US v. ONE FORD 198X MUSTANG NO. 1FAB42E5JF290177, Civ. A. No. 89-2865-Y.

• Decision Date: 23 October 1990
• Docket Number: Civ. A. No. 89-2865-Y.
• Citation: 749 F. Supp. 324
• Parties: UNITED STATES of America, Plaintiff, v. ONE FORD 198X MUSTANG, VEHICLE IDENTIFICATION NO. 1FAB42E5JF290177, Defendant.
• Court: U.S. District Court — District of Massachusetts

749 F. Supp. 324

UNITED STATES of America, Plaintiff, v. ONE FORD 198X MUSTANG, VEHICLE IDENTIFICATION NO. 1FAB42E5JF290177, Defendant.

Civ. A. No. 89-2865-Y.

United States District Court, D. Massachusetts.

October 23, 1990.

Laurie Sartorio, Asst. U.S. Atty., for plaintiff.

Robert Wheeler, McBride, Wheeler & Widegren, Boston, Mass., for claimant Bruno Pietrolungo.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. BACKGROUND

The plaintiff United States brings this forfeiture claim against the defendant 198X Mustang VIN 1FAB42E5JF290177 ("Mustang") before this Court pursuant to 21 U.S.C. § 881(a)(4), which reads as follows:

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

(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.

(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this subchapter.

(3) All property which is used, or intended for use, as a container for property described in paragraph in (1), (2), or (9).

(4) All conveyances, including aircraft, vehicles, or vessels, 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), (2), or (9)....

21 U.S.C. § 881(a) (1990). Claimant Bruno Pietrolungo ("Pietrolungo"), the present owner of the vehicle in question, moves this Court for summary judgment on his claim to the Mustang. In response, the United States has opposed Pietrolungo's motion and has filed a cross-motion for summary judgment on its forfeiture claim.

The United States' forfeiture claim arises from the August 22, 1989 arrest of Pietrolungo in the defendant Mustang. Massachusetts law enforcement officials had observed Pietrolungo in his Mustang in the parking lot of a known drug area and had approached Pietrolungo and the Mustang after noticing what they considered suspicious activity. The subsequent search and seizure of the Mustang produced .04 grams of cocaine. During an evidentiary hearing on Pietrolungo's motion to suppress during the course of the state's criminal prosecution, Justice Neil Collichio of the Lowell District Court apparently¹ held that Massachusetts law enforcement officials had executed the August 22nd search and seizure in violation of the Fourth Amendment to the United States Constitution and therefore he suppressed the evidence (i.e., the cocaine). Subsequently, the state prosecutor filed a notice of nolle prosequi.

Pietrolungo argues that the United States may not rely on the evidence excluded by the Lowell District Court to establish probable cause to forfeit the Mustang. Furthermore, Pietrolungo, invoking the doctrine of collateral estoppel, asserts that the Lowell District Court's order suppressing the evidence is binding upon the United States. In response, the United States argues that evidence obtained as a result of an unlawful search and seizure may be introduced in a civil forfeiture proceeding, and that the requirements of collateral estoppel are not satisfied where the United States was neither a party nor was in privity to a party in the original action.

II. DISCUSSION

At first blush, this case is deceptively straightforward. The Court must necessarily consider what effect a Fourth Amendment violation could have on the admissibility of evidence in this civil forfeiture proceeding. The Court must determine whether the Fourth Amendment exclusionary rule applies to civil forfeiture proceedings generally and if it should apply to this proceeding specifically. If not, the cocaine is admitted, its presence establishes probable cause for forfeiture, and the United States is entitled to summary judgment. If the exclusionary rule theoretically does apply to forfeiture proceedings, however, the Court will have to consider whether the United States is collaterally estopped by the prior state court order to suppress the evidence. Resolution of the estoppel issue in favor of Pietrolungo (i.e., that the United States is collaterally estopped in its forfeiture claim by the state court order to suppress the illegally seized evidence) would dispose of this action because the United States has no other evidence with which to establish probable cause in its forfeiture action. As will be seen, proceeding through this analysis is somewhat more complex.

