U.S. v. One 1972 Chevrolet Nova

• Citation: 560 F.2d 464
• Decision Date: 03 August 1977
• Docket Number: D,No. 77-1039,No. 1X27D2W125901,1X27D2W125901,77-1039
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. ONE 1972 CHEVROLET NOVA, Vehicle I. D.efendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 464

560 F.2d 464

UNITED STATES of America, Plaintiff, Appellant, v. ONE 1972 CHEVROLET NOVA, Vehicle I. D. No. 1X27D2W125901,

Defendant, Appellee.

No. 77-1039.

United States Court of Appeals, First Circuit.

Argued April 7, 1977.

Decided Aug. 3, 1977.

William A. Brown, Asst. U. S. Atty., Chief, Civ. Div., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for plaintiff, appellant.

Constance V. Vecchione, Brockton, Mass., with whom William D. Crosby, P. C., Brockton, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MARKEY ^*, Chief Judge.

COFFIN, Chief Judge.

The United States here appeals from an order dismissing its action to have a 1972 Chevrolet Nova forfeited for having been used to transport 350 grams of hashish. The district court denied the government's claim because it believed that the government's failure to procure a warrant before seizing the automobile precluded the forfeiture. We reverse.

The basic facts are not disputed. On October 5, 1972, a United States Customs Opener Verifer in New York discovered what he thought was hashish in a parcel which had been sent from Belgium to Gary Perkins, 11 Elmview Terrace, Brockton, Massachusetts. After tests were performed establishing that the package did in fact contain 350 grams of hashish, the parcel was forwarded to the Brockton, Massachusetts post office. The federal customs agents assigned to the case then set up a "controlled delivery" of the parcel.

On November 24, 1972, at approximately 3:00 p.m., the agents attempted to deliver the package to 11 Elmview Terrace. Because Perkins was not at home and because no one there would accept the package on his behalf, the agents left a notice, informing him of the arrival of the parcel and stating that he could pick up the package at the Brockton post office any time prior to six o'clock that evening. The agents then returned to the post office and awaited Perkins' arrival. At approximately 5:10 p.m., Perkins appeared and took the package. The agents followed him and observed him place the parcel in the defendant 1972 Chevrolet Nova, drive the car to 11 Elmview Terrace, park the car on the public street in front of the house, remove the package from the car, and carry the parcel into the house.

The agents, who had procured a search warrant earlier that day, thereupon entered the house, seized the parcel, searched the house, and arrested Perkins. At 6:15 p.m., approximately twenty to thirty minutes after Perkins had been taken into custody, the agents realized that the automobile was subject to forfeiture and should be seized. Because the agents did not know how many sets of keys or users the car had and believed that the car, which was still on the public street, could have been driven away by anyone, they did not wish to delay the seizure until a warrant could be procured, and they seized the car summarily. Formal forfeiture proceedings were thereafter instituted against the car.

The government's forfeiture complaint initially relied upon three different statutes: 19 U.S.C. § 1595a (forfeiture of vehicle used in the subsequent transportation of articles which were unlawfully introduced into the United States), 21 U.S.C. § 881 (forfeiture of vehicle used to transport controlled substances that have been acquired in violation of the act), and 49 U.S.C. §§ 781, 782 (forfeiture of vehicle used to transport narcotic drugs that are possessed with intent to sell or that were acquired in violation of federal law). For reasons which will be noted, the government subsequently "disavowed" any reliance on 21 U.S.C. § 881.

The sole issue in this appeal is whether the warrantless seizure of the automobile, which the federal officials had probable cause to believe had been used to transport drugs and, thus was subject to forfeiture, precludes the government from thereafter having the vehicle forfeited. Analytically, two separate questions are posed. Was the warrantless seizure violative of federal law? If it was, should the unlawful act be remedied by precluding the government from maintaining its forfeiture claim? We need only address the first.

