United States v. One 1975 Pontiac Lemans, Vehicle I.D. No. 2f37m56101227, Appeal of Irma Zullo

Tornillo, 1974, 241, 258, future, might than what occur Co. v. other to 41 L.Ed.2d In the non-negligently 730. accidentally and —as itself “The anti- required police present question. was case we see no plaintiff which deceptive abandon the elected to trust laws are not a shield for constantly plaintiff — Assocs., altogether. Plaintiff was Inc. advertising.” referral business Staff Research cleaned-up Co., Cir., 1965, act. Coun- interested in 346 F.2d not v. Tribune relation to the bear little sel’s contentions 374.

facts. Affirmed. by plaintiff’s at

Nor are we moved rights on the of other

tempt piggy-back complained

parties of whom —al —none legedly policy publish with a not to faced which involved

even those advertisements misleading. argues Plaintiff that as the

no anti-competitive policy

“victim of the im (sic) can posed by the defendant Journal he America, UNITED STATES sue those who have combined effectuate Plaintiff, Appellee, (sic) his restraint not vindicate surrogate attorney own interest but as a wrong.” public

vindicate the Plaintiff LEMANS, VEHI- ONE 1975 PONTIAC advertising not victimized a restrictive 2F37M56101227, CLE I.D. NO. policy. proceed entirely It cannot vicari Defendant, Appellee. ously, Corp. see Bowl- Brunswick Pueblo Appeal ZULLO, of Irma Defendant. O-Mat, Inc., 1977, 311; Corp. GAF v. Circle No. 79-1275. Co., Cir., 1972, Floor 463 F.2d cert. Aрpeals, United States Court denied, First Circuit. 1045, particularly suppos when no beneficiary ed present of its endeavors is Argued Oct. 1979. the case. plaintiff’s We add that continued Decided May pressing injunction spite for an well supported finding that it has no bona doing

fide intent to resume business no comment. requires

Rhode Island conclusion, anyone we observe that for charges

who for rental information but ad- hook, disclosing

vertises without it is only easy, highly tempting but use

artificial bait. Such bait can be made more

attractive; furthermore, the fish cannot

steal might proof it. Even when it lack fraud, long

actual we would hesitate before not,

holding newspaper, monopoly that a

armed with First Amendment and both the justification, reasonable business can be publish advertising against

ordered to its

will. See v. Times Associates & Aldrich Co. Co., Cir., 1971,

Mirror 135-

36; Gordon, J. J. Inc. v. Tele- Worcester

gram Co., 1961, Publishing 343 Mass. 586;

177 N.E.2d cf. Miami Herald Publish-

(4) the seizure of the car warrantless justified by exigent circumstances. The district court tried this action on stipulated by parties, facts which early summarized as follows. From 1976, Thomas J. through January June 1975 Special Agent of the Bureau of Connelly, Alcohol, Firearms, worked un- Tobacco and of the wa- investigating dercover violations Chelsea, gering laws Massachusetts Jr., Boston, Mass., with Toomey, John F. Connelly ob- During period, area. Gallagher Gallagher whom Owen and & husband, Zullo, served claimant’s Charles Boston, Mass., brief, Gallagher, were on for collecting wagering slips money and from a defendant. restaurant, placed barmaid in the Chelsea Tarrant, III, Sp. Atty. winnings John R. U. S. from wagers with and collected Justice, D.C., Washington, Dept, Zullo, with a conversation with and carried on Harrington, Atty. whom Edward F. U. S. Connelly that he had Zullo in which he told O’Sullivan, Sp. Atty., and Jeremiah T. U. S. forty for booking “been business Justice, Boston, Mass., Dept, of were on 14, 1975, years.” Zullo told On October brief, plaintiff-appellee. for his old Connelly that he had traded car a 1975 Pontiac Lemans Grand Am. On COFFIN, Judge, Before Chief CAMP thereafter, Connelly either several occasions BELL, BONSAL,* Judge, Circuit and Sen he placed bets with Zullo while was seated Judge. ior District using in the 1975 or observed Zullo Pontiac away the Pontiac to drive from one of his CAMPBELL, Judge. LEVIN H. Circuit betting wagers transactions with and wa- The United States instituted an action in gering possession. records in his court, rem in F.Supp. the district 5, 1976, Connelly advised February On seeking the forfeiture of claimant Irma Zul- Special of the Bu Agent Joseph V. Leone lo’s provisions automobile under the of 26 Alcohol, reau of Tobacco and Firearms that court, 7302. The finding U.S.C. district Lemans, Zullo had used a 1975 Pontiac the car had been used in violation of registra top, white with red Massachusetts the internal revenue laws and had been (“the Pontiac”), tion 4T6319 on October 23 seized, warrant, properly without a 6, 1975, transport wager and November agents Treasury Department, denied ing paraphernalia money, and related Zullo’s claim for return of the car and or- 2, 1975, accept that on December Zullo had government. dered that it be forfeit wager sitting ed a while in the car. On appeal, argues (1) On Zullo that: the car February magistrate 1976 a federal is was not to forfeiture because there person sued a warrant to search the finding was no of claimant Zullo’s intent to laws, “gambling Charles Zullo for records and (2) violate the internal revenue wagering paraphernalia,” February and on statute under which the seizure was effect- 6,1976, requires seizures, (3) ed the warrant was executed. Also on a warrant for such Leone, acting pur the agent proba- February Agent who seized the car lacked ble cause to believe it had been used in suant to sections 7302 and 7321 of the Inter laws, Code, 7302, 7321,1 violation of the internal revenue nal Revenue §§ U.S.C. * Yоrk, sitting possess Of the Southern District “It shall have or of New be unlawful to any property violating designation. intended for use in laws, provisions or of the internal revenue laws, regulations prescribed under such Property 1. “§ 7302. used in violation of inter- used, property no which has been so rights nal revenue laws property. A exist in such shall 34, 37 a warrant terbartolo v. United 303 F.2d without from the Pontiac seized Chelsea, that “the 1962), we stated thrust Massachusetts. public street at the claimant, is directed not individu- Section 7302 registered The Pontiac violate the but at utilized to Zullo, al any knowledge who denies Irma recently, laws.” More pertinent revenue illegal gam- in connection with the car’s use held that the Fifth Circuit has bling. 7302 forfeiture

