Melendez v. Shultz

• Decision Date: 30 March 1973
• Docket Number: Civ. A. No. 72-3230-F.
• Parties: Rigoberto MELENDEZ, Individually and on behalf of all others similarly situated, Plaintiff, v. George P. SHULTZ, as he is Secretary of the Treasury, Defendant.
• Court: U.S. District Court — District of Massachusetts

356 F. Supp. 1205

Rigoberto MELENDEZ, Individually and on behalf of all others similarly situated, Plaintiff, v. George P. SHULTZ, as he is Secretary of the Treasury, Defendant.

Civ. A. No. 72-3230-F.

United States District Court, D. Massachusetts.

March 30, 1973.

Melvyn Zarr, Boston, Mass., Peter K. Speert, Boston Legal Assistance Project, Dorchester, Mass., for plaintiff.

William A. Brown, Asst. U. S. Atty., for defendant.

Before CAMPBELL, Circuit Judge, and MURRAY and FREEDMAN, District Judges.

OPINION OF THE COURT

On August 4, 1972, four days after plaintiff's Ford automobile was impounded by the Boston Police for failure to pay parking tickets, it was seized from police storage by an agent of the Federal Bureau of Alcohol, Tobacco and Firearms on behalf of the United States under authority of 49 U.S.C. § 782.¹ The vehicle was one from which on July 19, 1972, the plaintiff and an associate had been seen by police officers to alight, the associate bearing a "Molotov cocktail" which the two thereafter used in an unsuccessful attempt to ignite a police cruiser. The plaintiff, his associate and another were convicted on July 20, 1972, in the Boston Municipal Court on a non-federal charge of possessing a device which would cause a fire. M.G.L. c. 266 § 102B.

Prior to the seizure, plaintiff was not notified nor was he given an opportunity to be heard. No warrant or court process was sought or secured by the agent making the seizure. On August 8, 1972, the plaintiff learned of the seizure and appeared personally at the Boston office, Bureau of Alcohol, Tobacco and Firearms. He was told by agents that the agents had probable cause to believe the vehicle had been used to transport a "contraband article." He was also told of administrative procedures which he could follow to seek its recovery. Similar information was relayed by telephone to plaintiff's attorney on August 10, 1972. On August 10, 1972, plaintiff filed a petition for remission or mitigation of forfeiture,² and on September 1, 1972, a supplemental petition.

Formal written notice of seizure was served upon plaintiff on August 29, 1972, followed by newspaper publication of notice, and further administrative investigation. The Director of the Bureau thereafter issued a written decision, of which plaintiff was notified on October 25, 1972, denying remission of the forfeiture "because the petitioner used the above-described vehicle to transport a destructive device as defined in 26 U.S. C. § 5845(f)." Plaintiff was not afforded a hearing.

I

Alleging that the warrantless seizure violated the Fourth Amendment and that seizure without adequate notice and hearing violated the due process clause of the Fifth Amendment, plaintiff seeks to enjoin the defendant and his agents from depriving him of the possession and use of his automobile, and from releasing the automobile to any other person or governmental agency. Plaintiff asks the court to declare unconstitutional, both as applied and on its face, 49 U.S.C. § 782 and the regulations issued pursuant thereto establishing the procedures for seizure, forfeiture, and remission and mitigation of penalties. The plaintiff asks for damages in the amount of $5,000.00, and a declaration that he is not liable for costs incurred by defendant in the seizure and storage of his vehicle, nor for the costs of the lawsuit. Jurisdiction is invoked under 28 U.S.C. §§ 1346(a)(2), 1355, 1356, 2201, 2202, 2282, 2284. The plaintiff has withdrawn his class action allegations and prayers.

The matter comes before us after a consolidated hearing of plaintiff's motion for preliminary injunction and the merits. F.R.Civ.P. 65(a).

II

We dispose summarily of the government's jurisdictional arguments. Plaintiff attacks broadly both the constitutionality of the seizure and of the allegedly inadequate procedures, administrative and judicial, to contest it. He has standing and his contentions are not insubstantial. We plainly have "jurisdiction" (see especially 28 U.S.C. § 1346(a)(2)), and we see no reason to insist that he exhaust remedies the alleged inadequacy and untimeliness of which are cornerstones of his claims. See Jaekel v. United States, 304 F.Supp. 993 (S.D.N.Y.1969).