Several decisions in this circuit are pertinent. The first significant case is Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962). There, this court was presented with the issue whether a vehicle, which was summarily seized by federal officers from a public street some 17 days after its alleged illegal use, may be forfeited. While we thought it inconsistent with our traditions to permit "government agents to summarily sweep automobiles off the streets without any legal process so long as at one time, however remote, those officials believe the vehicle was used" illegally, id. at 37, we felt bound by Supreme Court and other decisions suggesting that the warrantless character of the seizure will not taint the government's forfeiture claim. It bears emphasizing that, although we expressed great reservations about the result in that case, we did suggest that, even if the warrant requirement applied, there would be exceptions to it in emergency and perhaps other circumstances. Id. at 37 n. 4 & 38.

In Berkowitz v. United States, 340 F.2d 168, 174 (1st Cir. 1964), the question was whether money seized pursuant to an illegal arrest could be declared forfeited in a subsequent libel proceeding. We held it could not, reasoning that a contrary result would place too great a premium on unconstitutional conduct. The majority of the court was careful to distinguish Interbartolo, which it read as standing for the proposition that "the illegality of a seizure, without a warrant, of personalty left unattended on a public street, where knowledge of its illegal character or, more exactly, use, was discovered by entirely lawful means, did not sufficiently taint the government's claim (so to prevent a forfeiture)". Id. at 174. (Aldrich, C. J., concurring for himself and Judge Woodbury.) All concede that, if Berkowitz's interpretation of Interbartolo controls, the government may have the 1972 Chevrolet Nova forfeited, for whether or not the warrantless seizure was proper, the government here acquired its knowledge of the vehicle's illegal use through lawful channels. Cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The critical issue for the district court was whether Interbartolo is still good law. In concluding that it is not, the district court relied upon Melendez v. Shultz, 356 F.Supp. 1205 (D.Mass.) (three-judge court), appeal dismissed for lack of jurisdiction, 486 F.2d 1032 (1st Cir. 1973). The Melendez court thought that Berkowitz's distinction of Interbartolo was dubious; its view was that if an illegal arrest taints the fruits of a search incident thereto so severely as to prohibit their forfeiture, a warrantless seizure of property should have the same effect. Noting also Interbartolo's strong reservations about its holding, the Melendez court held that "before seizing vehicles and other items of derivative contraband, the forfeitable nature of which often depends on the making of delicate judgments about previous facts and circumstances, the agent must first procure a warrant except in those established circumstances where a warrant would not be required to make a search." Id. at 1210-11. It thus implicitly held that Berkowitz had overruled Interbartolo.

The Melendez decision, while persuasive authority, is of course not binding on this court. At some point, we may have to decide whether Berkowitz overruled Interbartolo or whether, apart from Berkowitz, Interbartolo should continue to be followed. This case, however, does not require that we face that question. Melendez indicated that warrantless seizures are constitutionally permissible in those established situations in which a warrant would not be required to conduct a search. Since the case at bar falls within such an established exception that pertaining to automobiles on public streets we may dispose of the federal constitutional dimensions of this case on the ground that there has been no Fourth Amendment violation.

It has long been the rule that automobiles on the public highways may be searched without a warrant, at least when (1) there was probable cause to believe that the car contains articles the officers are entitled to seize, (2) there was a reasonable likelihood that the vehicle could or would be moved out of the locality if the search did not occur within a short time after the car had been discovered, and (3) the probable cause was not discovered until so late a time as to prevent the officers from securing a warrant earlier. See Cardwell v. Lewis, 417 U.S. 583, 596-99, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (dissenting opinion); ¹ Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Mahoney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Haefeli v. Chunoff, 526 F.2d 1314 (1st Cir. 1975). Although it might be thought that different standards would apply to automobile seizures than to automobile searches, eight justices have indicated that the same criteria apply, Cardwell v. Lewis, supra ; and the established tests thus apply equally to pre-forfeiture automobile seizures. See United States v. McCormick, 502 F.2d 281, 287 (9th Cir. 1974); United States v. White, 488 F.2d 563, 564-65 (6th Cir. 1973); Sirimarco v. United States, 315 F.2d 699 (10th Cir. 1963); cf. United States v. Capra, 501 F.2d 267, 278-80 (2d Cir. 1974). ²

Under these standards, the warrantless seizure of the 1972 Chevrolet Nova was proper. No one disputes that the car was known to have been used to transport 350 grams of hashish and indeed, the district court so found and that the agents therefore had probable cause to believe the car was subject to forfeiture. Since, following Perkins' arrest, the car was on a public street under conditions in which it was quite...