United States v. ONE 1967 PORSCHE, MODEL 911-TARGA, ETC.

• Decision Date: 20 February 1974
• Docket Number: No. 72-2678.,72-2678.
• Citation: 492 F.2d 893
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1967 PORSCHE, MODEL 911-TARGA SERIAL NUMBER 500-677, MOTOR NUMBER 912-018, et al., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.2d 893 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1967 PORSCHE, MODEL 911-TARGA SERIAL NUMBER 500-677, MOTOR NUMBER 912-018, et al., Defendant-Appellant.

No. 72-2678.

United States Court of Appeals, Ninth Circuit.

February 20, 1974.

Carl B. Shapiro, San Anselmo, Cal., for defendant-appellant.

James L. Browning, Jr., U. S. Atty., Dennis M. Nerney, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before KOELSCH, GOODWIN and WALLACE, Circuit Judges

WALLACE, Circuit Judge:

Potter, the owner and operator of a 1967 Porsche Targa, was lawfully arrested for reckless driving and assault on an officer. Subsequently, while they were removing the Porsche from a restaurant parking lot at the request of the lot attendants, the arresting officers observed a brown leather pouch filled with hashish in plain view on the front seat of the car. The Porsche was seized and the government filed a complaint in rem requesting forfeiture pursuant to 49 U. S.C. §§ 781-788. The trial court, sitting without a jury, found that Potter had used the automobile to transport narcotics in violation of 49 U.S.C. § 781 and ordered that the automobile be forfeited to the government. Potter appeals and we affirm.

Potter, contending that the forfeiture procedures are in violation of the Constitution, argues (1) that the forfeiture itself violates due process, and (2) that the seizure without a hearing violates due process.

I. THE FORFEITURE AND DUE PROCESS

Potter's first argument is based upon the concern over the constitutionality of forfeiture expressed in United States v. United States Coin & Currency, 401 U.S. 715, 720-21, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). The Court there indicated that a statute allowing property of the innocent to be forfeited might raise serious Fifth Amendment questions. However, the Court stated that the manifest intent of forfeiture statutes, when viewed in their entirety, is "to impose a penalty only upon those who are significantly involved in a criminal enterprise." 401 U.S. at 721-22, 91 S.Ct. at 1045. Since Potter does not contend that the trial court erred in finding that he owned the Porsche and used it to transport narcotics, he does not fall within the ambit of the Court's apparent concern for the innocent being deprived of their property because of the illegal acts of others. Consequently, we would not be justified in ignoring other Supreme Court as well as our cases which have consistently recognized the validity of forfeiture. United States v. Ryan, 284 U.S. 167, 52 S.Ct. 65, 76 L. Ed. 224 (1931); United States v. One 1967 Ford Mustang, 457 F.2d 931 (9th Cir.), cert. denied, 409 U.S. 850, 93 S.Ct. 59, 34 L.Ed.2d 92 (1972); D'Agostino v. United States, 261 F.2d 154 (9th Cir. 1958), cert. denied, 359 U.S. 953, 79 S. Ct. 739, 3 L.Ed.2d 760 (1959).

II. SEIZURE WITHOUT A PRIOR JUDICIAL HEARING

Potter's second argument is based upon his conclusion that the government cannot interfere with private property rights without a prior hearing. As support for his position he cites Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L. Ed.2d 287 (1970); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); and Willner v. Committee, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). In none of these cases, however, has the Court held that the Fifth Amendment mandates a hearing in every situation where the government interferes with a private property interest. In each case the Court has carefully analyzed all the facts before it applied the due process talisman. As Justice Frankfurter, concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-63, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951), has said:

Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, "due process" cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, "due process" is compounded of history, reason, the past course of decisions, and stout confidence in the strength of

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