U.S. v. One 1980 Red Ferrari, VIN ZFFAA02A6A0032333, Iowa License No. UAY914, 88-2278

• Decision Date: 18 May 1989
• Docket Number: No. 88-2278,88-2278
• Citation: 875 F.2d 186
• Parties: UNITED STATES of America, Appellee, v. ONE 1980 RED FERRARI, VIN ZFFAA02A6A0032333, IOWA LICENSE NO. UAY914, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 186

875 F.2d 186

UNITED STATES of America, Appellee, v. ONE 1980 RED FERRARI, VIN ZFFAA02A6A0032333, IOWA LICENSE NO. UAY914, Appellant.

No. 88-2278.

United States Court of Appeals Eighth Circuit.

Submitted May 9, 1989.

Decided May 18, 1989.

Alfredo Parrish, Des Moines, Iowa, for appellant.

Kevin E. VanderSchel, Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

PER CURIAM.

David Adcock appeals from the district court's ¹ order granting summary judgment for the United States and ordering the forfeiture of Adcock's automobile which was allegedly used to facilitate criminal activity. The United States commenced the forfeiture proceeding pursuant to 21 U.S.C. Sec. 881(a)(4) ² following Adcock's arrest for possession of cocaine. The government claimed, and the district court found, that Adcock's vehicle was used or intended to be used to transport or facilitate the transportation, sale, receipt, possession or concealment of cocaine in violation of Sec. 881(a)(4). Adcock's principal argument on appeal is that the government failed to satisfy its burden of demonstrating probable cause to believe that the vehicle was used in violation of the forfeiture statute. In addition, Adcock argues that (1) Sec. 881(a)(4) and its Iowa counterpart are unconstitutional because they are vague and overbroad, authorizing unreasonable seizures in violation of the fourth amendment; (2) he was denied due process because he was not afforded a hearing on the seizure of the vehicle; and (3) the granting of the government's motion for summary judgment was improper because there are genuine issues of material fact. We find these contentions without merit, and affirm.

Adcock was arrested on July 22, 1987 by Des Moines police officers who had an outstanding warrant for his arrest for interference with official acts. At the time that the officers observed Adcock, he was driving the red Ferrari that is the subject of this case. Apparently upon noticing the officers, however, Adcock pulled into a service station and stopped. After the officers approached Adcock's vehicle and informed him of the outstanding warrant, he got out of the car, pulled a vial containing a white substance from his pocket and attempted to stuff the vial into a trash container. A brief struggle ensued before the officers retrieved the vial, which contained cocaine. Adcock was then placed under arrest and transported to the Polk County Jail. When he was checked into the jail, he was searched and a paper bindle containing cocaine was seized from his pocket. Adcock appeared in state court on February 17, 1988, and was found guilty of possession of cocaine in violation of Iowa Code Sec. 204.401(3). He was fined $1,000.00.

Adcock's automobile was seized by the Des Moines Police Department at the time of his arrest. The United States filed a complaint for forfeiture in rem on December 1, 1987. Thereafter, in an order dated August 9, 1988, the district court granted the government's motion for summary judgment holding that, although Adcock contended that the forfeiture was inappropriate in the circumstances of this case because the controlled substance was found on his person rather than in the car independently, the caselaw upon which Adcock relied in support of this assertion was "not persuasive ... for in those cases controlled substances were discovered neither in the vehicle nor on the person of the individual in the car." The district court concluded that no genuine issue of material fact existed for trial since (1) Adcock admitted that he was in possession of cocaine at the time that he was operating the vehicle; and (2) the vehicle facilitated the transportation, possession and concealment of the controlled substance as prohibited by 21 U.S.C. Sec. 881(a)(4). This appeal followed.

As a preliminary matter, we note that forfeitures are not favored, and indeed the sparse legislative history of 21 U.S.C. Sec. 881 indicates that the federal forfeiture statute is to be strictly construed. See United States v. One 1976 Ford F-150 Pick-Up, 769 F.2d 525, 526 n. 3, 527 (8th Cir.1985) (per curiam). This court delineated the showing that must be made in order for the government to prevail in an action for forfeiture brought pursuant to 21 U.S.C. Sec. 881(a)(4) in One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759 (8th Cir.1986). There, the court stated that although the government bears the initial burden of going forward in a forfeiture proceeding, to meet this burden "it must establish only that reasonable grounds exist to believe that the [vehicle was] used or intended to be used for prohibited purposes." Id. at 761; see also United States v. One 1976 Ford F-150 Pick-Up, 769 F.2d at 526. Once this initial showing has been made, the burden shifts to the party opposing forfeiture to demonstrate by a preponderance of the evidence that the property is not subject to forfeiture or that a defense to forfeiture exists. One Blue 1977 AMC Jeep CJ-5, 783 F.2d at 761. If no such rebuttal is made, a showing of probable cause alone will support a judgment of forfeiture. Id. "Probable cause" in this context is essentially the same as the standard used to test searches and seizures in the general criminal context. United States v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir.1978). Thus, here, it was incumbent upon the government to establish the presence of "a reasonable ground for belief of guilt supported by less than prima facie proof but more than mere suspicion." United States v. One 1975 Ford F100 Pickup Truck, 558 F.2d 755, 756 (5th Cir.1977).

Applying these principles in the case at hand, we are persuaded that the district court properly concluded that the government satisfied its burden of establishing that Adcock's vehicle was used in contravention of 21 U.S.C. Sec. 881(a)(4); the undisputed evidence reflects that Adcock had cocaine in his possession while...