requisite intent in a section I. question had action is that “the as an intentionally [by used been someone] urges us to hold that Claimant violation of the internal ‘active aid’ in the findings court made no since ‍​‌​​‌​​‌‌​​​​‌‌​​​​‌‌​‌​‌‌​‌​‌‌​​‌​​‌​​‌​​​​‌‌‌‌‍district revenue laws.” United States One intentionally that she had used the Pontiac (5th Ltd., Ford laws, in violation of revenue the internal 1970). evidence indicates that Here the not entitled to forfei intentionally had been claimant’s Pontiac argument This ture under section 7302. her husband as an “active aid” by used theory runs counter to the common law of bookmaking operation. illegal v. Pearson forfeiture. See Calero-Toledo 663, 680-84, Co., 94 Leasing Yacht 416 U.S. v. It is true that in United States 2080, 2090-92, (1974). 40 L.Ed.2d 452 S.Ct. 401 Currency, Coin & States concept property has been that The central 715, 1041, 28 434, 91 L.Ed.2d S.Ct. Court is, effect, in subject “guilty” to forfeiture stated, with reference to 26 U.S.C. §§ deserving and hence of confiscation.2 Unit Currency, Coin & ed States v. United States “When the are viewed forfeiture statutes 715, 719-20, 1041, 1043-44,

401 91 S.Ct. entirety, they in their it is manifest that (1971). 28 434 Courts applying impose penalty only are intended to statutes3 have various federal forfeiture upon significantly involved those who are uniformly” rejected “almost innocence of enterprise.” in a criminal as a defense to a property’s owner Id., 721-22, 91 at 1044. The Court government forfeiture action. Calero-Tole light in of reached this result 26 U.S.C. 2091; do, supra, 416 at 94 S.Ct. at noted, which, remis- 7327 it establishes a § Kansas, see, g., e. Van Oster v. mitigation procedure “permits sion that and (1926); 71 L.Ed. 354 prove owner to the innocent Secre- $6,700, (1st F.2d 1 615 United States tary Treasury that the ‘forfeiture 1980). negligence willful or was incurred without applied light any part 7302 been in of without intention on the Section has violate the law petitioner this traditional view of forfeiture. in- ... may provided “Any property as to forfeiture to the search warrant issue any provision chapter United States of this title 205 of of the United States under title 18 may Secretary be seized or his dele- and the Federal Rules of Pro- Code Criminal gate.” property. cedure for the seizure of such any Nothing in this manner section shall legal personification of 2. This notion of any pro- limit or affect criminal or forfeiture long property used in violation of the law has laws, any vision of the internal revenue or of object been the 1 Black- criticism. See W. other law. The seizure and forfeiture of * stone, Commentaries, (seizure c. 300 property provisions of this section under the person’s property “superstition” innocent disposition property and of such subse- days” feudalism) quoted in from the “blind forfeiture, quent dispo- to seizure and or the United States & Curren- Unitеd States v. Coin proceeds sition of the from the sale of such 715, 720-21, cy, 401 property, existing shall be in accordance with relating laws or those hereafter in existence seizures, forfeitures, disposition g., (property used in 1595a § 3. E. U.S.C. proceeds, for violation of the illegal importation); with U.S.C. connection internal revenue laws.” (property violation used to facilitate § Authority property subject “§ 7321. seize laws); (property used § narcotics 49 U.S.C. to forfeiture counterfeiting). in connection with Id., 721, 1618.”4 91 itive even if she were totally . . . .’ 19 U.S.C. oblivious to Currency, actions, & Coin her stipulated husband’s since the possibility no avail to claimant. record contains statements Zullo to prevail in an may claimant be able ad Agent Connelly that “he” had traded his proceeding ministrative remission on her question, earlier Chevrolet for vehicle car was contention that her used without vehicle, least, earlier part on her to violate the any intention “in kept cops his wife’s name so the can’t laws does revenue not entitle her internal take it.” See United States One remedy аdministrative bypass her and to Sedan, Mercury F.Supp. 2-Door interpose her contention as a defense to a (D.Va.1955). We conclude claimant failed proceeding. See United forfeiture to meet the Calero-Toledo standard in both Nisku, Bow Ketch Clipper One allegations proof. her 1977) (administrative remission is sole procedure affording mechanism for II. leniency forfeiture). from We do not read govern- Claimant also asserts that Currency, Coin & which was addressed to entirely question different whether a ment is not entitled to forfeiture because fifth privilege against agent amendment self-in Leone’s warrantless seizure of the crimination could be asserted in a forfeiture provisions Pontiac violated the of section proceeding, signalling departure from stating search warrant “[a] the settled rule that owner’s provided chapter issue as 205 of title 18 generally innocence is no defense to a for United States Code and Federal feiture action. Rules of Criminal Procedure for the seizure property. argues of such . . .” She It be that forfeiture statutes provision that since a forfeiture such as this cannot constitutionally applied to one nature, penal and therefore should be alleges proves only who “not that he construed, strictly we should read this lan- was uninvolved in and unaware of the guage permitting as seizures on au- wrongful activity, but also that he had done thority probable of a warrant issued on all reasonably expected could be to cause, “absent prevent applicable exigent use circum- proscribed property.” of his justify Calero-Toledo v. Pearson Yacht stances” that would Leasing warrantless Co., 663, 689-90, 2080, 416 U.S. 94 seizure. S.Ct.

2095, (1974); 40 L.Ed.2d 452 United States Although it is true that forfeiture $6,700, (1st 1980). 615 F.2d 1 Cir. statutes such as this one are one sense court, Calero-Toledo, district applying noted correctly regarded penal, see United that claimant allege had failed to she “did States v. United Currency, States Coin & all that reasonably could to avoid hav [she] 718, 1041, 1043, 401 U.S. 91 S.Ct. 28 property put to an unlawful ‍​‌​​‌​​‌‌​​​​‌‌​​​​‌‌​‌​‌‌​‌​‌‌​​‌​​‌​​‌​​​​‌‌‌‌‍use.” [her] 434; States, L.Ed.2d Boyd v. United 116 alleged Claimant only that she did not know U.S. 6 29 L.Ed. 746 use of the S.Ct. conjunction Pontiac in prevent with her to fraud on bookmaking husband’s the revenue operation, “[statutes narrowly, though that she was are construed less even personal unaware of his results, penal involvement in this criminal forfeiture than statutes and activity. The stipulated suggest involving facts that such others forfeitures.” unaware 167, 172, ness is unlikely given Ryan, her husband’s 284 asser 52 S.Ct. 65, 67, tion that (1931); he had been in the 76 224 business for L.Ed. see United forty years. Moreover, Windle, 196, 199 (8th claimant’s owner States v. Cir. ship of the Pontiac is not necessarily dispos- 1946). Literally, merely permits the statute incorporates delegate 26 U.S.C. 7327 19 U.S.C. of forfeitures under the customs apply § 1618 as follows: laws shall to forfeitures incurred or alleged to have been incurred under the inter- provisions applicable “The of law to the re- nal revenue laws.” mitigation by Secretary mission or or his

