*1 investigative powers the broad amine books of determining IRS accounts in pursuant to section 7601 Code.12 See exempt tax status of a claimed church. Powell, United States v. Affirmed. S.Ct. 248.
Moreover, opinion we are that sec-
tion implementing regulations, 7605 and its together
when read with sup- section
port interpretation that section 7602
contemplates inquiry an into a church’s tax
exempt permits status. Section 7602 an
examination of books and records for the
purpose of, alia, determining per- inter America, UNITED STATES son’s liability. tax Section whose sub- Appellant, (c), n.6, supra, section specifically puts re- strictions on the churches, examination of designed to limit the time place Anthony George PAPPAS, Defendant, examinations of books and records conduct- Appellee. ed to section 7602. It is a limita- No. 78-1474. on,
tion of, but not the proscription the use of a section 7602 summons. Appeals, States Court of First Circuit.
Both the words of the statute and its legislative history appellants’ contradict Argued Sept. 1979. second claim 7605(c) prohibits that section Decided Dec. 1979. an IRS examination of “books of account” to determine the tax exempt status of an As Amended Jan. organization that claims to be a church.
The legislative history of section 7605(c)
indicates did not intend to
inhibit the from investigating IRS the tax
exempt status of a church. “New subsec- (c)
tion does not preclude § [of 7605]
agent, for example, from examining an or-
ganization is, fact, determine if it
church.” H.R.No.91-413, 91st Cong., 1st
Sess., reprinted in [1969] U.S.Code Cong. &
Admin.News, pp. congres- This
sional intent has been embodied in the In-
ternal Revenue regulations. Code 26 C.F.R. 301.7605-l(c)(2) provides pertinent
part, “No examination of the books of
account of an organization which claims to
be a church . . . shall be made .
except to the extent necessary (i) to deter-
mine the initial or continuing qualification
of the organization under section 501(c)(3).”
This clearly gives the right IRS the to ex-
12. § 7601. Canvass of inquire districts for taxable revenue district and after and concern- persons objects ing persons all therein who be liable to pay any tax, (a) persons internal shall, revenue and all Secretary General rule.—The owning having management practicable, extent care and he deems it cause officers or any objects employees ceed, respect with Treasury Department to which tax is pro- imposed. time, through from time to each internal *2 Lobel, Boston, Atty.,
Elliot D. Asst. U. S. Mass., Harrington, with whom Edward F. Boston, Mass., brief, Atty., U. S. was on for appellant. Greenblatt, Boston, Mass.,
Ann Lambert Gertner, Silverglate, Shapiro with whom & Boston, Mass., brief, defendant, was on appellee. the Statute of the Seizure Under Legality COFFIN, Judge, CAMP- Chief
Before BOWNES, Judges. Circuit BELL alia, for forfei- inter provides, Section used of vehicles
ture to the
transport or to facili-
to be used
intended
Judge.
COFFIN, Chief
sub-
controlled
tate the distribution
from
rehearing en banc
granted
Comprehensive
in violation
stances
*3
reversing
this court1
panel of
of a
decision
Act of
and Control
Prevention
Drug Abuse
evidence
suppressing
order
a district court’s
881(b)
the seizure
authorizes
1970.2 Section
Pap-
George Pappas.
appellee,
against the
the
forfeiture under
subject to
property
pos-
and
acquiring
charged with
was
pas
pursuant
process issued
“upon
Act
of 18 U.S.C.
in violation
sessing a firearm
Admiralty
for Certain
Rules
Supplemental
922(h)(1). The firearm
922(a)(6) and
§§
these
Rule C of
Maritime Claims”.
and
in
charge was discovered
to this
giving rise
for in
rules,
procedures
the
which sets forth
an inven-
during
car
Pappas’s
the trunk of
in
provides that
proceedings,
rem
the warrantless
followed
tory search that
complaint shall
a verified
forfeiture actions
Drug
by agents
car
seizure of the
may
allegations as
containing “such
be filed
(DEA) pursu-
Administration
Enforcement
pursuant
to
by
statute
required
the
be
statute,
21 U.S.C. §
forfeiture
ant to a
C(2), and
brought”, Rule
the action is
which
trial,
successfully pursued
Pappas
Prior to
complaint the clerk
filing of the
“[ujpon the
suppress
to
in the district court a motion
for the ar-
a warrant
shall forthwith issue
firearm,
government appealed.
