Property Seized on Jan. 31, 1983, Matter of

• Decision Date: 31 January 1983
• Citation: 362 N.W.2d 565
• Court: Iowa Supreme Court
• Parties: In the Matter of the PROPERTY SEIZED ON

Page 565

362 N.W.2d 565

In the Matter of the PROPERTY SEIZED ON JANUARY 31, 1983 Lonson J. LULOFF, Owner of Seized 1979 Corvette Vehicle, Appellant, v. STATE of Iowa, Seizer, Appellee.

No. 84-179.

Supreme Court of Iowa.

Feb. 13, 1985.

C.A. Frerichs of Fulton, Frerichs, Martin & Andres, P.C., Waterloo, for appellant.

Donna Lesyshen, Asst. City Atty., Waterloo, for appellee.

Considered by REYNOLDSON, C.J., and McGIVERIN, LARSON, SCHULTZ and WOLLE, JJ.

SCHULTZ, Justice.

The allure of a free "Vette" has stimulated the city fathers of Waterloo into a legal fray with the vehicle's titleholder, a convicted cocaine dealer. Lonson Luloff appeals from the order of the district court forfeiting his 1969 brown Corvette automobile in a proceeding under Iowa Code chapter 127. The action was commenced in Bremer County where the vehicle was seized by the State. The City of Waterloo requisitioned the forfeited vehicle pursuant to Iowa Code section 127.19 and now defends its booty.

There is little dispute about the facts. Agents for the Iowa Division of Criminal Investigation testified that on or about September 3, 1982, Luloff used the vehicle in question in connection with the transportation and delivery of a controlled substance, cocaine. Luloff was not arrested for this transaction until January 31, 1983. Later, on January 31, a state agent and a Bremer County deputy sheriff proceeded to Luloff's residence to seize the vehicle that Luloff had used to transport cocaine. At the time of the seizure, Luloff was in the Bremer County jail; however, his girlfriend, who later became his wife, was at his residence. The officers accomplished the seizure without notice, hearing or judicial authorization for the seizure. They identified themselves to the girlfriend, told her they were there to seize the automobile, and showed her a copy of an information they stated would be filed the next day. Express consent to the seizure was not sought or obtained. Luloff's girlfriend found a set of keys to the automobile, backed the vehicle out of the garage, and turned the vehicle over to the officers without resistance. The officers receipted for the auto and the cash found inside it.

The information was filed the following day on February 1, 1983. Three days later Luloff claimed the right to possession of the seized property pursuant to Iowa Code section 809.3 and made application for its immediate return. The seized currency was returned by a court order following a prompt hearing that was confined to the currency. The hearing concerning the return of the automobile was held after Luloff pleaded guilty to the cocaine delivery charges. The matter proceeded to hearing on October 31, 1983; and the vehicle was forfeited to the State.

On appeal Luloff asserts: (1) he was deprived of property without due process because there was neither prior judicial approval of the seizure nor exigent circumstances which would excuse the absence of such approval; (2) the trial court failed to make findings of fact which would support an order for forfeiture; and (3) the evidence was insufficient to support either a finding that the seizure was incident to an arrest or consensual. We find no merit in these claims and affirm.

I. Due process. Luloff's claim that he had been deprived of property without due process of law is based on Iowa Constitution article I, section 9 and the fourteenth amendment to the United States Constitution. His primary complaint is that the seizing officer did not obtain any type of prior judicial approval before seizing the vehicle. Luloff does not contest that a conveyance which has been used to convey contraband can be seized and forfeited at a later time, nor does he assert that a preseizure hearing is required under the terms of chapter 127. Luloff contends that when there is a delay between the illegal act and the seizure, with no exigent circumstances at the time of the seizure, the constitutional guarantee of due process requires prior judicial approval for the delayed seizure.

The City on the other hand, maintains that the trial court correctly found, as a matter of law, that the seizure of the Corvette automobile did not violate any due process requirements. The City cites Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), for the proposition that due process is not a rigid concept and, in limited circumstances, immediate seizure of a property interest without an opportunity for prior hearing is constitutionally permissible.

When this constitutional issue was presented to the trial court, Luloff asserted that the possessor must be given the opportunity for a hearing before the property may be seized legally, relying upon Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In Fuentes the Supreme Court held that replevin laws which authorize summary seizure upon an ex parte application without providing the possessor the right to be heard before the property is taken violate the due process provisions of the fourteenth amendment. Id. at 96, 92 S.Ct. at 2002, 32 L.Ed.2d at 579. The trial court relied upon the ruling in Calero-Toledo which distinguished the seizure without notice of forfeitable contraband from the situation in Fuentes, citing the special need for prompt action as one reason. 416 U.S. at 678, 94 S.Ct. at 2089, 40 L.Ed.2d at 465. Luloff asserts that neither a special need for prompt action nor exigent circumstances required an immediate seizure. We find it unnecessary to determine whether there was a special need for prompt action or even if the seizure was legal. We conclude that even if Luloff's due process rights were violated in the seizure, the forfeiture was proper.

