U.S. v. One 1978 Mercedes Benz, Four-Door Sedan, VIN: 116-036-12-004084

• Citation: 711 F.2d 1297
• Decision Date: 19 August 1983
• Docket Number: Nos. 82-1132,82-1316,FOUR-DOOR,s. 82-1132
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 MERCEDES BENZ,SEDAN, VIN: 116-036-12-004084, Defendant, Joseph S. and Patricia Chagra, Claimants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. ONE 1978 MERCEDES BENZ,SEDAN, VIN: 116-036-12-004084, Defendant, Joseph S. and Patricia Chagra, Claimants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1297

711 F.2d 1297

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 MERCEDES BENZ, FOUR-DOOR SEDAN, VIN:

116-036-12-004084, Defendant,

Joseph S. and Patricia Chagra, Claimants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. ONE 1978 MERCEDES BENZ, FOUR-DOOR SEDAN, VIN:

116-036-12-004084, Defendant,

Joseph S. and Patricia Chagra, Claimants-Appellees.

Nos. 82-1132, 82-1316.

United States Court of Appeals, Fifth Circuit.

Aug. 19, 1983.

Rebecca D. Westfall, Mark M. Greenberg, El Paso, Tex., for U.S.

Richard D. Esper, El Paso, Tex., for Joseph S. and Patricia Chagra.

Appeals from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GOLDBERG and POLITZ, Circuit Judges.

CLARK, Chief Judge:

The 1978 Mercedes Benz four-door sedan owned by Joseph and Patricia Chagra was forfeited to the government as a result of its use in the transportation of a sample of cocaine. The Chagras appeal to this court from the district court's judgment forfeiting the vehicle. The government also appeals from the district court's related order which allowed the Chagras to remove a car telephone from the vehicle. We affirm both decisions.

Joseph Chagra conducted several meetings and conversations during 1980 and 1981 with Thomas Prout. The intent of these meetings, according to Prout's trial testimony, was to secure large quantities of cocaine. Prout testified that Chagra was interested in purchasing the drugs. Chagra testified that he felt he was being set up by the government through Prout. However, he went along with Prout's scheme in the hope of arranging a "double bust" to embarrass Prout and the government.

On August 30, 1981, Prout flew to the El Paso International Airport where he met Chagra. The two men then got into Chagra's Mercedes and drove to a warehouse parking lot. They got out of the car, walked a short distance away, and began to discuss the price of the cocaine, the suppliers, and the sample of cocaine that Prout had brought with him. Chagra and Prout again got into the car and drove to a residential area where Prout gave the cocaine sample to Chagra. Chagra placed the sample in the glove compartment and then drove Prout back to the airport.

On December 15, 1981, three and a half months after the meeting in El Paso, DEA agents, acting without a warrant, seized the Mercedes from the parking lot of a business owned by Patricia Chagra. The agents had first gone inside the establishment and informed Mrs. Chagra that they were going to seize the car. The agents told her they would tow away the car if she did not relinquish her keys. She did and the agents removed the car.

On January 12, 1982, the government filed a verified complaint for forfeiture of the vehicle pursuant to 21 U.S.C. § 881(a)(4). The complaint alleged that the car had been used to transport cocaine in violation of 21 U.S.C. § 844. After a non-jury trial, the court ordered the Mercedes Benz, its tools and appurtenances, forfeited to the United States. The Chagras subsequently petitioned the court to allow them to remove a car telephone from the car claiming that it was their personal property and not a tool or appurtenance of the forfeited vehicle. The court allowed the Chagras to remove the phone.

We entertain three issues on this appeal. The Chagras contend that: (1) the forfeiture statute does not authorize the warrantless seizure of property when the event providing probable cause for the seizure occurs months prior to the actual seizure and no exigent circumstances require prompt action, and (2) there was no illegal activity because Chagra did not have the necessary specific intent to commit the underlying offense thus eliminating the nexus between the vehicle and the illegal activity. The government argues that the car telephone is an appurtenance of the vehicle and thus subject to forfeiture because it is intimately related to the vehicle and it is attached in a secure and permanent manner.

