US v. ONE (1) 1984 MERCEDES BENZ

• Citation: 673 F. Supp. 387
• Decision Date: 06 November 1987
• Docket Number: Civ. No. 86-1129.
• Parties: UNITED STATES of America, Plaintiff, v. ONE (1) 1984 MERCEDES BENZ, VEHICLE IDENTIFICATION NO. WDBBA45AOEA005388, Defendant. Fred M. MURRELL, Counterclaim-Plaintiff, v. UNITED STATES of America, Counterclaim-Defendant.
• Court: U.S. District Court — District of Hawaii

673 F. Supp. 387

UNITED STATES of America, Plaintiff, v. ONE (1) 1984 MERCEDES BENZ, VEHICLE IDENTIFICATION NO. WDBBA45AOEA005388, Defendant.

Fred M. MURRELL, Counterclaim-Plaintiff, v. UNITED STATES of America, Counterclaim-Defendant.

Civ. No. 86-1129.

United States District Court, D. Hawaii.

November 6, 1987.

COPYRIGHT MATERIAL OMITTED

Daniel Bent, U.S. Atty., Florence T. Nakakuni, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.

Reinwald, O'Connor & Marrack, Dennis E. W. O'Connor, Steven J. McHugh, Honolulu, Hawaii, for Fred M. Murrell.

MEMORANDUM DECISION GRANTING MOTION FOR ISSUANCE OF CERTIFICATE OF REASONABLE CAUSE

PENCE, Senior District Judge.

This is a forfeiture action by the United States against a Mercedes Benz allegedly used to transport cocaine. The owner of the vehicle, Fred Mack Murrell ("Murrell"), is the only claimant and has filed counterclaims arising out of his arrest and prosecution and the seizure of the vehicle. In June 1987, this court dismissed the complaint on the ground that undue delay by the United States following the seizure of the vehicle violated Murrell's constitutional right to due process of law. The United States now moves for a certificate of reasonable cause, to insulate it from costs and its agents from civil liability.

Factual Background

On May 10, 1986, Dennis Peterson, a Honolulu Police Department ("HPD") Officer assigned to the Drug Enforcement Agency Airport Task Force ("DEA ATF"), received a telephone call from Detective Gallagher of the Portland Airport Interagency Narcotics Team. Gallagher related that an employee of Northwest Orient Airlines ("NWOA") had opened an air-freight package addressed to Fred Murrell, discovered white powder, and turned the package over to Gallagher. Agents of the Portland Airport Interagency Narcotics Team performed a field test on the powder with positive results for cocaine. Gallagher further advised that he would send the package to Peterson.

The package arrived in Honolulu on May 11, 1986 and was picked up by Steve Logan, a HPD Officer assigned to the DEA ATF. Logan performed a field test on the contents of the package, with positive results for cocaine, and repackaged the contents for pick-up by Murrell. Also on May 11, a caucasian man calling himself Fred Murrell appeared at the NWOA air cargo counter and asked for the package. NWOA employee Amy Mekelwat told him the package was not there, and observed him driving away in a Mercedes Benz 380 SL with Oregon license plates.

On May 12, 1986, Murrell called NWOA and said that he was coming to pick up the package. At the air cargo counter, Murrell identified himself with an Oregon drivers license to Agent Robert Turner of the DEA ATF, who was posing as a NWOA employee. Agent Turner gave Murrell the package, and Murrell departed. Agent Logan and Karen Huston, a HPD Officer assigned to the DEA ATF, who were posted outside, failed to pick up Murrell as he left. No one saw him leave the airport.

Agents Turner, Logan, and Huston, knowing Murrell's address, went to his residence at the Colony Surf condominium in Waikiki. They looked for his vehicle but did not see it in the parking lot. Turner called Murrell's phone number but an answering machine responded. Turner then knocked on Murrell's front door. Murrell answered the door. Turner, resuming his pose as a NWOA employee, told Murrell that he had made a mistake and needed to get a number from the packaging and to look at the receipt.

Murrell turned and walked into his kitchen. Turner walked through the open door into the apartment. Murrell took the now empty package from a trash can and the receipt from a counter and gave them to Turner. Turner then identified himself as a DEA agent and Logan and Huston entered the apartment. Logan and Huston identified themselves and Murrell was advised that the agents were conducting a narcotics investigation. Huston gave Murrell the Miranda warnings and asked if he would consent to a search of his apartment. Murrell refused.

