U.S. v. Turner

• Citation: 933 F.2d 240
• Decision Date: 14 May 1991
• Docket Number: No. 90-6788,90-6788
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark TURNER, IV; James Spencer, Claimants-Appellants, One 1963 Chevrolet Corvette, VIN 30837S119534, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 240

933 F.2d 240

59 USLW 2758

UNITED STATES of America, Plaintiff-Appellee, v. Mark TURNER, IV; James Spencer, Claimants-Appellants, One 1963 Chevrolet Corvette, VIN 30837S119534, Defendant.

No. 90-6788.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1990.

Decided May 14, 1991.

Marvin David Miller, argued, Alexandria, Va., for claimants-appellants.

Thomas More Hollenhorst, Asst. U.S. Atty., argued (Henry E. Hudson, U.S. Atty., on brief), Alexandria, Va., for plaintiff-appellee.

Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

The United States brought this action for the civil forfeiture of a 1963 Chevrolet Corvette. 21 U.S.C.A. Sec. 881(a)(4) (West Supp.1991). The district court granted summary judgment in favor of the government. Mark Turner, IV, the owner of the vehicle, opposed the forfeiture and appeals the ruling of the district court. ¹ We affirm.

I.

On June 26, 1988, Arlington County Officer Hackert observed a woman enter a convenience store and leave with only a cup of water. The officer watched the woman walk to an adjacent parking lot and enter a 1963 Corvette that was backed into a parking space some distance away from other vehicles in the lot. He drove over to the Corvette, radioed for back-up, and exited his vehicle. As he approached the Corvette, he noticed the woman and the other occupant of the car, Turner, become animated and lean over as if they were hiding something. The officer ordered Turner and the woman to exit the Corvette. As they exited, the officer observed drug paraphernalia and white powder between the seats in plain view. Turner was arrested and the Corvette impounded. A search of the Corvette revealed 6.18 grams of cocaine under the front seat.

On December 19, 1988, Turner was indicted on state charges of possession of cocaine with intent to distribute. During the course of the state proceedings, Turner moved to suppress the evidence on the ground that the seizure was illegal because the officer lacked a reasonable articulable suspicion for the investigatory detention. After this motion was denied, Turner pled guilty to simple possession on April 11, 1989. He was sentenced to a term of probation on July 7, 1989 and took no appeal. In September 1989, having pled guilty to charges that he contends precluded state forfeiture under Virginia law, Turner moved in the Arlington County Circuit Court for return of the Corvette. It was then that he first learned that the Drug Enforcement Administration administratively forfeited the Corvette in November 1988.

Because Turner was incarcerated on unrelated federal charges from September 1988 to November 1988, he did not receive actual notice of the proceeding. Although the government mailed notice of the forfeiture to Turner's home address, the tenants who were renting Turner's home during his incarceration did not accept the notice, and it was returned unreceived. The government then published a notice in a national newspaper for three weeks. On November 29, 1988, no claim having been asserted, the Corvette was forfeited. In May 1989, title to the automobile was transferred to the Arlington County Police Department.

Turner sought through the Virginia courts to set aside the administrative forfeiture alleging that he was not given proper notice. While this state proceeding was pending, the government, apparently recognizing that lack of notice may have rendered the administrative forfeiture void, initiated this forfeiture action in federal court and obtained a warrant of arrest in rem from the clerk of the district court. After the Virginia courts refused to entertain Turner's state action, he moved to dismiss this action. Turner argued that the administrative forfeiture is void because the government failed to give him proper notice and that a judicial forfeiture would violate his right to due process because the government delayed unreasonably in bringing the action. Granting summary judgment for the government, the district court specifically found that probable cause existed for the seizure and judicial forfeiture and that the delay of the government in bringing the proceeding was not unreasonable because it had diligently pursued an administrative action in the interim. The district court also found that Turner's motion to vacate the administrative forfeiture was moot in view of the disposition of the judicial forfeiture.

