U.S. v. Pappas

• Decision Date: 25 January 1980
• Docket Number: No. 78-1474,78-1474
• Citation: 613 F.2d 324
• Parties: UNITED STATES of America, Appellant, v. George Anthony PAPPAS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 324

613 F.2d 324

UNITED STATES of America, Appellant, v. George Anthony PAPPAS, Defendant, Appellee.

No. 78-1474.

United States Court of Appeals First Circuit.

Argued Sept. 13, 1979.

Decided Dec. 28, 1979.

As Amended Jan. 25, 1980.

Elliot D. Lobel, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellant.

Ann Lambert Greenblatt, Boston, Mass., with whom Silverglate, Shapiro & Gertner, Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

We granted rehearing en banc from a decision of a panel of this court ¹ reversing a district court's order suppressing evidence against the appellee, George Pappas. Pappas was charged with acquiring and possessing a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 922(h)(1). The firearm giving rise to this charge was discovered in the trunk of Pappas's car during an inventory search that followed the warrantless seizure of the car by agents of the Drug Enforcement Administration (DEA) pursuant to a forfeiture statute, 21 U.S.C. § 881. Prior to trial, Pappas successfully pursued in the district court a motion to suppress the firearm, and the government appealed. Pappas raises three arguments before this court in favor of suppression: that the statute does not authorize such a warrantless seizure absent probable cause to believe that the vehicle was contemporaneously being used to violate the narcotics laws and some degree of exigency in the circumstances surrounding the seizure; that the warrantless seizure, even if authorized by the statute, was unconstitutional; and that the warrantless search following the seizure was unconstitutional, and its fruits, therefore, must be suppressed.

Legality of the Seizure Under the Statute

Section 881 provides, inter alia, for forfeiture to the government of vehicles used or intended to be used to transport or to facilitate the distribution 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". Rule C of these rules, which sets forth the procedures for In rem proceedings, provides that in statutory forfeiture actions a verified complaint shall be filed containing "such allegations as may be required by the statute pursuant to which the action is brought", Rule C(2), and "(u)pon the filing of the complaint the clerk shall forthwith issue a warrant for the arrest of the vessel or other property that is the subject of the action", Rule C(3).

Section 881(b) also enumerates four exceptions to its warrant requirement. ³ It is 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 (title)", that the government relies on as justifying its seizure of Pappas's car. The government's argument is, concisely, that in August of 1976 Pappas's car was observed being used in connection with sales of two quantities of cocaine and that based on this probable cause, agents of the DEA seized the car eleven months later pursuant to subsection 881(b)(4). Pappas does not dispute that the government had probable cause to believe that the car had been used to violate the narcotics laws eleven months before its seizure. He does, however, argue that this warrantless seizure does not fall within the "probable cause" exception to section 881(b)'s process requirement. ⁴

We find no holdings, by either appellate or district courts, that squarely address the proper scope of warrantless seizures permissible under subsection 881(b)(4). In most of the cases applying this exception, federal agents had probable cause to believe that the vehicle in question was being used to transport contraband at the time of the seizure. See United States v. One 1972 Chevrolet Nova, 560 F.2d 464, 469-70 (1st Cir. 1977) (dictum); United States v. Capra, 501 F.2d 267, 280 (2d Cir. 1974); United States v. Thrower, 442 F.Supp. 272, 278 (E.D.Pa.), Aff'd, 568 F.2d 771 (3d Cir. 1977); United States v. One 1975 Lincoln Continental, 72 F.R.D. 535, 540 (S.D.N.Y.1976). See also United States v. Miller, 589 F.2d 1117, 1132 (1st Cir. 1978); United States v. Balsalmo, 468 F.Supp. 1363 (D.Me.1979). Pappas urges us to hold that such contemporaneous probable cause is a necessary prerequisite of a warrantless seizure under subsection 881(b)(4). In support of this assertion, Pappas cites Judge Lay's dissenting opinion ⁵ in O'Reilly v. United States, 486 F.2d 208, 214 (8th Cir.), Cert. denied, 414 U.S. 1043, 94 S.Ct. 351, 38 L.Ed.2d 234 (1973). Judge Lay argued:

"The exceptions under subsection 4 dealing with 'probable cause' would be self-defeating if they meant that process to seize property is not required in Every case where the property has been used in violation of the Act. If the process requirement has any meaning it must be that process is necessary unless there exists probable cause that Section 881(a) is being Contemporaneously violated and the exigencies of the surrounding circumstances make the requirement of obtaining process to seize the vehicle unreasonable and unnecessary." (Emphasis in original.)