449 account of his observations to his use of a search warrant effectuate detailed provide adequate nothing superiors this basis and we find in either agent other effect the seizure. In statutory any scheme specific language or she the information on any says that congressional particular, whole that reflects as a agent too stale require for the execu which Leone acted both a warrant intent conclusory imprecise. We do and too tion of section 7302 seizures.5 compelled to scrutinize the extent not feel adopt are moved to claim Nor we knowledge, the cases agent Leone’s since reading by constitutional difficul ant’s question con have addressed this might such seizures ties that warrantless held sistently existence of statu present. It is true that the canons of on the basis of the cause is to be evaluated construction demand that we construe tory of the law enforce collective information their raising questions statutes avoid particular in a inves engaged ment officers constitutionality reading such where Ashley, 569 tigation. See United States v. v. The “fairly possible.” NLRB Catholic denied, Cir.), (5th 983 cert. 439 F.2d 506- Bishop Chicago, 1318, 1322-25, States, 448 F.2d (1978); White v. United Ma (1979); International Association of 1971), denied, (8th cert. Cir. Street, 740, 81 chinists v. 926, 92 30 L.Ed.2d 798 Berkowitz Imbruglia, (1972); United States (1st v. United 1206, 1212 (D.Mass.1975), aff’d, n. 3 F.Supp. panel members of the two 1977). F.2d 87 rejected a construction of section narrow 7302, declining make to read the statute “to IV. quite obviously it what us it does say finally argument We turn to claimant’s (Aldrich, J., Id. at 173-74 concur not.” C. vehicle, ab- that warrantless seizure of con ring). Mindful that our task is one circumstances, exigent sent violated statute, struction, not amendment re- fourth amendment. Bishop Chicago, NLRB v. The Catholic well-recognized that it a sponds acted under 506, 99 1322 supra, 440 U.S. at S.Ct. at war- exception to the fourth amendment J., (Brennan, dissenting), we cannot hold requirement which allows the seizure rant up requirement the statute a of a that sets A without warrant. of forfeit automobiles judicially warrant. authorized recently such an panel upheld circuit seizing in a offi- exception case where the III. probable cers had cause to believe that all also argues Claimant the seizure had imposing the conditions forfeiture the Pontiac was because unconstitutional Pappas, met. v. 600 been United States probable cause agent possess Leone did not rehearing for en (D.C.), F.2d 300 vacated that the was to forfei- to believe car grounds in Unit- banc аnd decided on other ture under 26 U.S.C. § (1st v. 613 Cir. Pappas, ed States F.2d 324 1979). Con v. United agent Claimant concedes See also Interbartolo States, (1st 1962). The investigation who had 303 34 Cir. nelly, conducted F.2d Zullo, as lim- panel exception of Charles had sufficient declined to read argues in solely exigent cause to seize the Pontiac. But she ited to circumstances Connelly convey sufficiently did not which no warrant could be secured in time distinguishable “probable exception general 5. The statute is from the war- here cause” provision recently requirement, reasoning in Unit- forfeiture addressed rant ing that a literal read- (1st statutory Pappas, language States v. F.2d ed 613 324 Cir. would have vitia- banc). 1979)(en ques- general provision. logic Pappas the in ted the statute internal tion, 881(b), express support ap- up 21 set section 7302 proach an U.S.C. an does not such requirement excep- warrant with enumerated here. The court inferred a limitation on the tions. 450 California,

reliably Cooper effect a Cf. United decisions in forfeiture. Court’s v. Nova, 58, v. 788, One 1972 Chevrolet 560 States 386 87 17 730 S.Ct. L.Ed.2d 464, 1977). 468 n. 2 Under the and, F.2d Cir. (1967), espeсially, Leasing in G. M. in panel Pappas, rationale of the decision States, 338, Corp. United 429 97 v. appellant’s contentions as to the constitu 619, 50 530 lend con- L.Ed.2d necessity tional for a warrant here would support analysis, to the siderable Francolino fail.6 authority no Supreme per- Court whereas points taining specifically to forfeitures in by position We adhere to the taken the other direction. panel Pappas, 600 300 for the rea F.2d which, stated because they sons therein person pre would take a bold It we do not already published, been now changing dict in a world that even such in full incorporate by restate but rather always solid apparently precedent will re forming part opinion. reference as of this changes, place, main in but we think that if panel emphasized Pappas, As the seizure any, higher should left court. The purposes of an automobile for forfeiture process law enforcement is better served if long recognized exception has been a to the plethora not undermined of diverse requirement. warrant In his dissent opinions country. around the see no We 433, Dombrowski, v. Cady 93 personal liberty, prop insult to threat (1973), writing for erty, arising from the present state Marshall, Douglas, Justices Stewart and as as encourage law such would us to embark himself, as well Justice referred Brennan upon direction. a new We therefore hold “exception requirement to the warrant seizure, undergirded that the warrantless as . which sustains in connec a search probable cause, with it tion the seizure of automobile was constitution al, purposes Id., special of forfeiture and that no proceedings.” exigency was re 452, 93 S.Ct. quired. 2533. The circuit courts have generally regarded forfeiture an estab There is a further to affirm reason exception. lished F.2d Pappas, 600 at 303. present case. Once used also, g., Milham, e. See United v. States laws, in violation the internal revenue (8th 1979); F.2d Cir. United States possession. entitled to its Capra, (2d 1974), Cir. v. United Boyd See denied, cert. (1886), quoted 29 L.Ed. 746 (1975); White, United States Zaicek, in United States v. 519 F.2d at (10th 1973);

