U.S. v. One 1977 Mercedes Benz, 450 SEL, VIN 11603302064538

• Decision Date: 13 June 1983
• Docket Number: No. 82-5291,82-5291
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1977 MERCEDES BENZ, 450 SEL, VIN 11603302064538, its Tools and Appurtenances, Defendant, Aimee Brenda Webb, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 444

708 F.2d 444

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1977 MERCEDES BENZ, 450 SEL, VIN 11603302064538, its

Tools and Appurtenances, Defendant,

Aimee Brenda Webb, Claimant-Appellant.

No. 82-5291.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1982.

Decided June 13, 1983.

Eric Nobles, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Burton Marks, Los Angeles, Cal., for claimant-appellant.

On appeal from the United States District Court for the Central District of California.

Before WRIGHT, KENNEDY and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

This is a forfeiture action brought by the federal government pursuant to 21 U.S.C. Sec. 881 (1976 & Supp. V 1981) against a 1977 Mercedes Benz automobile allegedly used to transport narcotics. Claimant Aimee Webb, owner of the automobile, argues that forfeiture is improper because the evidence showing probable cause to forfeit the automobile should have been suppressed as illegally seized. She also questions the lawfulness of the state and federal seizures of the automobile itself. Webb filed a third-party claim against various law enforcement personnel and organizations alleging violations of her constitutional rights in connection with the seizures of the automobile. This claim was dismissed because it was not within the scope of Fed.R.Civ.P. 14. Summary judgment was later granted to the government on its forfeiture claim. Webb appeals the dismissal of the third-party claim and the grant of summary judgment. We affirm because the seizure of the disputed evidence did not violate Webb's rights under the fourth amendment. Further, Ninth Circuit caselaw indicates that the automobile may be forfeited despite unlawful seizure. And finally the third-party complaint was properly dismissed because it was outside the scope of rule 14.

Facts

On the evening of April 2, 1980, two Los Angeles police officers patrolling in a marked police car saw the subject vehicle being driven on public streets without license plates. The officers stopped the vehicle to investigate a potential violation of the California vehicle code. The driver of the Mercedes, Thomas Reese, at the request of the officers, produced his driver's license but did not have the vehicle registration. Reese got out of the Mercedes and offered to get the vehicle registration. After Reese left the car, Officer Pesanti discovered a package in the automobile which was later determined to contain cocaine. Officer Pesanti stated that the package was in plain sight. There was a dispute as to whether white powder could be seen through the cover of the package. The officers believed, based on training and experience, that the package contained a narcotic substance. The contents of the package were tested and found to be cocaine.

Claimant Aimee Brenda Webb, the registered owner of the Mercedes, arrived at the arrest scene and told the officers that she owned the automobile, that Reese had permission to use it, but that she had no knowledge that narcotics were in the car. The police officers released the car to Webb after verifying ownership. The next day, members of the Los Angeles Police Department obtained a warrant authorizing seizure of the Mercedes. The application for the warrant was supported, in part, by two presentencing reports prepared by United States Probation Officers in prior federal prosecutions of Reese in 1973 and 1976. Webb alleges that these reports were improperly obtained by Special Agent William Taylor of the Drug Enforcement Administration from the office of the United States Attorney for the Central District of California, in violation of rule 32(c)(3) of the Federal Rules of Criminal Procedure. ¹ She further On April 10, 1980 Special Agent Taylor contacted the Los Angeles Police Department and demanded release of the Mercedes to the DEA pursuant to the forfeiture provisions of 21 U.S.C. Sec. 881 (1976 & Supp. V 1981) and 21 C.F.R. Sec. 1316.72 (1982). The next day, the Los Angeles Police Department and the District Attorney for Los Angeles County obtained an ex parte order from the Municipal Court of the County of Los Angeles releasing the vehicle to Special Agent Taylor of the DEA. The federal "seizure" of the automobile was warrantless. The trial court granted summary judgment to the government on December 18, 1981. ²

alleges that Special Agent Taylor delivered the reports to members of the Los Angeles Police Department, and to the office of the District Attorney for the County of Los Angeles where the reports were attached to, and incorporated by reference in, the affidavit in support of the warrant to seize the defendant vehicle. The Mercedes was seized pursuant to the warrant that same day at the home of Webb.