In United States v. One 1972 Chevrolet Nova, supra, we echoed the concerns of Judge Lay in O'Reilly : "Since § 881(b)(4) creates an exception that threatens to swallow § 881(b)'s warrant requirement, we would be reluctant to give it an absolutely literal reading." 560 F.2d at 469 (citing O'Reilly v. United States, supra ). Although Pappas urges us not to abandon our "allegiance" to Judge Lay's dissent, the government quite correctly points out that in One 1972 Chevrolet Nova we merely said that subsection 881(b)(4) authorizes warrantless seizures "at least" when both contemporaneous probable cause and exigency are present. Id. at 469-70. Since the facts in that case satisfied both of these requirements, our reservations over giving literal effect to the statutory language, although perhaps suggestive of our view of the section under other circumstances, were dictum. Thus, we now face for the first time the task of determining whether the statute authorizes a warrantless seizure when the events providing the probable cause are remote in time from the actual seizure of the property and no exigent circumstances necessitate prompt action. ⁶

Our starting point is, of course, the statutory language itself. Although the meaning of subsection 881(b)(4) appears to admit but a single reading when viewed in isolation, we are guided by the principle of statutory construction that discrete clauses or subsections of a statute should be construed to effectuate the manifest purpose of the statute or section to which they directly relate. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). In section 881(b) Congress provided a general requirement of process for seizures executed to enforce the forfeiture provision of section 881(a), and then enumerated four exceptions to this requirement. But, as we observed in One 1972 Chevrolet Nova, supra, a literal reading of the (b)(4) "probable cause" exception would vitiate the section's warrant requirement. We would hesitate to construe the general provision as authorizing issuance of a warrant on less than a showing of probable cause, since this would conflict with the Fourth Amendment's proscription that "no Warrants shall issue, But upon probable cause." Thus we are unable to conceive of a class of cases in which the process requirement would be satisfied, yet the (b)(4) exception, read literally, would not at the same time apply; i. e., every case requiring process would also qualify for the exception to the requirement.

Our brother, in his concurrence, chides us for making the "novel assumption" that the warrant prescribed by Supplemental Rule C may issue only upon probable cause. We agree that this is a troublesome provision to apply in this context, since the prevailing law in admiralty cases is that a warrant to initiate an action In rem by attachment need not be accompanied by probable cause. See 7A Moore's Federal Practice P C.12 at 681-82 (2d ed. 1948). We do not undertake to reexamine or change the law of seizure in the intended context of the Supplemental Rules, however, for this is not an admiralty case. ⁷ Section 881 is a punitive, quasi-criminal statute, Cf. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (seizure of vehicle used to violate liquor laws), and we suspect that Congress gave little consideration to the Fourth Amendment implications of applying the Supplemental Rules in this context. ⁸

The Supreme Court has sanctioned the issuance of administrative search warrants on less than probable cause, Marshall v. Barlow's, Inc., 436 U.S. 307, 97 S.Ct. 776, 50 L.Ed.2d 739 (1978), but has never done so in the context of a criminal or quasi-criminal proceeding. We do not see how the incorporation of a procedure from a context in which warrants traditionally have issued without probable cause can immunize a warrant from the Fourth Amendment's generally applicable probable cause requirement. Our brother cites Judge Wright's dictum in Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146, 1150 (D.C.Cir.), Cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969), for the proposition that probable cause is not a prerequisite for issuance of a warrant in civil forfeiture proceedings. We do not find this case apposite to our brother's argument, however. The issue in Scientology was the propriety of a warrantless seizure measured against the reasonableness clause of the Fourth Amendment...