A. Fourth Amendment Rights in Civil Forfeiture Proceedings.

In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Supreme Court held that "in determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out." Id. at 223-24, 80 S.Ct. at 1447. For that reason, this Court is not bound by the Lowell District Court's order granting Pietrolungo's motion to suppress the evidence obtained during the August 22, 1989 arrest of Pietrolungo, even though the state apparently held that the search had violated the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures. Upon the present record, however, this Court cannot yet embark on the unsteady seas of Fourth Amendment search and seizure analysis.

First, this Court must determine whether or not the results of any such Fourth Amendment analysis could affect the disposition of this civil forfeiture action. One possible effect of the finding of an unconstitutional search and seizure is the judge-made remedy of exclusion of the illegally obtained evidence. See generally United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974) (The purpose of the exclusionary rule is to "deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.... In sum, the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights through its deterrent effect, rather than a personal constitutional right of the party aggrieved."). Before considering whether to exclude the cocaine, this Court must determine whether the exclusionary rule applies to civil forfeiture proceedings.

The Supreme Court addressed the specific issue now before this Court in One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). The Supreme Court granted certiorari "to consider the important question of whether the constitutional exclusionary rule enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 applies to forfeiture proceedings of the character involved" in that case. Id. at 696, 85 S.Ct. at 1248. By using the phrase "of the character involved," the Court was referring to situations where the object of the forfeiture is what it deems "derivative contraband." Id. at 699, 85 S.Ct. at 1250. Contraband is categorized as "derivative contraband" if the possession of such contraband (i.e., an automobile in Plymouth Sedan and the case at hand), cannot be considered even "remotely criminal." Id. The Plymouth Sedan court relied heavily upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), characterizing it as "`the leading case on the subject of search and seizure,'" in reaching its holding that the exclusionary rule applies in forfeiture proceedings. Plymouth Sedan, 380 U.S. at 696, 85 S.Ct. at 1248 (quoting Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 1925).

Likewise, Plymouth Sedan relied primarily on the Boyd Court's reasoning that "a forfeiture proceeding is quasi-criminal in nature." Id. at 700, 85 S.Ct. at 1250. In Boyd, Justice Bradley wrote that forfeiture proceedings, "though they may be civil in form, are in their nature criminal." Boyd, 116 U.S. at 634, 6 S.Ct. at 534. The reasoning in Boyd, and subsequently in Plymouth Sedan, is that it would be unjust to rob a claimant such as Pietrolungo of the protections guaranteed under the Fourth Amendment of the Constitution merely because the posture of the claim now against him is civil, rather than criminal, and when, in fact, the civil claim derives from the criminal claim. See Boyd, 116 U.S. at 634, 6 S.Ct. at 534; Plymouth Sedan, 380 U.S. at 701, 85 S.Ct. at 1251. Thus, the Boyd Court concluded that "forfeitures ... are of this quasi-criminal nature ... and are within the reason of criminal proceedings for all purposes of the Fourth Amendment of the Constitution...." Id.²

The First Circuit, as early as 1938, implied the applicability of the exclusionary principle to a forfeiture proceeding in holding that evidence obtained in violation of the Fourth Amendment cannot be the basis for a civil judgment. Rogers v. United States, 97 F.2d 691 (1st Cir.1938). Much more recently, the First Circuit explicitly has described 21 U.S.C. § 881, the forfeiture statute underlying the United States' claim, as a "punitive, quasi-criminal statute," United States v. Pappas, 613 F.2d 324, 328 (1st Cir.1979), again implying the applicability of the exclusionary rule. The First Circuit, however, has carefully bounded the applicability of the exclusionary rule in civil proceedings to forfeiture proceedings alone.

In United States v. One 1975 Pontiac Lemans, Vehicle I.D. No. 2F37M56101227, 621 F.2d 444 (1st Cir.1980), the First Circuit allowed forfeiture of the fruits of an illegal, warrantless seizure. The Court reasoned as follows:

It is not clear why an inadequacy in the process used to secure the initial possession would or should defeat the government's ultimate entitlement to the property as

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