III

Plaintiff argues that seizure of his automobile without warrant or other legal process while in custody of the police some 16 days after it had allegedly been used to transport a contraband article violated the Fourth Amendment, which provides,

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Plaintiff's position is patently reasonable. Although holding contrary to a similar contention in 1962, this Circuit then stated, "If, in answering this question, we were able to write on a clean slate, much could be said for the position of requiring a warrant as a prerequisite to seizure of property in a forfeiture proceeding." Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962). The Fourth Amendment is not limited to protection against the unreasonable search of one's house, room or automobile. It speaks of the right of the people "to be secure in their persons . . . and effects, against unreasonable searches and seizures." The same reasons which, absent an emergency, require an officer to secure a warrant before searching private property would seem a fortiori to apply where he is to seize private property. The purpose of the warrant is to assure that the decision whether or not there is probable cause to search (or seize) be made

"by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Fourth Amendment to a nullity . . ." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). See also Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). Cf. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1966).

Indeed so clear is the logic requiring a warrant before seizure of a private automobile (absent exceptional circumstances), that one is tempted to start with that premise, and to turn to the more difficult question, also raised here, as to whether a warrant is enough, under the due process provisions of the Fifth Amendment, to authorize the seizure of an automobile not contraband per se. Compare Pearson Yacht Leasing Company v. Luis Torres Massa, Civil No. 1018-72, District of Puerto Rico, March 29, 1973. We do not, however, need to reach that question, and shall here assume, without deciding, that the mobility of automobiles and the practicalities of law enforcement justify something less than prior notice and opportunity for hearing.

Limiting ourselves to the Fourth Amendment, and the question of a warrant, we are, of course, confronted with Interbartolo, supra, about which Chief Judge Aldrich said, "Whether this case was correctly decided or not, it represents the general view of the circuits." Berkowitz v. United States, 340 F.2d 168, 174 (1st Cir. 1965). The court in Interbartolo upheld a forfeiture following the warrantless and otherwise illegal seizure of an automobile which had been used to transport wagering slips and apparatus.

Berkowitz, supra, which was decided in this Circuit three years after Interbartolo, did not overrule Interbartolo but refused to extend it.³ In Berkowitz, the question was whether money seized pursuant to an illegal arrest could be declared forfeit in a subsequent libel proceeding. The court held that otherwise forfeitable property seized only by virtue of a direct invasion of constitutional rights could not be declared forfeit. The majority said, at 174,

"We think the answer clear, not because it would be unauthorized or unconstitutional but because it would be attaching too great a premium upon unconstitutional conduct in this instance."

The majority distinguished Interbartolo as standing for the proposition that "the illegality of a seizure, without warrant, of personalty left unattended on a public street, where knowledge of its existence, and of its illegal character or, more exactly, use, was discovered by entirely lawful means, did not sufficiently taint the government's claim" so as to prevent a forfeiture.

At least today, the distinction seems to us to be doubtful. If an illegal arrest taints the fruits of the search incident thereto so severely as to prohibit their forfeiture, we do not see how an unauthorized seizure without warrant or legal process of property not contraband per se can lead to a different result. (There was no evidence that the unattended automobile in Interbartolo had been abandoned.)

Moreover, since Interbartolo, the Supreme Court has reiterated that a forfeiture proceeding is criminal, not civil, hence plainly subject to the Fourth Amendment. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); see United States v. U. S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1970). In One 1958 Plymouth Sedan, contraband liquor seized in an unconstitutional search of an automobile had been used as evidence to sustain the seizing of the automobile pursuant to state forfeiture laws. The state court had held that the exclusionary rules in Mapp v. Ohio, 367 U.S. 643, 657, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961), did not apply because the automobile forfeiture proceeding was civil in nature. In holding that the exclusionary rules did apply, the Supreme Court pointed out that the automobile, though termed "contraband",...