488 F.2d 564-65 Cir. Inter (2d and discussion 519 F.2d bartolo, 38; contra, 303 F.2d at Even at 414. if a seizure for forfeiture McCormick, (9th purposes were not an 1974). leading In what perhaps is the cir requirement, fourth warrant it amendment opinion, Judge writing cuit Friendly, for why an the inadequacy proc not clear in 1967, recognized the Circuit in Second the ess to secure possession used initial would difficulty issue, this as did court in Interbartolo, 37-38, government’s or defeat the should ultimate 303 F.2d at but con entitlement to the precedent cluded that to as established pointed treating by untainted evidence con properly such seizure as the at a an to warrant requirements. Francolino, proceeding. ducted forfeiture It is one United States use, (2d denied, thing deny government the in a 1966), cert. to the trial, 386 18 L.Ed.2d 110 of evidence arrived at as result of a (1967). While arguments illegal procedures, can be advanced and another the to divest distinguish them, to Supreme the of it government limit to which is enti- panel Pappas grounds upon 6. The decision in has since been that do not at bear the case bar. vacated, having this court the case en banc court the reheard The en did not decide whether banc; decision, required and in the new en this would warrant. banc constitution a Pappas statutory purely court redecided on shows, legally proof of the forfeiture case it tied on the basis obtained outcome purported along. (If initial mis- simply because of been entitled all the would have taking he, step case, mode of government’s in the wins the forfeiture claimant back; temporary possession. colleague’s course, our gets his car where only in those cases the operates rule Interbartolo prior we indicated that a has established government independently object not seizure the did unauthorized car.) seize right its the pass preclude a valid forfeiture. We do vitality the this time on continued were a seri- illegal If automobile seizures Interbartolo itself finally nor do purport we means problem, and if other did ous social raised; we question the we last decide conduct, illegal per- deterring not exist for easily it cannot be seen observe already byzan- a new in the haps such twist temporary how in the initial seizure defects would of search and seizure make tine law object carry of a would or should forfeitable is, need sense. As it we see little and no way over in such a as to its forfei- prevent complexity. for such a new precedent like proceeding ture conducted properly in to the police overreach extent of Should all in which conditions establish- below vehicle, seizing “innocent” the victim ing proven title government’s have been his the forfeiture regain pro- will vehicle at genesis did not lie by evidence the of which ceeding, and should he be able to show that illegal in allegedly seizure. the warrantless seizure was effected bad sure, Judge points To as Chief Coffin be personal damage, he faith and caused can dissent, concurring opinion out in his damages against the bring a action offend- Berkowitz v. United colleague’s proposal officer. Our to de- ing wanting speaks of not prive government of the vehicle those upon con place premium unconstitutional right possession its cases where thereof Shultz, also Melendez v. See duct. establishеd at the forfeiture fully pro- (D.C.). at 1210 F.Supp. 1205 But while punish- ceeding, would the classic case of rhetoric, plausible it approach makes larger and the government, society, analysis. simply apart upon falls There is procedural bumble of for the assumed no connection here between the warrantless finely where a more tuned magistrate rem- government’s later-made seizure and damages remedy accom- edy —exists —a not a possession. case for latter was manner, the objec- in a more coherent plish, former, would be true derivative achieving of unconstitu- tive deterrence suppression in a fourth amendment typical police conduct. tional situation; government’s right Affirmed. by exploita vehicle “has been come at [not] the, view, tion” in the unconsti dissent’s COFFIN, dissenting. Judge, Chief seizure. See tutional agree I with the and conclusions analysis Crews,-U.S.-,-, opinion. I—III of I of Parts the court’s No evi cannot, join my brothers’ con supposed dence obtained reason of per Amendment clusion that Fourth illegal being strengthen seizure is used to seizurе of property mits the warrantless colleague’s for forfeiture. case Our pursuant forfeiture statute ab deprive rule of a would exigent of such circumstances as fully forfeit sence vehicle whose character prevent it would law enforcement officers proven simply, untainted by evidence — government obtaining judicially authorized warr appears, the for fail from punish which, Contrary warrant as the to the assertion the get the ant.1 opinion. example, opinion in that Part II 1. the incor- made For To the extent court’s porates argument, opinion panel court in made in of the of this not the addresses 300, Pappas, opinion Pappas v. vacated United States but advanced court’s banc, rehearing 304-05, panel, for en F.2d 324 Cir. 600 F.2d at that the automobile 1979), arguments this dissent addresses support The court finds I do not believe the Su- for the Francoli opinion, court’s fairly no line of cases in two recent explicitly implic- has either or Su preme Court preme Court decisions. In the first of exception” to itly recognized a “forfeiture these, California, 58, 87 Cooper v. 386 U.S. nor do I believe requirement, the warrant 788, (1967), Court excep- “automobile that the rationale of the upheld a warrantless search of a car that type to include the tion” can be stretched seized, warrant, pursu had been without a case. seizure executed in this ant to a California forfeiture statute be cause it had been used in connection with I. illegal narcotics transactions. The Court’s The court cites numerous decisions of the however, only legali opinion, addressed appeals circuit courts of for its assertion search; ty apparently of the the Court as long that “seizure of an automobile has legally sumed that the car had been seized.3 recognized exception been a to the warrant Moreover, of the examination relevant stat emanate, of the requirement.”2 Most cases utory provision Cooper reveals that directly indirectly, either from the “unquestionably legal” seizure there was opinion Circuit’s in United for reasons of the state’s as independent Second Franсolino, (2d right Finally, serted to forfeit the car.4 367 F.2d 1013 denied, 960, parties Cooper argued neither briefed nor cert. 386 U.S. 87 S.Ct. seizure; constitutionality Cooper, case, (1967). L.Ed.2d 110 In that the court brief, in his conceded that the seizure was upheld a warrantless search of an automo legal. I therefore do attribute to Judge Friendly’s opin bile for contraband. any opinion Court on an issue constitu stated, ion ground for the court as one importance presented tional that was never a warrant holding, that was not re to it for review. quired for the search because the federal agent had cause to believe that providing support second case for the subject the car was to seizure and forfei Francolino is the recent line of cases Court’s ture under 49 U.S.C. 781-83. Id. at §§ Corp. Leasing decision G. M. Judge Friendly 1018-22. apparently be States, Congress’s lieved that enactment of a for L.Ed.2d 530 The I.R.S. had deter- provision feiture protection diminishes the mined deficiencies in the returns of a tax- afforded under the Fourth Amendment justice. payer fugitive who was a from To when an individual’s falls within satisfy agents I.R.S., the tax liability, purview of the statute. warrant, acting without a seized several exception justifies legality questioned. warrantless seizure of a car was not The case stands that, proposition to forfeiture. given unquestiona- for the bly legal special there are circumstanc- majority’s 2. The citation of Justice Brennan’s subsequent es that validate a warrantless Dombrowski, Cady dissent 450, 413 U.S. (Emphasis added.) search.” (1973), 93 S.Ct. implies that he and his dissenters ac- fellow emphasized 4. The Court section of the knowledged exception. The context of the providing California statute an officer language quoted by majority clear, makes making a narcotics arrest was to seize that what Justice Brennan said was transport pos- vehicle used to or facilitate the merely that an to the warrant re- session of narcotics and that the vehicle was quirement permits inventory a warrantless “to held as evidence until a forfeiture has following search of an automobile a seizure been declared or a ordered.” release Cal. pursuant to a forfеiture statute. Safety Health & Code 11611. Court Coolidge Hampshire, mentioned v. New in a footnote section provides 464 n. which that an owner’s inter- 2037 n. plurality explained extinguished. est in of the Court ‍​‌​​‌​​‌‌​​​​‌‌​​​​‌‌​‌​‌‌​‌​‌‌​​‌​​‌​​‌​​​​‌‌‌‌‍such vehicle is See also Zaicek, Cooper, petitioner’s (2d that “[i]n the seizure of the United States v. statute, J., 1975) (Oakes, car dissenting). was mandated and its California since I find rea- today, that dictum belonging taxpayer5 automobiles Leasing limiting underlying G. M. soning 6331(a). The Court 26 U.S.C. pursuant § the impli- with Court’s consistent principle, taxpayer’s the paragraph, in one rejected, that the decision was in its footnote cation the these seizures violated that claim case, that restricts the tax generis not a sui Fourth Amendment: to a narrow that decision application of automobiles in “The seizures of the class of cases. streets, parking place public case took on and did not lots, places, open or other Leasing that stated in G. M. The Court privacy. of In invasions involve of seizures legality of the warrantless the Im- Land & Lessee v. Hoboken Murray’s governed by “the cars was taxpаyer’s the U.S.) 272, 15 L.Ed. Co., (59 prov. 18 How. the decision underlay that principle” same judicial that a held this Court Im- Hoboken Land & Lessee v. Murray’s for the seizure of required is not Co., (18 How.) warrant provement of a claim Lessee, in satisfaction a debtor’s land the (1856). Murray’s L.Ed. 372 seizure in The of the United States. for satis- levy was a the challenged action through a made Murray’s Lessee was government. owed to the of a debt faction not involve an title which did transfer of Amend- stated that the Fourth The Court The warrantless sei- privacy. proceedings invasion apply did not “to civil ment are in this case zures of the automobiles Id. at 285. There recovery of debts.” the principles and however, the same governed the existence question, no was were not unconstitutional. See therefore by the seizure: the debt satisfied States, v. United proper- also Hester to seize the debtor’s executive order (1924) (liquor 68 L.Ed. of the “conclusive evidence ty constituted 351-52, 97 field).” Id. at open seized in it, authority recited in and of facts omitted). (footnote S.Ct. at 628 in G. M. levy.” Similarly, Id. make time question, no at the Leasing there was “If footnote, added: addi- In a the Court government that result, it were needed for this support tional property to taxpayer’s levy entitled to sustaining in the Court’s decisions is found liability. 429 existing tax satisfy his taxes to collect right of the Government The at 627. Commissioner’s at proceedings.” summary administrative of a tax of the correctness determination 628 n. 18. n. Id. at 352 correct. See presumptively assessment is scope precise The rationale 442 F.2d Psaty v. United to discern. holdings are difficult Court’s States, 358 1971); v. United (3d Adams “invasion of reference to prominent 175 Ct.Cl. 288 relega- the Court’s together with privacy”, requirement warrant purpose its discussion of the to a footnote of tion to obtain a levies, seizure case is in a forfeiture inherent in tax special considerations prob- determination magistrate’s more neutral opinion was based suggests that government to believe that on the able cause privacy than on considerations right possessory superior has a tax collection. in fact underlying effective policies property. Where v. One 1972 Chevrolet In Unitеd States of the correctness presumption entitled to a Nova, 468 n. 2 levy as in a tax property, M. Leas- of its claim apply G. we declined 6331, mag- to U.S.C. pursuant “automobiles case establishing which to upon basis would have no places when istrate public seized from always require To application. reject a warrant to believe there is cause in such cases warrant judicially authorized interest therein government’s property therefore, salutary func- would, serve no I would adhere superior to the owner’s.” actually corporation belonged to a the I.R.S. determined was the 5. The automobiles taxpayer. ego of the alter 454 (1948), involving quoted a forfeiture as a 93 L.Ed. 153 in

