United States v. ONE 1973 DODGE VAN, ETC.
Citation | 416 F. Supp. 43 |
Decision Date | 29 June 1976 |
Docket Number | Civ A. No. 4-71895. |
Parties | UNITED STATES of America, Plaintiff, v. ONE 1973 DODGE VAN, VIN B21AE3X095937, BEARING 1973 MICHIGAN LICENSE 4037 EU, Defendant. |
Court | U.S. District Court — Western District of Michigan |
Philip Van Dam, U. S. Atty., Michael D. Gladstone, Asst. U. S. Atty., Detroit, Mich., for plaintiff.
Peter J. Mitoff, Southfield, Mich., for defendant.
This is an action under the provisions of 49 U.S.C. §§ 781-788 and 21 U.S.C. § 881, et seq., for forfeiture of a motor vehicle, one 1973 Dodge Van, VIN B21AE3X095937, bearing 1973 Michigan License Number 4037 EU.
The following facts have been stipulated to by the parties:
1. That Robert Nickel was the owner of the 1973 DODGE VAN, Vehicle # B21AE3X095937, on November 19, 1973.
2. That Robert Nickel was arrested on November 19, 1973, by agents of the D. E. A. without an Arrest Warrant and without a Search Warrant.
3. That at the time of the arrest of Robert Nickel, he was seated behind the wheel of the van, which was parked in a parking lot, in the company of a Mr. Bledsoe, and that the motor had been turned off.
4. That Robert Nickel had in his personal possession and for his own use, 10.3 grams of marijuana.
5. That the Complaint filed against Robert Nickel on November 20, 1973, sets forth that he had in his possession approximately 11 grams of marijuana.
6. That Robert Nickel plead guilty to the charge of possession of 10.3 grams of marijuana on November 11, 1975, in the case of United States v. Robert Nickel, Criminal Action # 74-80799, and that he was sentenced on March 24, 1976.
The constitutionality of this statutory scheme which authorizes the forfeiture of a vehicle prior to judicial determination has been recently upheld by the Supreme Court in Calero-Toledo, et al. v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).
In a forfeiture action, the government bears the initial burden of showing probable cause for the institution of the suit. 19 U.S.C. § 1615; U. S. v. One 1950 Buick Sedan, 231 F.2d 219 (3rd Cir. 1956); U. S. v. One 1973 Volvo, 377 F.Supp. 810 (D.C.Tex.1974).
Probable cause for forfeiture exists if there is evidence sufficient to warrant the reasonable belief that a vehicle was used in violation of narcotics laws. U. S. v. One 1967 Buick Riviera, 2-Door, 439 F.2d 92 (9th Cir. 1971); In re One 1957 Buick Roadmaster Convertible, 262 F.2d 583 (6th Cir. 1958); Ted's Motors v. U. S., 217 F.2d 777, 780 (8th Cir. 1954); U. S. v. One 1949 Pontiac Sedan, 194 F.2d 756 (7th Cir. 1952). The parties have stipulated that at the time of his arrest, Robert Nickel was seated behind the wheel of the Van, and had in his possession 10.3 grams of marijuana.1 This fact alone constitutes a sufficient showing of probable cause to believe that the vehicle was involved in the violation of narcotics laws. The burden of absolving the vehicle from culpability, therefore, shifts to the claimant to prove that the forfeiture does not come within the forfeiture statutes. U. S. v. One 1973 Volvo, supra; U. S. v. One 1950 Buick Sedan, supra, at 223; U. S. v. One 1971 Porsche Coupe Auto., supra.
The claimant argues that the vehicle was not used to facilitate the transportation, concealment, receipt, possession, purchase, sale, barter or exchange of marijuana within the meaning of the forfeiture statute, since the narcotics were for personal use only and were carried on his person.
Thus, in Associates Investment Co. v. U. S., 220 F.2d 885 (5th Cir. 1955), forfeiture was ordered when two partially smoked marijuana cigarettes were found in a vehicle. The Court of Appeals noted that so long as contraband was concealed or possessed in the vehicle, it was unnecessary to show anything more. The small amount involved and the fact that only one illegal incident took place were both irrelevant. In U. S. v. One 1957 Oldsmobile, 256 F.2d 931 (5th Cir. 1958), forfeiture was ordered although only 13 grams of marijuana were found. In U. S. v. One 1967 Buick Riviera, 2-Door, supra, a single packet of heroin in possession of a passenger established probable cause. In U. S. v. One 1973 Volvo, supra, an automobile used to transport money to be paid for a shipment of marijuana and to be paid for the rental of an airplane was held to have "facilitated" violation of the narcotics laws.
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