U.S. v. One 1971 BMW 4-Door Sedan, Model 2800, Gray in Color VIN 2320587, Az. Lic. RNM 898, RNM-898

Citation652 F.2d 817
Decision Date03 August 1981
Docket NumberD,RNM-898,No. 79-3310,79-3310
PartiesUNITED STATES of America, Plaintiff-Appellee, v. ONE 1971 BMW 4-DOOR SEDAN, MODEL 2800, GRAY IN COLOR VIN 2320587, AZ. LIC.efendant, and Ralph Tracy Eddinger, Claimant/Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Phillip R. Morgan, Tucson, Ariz., for claimant/defendant-appellant.

Virginia Mathis, Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before SNEED and SKOPIL, Circuit Judges, and NIELSEN *, District Judge.

SNEED, Circuit Judge:

Appellant Eddinger appeals from the district court judgment and decree of forfeiture to the United States of a 1971 BMW sedan used to facilitate the sale of a controlled substance. He challenges the forfeiture on four grounds: (1) that he was entitled under the Constitution to a probable cause hearing within 72 hours of the government's seizure of his automobile; (2) that the two and one-half month lapse of time between the seizure and initiation of in rem judicial forfeiture proceedings deprived him of his constitutional rights; (3) that he was given inadequate notice of his right to petition for administrative remission of forfeiture; and (4) that the district court erred in finding probable cause for seizure. We affirm the judgment and decree of forfeiture.

I. FACTS

On October 20, 1977, Special Agents Norman Jones and Frank Kelly of the United States Drug Enforcement Administration (DEA) arrested Ralph Tracy Eddinger, Jr. and Ronald Lopez for, inter alia, possession of cocaine, a controlled substance. Concurrent with the arrest, agents Jones and Kelly seized both the cocaine and Eddinger's 1971 BMW sedan under authority of 21 U.S.C. § 881(a). The arrest and seizure were the culmination of a series of negotiations common in such matters between agent Jones, who was working in an undercover capacity, and Eddinger and Lopez, whereby Jones agreed to purchase an ounce of cocaine from them for $1750. Agent Kelly was not involved in the negotiations, but acted as a surveillance agent throughout, observing Eddinger and Lopez arrive at the location of sale in Eddinger's BMW. The BMW was seized pursuant to 21 U.S.C. § 881(a)(4) for having been used to transport or facilitate the transportation or sale of the cocaine, a controlled substance, in violation of 21 U.S.C. § 841(a)(1).

At the time of seizure, agent Kelly informed Eddinger that his vehicle had been seized for transporting a controlled substance in violation of federal law, that procedures existed which he could utilize to seek release of the car, and that he should contact a local attorney or the United States Attorney if he wished to seek the vehicle's release. Eleven days later, the DEA mailed Eddinger a formal notice of seizure and his right to petition for remission. The notice was sent by certified mail, return receipt requested, to the post office box listed as Eddinger's address on his certificate of registration. The notice was received two days thereafter and signed for by an individual who checked the box marked "Authorized Agent." Eddinger was in jail at the time, and testified that he never received the notice.

On January 4, 1978, two and one-half months after the arrest and seizure, the United States filed a complaint for forfeiture against the 1971 BMW pursuant to 19 U.S.C. § 1604. The next day the United States served a warrant for arrest of the vehicle in rem on the DEA, and personally served the appellant in jail with a summons and complaint for forfeiture. The appellant, having pleaded guilty to conspiracy to distribute cocaine, remained in custody from the time of his arrest until September 11, 1978, eight months after the forfeiture complaint was filed. A judgment and decree of forfeiture in favor of the United States was entered on March 29, 1979, after somewhat lengthy proceedings in which appellant's claims were litigated.

II. PROBABLE CAUSE HEARING CONTENTION

We shall address first the appellant's contention that he was entitled under the Constitution to a prompt probable cause hearing for seizure of his automobile. Because "due process is flexible and calls for such procedural protections as the particular situation demands," Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), we should begin by analyzing that process to which Congress has considered owners of vehicles seized for violation of federal narcotics law to be entitled.