the
and the
is
property
other
that
rest of the vessel or
action”,
C(3).
before this
Pappas
arguments
raises three
Rule
subject
the
suppression: that the stat-
court in favor of
enumerates four ex-
also
Section
a warrantless
ute does not authorize such
requirement.3 It is
ceptions to its warrant
probable
seizure absent
cause to believe
881(b)(4),
exception,
fourth
subsection
the
contemporaneously be-
that the vehicle was
seizures when
authorizes warrantless
which
ing
narcotics laws and
used to violate the
probable cause
Attorney
has
“the
General
degree
exigency
some
in the circum-
property
the
has been used
to believe that
seizure;
surrounding
stances
be used in violation of this
or is intended to
seizure,
even if
warrantless
authorized
government relies on as
[title]”, that
unconstitutional;
and that
was
Pappas’s
car. The
justifying its seizure
following
is,
warrantless search
the seizure
concisely,
that in
government’s argument
unconstitutional,
fruits,
and its
there-
was observed
August
of 1976
car
with sales of two
fore,
suppressed.
being
be
used in connection
must
use,
any
transport,
(1st
1979).
or in
man-
intended for
to
1.
Our
Although
itself.
the mean-
tory language
only upon probable
issue
cause.
881(b)(4) appears to admit
ing of subsection
provision to
agree that this is a troublesome
single reading when viewed in isola-
but a
context,
prevailing
apply in this
since the
tion,
by
principle
guided
we are
admiralty
law in
cases is that a warrant
statutory construction that discrete clauses
in rem
attachment
initiate an action
or subsections of a statute should be con-
by probable cause.
accompanied
need not be
purpose
the manifest
strued to effectuate
¶
7A
Practice C.12
See Moore’s Federal
they
section to which
of the statute or
(2d
1948).
681-82
ed.
We do not undertake
directly relate.
Richards v. United
See
change
to reexamine or
law of seizure
1, 11,
Supplemental
intended context of
In section
L.Ed.2d
Con- Rules, however,
admiralty
not an
for this is
gress
general
requirement
provided a
punitive,
quasi-crim
case.7 Section
is a
process for seizures executed to enforce the
Plymouth
inal
cf. One 1958
Sedan
881(a),
of section
provision
forfeiture
693, 700, 85
Pennsylvania,
exceptions
then enumerated four
to this
1246, 14
(1965) (seizure
of vehi
But,
requirement.
as we observed in One
laws),
we
liquor
cle used to violate
Nova, supra,
a literal
Chevrolet
read-
suspect
Congress gave little considera
ing
(b)(4) “probable
cause” exception
implications
tion to the Fourth Amendment
require-
would vitiate the section’s warrant
applying
Supplemental
Rules in this
ment. We would hesitate to construe the
context.8
*5
general provision
authorizing
issuance of
a
on
showing
proba-
warrant
less than a
of
the
Supreme Court has sanctioned
cause,
ble
since this would conflict with the
issuance of administrative search warrants
proscription
Fourth Amendment’s
that “no
cause,
probable
on less than
Marshall v.
issue,
upon probable
Warrants
shall
but
Barlow’s, Inc.,
776,
97
50
436 U.S.
S.Ct.
cause.”
we
Thus
are unable to conceive of
(1978),
L.Ed.2d 739
but has never done so in
a
process require-
class of cases in which the
quasi-criminal
the context of a criminal or
satisfied,
(b)(4)
ment
yet
would be
the
ex-
proceeding. We do not see how the incor-
ception,
literally,
read
would not at
the
poration
procedure
of a
from a context in
e.,
same
apply;
every
time
i.
requiring
case
traditionally
which warrants
have issued
process
qualify
would also
for the
probable
without
cause can immunize a
requirement.
warrant
from the Fourth Amendment’s
brother,
concurrence,
Our
in his
generally applicable probable
require-
chides us
cause
for making
assumption”
the “novel
that the
Judge Wright’s
ment. Our brother cites
might
sought
Substance,
(M.D.
