United States v. One 1951 Cadillac Sedan, Civ. A. No. 5504.

Decision Date27 September 1952
Docket NumberCiv. A. No. 5504.
Citation107 F. Supp. 491
CourtU.S. District Court — Western District of Oklahoma

B. Andrew Potter, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff.

Bohanon & Adams, Oklahoma City, Okl., and Lawton Burton, Lawton, Okl., for interveners.

WALLACE, District Judge.

The United States of America, libelant, filed in the District Court of the United States for the Western District of Oklahoma, on July 16, 1952, a libel of information against the Cadillac, numbered above, alleging among other things that on the 25th day of April, 1952, this automobile, while being driven by its owner, Lee Roy Walker, was used unlawfully in transporting whiskey and gin, namely, 48 Fifths of Old Sunnybrook Bourbon, 96½ pints of Old Sunnybrook Bourbon, 24 Fifths of Seagrams 7 Crown, 12 Fifths of Bellows Bourbon, 12 Fifths of Old Log Cabin Bourbon and 12 Fifths of Gilbeys Dry Gin, and that this automobile was used to transport said taxpaid intoxicating liquor into the State of Oklahoma, said liquor not being accompanied by any permit or license as required by law.1

Subsequent to the seizure of the automobile, the Central Motor Company, Inc. and the City National Bank, both of Lawton, Oklahoma, were permitted to intervene and to file an answer to the libel of information.

On the cause being heard before the Court, without a jury, the following facts appeared:

On January 21, 1952, the intervener, Central Motor Company, sold the defendant Cadillac to one L. R. Walker, and took a note and chattel mortgage in the principal amount of $2,636 as collateral for the payment of the balance of the purchase price. At the time of this sale, Eddie Gaskin, President of Central Motor Company, telephoned M. F. McCracken, Deputy Sheriff of Comanche County, Lawton, Oklahoma, and asked him if there had been any recent complaints on Walker in whiskey dealing. McCracken replied there had been no complaints. This same day, the Central Motor Company assigned said note and mortgage to the intervener, City National Bank of Lawton, Oklahoma, on which there is a delinquent unpaid balance of some $2,280.

The first contention of the interveners is that the automobile in question was taken into custody, and is now being held, under and by virtue of an unlawful search and seizure in violation of the constitutional rights of these interveners, and in violation of the Fourth Amendment to the Constitution of the United States of America.

It is well settled that the guaranty of the Fourth Amendment to the Constitution is a personal right or privilege, to be claimed by the party subject to the alleged unreasonable search. Simmons v. United States, 8 Cir., 18 F.2d 85. The constitutional rights of the interveners were not invaded and the interveners have no standing to raise it. Van Dam v. United States, 6 Cir., 23 F.2d 235; Cantrell v. United States, 5 Cir., 15 F.2d 953; Graham v. United States, 8 Cir., 15 F.2d 740; United States v. One Buick Automobile, D.C., 21 F.2d 789.

The interveners further contend they are entitled to remission or mitigation of forfeiture under 18 U.S.C.A. § 3617(b) (1-3).

The undisputed evidence is that Gaskin, President of Central Motor Company, telephoned McCracken, Deputy Sheriff, Comanche County, Lawton, Oklahoma, and asked him, "Have there been any recent complaints on Walker?" When McCracken answered this negatively the conversation ended. Gaskin testified that to his own knowledge Walker had a reputation for illegally dealing in liquor some six years previously. For this reason he made the telephone call to the deputy sheriff prior to the completion of the sale of the automobile and the execution of the note and chattel mortgage.

The wording of 18 U.S.C.A. § 3617(b) (3) is:

"If it appears that the interest asserted by the claimant arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle * * * that, before such claimant acquired his interest, or such other person acquired his right under such contract or agreement, whichever occurred later, the claimant, his officer or agent, was informed in answer to his inquiry, at the headquarters of the sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws * * * that such other person had no such record or reputation." (Emphasis supplied.)

It is the opinion of this court that it has no power to grant the petition for remission or mitigation of forfeiture in the case at bar as the express conditions precedent were not met by either intervener. The inquiry must specifically...

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3 cases
  • United States v. ONE 1955 CADILLAC ELDORADO CONVERT., Civ. No. 1391-D.
    • United States
    • U.S. District Court — Eastern District of Illinois
    • March 1, 1957
    ...or in the contraband has no legal objection to the evidence obtained by an unreasonable search and seizure. United States v. One 1951 Cadillac Sedan, D.C.Okl., 107 F.Supp. 491, affirmed sub nom. City National Bank, Lawton, Okl. v. United States, 10 Cir., 207 F.2d 741, and United States v. O......
  • City Nat. Bank, Lawton, Okl. v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 29, 1953
    ...court denied the claim for remission or mitigation and ordered the automobile forfeited under the provisions of 18 U.S.C.A. § 3615. 107 F.Supp. 491. The claimants appeal from that It is admitted that the lien against the automobile was acquired on the 21st day of January, 1952 through a not......
  • United States v. One 1952 Ford Victoria, 26219.
    • United States
    • U.S. District Court — Northern District of California
    • September 4, 1953
    ...of the claimant. United States v. One Buick, D.C., 21 F.2d 789; United States v. One Gardner, D.C., 35 F.2d 777; United States v. One 1951 Cadillac, D.C., 107 F.Supp. 491. Claimant also relies on United States v. One Reo Speed Wagon, D.C., 5 F.2d 372, in support of its position that it is e......

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