The Belated Seizure

The Chagras' first argument is that the government should have secured a warrant when agents seized the vehicle. The probable cause required to seize the vehicle may have existed in August, but, they assert, it certainly dissipated by December. ¹

Section 881 provides for forfeiture of vehicles used to transport or to facilitate the transportation, receipt, and possession of controlled substances in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970. ² Section 881(b) authorizes the seizure of property subject to forfeiture under the Act "upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims." That section lists four exceptions to its warrant requirement. ³ To justify its seizure of the Chagras' car, the government relies on the fourth exception, subsection 881(b)(4), which authorizes warrantless seizures when "the Attorney General has probable cause to believe that the property has been used or is intended to be used in violation of this subchapter."

The Chagras claim that the warrantless seizure does not fall within the probable cause exception and, therefore, is in violation of the fourth amendment. They contend that the exception applies only when the seizure immediately follows the occurrence that gives rise to probable cause and the exigencies of the surrounding circumstances make it impractical to obtain process.

Three other circuits have considered the issue and relied upon different modes of analysis.

The First Circuit's view in United States v. Pappas, 613 F.2d 324 (1st Cir.1979) (en banc), first urged by Judge Lay's dissent in O'Reilly v. United States, 486 F.2d 208 (8th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1983), is argued here by the Chagras. In considering a motion to suppress the fruits of a search following a seizure under the forfeiture laws, the First Circuit concluded that the probable cause exception of subparagraph (b)(4) applies only when the seizure so immediately follows the occurrence giving rise to probable cause that the exigencies of the surrounding circumstances make it impractical to obtain process. Pappas held that a literal reading of the probable cause exception would vitiate the general warrant requirement. It pointed out that there would be no case in which a warrant, issued upon probable cause, could be obtained that would not at the same time meet the probable cause exception. 613 F.2d at 328.

Judge Levin Campbell's dissent, however, suggested that the majority opinion was incorrect in presuming that probable cause is required for a warrant under the Supplemental Admiralty Rules. Id. at 333. Judge Campbell interpreted the statute to allow for warranted and warrantless seizures.

I thus read § 881(b) as simply providing for two alternative means of commencing forfeiture proceedings, the first being in the nature of an attachment pursuant to the admiralty procedure and the second, seizure. The Attorney General may commence the proceeding by filing a verified complaint, in which event process for seizure of the conveyance or property will issue "forthwith" (see Rule C), and the owner may defend in court if he believes the seizure unjustified. Alternatively, the Attorney General may effect a seizure without initiating judicial proceedings but only if he determines there is probable cause. In the latter case, forfeiture proceedings are to be instituted "promptly" thereafter. Given the differences between these two procedures, I think, with all due respect, that the "swallow-up" argument disappears.

Id. at 334. ⁴

The Third Circuit in United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154 (3rd Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 88 (1981), expressly adopted Judge Campbell's view. The court found that given "the rather pro forma admiralty warrant procedure and the absence of legislative intent, we believe that an 'exigent circumstances' requirement should not be read into the (b)(4) exception as a matter of statutory construction." Id. at 158. The Court, then considering the seizure in fourth amendment terms, found that it was clearly established in the Third Circuit that warrants are not required in forfeiture seizures. The court thus upheld the seizure of an automobile two months after the government had gained probable cause to believe that the automobile had been used to facilitate the transportation or sale of a controlled substance. The court added that because two months

does not present a very long or completely unexplained delay between the occurrence of events giving rise to probable cause and the seizure, we need not decide whether in certain cases section 881(b)(4) should be read to imply a reasonable time requirement or require an explanation for the delay.

Id.

The Third Circuit in another opinion issued on the heels of Lincoln Mark V reiterated its adherence to Judge Campbell's view. In addition, the court stated that by following the literal language of the statute, the court was following the clear legislative intent.

The drafters of the 1970 Act clearly intended to liberalize, not restrict, the existing authority of law enforcement officers to seize property used in contravention of the drug control laws. Thus, to read an exigent circumstances requirement into the statute would be consistent with neither the plain language nor the legislative history of the Act.

United States v. Bush, 647 F.2d 357, 368 (3rd Cir.1981). Finding the warrantless seizure not to be contrary to the statute, the court found the seizure met the dictates of the fourth amendment. Recent doctrinal advances, the Bush court noted, had not changed the rule from its prior decision in United States v. Troiano, 365 F.2d 416 (3rd Cir.), cert. denied, 385 U.S. 958, 87 S.Ct. 396, 17 L.Ed.2d 303 (1966). ⁵ First, it found that the "legitimate expectation of privacy" analysis in fourth amendment cases accorded with...