F.Supp.
triot
have
to remove the car and
Hazardous
444
1260
government’s
N.C.1978).
thwart
the
subsequently
forfeiture. But this
The Fourth Circuit
exigency
by
was
in fact manufactured
the
reversed in United States v. Articles of Hazard-
government. Upon questioning
argu-
Substance,
oral
(4th
1978),
ous
with
329 of We are also drawn toward a Founding Scientology circum dictum Church (b)(4) exception scribed U.S.App.D.C. 133 409 v. ques desire constitutional our to avoid the denied, (D.C.Cir.), cert. 396 tions that a broad construction would raise. (1969), L.Ed.2d 427 U.S. S.Ct. The canons of construction de probable proposition cause is only construing mand not this that we avoid a of a prerequisite not for issuance warrant Constitution, statute to violate the see The civil proceedings. forfeiture We do not (2 Cranch) 64, 118, Charming Betsy, apposite find this case to our brother’s ar (1804), L.Ed. 208 but we construe the gument, Scientology however. The issue of its question statute to avoid a constitu the propriety of a warrantless seizure tionality, where such a construction is “fair against measured the reasonableness clause possible”, ly Bishop NLRB v. The Catholic Amendment, not expend- Fourth 490, 500, 511, Chicago, 440 ability requirement cause probable (1979); International under the warrant clause. will not Street, Association Machinists congressional infer abandonment protection against Fourth Amendment’s we apply Were the statute in the manner general warrants in a in which context urged by government, we would be yet has not done so. Court required to decide whether the Fourth Moreover, we cannot see sense of the permits Amendment the warrantless sei if requisite statute “warrant” be zure of an only upon automobile based obtained on less than cause. agent’s federal cause to believe general view of the exceptions provi- government superior posses has sion, 9; only case in sory which interest in the vehicle and if it does not, be required to obtain hold the for a statute unconstitutional. seizure is that it is acting which on a We are aware that our task is one of the possible hunch surmise about illicit construction, amendment, not provi use or hazardous of property making nature Bishop sion. See NLRB v. The Catholic *6 subject If, it to as forfeiture. our brother Chicago, supra, 511, 440 at 99 U.S. S.Ct. argues is the admiralty, judicial case in a (Brennan, J., Thus, dissenting). 1313 we duty-bound officer is issue to such a war- are limited to of the a statute that upon application, rant we can discern no “fairly possible”, is that one will advance salutary a require- effect of such warrant congressional rather than subvert inten ment other than the dubious benefit of tion compan behind the statute. Id. The arming seizing officer with an official provisions “probable ion to cause” ex paper give to added to legitimacy his sei- ception, (b)(1)-(b)(3), suggest subsections a Thus, zure. we to adhere decline to the principle by which we can limit reach of (b)(4) literal language exception, (b)(4) in manner that subsection effectu since to do so render essentially ates the intent in the statute as a embodied meaningless provision purports the basic it excep whole. Since each of the other three qualify. Wyman, v. to See Rosado 397 U.S. tions in section involves circumstanc 397, 415, 1207, 90 25 S.Ct. L.Ed.2d 442 prac es in which for or the either the need (1970); Sands, 2A C. D. ticality Statutes and process significantly Statu- is diminish tory 1973). eliminated, Construction 65-66 ed. it ed we think reasonable to States, ing Leasing question, Corp. To resolve we in M. v. would be re G. United 429 quired 338, 619, (1977) to address the on which U.S. 97 issue the Su S.Ct. preme Lewis, (upholding Court divided 4:4 in Cardwell v. warrantless seizure of automobiles 596-99, way satisfy levy), 94 S.Ct. 41 L.Ed.2d tax in a that neither (1974). Supreme appeals 325 See United States v. One 1972 court Court nor has Nova, Nova, supra, Chevrolet 560 467 n.1 done. See One 1972 Chevrolet at 1977). Alternatively, required we would be 468 n.2. Supreme extending consider hold- Court’s 330 cumstances of this case dictate a different jus- cause” “probable
read the result. seizure of an auto- tifying the warrantless immediately only when the seizure mobile Michigan In DeFillippo, gives that the feder-
follows the occurrence (1979), 343 61 L.Ed.2d S.Ct. agents probable cause to believe al refusing was arrested for defendant subject to forfeiture under automobile officer, police a misde- identify himself to a 881(a) exigencies and the section City meanor under a of Detroit ordinance. circumstances make the re- surrounding arresting performed The officer a search of quirement obtaining process unreason- person incident to this ar- the defendant’s Pap- The seizure of unnecessary. able or substance, rest and discovered a controlled months after its pas’s automobile eleven use subsequently for which the defendant was of the narcotics laws failed to violation prosecuted. reversing Michigan Court requirements. Appeals’ suppressing meet either of these the evi- decision search, during the the Su-
dence obtained
preme
the ordinance
Court assumed
Suppression of the Firearm
DeFillippo
initially
which
was
arrest-
under
A.