II.

The government brought this action against the Corvette under 21 U.S.C.A. Sec. 881(a)(4) which subjects to forfeiture "[a]ll ... vehicles ... which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [a controlled substance]." In order to prevail in a forfeiture action under subsection 881(a), "the government need only establish 'probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.' " Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986) (quoting United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars ($364,960.00) in United States Currency, 661 F.2d 319, 323 (5th Cir.1981)).

Turner does not dispute the finding of the district court that a substantial connection existed between the vehicle and the underlying criminal conduct. Rather, he contends that this finding of probable cause cannot be sustained because the cocaine and drug paraphernalia were obtained as a result of what Turner argues was an illegal investigatory detention. Turner correctly notes that the fourth amendment is applicable to forfeiture proceedings, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 1251, 14 L.Ed.2d 170 (1965), and he claims that since the contraband was fruit of an unlawful seizure, it must be suppressed. ²

An investigatory detention does not violate constitutional standards if the officer has a reasonable articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Officer Hackert's training and past work experience in narcotics caused him to suspect that the woman obtained the cup of water in order to "cook up" illegal drugs. His suspicion of illegal activity was heightened when he observed the woman return to a vehicle backed into its parking space, and parked far away from other automobiles in the lot. As the officer approached the Corvette, he observed Turner nervously bend over as if to secrete something under the seat. The officer had a reasonable articulable suspicion sufficient to support an investigatory detention. During the brief detention, the officer observed cocaine and drug paraphernalia in plain view between the seats in the Corvette which justified Turner's arrest and the seizure of the vehicle.

III.

Upon the filing by the government of a complaint for forfeiture, a district court clerk issued a warrant of arrest in rem pursuant to Supplemental Rules for Certain Admiralty and Maritime Claims C(3), made applicable to forfeiture proceedings by 21 U.S.C.A. Sec. 881(b) (West 1981 & Supp.1991). Rule C(3) provides that "[i]n actions by the United States for forfeitures for federal statutory violations, the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances." A warrant of arrest in rem serves to bring the res within the jurisdiction of the court and authorizes the government to seize the property. Turner contends that the seizure of the Corvette pursuant to the warrant of arrest in rem violated the unreasonable seizure provision of the fourth amendment because it was issued without a prior finding of probable cause. Turner also argues that this procedure is violative of the warrant clause of the fourth amendment.

A.

Turner contends that the seizure of the Corvette under the warrant of arrest in rem was unreasonable because probable cause for the seizure was not determined by a judicial officer. All seizures by the government must comport with the fourth amendment which guarantees freedom from "unreasonable searches and seizures, ... and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. Subject to a few well-defined exceptions, searches and seizures conducted without prior judicial determination of probable cause are per se unreasonable. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982).

When law enforcement authorities have probable cause to believe an automobile contains contraband, they may seize it without a prior judicial determination of probable cause without violating the fourth amendment. United States v. $29,000--U.S. Currency, 745 F.2d 853, 854-55 (4th Cir.1984). The justification for a warrantless seizure does not disappear merely because the vehicle has been impounded. Cf. id. at 855 (probable cause for warrantless search does not end merely because the automobile was secured); United States v. Kemp, 690 F.2d 397, 401 (4th Cir.1982) (once automobile is used in violation of the law, probable cause for seizure will not dissipate). Officer Hackert, having reasonable cause to believe that the Corvette contained contraband, was justified in seizing the automobile without a warrant. Since probable cause for the warrantless seizure did not dissipate, the lack of judicial determination of probable cause prior to seizure of the Corvette pursuant to the warrant of arrest in rem did not violate the fourth amendment.

B.

Turner further contends that this court lacks jurisdiction over the res because the procedure established by subsection 881(b) and Rule C(3) violates the warrant clause of the fourth amendment. Turner first claims that district court clerks may not issue warrants because they are not judicial officers and cannot make probable cause determinations. Next...