tion. In a case in 403 Coolidge Hampshire, supra, a criminal v. New U.S. of the use result hand, I pre the other no such 91 at 2032. Since do not find enterprise, on attaches to the that either of the cases relied on of correctness sumption exception”, statutory right majority of a creates a “forfeiture assertion government’s government The determination that the burden is on the estab property. to the required forfeitable derivative lish that an here constitutes of socie depends making on the “accommodate the identified needs “often contraband Sanders, 753, 760, previous about Arkansas v. 442 judgments ty”, facts of delicate Shultz, 2586, 2591, (1979). v. 61 L.Ed.2d 235 I circumstances.” Melendez 99 and (D.Mass.) (three- perceive compelling 1210-11 can no societal interest F.Supp. 356 a warrantless sei court), appeal “imperative” dismissed for lack of that makes judge case, (1st 1973). where, exigency 486 F.2d 1032 Cir. zure as in this jurisdiction, of judgments squarely fall within the arises not because the law enforcement Such magistrate immediately upon under the desire to act infor intended role ficers seize, giving Fourth Amendment.6 mation them cause to failed, they but rather because majority Supreme asserts that no reason, am whatever to avail themselves of authority point Court on establishes the un ple procure time to a warrant between ob constitutionality of the seizure in this case.7 taining executing and such information has, however, repeatedly The Court stated seizure.8 that warrantless premise seizurеs are “per under leading opinion op- se unreasonable Fourth In the circuit court decision, subject only specifi to a few posed majority’s United Amendment — cally McCormick, excep (9th established well-delineated v. 502 F.2d 281 Cir. States, accord, 1974); tions.” Katz v. 389 Karp, United United States v. 508 507, 514, 19 (9th L.Ed.2d 576 Cir. Ninth Circuit Consistently principle, recogniz Supreme with this decision in relied on Court’s ing requirement States, exceptions the warrant Almeida-Sanchez United required has law Court enforcement 93 S.Ct. exigencies concluding officers to show that “the Congress could not estab- dispensing exception” situation” make with the war lish a to the Fourth “forfeiture Almeida-Sanchez, requirement “imperative”, rant McDonald Amendment. which ostensibly involved a warrantless search au- explanation Leasing jority’s legality 6. This of M. is not in- view of the of warrantless for- G. importance ap- seizures, consistent with the parently the Court feiture the courts are not unanimous. any McCormick, attached to the inva- absence of See United States v. 502 F.2d 281 442 privacy seizing parked (9th Thrower, sion of public 1974); cars on a United States v. Shultz, streеt. I do not believe the Court intend- F.Supp. (E.D.Pa.1977); Melendez v. only ed to hold that the interest Fourth Amendment (D.Mass.) F.Supp. (three-judge court), implicated in a forfeiture seizure is the appeal jurisdiction, dismissed for lack of possible privacy invasion of incidental to the 1973). F.2d 1032 I do not believe we Instead, execution of the seizure. I read the citizenry doing would be forbidding what, a disservice saying although Court as need present authorities to do law enforcement not, special under circumstances view, my and current the Constitution Lessee, Leasing Murray’s in G. M. say they may Supreme precedent Court not. levy against obtain a warrant property, a debtor’s it must still avoid other invasion in this case with items 8. We are concerned privacy of the debtor’s it comes unless armed contraband, innocent of derivative objects otherwise Leasing, with a search warrant. See G. M. by illegality that become tainted as a 358-59, atU.S. 97 S.Ct. at 631-32. activity. Dif- result of their use in some illicit might exigency ferent considerations of enter majority suggests by going 7. The also object the calculus if the to be seized was ^gainst precedent” creating diversity “solid inherently contrary dangerous per pub- se of rules in the circuits we be undermin- would Shultz, policy. supra, lic See Melendez processes of law enforcement. Al- F.Supp. at 1210. though weight authority favors the ma- statute, a the Fourth by parently federal the Court finds Amendment ade thorized Congress seizing that “no of can au- quately Act the officer’s de by observed served a Constitution.” violation of the property thorize termination that the was fact 272, Thus, 93 the at at 413 U.S. S.Ct. words, illegally proposi used. In other the held the unconstitutional be- Court search tion is an officer he has that once thinks it did not fall one of the exist- cause within property that has cause to believe requirement. ing exceptions the warrant activity pro used been to further some court, finding the The McCormick that statute, longer the owner no by scribed the excepted never forfeiture Court had sei- any protected constitutionally has interest requirement, zures from there- warrant property and a warrant is unneces a validity of fore concluded that the seizure sary. reasoning, This undercuts on depended under 49 782 whether U.S.C. require the basic premise warrant incident-to-arrest, by it was authorized recently ment. As the Court reiterated in view, exceptions. 502 plain automobile Sanders, 759, supra, Arkansas v. 442 at U.S. 288-89; accord, Shultz, at Melendez “By requiring 99 at S.Ct. 2590: that conclu supra, F.Supp. 356 1210-11. at concerning sions drawn probable cause ‘be majority’s I take issue with While in by magistrate a and detached neutral Supreme de reading of the Court relevant by being judged stead of officer en cisions, strongly with its con I differ most gaged competitive enterprise of the often allowing seizures clusion warrantless crime’, ferreting United out Johnson v. “no purposes works insult to for forfeiture States, 367, 369, 68 92 333 S.Ct. liberty, property.” or threat to An personal (1948), 436 the risk of L.Ed. we minimize privacy might not be violated to individual’s unreasonable assertions au executive governmental extent a seizure the same thority.” why, exigent to see I fail absent by a property of his as it is warrantless circumstances, be less an individual should But the Fourth Amendment also search. a determination when the entitled such right to the usе protects individual’s to seize forfeit his seeks property, of his see Katz v. possession his automobile than when it seeks to search States, 350, at supra, 389 U.S. 88 personal effects. 510; Note, at Warrantless Searches S.Ct. Automobiles, 87 Harv.L. Seizures II. 835, (1974), Rev. 840 and seizure one’s part The court also relies in on the auto- significant is a invasion of that require- to the warrant exception mobile protected interest. a seizure Such was first articulated ment. This mere and cause un transcend inconvenience Supreme harm to Court Carroll v. United per foreseeable and irremediable 280, 132, 45 son whose is taken from him S.Ct. 69 L.Ed. automobile warning at a time when without or notice in which the Court held that particularly his need for the vehicle is un- warrant to search automobile This of the individu great. infringement necessary circumstances in which under possessory in constitutionally protected al’s be moved out of quickly vehicle could especially acute in the case of a terest The jurisdiction police. control and is like forfeiture since it was rationale of that decision was that govern ly possession to remain in the practicable procure officers to period for a of time while prolonged ment Id. at warrant such circumstances. under litigated. 