Forfeiture proceedings arising under 21 U.S.C. § 881 are governed by the same statutory provisions as apply to customs forfeitures. 21 U.S.C. § 881(d). Those provisions are set forth in Title 19 of the United States Code, sections 1602-21. At the time of seizure the particularly pertinent sections were as follows: 1 Section 1602 imposed on the seizing officer a duty to report the seizure immediately to the appropriate DEA official; section 1603 required the DEA official to report the seizure promptly to the appropriate United States Attorney for prosecution of the forfeiture and to include in that report a statement of all facts relevant to the seizure; and section 1604 required the United States Attorney immediately upon receipt of that report to inquire into the facts of the case and the laws applicable thereto to determine "if it appears probable that ... forfeiture has been incurred," and to institute proceedings "forthwith," unless, upon inquiry and examination, he decided "that such proceedings cannot probably be sustained or that the ends of public justice do not require that they should be instituted or prosecuted ...." Section 1610 assured the owner of any vehicle of value greater than $2,500 the right to judicial review of the forfeiture, and any person interested in the vehicle could in addition, petition for administrative remission or mitigation of the forfeiture in accordance with section 1618.

The pervasive statutory scheme of which these sections are a part evidences substantial concern on the part of Congress with respect to what process is due owners of vehicles seized under the narcotics laws. Great weight must be given to its judgment. See Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976). As applied herein, the procedures prescribed by Congress not only afforded the appellant the right to petition for remission of the forfeiture, but further assured him the right to judicial review of the forfeiture.

Appellant argues that despite these protections, he was entitled under the Due Process Clauses of the Fifth Amendment to an additional hearing for probable cause within 72 hours of the government's seizure of his automobile. We disagree. The cases upon which the appellant relies, Stypmann v. City and County of San Francisco, 557 F.2d 1338 (9th Cir. 1977), and Lee v. Thornton, 538 F.2d 27 (2d Cir. 1976), present far more compelling situations for immediate post-seizure proceedings than that presented here. In Stypmann, we addressed the constitutionality of a California statute which authorized removal of privately owned vehicles from the street without prior notice or opportunity for a hearing, and which established a possessory lien for towage and storage fees without a hearing before or after the lien attached. Recognizing that the statute at issue "establishe(d) no procedure to assure reliability of the determination that the seizure and detention are justified" and "afford(ed) virtually no protection to the vehicle owner," we held that owners of vehicles towed under the statute are entitled to a prompt post-seizure hearing, and that a five-day delay under such circumstances is "clearly excessive." 557 F.2d at 1343-44. The instant case presents a very different situation. Not only is the offense that precipitated the official seizure more serious, but also the applicable procedures here far better protected the appellant's rights. Thus, the duty of the United States Attorney to investigate and make a determination, independent of the seizing agency, as to whether forfeiture was warranted served to safeguard against an erroneous seizure, and the judicial hearing to which the appellant was entitled served to assure the propriety of the forfeiture. Lee v. Thornton, in which the Second Circuit held that owners of vehicles seized at remote border points and subject to summary forfeiture are entitled to a probable cause hearing, upon request, within 72 hours of seizure, is also distinguishable. There the claimants were afforded neither the independent evaluation by the United States Attorney that prosecution was warranted, nor judicial review to determine whether the forfeiture was just.

Balancing the risk of an erroneous deprivation of the private interest against the probable costs and delays of the requested additional procedural safeguard, 2 we hold that the appellant was not denied due process of law by not being afforded a probable cause hearing within 72 hours of seizure of his car. The risk of an erroneous seizure was minimized by the duty of the United States Attorney immediately after notification of the seizure to investigate the facts and laws and independently to determine whether initiation of forfeiture proceedings was warranted. Moreover, we cannot ignore the fact that the seizure at issue occurred pursuant to laws designed to curb the transportation and sale of narcotics. Seizure and forfeiture of vehicles for violation of narcotics laws foster the public interest. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 686-87, 94 S.Ct. 2080, 2089, 2093-2094, 40 L.Ed.2d 452 (1974). The interest of the appellant in the uninterrupted use of his vehicle is not so compelling as to outweigh the substantial interest of the government in controlling the narcotics trade without being hampered by...

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