unconstitutional,
ap-
ed
but refused to
was
O'Reilly
Pappas, relying on the dissent in
ply
exclusionary
rule to the fruits of
States, supra, argues
v. United
that because
The
search incident
to the arrest.
Court
independent
the search was
of his car violated the
reasoned that
the seizure
constitutionally tainted ordinance
881(b),
requirement of section
the rifle dis-
officer,
arresting
acting in
and that
during
subsequent
inventory
covered
faith,
probable cause to believe
good
suppressed. Although
search must be
we
DeFillippo
Michigan
had violated
law
constitutionality
have not assessed the
therefore,
and,
to arrest.
Id.
car, the
exclusionary
the seizure of
39, 99
S.Ct.
applicable
rule is also
to violations of statu-
searches, seizures,
tory restrictions on
the seizure of
recognize
arrests.
Miller v.
See
Pappas’s car stands in a somewhat different
301, 313-14,
2 L.Ed.2d
U.S.
relationship
inventory search than
Supreme
has
Court
held
Stop
Identify
the violation of the
ordi
“inventory”
searches of vehi-
DeFillippo and
nance bore to the search in
cles legally seized
to forfeiture
event in this case—the
antecedent
statutes to be reasonable under the Fourth
illegal seizure —was violative of a federal
Opperman,
Amendment.
Dakota v.
South
Nevertheless,
not the Constitution.
we think that
the rationale of that case
*7
(1976);
California,
58,
Cooper v.
86
386 U.S.
applies here as well. A warrantless inven
1348,
(1967). Implicit
S.Ct.
331
forfeiture,10
police
enforcing
presumptively
from
justification
for an
ject to
remotely
if the anteced-
inventory search exists even
valid statute was never
illegal.
to be
eventually
ent seizure is
found
contemplation of even the most zealous
search,
Thus,
one that is
inventory
a true
Exclusionary
advocate of the
Rule.”
evidence,11
gathering
pretext
not a
3,
443
at 38 n.
99
U.S.
S.Ct. at 2633 n. 3.
independent
precedes
of the seizure that
it.
from
DeFillippo
distinguished
can be
Pappas’s
think that the search of
We do not
majority
appellant
cases because the
unreasonable,
necessarily
car
became
that case
have had an incentive to
unconstitutional,
therefore
because the car
constitutionality of the De-
challenge the
agents
the DEA
illegally seized. Since
troit ordinance in defense to a criminal
cause to believe that
prosecution for the substantive crime it
government
right
possession
had a
of the
In
defines.
cases such as Ybarra or Almei-
ear,12 they were entitled to inventory its
da-Sanchez,
challenged
in which the
statute
California,
Cooper
supra,
contents. See
v.
purports
itself
to authorize an unconstitu-
1348,
61-62,
386
at
16 L.Ed.2d
U.S.
86 S.Ct.
search,
tional
no such incentive would exist
357;
McCambridge,
United
v.
551
States
exclusionary
if the
rule
applied.
were not
(1st
1977).