2 W. the forfeiture claim is See 153, subse- 45 S.Ct. at 285. Court’s LaFave, 7.3 at 546 Search and Seizure § ex- quent applying decisions automobile noted that “the in- ception repeatedly cir- of automobiles creates mobility herent argument by noting The court bolsters its that, as a exigency cumstances of such interest prop- that an individual his loses rigorous enforcement necessity, practical revenue laws erty used violate the impossible.” ap- requirement use. The court illegal moment of such warrant 364, the absence ‍​‌​​‌​​‌‌​​​​‌‌​​​​‌‌​‌​‌‌​‌​‌‌​​‌​​‌​​‌​​​​‌‌‌‌‍of Opperman, They concluded Dakota v. South 49 L.Ed.2d the automo- precluded reliance on exigency Chadwick, g., United States v. (1976); see e. exception. bile investigation of Zullo had In this case the (1977); Coolidge Hamp- New generated probable cause to believe 443, 459-60, shire, subject to forfeiture sever the Pontiac was (1971); Chambers actually it was seized. al months before 42, 49-50, 90 Maroney, 399 U.S. excep automobile applicability (1970). therefore, tion, which of com turns on degree exigency required bring The to court peting standards Cardwell or seizure within the automobile search adopts.10 plurality brothers find the My doubt, however, exception was left light ap view In convincing. of the strict Lewis, v. the Court’s decision in Cardwell proach Supreme taken by the Court S.Ct. require exceptions various to the warrant Court, joined of the Four members ment, Sanders, supra, 442 see Arkansas v. Powell,9 judgment by in the Justice only (reach each at at 2591 S.Ct. held that which is neces exception limited to “that “[ejxigent regard circumstances with to sary to accommodate the identified needs are not limited to situations vehicles society”), accept I find it difficult probable where cause is unforeseeable plurality’s exigency may view that “the and arises at the time of arrest. The any arise at time.” Chambers v. Maro See time, exigency may any arise at . . .” 50-51, 90 at ney, supra, 399 U.S. at 595-96, (citation Id. at at 2472 policy underlying 1980-1981.11 The omitted). exception justify automоbile does not war The four dissenters noted that “it can rantless seizures in the absence of contem scarcely probable be said that cause was not poraneously arising probable cause and a point discovered until so late a in time as to danger may that the car be removed from prevent obtaining of a warrant for sei- jurisdiction if it is not seized immediate zure of the automobile.” Id. at (Stewart, J., dissenting). S.Ct. at 2473 ly. Leasing Corp. M. See G. fleeting mobility 9. Justice Powell did not due to the address the merits at was of the car. 399 all, stating opinion 50-51, instead his that the Court U.S. at 90 S.Ct. at 1980-1981. The should not review Fourth Amendment chal- lenges implication is that if conditions either of these petition to state court for convictions on lacking prior probable was the officers had —if corpus. habeas danger cause to seize the car or there was no immediate flight warrantless search or sei- —a 10. In United States v. One 1972 Chevrolet justified. zure would not have been idge, Cool- Nova, 560 F.2d 464 we stated signifi- the Court stated that “there is a that an automobile when the the be seized “at least” cant stopping, seizing, constitutional difference between police probable have cause to believe searching a car on the subject car is there is a reasona- open highway, entering private property ble likelihood that the car would or could be unoccupied, parked seize and search an vehicle moved, and “the cause was not dis- being illegal activity.” not then used for prevent covered until so late a time as to officers from 403 Although at 463 n. 91 S.Ct. at 2036 n. 20. securing a warrant earlier.” Id. plurality the Cardwell read this as- Lewis, (citing supra (Stew- at 467 Cardwell pect Coolidge opinion focusing only art, J., dissenting)). Because we concluded interest, privacy on the individual’s question easily in view of that the car in moved and that ble cause to transport narcotics, could have been original, my predominant, prior proba- and in view the officers had no ra- exception exigen- tionale of the cy believe used to automobile the car had been — flight to choose we did not have think the reduced risk of immediate —I competing approaches between the was also a factual distinction of constitutional importance. plurality Cardwell and dissent. I think that and Cool- Chambers idge, together, imply exigent read that circum- Chambers, 11. In the Court said a warrant- that necessary are stances at the time of the seizure justified less seizure of a car was when justify police action. warrantless providing probable circumstances cause were opportunity unforeseeable and the to search large knowledge at was ever at with that supra, entry justice. Although onto (holding fugitive that a warrantless he was a from it to seize assets is conceivable that claimant or a friend premises business justified by exigent might cir- accomplice attempted tax lien was not of Zullo’s cumstances, Pontiac, had agents delayed agents since two had no to remove the ascertaining contents days flight between concrete evidence believe sei- effecting seizable and premises were exigency imminent. I believe that suffi- zure). with the warrant justify dispensing cient to must rest on mоre than mere requirement significance “mobility” of an speculation. subject to seizure under a unoccupied car forfeiture statute is different from I think that the seizure of the Nor do in such justifying the automobile privacy justified Pontiac under can Maroney, supra. cases as Chambers exception. rationale the automobile v. Lewis stated that plurality Cardwell increasingly While the Court has relied on significant there was no difference between in an expectation privacy the diminished a car stopped highway a car on the distinguish automobile automobile parking seized from a lot in terms personal searches from searches of other mobility Coolidge of the car. In v. inherent effects, see, g. v. Chad e. United States however, supra, the Court Hampshire, New 2476, wick, 1, 12-13, 433 97 S.Ct. U.S. ear, mobility noted that the of a as char- Lewis, (1977); v. Cardwell distinguishing acteristic it from other ob- supra, 417 at 94 S.Ct. the car jects, significant becomes less when considerably compelling less rationale is unoccupied being any is and not used for perceived dif the context of seizures. illegal time of seizure. 403 purpose at the expectation pri ference in the levels at 2035 n. 18. An U.S. at 461 n. 91 S.Ct. when insignificance vacy diminishes Court, car, is unoccupied said the little dif- issue is a seizure governmental action at “given ferent from a suitcase or a box since person’s rather than a search of a effects. availability of auto- virtually universal an individual’s interest in not Although society mobiles in our there is little differ- briefcase searched having his suitcase or driving the container itself ence between privacy greater preserving than may be driving away and it in a vehicle.” Id. away car, protection of his it is of the interior Francolino, 367 United See against infringement right of his to use J., (2d 1966) (Kaufman, con- that the Fourth Amendment possession and curring). a seizure. And the provides in the case of is the same paint possession in this loss of and stipulated facts case dominion object seized is an automobile something convincing picture than a of whether the less Moreover, this intrusion is the seizure of the or a suitcase. exigency at the time of inci privacy invasion of unoccupied independent any Pontiac. The car was and was activity to the execution of seizure. See not involved in criminal at the dental States, supra, 389 at s Katz v. United time it was 4; compare n. n. at 510 & 350 & i e States, supra, Leasing Corp. G. M. z 353-59, at 629-30. 