U.S. v. One 1974 Porsche 911-S Vehicle Identification No. 9114102550

• Decision Date: 09 July 1982
• Docket Number: No. 81-1911,81-1911
• Citation: 682 F.2d 283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1974 PORSCHE 911-S VEHICLE IDENTIFICATION NO. 9114102550, Defendant-Appellee. Edward Gioiosa, Jr., Claimant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 283

682 F.2d 283

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1974 PORSCHE 911-S VEHICLE IDENTIFICATION NO.

9114102550, Defendant-Appellee.

Edward Gioiosa, Jr., Claimant-Appellant.

No. 81-1911.

United States Court of Appeals, First Circuit.

Argued May 6, 1982.

Decided July 9, 1982.

Ellen Grossman, West Newton, Mass., with whom Karnig Boyajian, Boston, Mass., was on brief, for claimant-appellant.

Ralph A. Child, Asst. U. S. Atty., Boston, Mass., with whom William F. Weld, U. S. Atty., Boston, Mass., was on brief, for plaintiff-appellee.

Before PHILLIPS, ^* Senior Circuit Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Edward Gioiosa appeals from a judgment of forfeiture entered against his automobile, a Porsche 911-S, pursuant to 21 U.S.C. § 881(a)(4). ¹ Gioiosa raises two issues whether summary judgment of forfeiture was proper and whether he was improperly denied oral argument on the summary judgment motion. This matter arises out of the same set of facts that led to Gioiosa's conviction on a guilty plea under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, which he has attacked collaterally and which we have also decided today in No. 82-1077, Gioiosa v. United States, 1st Cir., --- F.2d ----. A forfeiture proceeding is a civil, in rem action that is independent of any factually related criminal actions.

As set forth in the affidavit of Drug Enforcement Administration Agent John E. Fencer, Jr., the only evidence submitted, the facts are as follows. On the afternoon of November 21, 1977, in the parking lot of a restaurant in Braintree, Massachusetts, three DEA agents, including Fencer, were watching two men, Edward Bestoso and Gregg Leverant, who were sitting in a parked Plymouth automobile and who were known to have arranged a sale of 15,000 valium tablets to a fourth DEA agent that afternoon. Shortly before three p. m., Gioiosa drove the Porsche into the lot and parked it next to the Plymouth. Bestoso got out of the Plymouth and entered the passenger side of the Porsche. He carried nothing. After a short time, Bestoso got out of the Porsche, reached back into it, and pulled out a brown canvas bag with a green and red stripe. Bestoso returned to the Plymouth with the bag. The Porsche and the Plymouth left the lot together, and the DEA agents followed. The cars soon separated, the Plymouth heading in the direction of the rendezvous site with the fourth DEA agent and the Porsche continuing on its way. The three agents followed the Porsche. After about ten minutes, the agents learned over their two-way car radio that the arranged sale had been made and that a brown canvas bag containing about 15,000 tablets had been delivered to the buyer-agent. The three DEA agents then stopped the Porsche, arrested Gioiosa, and seized the car.

Gioiosa's attack on the summary judgment is that agent Fencer's affidavit failed to meet the government's burden of proof for a forfeiture. The government bears the burden of going forward in a forfeiture proceeding, but it must only show probable cause that the res subject to forfeiture was involved in a crime, here transporting a controlled substance. Once the government does so, the burden shifts to the claimant who must show by a preponderance of the evidence that, in such a case as this, the vehicle did not facilitate the transportation of a controlled substance. United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154, 156 (3d Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 97, 70 L.Ed.2d 88; United States v. One 1972 Toyota Mark II, 505 F.2d 1162, 1164 (8th Cir. 1974); see United States v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir. 1978). The question here, then, is whether agent Fencer's affidavit constituted sufficient probable cause. The probable cause standard is approximately the same as that used in search and seizure cases. Compare United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir. 1980) (per curiam) (standard in forfeiture case) with Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966) (standard in fourth amendment case); cf. United States v. Pappas, 613 F.2d 324, 326-30 (1st Cir. 1979) (treating the two standards as the same). This means that the government need only supply evidence that provides reasonable grounds for believing that the automobile facilitated transportation or sale of drugs. The evidence must go further, however, than simply arousing suspicion. See United States v. One 1978 Chevrolet Impala, 614 F.2d at 984.

Gioiosa points to three alleged defects in the affidavit that he urges defeat a probable cause finding. First, the report to the agents following Gioiosa that the drug transaction had been completed was hearsay. Second, the "chain of custody" of the bag taken from Gioiosa's car was broken: the agents following Gioiosa could not have known whether the bag Bestoso took from Gioiosa was the same bag delivered in the sale to the agent. Third, the tablets sold were not found to be a controlled substance until after Gioiosa had been arrested and the Porsche seized.

We disagree; the facts alleged in the affidavit were sufficient to constitute probable cause. Hearsay may contribute to probable cause for issuance of a search warrant, if there is substantial basis for crediting the hearsay, United States v. Ventresca, 380 U.S. 102, 108-11, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964); United States v. Poulack, 556 F.2d 83, 87 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977). This rule should also operate in a forfeiture proceeding, and we think that the hearsay statement of a fellow officer over a police radio could be found reliable. Cf. United States v. One 1975 Pontiac Lemans, 621 F.2d 444, 449 (1st Cir. 1980) ("the existence of probable cause is to be evaluated on the basis of the collective information of the law enforcement officers engaged in a particular investigation"). The bag described in the radio report to the agents following Gioiosa was sufficiently similar to the bag taken by Bestoso to support an inference that the bags were the same. Cf. United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 455-56 (7th Cir. 1980) (reasonable to conclude that drug seller obtained drugs from owner of forfeited car, although seller was not observed at all times); United States v. One 1977 Lincoln Mark V, 453 F.Supp. 1388, 1391 (S.D.N.Y.1978) (inferable that vehicle was used to facilitate drug transaction when it was the only car used by driver, who had to have been source of drugs for seller). The fact that the tablets were not found until later to contain a controlled substance does not disturb the earlier probable cause: the DEA agents had reasonable grounds to believe that a sale of several thousand tablets of valium would occur that afternoon, and it was reasonable to believe that the tablets contained in the brown bag were valium. These facts, together with the other facts set forth in the affidavit (and not the subject of any dispute by Gioiosa), provided probable cause to believe that the Porsche had been used to transport a controlled substance. ²

We also reject Gioiosa's claim...