F.2d
870
Cir.
case,
agents
,
In the
instant
exclusionary
ordinarily ap
The
rule
DEA,
DeFillippo
like the officer in
who
plies
illegal
to the fruits of an
search or
subsequent
made an arrest and
search in
seizure,
pursuant
even if it was conducted
validity
Detroit
reliance on the
of the
ordi-
to a
never
authorization
before
nance,13
pursuant
seized
ear
to a
See,
Illinois,
e.g.,
held
Ybarra v.
invalid.
881(b)(4)
literal
of subsection
to deter
police action. No con-
prosecution
arate criminal
would not have
purpose
ceivable
of deterrence would be
which,
government’s improper con-
by suppressing
served
insulated the
evidence
Thus,
person
the time it was
on the
struction of the
from attack.
found
respondent,
product
application
exclusionary
was the
of a law- we find that
ful arrest and a lawful search. To
inappropriate
deter
rule is
in this case.14
protective
forfeiture cases the
function of
13. We believe that a different result would be
inventory
practice
particularly important
if
DEA had
search is
mandated
made
using
possession
warrantless seizures
to section
since the vehicle
be retained in
881(b)(4)
pretext
as a
to search vehicles for
of the
proceedings
for months before forfeiture
against
charged
See,
g.,
evidence to use
with
dence
defendants
are instituted.
e.
Auto,
But
is no evi-
narcotics offenses.
there
States v.
One
Buick Riviera
suggesting
1977) (five-month
that this is
case.
delay
F.2d 897
be-
proceeding).
tween seizure and forfeiture
today
decision
does not license the use
Our
*8
magistrate
suppression
11. who heard the
of evidence
as a result
future inven-
obtained
specifically
motion
found that
search was
tory
seizures in
searches incident to forfeiture
pretextual,
not
reject
and the district court did not
881(b)(4).
violation of
the timeliness
Future violations of
§
finding.
this
exigency requirement
we
today
implicit
in
find
stat-
Pappas
argue
does not
that the car was not
process requirement,
ute’s
which could no
provisions
longer
justified
being
good
to forfeiture under the
21of
be
in
faith re-
as
881(a).
U.S.C. §
liance on the terms of the
would sub-
part
Comprehensive
1970as
B.
so-called
Drug
Act of
Abuse Prevention and Control
posits
Pappas
independent
as an
1970, which had as one of its aims “to
ground
suppressing
for
the firearm that the
strengthen existing law enforcement au
search,
headquar
which occurred at DEA
thority
drug
in
abuse.” House
the field
seizure,
ters two
days after
was not an
Report
Cong.
No.
&
U.S.Code
91—
search,
“inventory”
investiga
but rather an
Admin.News,, p.
(1970). When this
tive search for evidence. We need not ad
enacted,
legislation
long-standing au
question
dress the
whether such a warrant-
(and
thority already existed
was not then
less search would violate the Fourth
repealed)
the seizure of a vehicle which
for
Amendment,
Johnson,
see United States v.
“has been or is being
transport
used” to
supra,
232-33, since,
572 F.2d at
we
as
drug.
contraband such as a narcotic
above,
indicated
support
record does not
U.S.C.
782. As of 1970 the courts
§§
this characterization. The uncontradicted
virtually
were
prop
unanimous that forfeit
testimony
agent
of the DEA
who conducted erty
constitutionally
could be
seized without
the search
inventory
was that
it was an
See,
g.,
warrant.
e. United States v. Fran
“pursuant
regulations
Agent’s
to
in the
colino,
(2d
1966),
367 F.2d
Manual”,
magistrate
and the
found the
denied,
cert.
87 S.Ct.
search to
noninvestigative
have been a
in
There is not a shred of
ventory. Pappas cites no facts in the rec
Act,
evidence that the framers of the 1970
ord suggesting
purported
invento which contained the criticized “no-knock”
ry was in fact
pretext
“a
concealing an provision,
authority
intended to restrict the
investigatory police motive.” South Dakota of law enforcement
officers
the manner
v. Opperman,
supra, 428 U.S. at
by my
my
outlined
brethren.
