US v. ONE 1987 FORD F-350 4× 4 PICKUP, 88-4253-R.

• Decision Date: 09 May 1990
• Docket Number: No. 88-4253-R.,88-4253-R.
• Citation: 739 F. Supp. 554
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff, v. ONE 1987 FORD F-350 4 × 4 PICKUP, Defendant.

739 F. Supp. 554

UNITED STATES of America, Plaintiff, v. ONE 1987 FORD F-350 4 × 4 PICKUP, Defendant.

No. 88-4253-R.

United States District Court, D. Kansas.

May 9, 1990.

COPYRIGHT MATERIAL OMITTED

Benjamin L. Burgess, Jr., U.S. Atty. and Michael G. Christensen, Wichita, Kan., for plaintiff.

John C. Humpage, Topeka, Kan., for Daniel R. Martin, claimant.

Nancy S. Anstaett, McAnany, Van Cleave & Phillips, Lenexa, Kan., for Ford Motor Credit Co., Claimant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a civil forfeiture action filed pursuant to 21 U.S.C. § 881(a)(4). This statute provides in pertinent part:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(4) All ... 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 property described in paragraph (1) ...

"Property described in paragraph (1)" includes: "All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter." As the caption of the case indicates, the target of this forfeiture action is a Ford pickup truck.

This case is now before the court upon cross motions for summary judgment on behalf of plaintiff, United States and claimant, Daniel Martin. The Ford Motor Credit Company has also filed a claim in this case requesting that its perfected security interest in the truck be recognized and respected. Oral argument has been presented and the court is prepared to rule.

In a forfeiture action under § 881(a)(4), the government bears the initial burden of demonstrating probable cause for belief that the property has been used to facilitate in any manner the transportation, sale, receipt, possession or concealment of a controlled substance. One Blue 1977 AMC Jeep CJ-5 v. U.S., 783 F.2d 759, 761 (8th Cir.1986). "Probable cause" appears to have been defined in two different ways by the courts, at least as it is connected with the term "facilitate" or other key terms within the statute. Some circuits have held that in order for property to be forfeited under this section, there must be a "substantial connection" between the property and the underlying criminal activity. U.S. v. One 1986 Nissan Maxima GL, 895 F.2d 1063, 1064 (5th Cir. 1990); U.S. v. Schifferli, 895 F.2d 987, 989 (4th Cir.1990); U.S. v. One 1976 Ford F-150 Pick-Up, 769 F.2d 525, 527 (8th Cir. 1985); U.S. v. One 1972 Chevrolet Corvette, 625 F.2d 1026, 1029 (1st Cir.1980). Other circuits have explicitly rejected any requirement of a "substantial connection," holding instead that use of property "in any manner" in connection with an illegal drug transaction is sufficient to justify forfeiture. U.S. v. 1964 Beechcraft Baron Aircraft, 691 F.2d 725 (5th Cir.1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983); U.S. v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421, 423 (2d Cir.1977); see also, U.S. v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281-82 (9th Cir.1983). The Tenth Circuit has not addressed this issue.

Generally, probable cause is demonstrated by showing reasonable grounds for belief, supported by less than prima facie proof, but more than mere suspicion. U.S. v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980). The government may rely upon hearsay evidence or circumstantial evidence to establish probable cause. U.S. v. One 1986 Nissan Maxima GL, supra, 895 F.2d at 1065. Once the government has met its burden to show probable cause for institution of the forfeiture action, the burden then shifts to the claimants to show by a preponderance of the evidence that the seized property is not subject to forfeiture. Id. If unrebutted, a showing of probable cause alone will support forfeiture. One Blue 1977 AMC Jeep CJ-5 v. U.S., supra, 783 F.2d at 761. The Federal Rules of Evidence apply during the second stage of the proceedings and, therefore, the claimants cannot rely on hearsay evidence to sustain the ultimate burden of proof. U.S. v. Lot 9, Block 1, Village East Unit 4, 704 F.Supp. 1025, 1026 (D.Colo. 1989).

The term "facilitate," as used in the context of the forfeiture statute, has been interpreted to encompass activity making the prohibited conduct less difficult or "`more or less free from obstruction or hindrance.'" United States v. One 1977 Lincoln Mark V. Coupe, 643 F.2d 154, 157 (3d Cir.1981) (quoting United States v. One 1950 Buick Sedan, 231 F.2d 219, 222 (3d Cir.1956)); see also, U.S. v. One 1982 Buick Regal, 670 F.Supp. 808, 811 (N.D.Ill. 1987).