97 S.Ct. d e . Thus, the automo arrest, privacy rationale for they keep spirit could him from inapplicable generally is anything the car is there in bile away. Nor rather than when the concern is the seizure suggesting they began that after the record arrest, property.12 he place their effort Zullo under the search Dombrowski, See, g., Cady v. cumstances. e. extent that an automobile moves on 12. To the regulation, highway, 93 S.Ct. to state (warrantless others, (1973) may endanger seizure of automobile its owner posed a possessory been involved in an accident diminished interest under some cir- had J., concurring). I (Aldrich, C. F.2d at the Su- sum, I do not believe since principled basis can of no conceive any “forfeiture recognized has preme Court Berkowitz thinking that the outcome in this applicable be that would exception” govern if the different would have been the facts of case, I not believe since do only in violated the Constitution ment had scope of the within the bring it this seizure in the course of seizing, but not the act of that the I would hold exception, automobile with agree I discovering the contraband.13 car violat- of claimant’s seizure warrantless Melendez v. the court analysis To the extent the Fourth Amendment. ed Shultz, supra: purports to authorize U.S.C. § present “Thus were we to sustain seizure, ap- it is unconstitutional such holding would be warrantless we plied. be seized could itself that an automobile of an officer unbridled discretion III. Plymouth Se- although under One if the seizure that even The court states dan, merely officer supra, had the same unconstitutional, “it is not in this case was automobile without searched the same process used inadequacy in why clear warrant, of his search . any fruits would or possession . . . to secure as evidence suppressed would have to government’s defeat should proceeding involv- in a future forfeiture In One 1958 property.” entitlement any logic If there ing the automobile. Pennsylvania, 380 Plymouth Sedan result, to see it. The to such a we fail not to have right automobile owner clear Supreme Court made protec- worthy no more it searched is process used “inadequacy not to have it seized right than his tion indeed defeat the may secure possession” F.Supp. at legal procedure.” without least to possession, government’s right government is barred the extent that of the ex- Concluding that the rationale seized evidence to introducing illegally from applies illegal seizures for clusionary rule forfeitability. The hold- prove its claim of prob- not end the purposes forfeiture does does not control this Plymouth in Sedan lem, remains how question however. The remains, however, question case. The The remedy in this context. apply of that decision ex- whether the rationale “pri- has stated that Supreme Court case, where it situation in this tends to the exclusionary mary” justification of evidence but the procurement is not the police of unconstitutional rule is deterrence object obtaining possession аct of Powell, 428 U.S. conduct. See Stone violates the Fourth Amendment. itself that 96 S.Ct. States, 340 F.2d In Berkowitz v. United government (1976). barring the Merely 1965), of this court (1st majority a Cir. proceeding obtaining forfeiture from enti- government was not stated that property requiring and the return money tled to forfeiture of contraband little appear to contribute its owner would money that “when it discovered and seized from effect that results of the deterrent [appellant’s] illegally a invasion of only by suppress direct of the rule to application to hold other- trial. Since rights” constitutional because obtained evidence at a criminal en- a forfeiture action attaching great premi- property be too wise “would jeopardy, against no double joys protection upon um unconstitutional conduct.” decide, noted, 1977), (1st permissible). danger we but did Dombrowski to traffic having might regarded may part diminished Berkowitz be have turned on the that, indepen- property even interest in that has been abandoned. Interbartolo or overruled dently Berkowitz, no should Interbartolo States, pоsition longer 13. In v. United 303 F.2d 34 followed. I believe that Interbartolo longer illegal be the seizure no we held that an Interbartolo should stated States v. would not bar forfeiture. In United circuit. law of this Nova, One 1972 560 F.2d Chevrolet preserve rights guaranteed to all v. United Lot Emerald Cut Stones One 489, 492, States, Amendment. But the Court has Fourth here property if the rule to bar unwilling been to extend the can then government if the returned and against an in government proceeding from upon a magistrate from obtain a warrant illegally who was arrested. See dividual - cause, federal agents showing Crews, -, United States immediately and reseize the can -, 1244, 1250, 63 L.Ed.2d 537 The proceeding. new forfeiture initiate a price high. would be to In the use “excluding” from effect actions, however, of forfeiture no context proceeding will thus forfeiture in the first of a rule goes free as a result criminal irritant to the than a minor be little more of the action. For “excluding” object will result in a waste of government pri collateral to the provisions feiture are resources. judicial time and functions of mary punitive and deterrent judgе-made rule is a exclusionary Doherty criminal statutes. See substantive It statutory prescription. not a remedy, (Ct. 544-45 v. United me, therefore, permissible both appears to Cl.1974)(forfeiture regula are “a statutes forfeiture cases as reasonable to treat complement remedial to . tory and apply —and generis are—sui they what Thus, sanctions”). although sig criminal not in the same manner as exclusionary rule police illegal nificant deterrent to forfeiture case, commonplacesuppression but only by a rule that may seizures be achieved underlying is consistent with way exclusionary the limits of the rule exceeds guidance sug of the rule. Some purpose applied, the societal cost ordinarily as it is 41(e) of the Federal Rules of gested by rule since the loss great of this rule is not Procedure, provides which Criminal possessory right is its illegal as a result of property obtained contraband as a property that has become seizure should be returned to a search and instrument of a result of its use as an possession entitled to lawful persоn crime. subsequent criminal not be used reasons, that because For these I believe govern once the proceeding.14 By analogy, case was the seizure of the car in this Amendment ment has violated the Fourth Amendment, the violative of the Fourth effecting a warrantless by impermissibly having forfei- government is barred from it should be property, seizure of I believe proceeding. ture in this or future maintaining a civil ac forever barred from property.15 against tion for forfeiture approach would be consistent