Indeed
breth
S.Ct. at 3100.
only
Congressmen
ren not
credit the
with
engrafting
judicially
evolved “automobile
Pappas
argues
also
that the doctrine
exception”
881(b)(4),
go
onto
but also
§
permitting in-custody automobile searches
step
select,
expla
further and here
without
applies only to
police
local
and not federal
any support
legis
nation and without
in the
law enforcement officers. We decline to
record,
especially
lative
restrictive ver-
make such a distinction. The
jus
interests
exception.
sion of such an
I could under-
tifying warrantless inventories by
po
local
stand,
with,
though
agree
ap-
not
their
protection
police
liability
from
lice—
proach
presented
if
as a constitutional rul-
and disputes over lost or
stolen
ing. But I
possibly
do not see how it can
be
protection
of the owner’s property
presented
piece
as a
construc-
while it is
custody
apposite
as
—seem
tion. There is not a hint in the statute or
assessing the constitutionality of the care-
legislative history
Congress
intended
taking procedures of federal law enforce
that the Attorney
powers
General’s
in the
ment officers.
drug enforcement field were to become less
powers
seize,
than his
example,
to
vehi-
The order of the district court is vacated.
transport
cles used to
counterfeit currency,
governed
by 49
U.S.C.
To the
§§
CAMPBELL,
Judge
LEVIN H.
Circuit
contrary,
legislative history
indicates
(concurring
result).
Congress thought
increasing
it was
law
agree
I
that the evidence should not be
powers
enforcement
in the narcotics field.
suppressed, and therefore concur in the
Significantly, 49 U.S.C.
782 were
§§
judgment of the court.
repealed
narcotics,
respects
not
as however,
With all respect,
I
not accept
do
expected
have been
intended
interpretation
court’s
of 21 U.S.C.
tighten up
requirements,
on warrant
con-
881(b).
provision
This
was enacted in trary
preexisting
law.
pursu-
fruits,
ject any
suppression
obtained
or not
subsequent
whether
pro-
criminal
search,
inventory
ceedings.
ant to an otherwise innocent
*9
ralty practitioners
(and clerks)
The court bases its restrictive construc-
would be
881(b)(4) solely
supposition
tion of
on the
shocked to learn that the clerk in an in rem
§
give
plain language
that
effect to its
is proceeding
process
must
to issue
refuse
be
part of the
up”
to “swallow
the earlier
making
probable
fore
a determination of
may
statute which indicates that seizure
be
cause. See discussion in 7A Moore’s Feder
“upon process
issued
(2d
1948) (“Once
effected
al Practice 681-82
ed.
a
Supplemental
Rules for
Admi-
Certain
filed,
Complaint
proper
form is
it is the
ralty
develop
and Maritime claims.” To
duty of the clerk to issue'
deliver
argument, my colleagues
this
make the nov-
”).
process
warrant
‘forthwith.’ While the
assumption
el
that
the “warrant
for the
warrant,
may
clerk issues
be called a
arrest of
property
the vessel or other
that is use of
necessarily import
this term does not
of the action” mentioned in
procedure
all of the substance and
of crimi
gov-
Rules is
Supplemental
Rule C of the
nal arrest or seizure
The
warrants.
fact
by
require-
erned
the fourth amendment
process
showing
issue without a
of
except
ment
that no warrant
shall
issue
probable
magistrate
cause before a neutral
upon probable
They
argue
cause.
then
is not
Judge Wright
fatal. As
observed
probable
required
since
cause would be
in (though
decide)
Founding
did not
Church
event,
any
a literal
of
of Scientology v. United
881(b)(4) exception would vitiate the ear-
§
1146, 1150
App.D.C.
(D.C.Cir.),
process
provision calling
lier
to be used.
denied,
cert.
