Lee v. Thornton

• Decision Date: 22 January 1974
• Docket Number: 6762.,Civ. A. No. 6451
• Parties: James P. LEE, Jr. v. William L. THORNTON, District Director of Customs, et al. Ronald RICH v. William L. THORNTON, District Director of Customs, et al.
• Court: U.S. District Court — District of Vermont

370 F. Supp. 312

James P. LEE, Jr. v. William L. THORNTON, District Director of Customs, et al.

Ronald RICH v. William L. THORNTON, District Director of Customs, et al.

Civ. A. Nos. 6451, 6762.

United States District Court, D. Vermont.

January 22, 1974.

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Vermont Legal Aid, Inc., Burlington, Vt., for plaintiffs.

George W. F. Cook, U. S. Atty., Rutland, Vt., for defendants.

Before OAKES, Circuit Judge, and HOLDEN and COFFRIN, District Judges.

OPINION AND ORDER

OAKES, Circuit Judge.

The relevant facts have been stipulated by the parties. On October 4, 1971, plaintiff Lee's 1966 Volkswagen van was observed by a Border Patrol agent to be crossing into the United States from Canada at Alburg Springs, Vermont, although the customs station at Alburg Springs was closed. Agent Peck, who observed the crossing, followed the vehicle, driven at that time by an acquaintance of Lee, to a point in East Alburg, Vermont, where the vehicle was stopped. Lee told Peck that he had not gone to the immigration and customs station at Alburg, as directed by the signs at Alburg Springs, because he thought that his vehicle did not have sufficient fuel to reach it. Lee was ordered to proceed with the van and his passengers, including a Canadian national, to Swanton Immigration Headquarters.

After a search of the van in Swanton, Lee was informed by customs agents that they had found several items of foreign manufacture with no proof of domestic purchase, plus two clip scales and one gram of marijuana seeds; that Lee and the others were free to leave; but that the van and personal property had been seized and would be held by the officials. Lee had no opportunity to challenge the seizure of the van at that time.

On the next day, October 5, 1971, Lee contacted defendant Thornton, the District Director of the Bureau of Customs, concerning the release of the property and was told that a cash deposit in the sum of $1,800 would be required to secure release of the van. On October 19, 1971, the Director advised Lee that, having been charged with violations of 19 U.S.C. § 1459, 19 U.S.C. § 1595a and 21 U.S.C. § 881, he was assessed a penalty of $1,845.00 and that the van and personal property therein were subject to forfeiture as an additional penalty. The letter also advised Lee of his right to file a petition for "mitigation and remission" under 19 U.S.C. § 1618. Lee filed that petition on October 27, 1971, in which he set forth his version of the circumstances surrounding the events of October 4. On November 1, 1971, Thornton notified Lee by letter that the fine had been remitted in full and the forfeiture of the van mitigated to $100 "in view of the fact that the vehicle was found being used to transport marihuana." Unable to post a $250 bond to force the Government to institute a libel of forfeiture under 19 U.S.C. § 1608, Lee paid the $100 and secured the release of the van.

Plaintiff Rich, his wife and two minor children crossed the border from Canada into the United States via the Wolfridge road in Alburg, Vermont, on October 27, 1971, and did not pass through a customs station. Under observation by a Border Patrol agent, Rich's automobile was stopped in the vicinity of Swanton, Vermont. Rich was accused by the agent of having crossed the border illegally and was directed to proceed to the border station at Highgate, Vermont. At the Highgate station, the automobile was searched and seized, and Rich was advised of the nature of the charge against him under 19 U.S.C. § 1459 and the statutory penalty that could be assessed under 19 U.S.C. § 1460. Like Lee, he was informed that he could file an immediate petition for remission and mitigation of penalties pursuant to 19 U.S.C. § 1618. Rich filed a petition at that time and was told by Customs Inspector Clark that a cash deposit of $50 "toward the ultimate mitigated penalty" would secure the release of the automobile under 19 U.S.C. § 1614.¹ Rich paid the deposit and the automobile was released. On January 6, 1972, Rich received a "Notice of Penalty Incurred and Demand for Payment" (Customs Form 5955A) which, among other things, advised him as to his rights and the procedures required to request administrative relief. No further petition was filed, and on January 14, 1972, Thornton notified Rich by letter that the penalty had been mitigated to $25 and that this penalty would be deducted from his $50 deposit, the balance owed to be returned in due course. The discussion with Inspector Clark was the only opportunity given to Rich during the course of events to state his version of the facts in person.