Such an Supreme struck

with the balance rights individual

Court between in effec- society needs of inherent

and the the exclusion- enforcement. When

tive law to exclude evidence at a

ary applied rule is trial, often, though result is

criminal the destruction of necessarily,

not of a de-

government’s case and the release ‍​‌​​‌​​‌‌​​​​‌‌​​​​‌‌​‌​‌‌​‌​‌‌​​‌​​‌​​‌​​​​‌‌‌‌‍charged. of the crime guilty

fendant who is willing pay to cost we are

This is a social right erty negates 41(e) to re- somehow the owner’s to rule deleted a The 1972amendments provision ty granted authori- dress for an unlawful seizure. notwithstanding property, un- its retain lawful if the was “otherwise above, supra, see note 15. As I noted subject to retention”. The amended lawful apply deriva- to items of this rule should rule, therefore, rejects argument implicitly contraband, per objects se that are tive government’s made the court that the asser- dangerous. illegal inherently statutory right possession prop- tion of a

Case Details

Case Name: United States v. One 1975 Pontiac Lemans, Vehicle I.D. No. 2f37m56101227, Appeal of Irma Zullo

Court Name: Court of Appeals for the First Circuit

Date Published: May 9, 1980

Citation: 621 F.2d 444

Docket Number: 79-1275

Court Abbreviation: 1st Cir.