Congress,
The court concludes that
simply
(1969),
a case involving
FDA
forgot to indicate that warrantless seizures
proceeding subject
condemnation
to the ad
881(b)(4)
under
were reserved for cases of
§
miralty procedure,
exigency,
extreme
where the vehicle was
“Though
generally
warrants are
neces-
presently being
transport drugs.
used to
sary
persons
for the arrests of
and for
searches,
requirement
the warrant
has
There are two answers to
approach.
this
traditionally
imposed upon
not
been
sei-
881(b)(4)
The first
that even if
provid-
is
§
type
zures of the
involved in this case—
ing for warrantless
overly
seizures is
broad
attachment
in the course
written,
justifies
as
scarcely
the suppo-
proceedings.
civil
This does not mean
sition that
intended the limitation
that the Fourth Amendment
ap-
does not
now imposed. That limitation is not self-
seizures,
ply to such
evident,
in both its substan-
nothing
and there is
legisla-
tive prohibition against
tive
unreasonable sei-
history
it,
to show that Congress had
or
other,
procedural requirement
zures and its
limitation in mind. The mere
judicial
is,
view,
quasi-judicial
fact
review of the
a statute
in a court’s
poorly
merely
conceived does not license
decision to seize.
It means
the court
judicial
imposed
to rewrite it in
radically
through
a manner which
restraint
is
departs
prior
from
different
form
proceeding
law and for which
than the
Con-
gress
expressed
preference.
showing
has
no
mag-
cause before a
ordinary
istrate.
In the case of
civil at-
My
difficulty with
ap-
second
the court’s
tachments,
proceed-
the details of such
proach
wrong
is that I think it
insofar ás it
are,
courts,
ings
even in the federal
left
procedure
reviews the maritime in rem
re-
admiralty,
to state law.
cases
ferred to in
mandating
prior
as
governed by
Admiralty
is
such,
finding,
cause
Rules, lately
supplement
recodified as a
clerk.
supplemental admiralty
rules
to the Civil Rules.
[Footnotes omitted].”
provide
entirely
for an
different
type of
also
proceeding from one in which a
See
United States
Articles of Haz-
convention-
Substance,
al search warrant
is
ardous
R.Crim.P. 41. Under Rule once a veri- also Calero-Toledo v. Pearson filed, complaint Co., fied Leasing the clerk is Yacht directed forthwith to (1973) (summary issue a “warrant” for the ar- for- rest of the vessel or other property. deny process)). Admi- feiture does not due *10 simply providing
I thus read § commencing means of JOHNSON, for two alternative Roger Plaintiff-Appellee, being proceedings, forfeiture first nature of an attachment to the REDERI, second, A/S IVARANS admiralty procedure and the sei Defendant-Appellant. Attorney may zure. The General com proceeding filing mence the a verified No. 79-1118. complaint, in which event for sei conveyance will zure of Appeals, United States Court of (see C), Rule the own issue “forthwith” First Circuit. may er defend in court if he believes the Argued Sept. unjustified. Alternatively, the At seizure torney may General effect a seizure with Decided Jan. judicial proceedings only out but initiating if he determines there is cause. case, proceedings are
the latter forfeiture “promptly”
be instituted thereafter. Given proce
the differences between these two
dures, think, respect, with all I due
“swallow-up” argument disappears. Con
gress quite rationally could offer both alter Attorney
natives to the General.* To be
sure, my colleagues may Congress feel that things wrong way,
went about but that
is another matter.
Since, submit, as I nothing would there is
whatever to show intended in the change
1970 Act to the law on the matter of seizures, only ques- I think the today
tion must be constitutional one. On law, subject, existing as best I can it,
discern panel’s is as described in the
decision, 1979), 600 F.2d sure,
which I would adhere. To be
Supreme may Court in the future decide
the time has come to alter the traditional
view that forfeiture is an requirement.
warrant But I pre- think it major
ferable that constitutional evolutions
in this area be left to that tribunal so as to
provide greater degree of uniformity and certainty
more for those whose duty it is to
enforce the law.
* procedure procedure especial- Use of an in Such a seem rem has been a common effecting ly means of forfeitures. See Calero-To- suitable for the arrest of vessels and mer- bulk, id., Co., Leasing ledo v. Pearson Yacht chandise in but have seemed too 663, 683-86, many 94 S.Ct. cumbersome for other cases.