I. PLAINTIFFS' CLAIMS.

On motion, plaintiffs' complaints challenging the constitutionality, both facially and as applied, of the statutory provisions of the United States Code under which their property had been seized and penalties assessed, were consolidated for hearing before a three-judge district court convened pursuant to 28 U.S.C. § 2282. More specifically, plaintiff Rich alleged that the fourth amendment required a probable cause hearing prior to the search and seizure of his automobile, that the fifth amendment was violated by his being required to post a bond to secure the release of his vehicle without a prior hearing, and that the procedures mandated by the United States Code to effect forfeiture and remission or mitigation of penalties imposed upon him violated both his fifth amendment right to due process and various rights guaranteed by the sixth amendment. He asks this court to declare 19 U.S.C. §§ 1460 and 1618 to be unconstitutional and to enjoin their enforcement. Rich also asks for damages in the amount of $2,000 and the setting aside of the District Director's final assessment of the $25 fine and a concomitant remission of that $25 to him.

Plaintiff Lee likewise contends that the seizure and holding of his property violated his fifth amendment right to due process and that the forfeitures and penalties were imposed by procedures that violated his rights as guaranteed under the fourth, fifth, and sixth amendments. Jurisdiction is invoked by both plaintiffs under 28 U.S.C. §§ 1346(a)(2), 1337, 1355, 1356 & 1361. We conclude that we have jurisdiction under 28 U.S.C. § 1346(a)(2) to review the constitutionality of the challenged statutes. Melendez v. Shultz, 356 F. Supp. 1205, 1208 (D.Mass.1973) (three-judge court).

We hold first that both plaintiffs Rich and Lee have standing to attack the constitutionality of the procedures under which their property was seized and their fines assessed, even though it is stipulated that neither plaintiff exhausted his administrative remedies under the pertinent statutes and even though plaintiffs' property has been returned and the time period in which administrative remedies might be sought has passed. It would serve no purpose to require plaintiffs to exhaust remedies "the alleged inadequacy and untimeliness of which are cornerstones . . . ." of their claims. Id. Cf. Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L.Ed.2d 488 (1973). See also Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 241-243, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring). We do not regard the payments of the respective fines as mooting the otherwise substantial constitutional claims asserted by plaintiffs. Cf. Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1920).

II. BASIC INTERESTS INVOLVED.

We commence with recognition of the great importance to be attached to the governmental interests here at stake. We deal here directly with statutes and regulations that permit the Government to regulate the entry of foreign nationals and dangerous substances into the United States and to exercise its right to collect duty on merchandise imported into the country. No one doubts the Government's power to exclude aliens from the country, Chae Chan Ping v. United States, 130 U.S. 581, 603-604, 9 S.Ct. 623, 32 L.Ed. 1068 (1889), or that the power to do so, or to collect duties, can be exercised through routine inspection of individuals or conveyances seeking to cross the borders. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The Supreme Court has recently reaffirmed Carroll while applying its rationale to the question whether warrantless searches of vehicles traveling on a road no closer than 20 miles to the Mexican border were violative of the fourth amendment's proscription of "unreasonable searches and seizures." Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The Almeida-Sanchez decision crystallized the central issues of that case in the following words:

It is not enough to argue, as does the Government, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.

Id. at 273, 93 S.Ct. at 2540. It is abundantly clear that the Government's interest in controlling the flow of drugs or collecting duty on otherwise importable goods is of at least equal magnitude to the interest in deterring unlawful entry by aliens. Against these interests we must balance those constitutional protections invoked by plaintiffs.

III. VALIDITY OF BORDER SEARCHES AND SEIZURES.

The validity of the searches conducted by customs agents in these cases clearly did not contravene the fourth amendment. Both vehicles were observed crossing the border at either a closed border station or at a point where no border station existed. The existence of probable cause to search the persons or the vehicles themselves, therefore, is not subject to serious dispute. Plaintiff Rich's automobile was...