Standard of Review

In reviewing a grant of summary judgment, the appellate court's task is identical to that of the trial court. State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 n. 1 (9th Cir.1980). Viewing the evidence in the light most favorable to the party against whom summary judgment is granted, the appellate court must determine whether there was a genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Heiniger v. City of Phoenix, 625 F.2d 842, 843 (9th Cir.1980).

DISCUSSION

I. The Grant of Summary Judgment

The Government establishes a prima facie case for forfeiture by probable cause. Probable cause for forfeiture of a vehicle exists if there is evidence sufficient to warrant a reasonable belief that the vehicle has been used to transport contraband. United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1282 (9th Cir.1983); United States v. One 1967 Buick Riviera, 439 F.2d 92 (9th Cir.1971). Once probable cause is established, the burden of proof shifts to the claimant to establish that the vehicle is not subject to forfeiture. 19 U.S.C. Sec. 1615 (1976 & Supp. V 1981) (made applicable by 21 U.S.C. Sec. 881(d) (Supp. V 1981)); Tahuna, 702 F.2d at 1281; United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1107 (9th Cir.1976) (per curiam).

Webb bases her defense to the forfeiture action solely on a challenge to the existence of probable cause. The Government rests its showing of probable cause on the cocaine seized from Webb's automobile. The motion for summary judgment is supported by affidavits of the two officers who arrested Reese and an affidavit of a laboratory technician accompanied by a lab report showing that the package seized did contain cocaine. Webb argues that the cocaine was illegally seized thus tainting and making inadmissible the cocaine and the Government's documentary evidence. She does not challenge the sufficiency of that evidence if admissible. Webb also argues that the state and federal seizures of the Mercedes were illegal and that either of these illegal actions is ground for dismissal of the forfeiture action.

A. Admissibility of the Cocaine

Because forfeiture proceedings are quasi-criminal in character and meant to penalize the commission of an offense against the law, the exclusionary rule applies to such proceedings, barring evidence obtained in violation of the fourth amendment. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). The Court has made clear, however, that suppression of the product of a fourth amendment violation may be urged only by one whose rights were violated by the search, not by one who is aggrieved by the introduction of damaging evidence gathered as a consequence of the violation of the rights of another. Alderman v. United States, 394 U.S. 165, 171-75, 89 S.Ct. 961, 965-967, 22 L.Ed.2d 176 (1969). Because we find that Webb's rights were not violated by the seizure of the cocaine, we hold that Webb may not assert any illegality in the search of the automobile as a basis for suppressing the cocaine in this action. ³

The proper test to be applied in determining whether Webb's rights were violated by the search of the automobile and the seizure of the cocaine is whether, by that act, Webb suffered an invasion of a legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978); United States v. Portillo, 633 F.2d 1313, 1316 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981). That determination is made on the basis of federal law, despite the part played by state officers in the seizure of the cocaine. Portillo, 633 F.2d at 1317. Further, the burden rests on Webb, as proponent of the motion to suppress, to establish that her fourth amendment rights were violated by the seizure of the cocaine. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas, 439 U.S. at 130-31 n. 1, 99 S.Ct. at 424 n. 1.

Whether the owner may protest a search of a vehicle under the circumstances of this case is a matter of first impression in the Ninth Circuit. The Supreme Court, however, has enunciated several general principles which aid in resolution of this issue.

Automobiles have traditionally been treated differently from residence in the law governing search and seizure. See Rakas, 439 U.S. at 148, 99 S.Ct. at 433. The Court has commented many times on the fact that automobiles by their very nature are surrounded by a diminished expectation of privacy.

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.

Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion) (citation omitted); see also United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-2485, 53 L.Ed.2d 538 (1977). Further, as a...