The facts of this case are connected to a criminal case titled U.S. v. Evans, Martin, Waggoner & Gish, Case No. 88-40015, which was tried in this court. There, defendants, who included claimant Daniel Martin, were indicted for and ultimately convicted of conspiracy to possess 500 pounds of marijuana with the intent to distribute. The evidence in the case established that defendant Evans was introduced to DEA agents by a paid informant as someone who knew people who wanted to buy marijuana in large quantities. Evans told the DEA agents, acting under cover, that he knew two people who were interested in purchasing 500 pounds of marijuana. A few days later, a meeting was set up where the agents would display their merchandise. The agents first met Evans, Gish and Martin at the Holidome in Manhattan, Kansas. There, it is admitted by claimant Martin, the sale and purchase of marijuana was discussed. Then, Evans, Martin and Gish rode in Martin's truck — the defendant in the case at bar — to the Best Western Motel in Manhattan where the discussions would continue. Martin drove the Ford pickup from the Holidome to the Best Western Motel. At the Best Western Motel, Evans and Martin examined a five-pound brick of marijuana, smoked some of it, and discussed the purchase of 500 pounds. Martin stated that he wanted to make the purchase but had to contact his "people" who would supply the money. Then, the meeting broke up.

Later, in the same room, Evans told the agents that Martin had made contact with men in New York and Texas who wanted to make the purchase, but he would not know until the next morning whether a deal could be consummated. Over the next two weeks, more discussions were had with Evans. On May 10, 1988, Evans said that a man named "Larry" was now interested in buying the 500 pounds and that he would have the cash on May 12th.

A meeting was set up for May 12, 1988 at a restaurant in Topeka. Defendants Evans, Waggoner and Gish appeared. Martin was not at this meeting. When some money was delivered to the agents by defendant Waggoner, arrests were made by the agents.

The truck in question was owned by claimant Martin during the above-described events. It was seized on May 13, 1988, the day after arrests were made in the criminal case, by Agent Benton of the Drug Enforcement Administration. The seizure was accomplished without a warrant. The indictment in the criminal case was filed June 1, 1988. Guilty verdicts against each defendant were received on October 14, 1988. This forfeiture action was filed October 26, 1988.

It is undisputed that Evans, Martin and Gish used the pickup to ride from the Holidome to the Best Western in Manhattan, where discussions for a drug deal continued and marijuana was sampled by Evans and Martin. Thus, the government contends the pickup was used to facilitate the sale or possession of a controlled substance and forfeiture is warranted. The government admits, however, there is no evidence that any controlled substance or money for or from the purchase or sale of a controlled substance was carried in the vehicle.

Forfeiture of the truck is contested by claimant Martin, who has advanced several arguments. Claimant Martin contends the facts do not warrant forfeiture as a matter of law. There is some variance among the cases over whether vehicles may be forfeited when they have not been used to carry contraband, but only have carried people to the site of a drug transaction or, in this case, negotiations for a drug transaction.

Most cases hold that transportation by a vehicle to the site of an illegal transaction is sufficient to warrant forfeiture of the vehicle regardless of whether drugs or money were carried in the vehicle. See U.S. v. One 1984 Cadillac, 888 F.2d 1133 (6th Cir.1989) (forfeiture where Cadillac used for transportation to pawn shop where sale of cocaine took place); One Blue 1977 AMC Jeep CJ-5 v. U.S., 783 F.2d 759 (8th Cir.1986) (forfeiture sustained where jeep was driven to several meetings for discussions of use and proposed purchase and sale of narcotics); U.S. v. 1966 Beechcraft Aircraft Model King Air, 777 F.2d 947 (4th Cir.1985) (forfeiture of Aerostar airplane that transported two conspirators to the site of a drug transaction); U.S. v. One 1979 Porsche Coupe, 709 F.2d 1424 (11th Cir.1983) (forfeiture where there was transportation of "pivotal figure" several hundred miles to where an attempted drug purchase took place); U.S. v. One 1977 Cadillac Coupe de Ville, 644 F.2d 500 (5th Cir.1981) (forfeiture where there was transportation of drug dealer and accomplice to site of a drug deal); U.S. v. 1974 Cadillac Eldorado Sedan, 548 F.2d 421 (2d Cir. 1977) (forfeiture where vehicle transported people to site for drug transaction discussions which did not result in an agreement until another meeting three days later); U.S. v. One 1982 Buick Regal, 670 F.Supp. 808 (N.D.Ill.1987) (forfeiture of car used to travel to drug deals); U.S. v. One 1981 Ford F-100 Pickup Truck, 577 F.Supp. 221 (D.Mass.1983) (forfeiture ordered whether vehicle used to transport person to a prearranged meeting place for a drug transaction).

The case cited above from the Second Circuit appears to be the leading example of a broad reading of § 881. There, the court argues:

As a matter of common sense we cannot accept the concept that

...