We believe the proper rule is that the legality or illegality of the initial seizure of the forfeitable property is immaterial to the determination of whether the property should be forfeited at the final hearing. The policy considerations which lead to the exclusion of evidence obtained by a wrongful search and seizure generally are not applicable to forfeiture proceedings. Certain property, the possession of which is illegal, is contraband per se, e.g. heroin and other illegal controlled substances, moonshine and sawed-off shotguns. Property which is contraband per se is subject to forfeiture even if improperly seized. People v. Zimmerman, 44 Ill.App.3d 601, 604, 3 Ill.Dec. 317, 320, 358 N.E.2d 715, 718 (1976); State v. Voshart, 39 Wis.2d 419, 433, 159 N.W.2d 1, 8 (1968); Blackmon v. Brotherhood Protective Order of Elks, 232 Ga. 671, 673, 208 S.E.2d 483, 484 (1974). Derivative contraband, such as automobiles, boats, planes and currency, which may be lawfully possessed but becomes contraband by its illegal use, presents a more difficult problem. Recently, the United States Supreme Court in Immigration and Naturalization Service v. Lopez-Mondoza, --- U.S. ----, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), held in an alien deportation proceeding that the body of a defendant is never itself suppressible as the fruit of an unlawful arrest, search or interrogation, supporting its conclusion by stating that "[a] similar rule applies in forfeiture proceedings directed against contraband or forfeitable property." Id. at ---, 104 S.Ct. at 3485, 82 L.Ed.2d at 786. The rule in forfeiture cases was not in issue, but this statement indicates the Court's position. A long time ago the Supreme Court differentiated between a search and seizure of stolen or forfeited goods and a search or seizure of private papers and books for the purpose of using them for evidence on the basis that in one the government is entitled to the property and in the other it is not. Boyd v. United States, 116 U.S. 616, 628, 6 S.Ct. 524, 531, 29 L.Ed. 746, 750 (1886).

The majority of the federal and state courts hold that the fact the seizure was unlawful alone does not exempt the property from forfeiture. United States v. One 1978 Mercedes Benz, Four-door Sedan, 711 F.2d 1297, 1302-03 (5th Cir.1983); United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297 (8th Cir.1982); United States v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351, 351 (9th Cir.1974); John Bacall Imports, Ltd. v. United States, 412 F.2d 586, 588 (9th Cir.1969); Martin v. United States, 277 F.2d 785, 786 (5th Cir.1960); United States v. One 1956 Ford Tudor Sedan, 253 F.2d 725, 727 (4th Cir.1958); State v. Jones, 181 N.J.Super. 549, 554, 438 A.2d 581, 583 (1981); Fuqua v. Armour, 543 S.W.2d 64, 68 (Tenn.1976); Stroupe v. Tidwell, 510 S.W.2d 77, 82 (Tenn.), cert. denied, 419 U.S. 860, 95 S.Ct. 110, 42 L.Ed.2d 95 (1974). Contra Doherty v. United States, 500 F.2d 540, 547 (Ct.Cl.1974). Although there is a split of authority, some courts have extended their approval of a seizure without warrant or legal process beyond forfeiture proceedings into subsequent criminal prosecutions by holding the fruits of an inventory search of a seized automobile to be constitutionally admissible evidence. United States v. Pappas, 600 F.2d 300, 303-06 (1st Cir.1979); United States v. Francolino, 367 F.2d 1013, 1021 (2d Cir.1966); cert. denied, 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110 (1967). Contra United States v. McCormick, 502 F.2d 281, 285 (9th Cir.1974). We do not have an issue concerning the subsequent seizure of evidence in the forfeited vehicle and cite these cases only to show the reach of federal cases concerning seizure of vehicles the government has good cause to believe are subject to forfeiture for carrying contraband.

Various reasons have been advanced to justify an otherwise unlawful seizure in forfeiture proceedings. In Dodge v. United States, 272 U.S. 530, 47 S.Ct. 191, 71 L.Ed. 392 (1926), the United States Supreme Court reasoned that no prejudice occurs since the owner suffers nothing that he would not have suffered if the seizure had been authorized. Id. at 532, 47 S.Ct. at 191, 71 L.Ed. at 393. Many cases...