures was not sought. There is no serious suggestion that exigent circumstances justified these warrantless intrusions. There can be no serious suggestion, under these circumstances, that the "plain view" doctrine applied.

Although the record is sparse and sketchy, it appears that the government proceeded with plans to sell the van because it allegedly was used to facilitate proscribed drug activities. The sale was scheduled for October 29, 1980.

On October 28, 1980, Vance filed the instant Tucker Act suit, 28 U.S.C. § 1346(a)(2), seeking to enjoin the sale and to compel the return of his van. Vance challenges the legality of the warrantless searches and seizures occurring after Meck's inventory, contending that any evidence thus obtained cannot be used to establish probable cause for the forfeiture of his van. In addition, Vance asserts that he was not notified of the summary forfeiture proceedings and was thus deprived of property without due process of law.

The district court did not address the notice question. Although expressing serious doubt as to the legality of the DEA agent's warrantless searches of the closed containers and the taking of residue samples, the trial court found Officer Meck's inventory valid and the DEA agent's subsequent actions, "simply to interpret the meaning of what had been viewed theretofore by Officer Meck," also valid. The district court ordered the vehicle forfeited. We reverse and remand.

Notice

Under 21 U.S.C. § 881, all conveyances, including vehicles, which "facilitate the transportation, sale, receipt, possession or concealment" of controlled substances which have been manufactured, distributed, or dispensed in violation of federal law are subject to forfeiture to the United States. Section 881(d) prescribes that the forfeiture proceedings are to be governed by the provisions for seizure, summary and judicial forfeiture, and condemnation of property applicable to violations of the customs laws.

The customs statutes, 19 U.S.C. §§ 1608 and 1609, require that a person asserting an interest in a seized vehicle valued at less than $10,000 must file a claim within 20 days after the first publication of the notice of seizure. Absent a timely claim, a seized vehicle will be forfeited to the United States, sold, and the proceeds will be deposited in the United States Treasury.

Vance maintains that because he was not notified that the government had commenced summary forfeiture proceedings, he was denied an opportunity to post the bond allowed by 19 U.S.C. § 1608. The posting of a section 1608 bond guarantees judicial resolution of the forfeiture. 1 In its answer,

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the government "submits that Plaintiff was properly notified by the Drug Enforcement Administration of the summary forfeiture of the 1973 Chevrolet Van and therefore he was not denied due process of law." However, the record contains no proof of the type and date of the notice to Vance advising of the summary forfeiture. 2

During oral argument, counsel assured us that the procedures outlined in 19 U.S.C. § 1609 3 and 21 C.F.R. § 1316.75 4 were followed. Both the statute and the administrative regulation rely upon publication as the method of notifying a property owner of the impending summary forfeiture if a judicial hearing is not initiated. In view of the classification of the foregoing process as a civil proceeding in rem, see, e.g., United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453 (7th Cir. 1980); Castleberry v. Alcohol, Tobacco & Firearms Div. of Treasury Dept., 530 F.2d 672 (5th Cir. 1976), such notice historically has been deemed adequate. 5

Quite another problem is presented by the extension of the fictive rule that forfeitures are in rem civil actions. The "civil nature of forfeiture proceedings will not be permitted to provide an avenue through which the fundamental rights of protection against unreasonable searches and seizures and self-incrimination can be frustrated." Bramble v. Richardson, 498 F.2d 968, 973 (10th Cir. 1974). Nor may the categorization of the forfeiture action serve to deny the claimant the seventh amendment right of trial by jury. United States v. One Mercedes Benz 280S. More pertinent to Vance's situation is the recognition by at least two federal courts that notice by publication, as provided by 19 U.S.C. § 1607 and 21 C.F.R. § 1316.75, does not afford due process "with respect to persons such as registered owners of seized vehicles whose identities and addresses are known or easily ascertainable and whose legally protected interests are directly affected by the proceedings in question." Wiren v. Eide, 542 F.2d 757, 762 (9th Cir. 1976) (citing Menkarell v. Bureau of Narcotics, 463 F.2d 88 (3d Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D.N.Y.1969)). On this subject,

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the Supreme...

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