Logan conducted a "protective sweep" of the apartment and observed on a counter in the bathroom a partially burned handrolled cigarette containing what appeared to be marijuana. Logan left to get a search warrant. Turner and Huston remained in the apartment to prevent Murrell from leaving or destroying any evidence for about four hours. While waiting for the search warrant, Murrell admitted to Turner that he used the vehicle to pick up the package at the airport. Murrell also asked Turner, "What will happen if I show you where it is?"

A search warrant based upon Logan's affidavit was obtained. Logan's affidavit contained no information gained during the protective sweep, but concluded with the information that Murrell had given Turner the empty package. Once the search warrant was obtained, Turner asked Murrell if he wanted to show them where the cocaine was. Murrell pointed to a night stand in the bedroom, from which Turner recovered a black film cannister containing the bag of cocaine Logan had field tested. Logan placed Murrell under arrest. Logan and Agent James Strickland seized the vehicle from the parking lot of Murrell's building later that day.

The U.S. Attorney declined to prosecute any criminal charges in the case. However, the State of Hawaii prosecuted Murrell for possession of the cocaine. On October 7, 1986, a state court judge suppressed all evidence found by the police in Murrell's apartment, holding in pertinent part:

3. The police "seized" the Defendant's home, within the meaning of the Fourth Amendment and Article I, Section 7 of the Hawaii State Constitution, the moment they entered it on May 12, 1986, without a search warrant.

* * * * * *

8. This warrantless seizure of the home then, and the curtailing of the occupant's movement within it, was sic unconstitutional under the search and seizure sic of this State. State v. Dorson, 62 Haw. 377 at 381, 615 P.2d 740 at 744 1980; State v. Lloyd, supra.

The United States initiated this forfeiture proceeding in December 1986. Murrell filed a claim for the vehicle and a counterclaim against the United States for damages arising out of the seizure. On June 11, 1987, this court dismissed the complaint of the United States on the ground that the delay between the seizure of the vehicle and the filing of the forfeiture action constituted a denial of Murrell's right to due process of law.

Motion for Certificate of Reasonable Cause

The United States moves this court to issue a certificate of reasonable cause pursuant to 28 U.S.C. § 2465, which provides:

Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any act of Congress, such property shall be returned forthwith to the claimant or his agent; but if it appears that there was reasonable cause for the seizure, the Court shall cause a proper certificate thereof to be entered and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution.

A vehicle can lawfully be seized if there is probable cause to believe that it is subject to forfeiture. 21 U.S.C. § 881(b)(4). A vehicle is subject to forfeiture if it is used, or is intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance. Therefore, the certificate of reasonable cause should issue if the agents had probable cause to believe that the vehicle had been used to transport the cocaine from the airport to Murrell's apartment.

Murrell opposes the motion, arguing that this court cannot consider any evidence suppressed in the state court proceedings in determining whether the agents had reasonable cause to seize the vehicle.

I. Collateral Estoppel

Although Murrell does not invoke the doctrine of collateral estoppel by name, he seeks to preclude the United States from litigating the admissibility of the evidence seized at Murrell's apartment and Murrell's statement to Turner based upon the state court order. Collateral estoppel is not generally applicable unless there exists either identity or privity between the parties to the relevant litigation. The person being estopped must have been either a party to the prior lawsuit or have been so closely related to the interest of the party to be fairly considered to have had his day in court. In re Gottheiner, 703 F.2d 1136, 1139 (9th Cir.1983).

The parties to the prior action were Murrell and the State of Hawaii. The Hawaii court ruled that the seizure of the apartment violated both the Hawaii Constitution and the Fourth Amendment of the United States Constitution, and that all evidence obtained as a result of that seizure was inadmissible. The holding with respect to the Hawaii Constitution is not relevant in this proceeding because federal law, not state law, controls whether the agents had probable cause. United States v. Prescott, 581 F.2d 1343, 1348 (9th Cir. 1978). The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed. Elkins v. United States, 364 U.S. 206, 224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960).

Additionally, the state court's holding with respect to the United States Constitution is not binding on this court. United States v. Burt, 619 F.2d 831, 837 (9th Cir.1980). A state court ruling suppressing evidence does not preclude a federal court from making an independent inquiry into the constitutional validity of the search. United States v. Smith, 595 F.2d 1176, 1179 (9th Cir.1979). Moreover, collateral estoppel appears not to apply in this situation because the party to be estopped, the United States, was not a party to the prior litigation.

II. Constitutional Analysis

The parties agree that the initial opening of the package by NWOA employees and the field tests...