United States v. Robert Allen Kemp
690 F.2d 397
4th Cir.
1982
Check Treatment

*1 na and the defendants after the Whitin The district the difference.4 and treble Regardless to sanction Bur- of the defendants’ ultimately refused settlement. attempt to hold these defendants lington’s liability, permit I would not Bur- potential to Leeso- paid royalties for the accountable lington royalties paid to recover of the all judgment subtracted The amended na. Burlington engineered the Me- to Leesona. theo- damages on the the Leesona-based litigation settlement with Specialty chanics 1 bargained away its Burlington had ry that Leesona, designed royalty-kickback royalty damages from Leesona’s claim to their mutual benefit. The machinery for. the In Re Yarn when it settled program between the defendants Whitin settlement small sum. Processing case for such a perpetuated that com- simply and Leesona not be heard pact. Burlington now should the district court principle agree complain actually that it was harmed to alone, have an that, this basis we should scheme different from How- its own scheme —a reduction. case for claim appropriate have been majority in Part VIII the one the finds to ever, majority’s conclusion liability portion the defense disposed is unassailable: of the in anti- not available litigation. claim reduction is trust cases. this dispositive of

Yet that answer is not of our principle fundamental

case. A more profit not party may is that a

jurisprudence advantage of inequity its own or take Cardozo, The of the wrong. Nature

its own Process at

Judicial off the defendants’ majority sloughs America, STATES UNITED Burlington show that caused attempt Appellant, damages by of its claimed large portion liability this issue is one saying and thus cannot be damages, than rather KEMP, Appellee. Allen Robert my this time. At 387. considered claim, involves No. 81-5223. view, potentially which this more damages, deserves two-thirds Appeals, Court majority’s pat dismissal. than the Fourth Circuit. Moreover, has missed majority March Argued pari of in This is not a situation point. Leesona conspiracy between delicto. 23, 1982. Sept. Decided the same as the con- Burlington is not and the defend- between Leesona spiracy part in Burlington had no direct

ants here. Thus, it was case. conspiracy background necessary go into Bur- Leesona and relationship between liability to determine

lington in order Leesona and conspiracy between

defendants. very differ- considering

Now we damages to award of whether

ent paid to Leeso- royalties the extent of all subtracting (after the amount re- to Leesona Burlington in the MDL-82 asserted claims Processing settling $26,000,000, In Re Yarn aggregating ceived from litigation but released $13,439,793.72. amounting case), $789,683. case, Burlington In this Leesona for damages royalty payments claims based *2 informant November, 1978,

through DEA obtained in- formation to one individual in convict for conspiracy to distribute PCP and to defendant, others, indict Baltimore, Rocco, Md., ap- M. Saverio *3 relating to May, charges PCP. on Maxwell, Jr., Baltimore, pellee (E. Thomas interviews, appar- course of and the these Md., brief). on 2,1978, ently gave first on Jones November Allen, Atty., Steven A. Asst. U. S. Balti- relating Kemp’s Harrell information use Md., Motz, more, (J. appellant for Frederick of his in connection with the Cadillac distri- Baltimore, Md., brief). U. on Atty., S. of 1977. drugs bution DEA’s ERYIN, WINTER, Judge, Before Chief investigation kept secret until the was YOUNG,* Judge, and District May, indictments returned in were Judge. Kemp’s September was seized on vehicle YOUNG, 20, 1979, Court, Judge. H. District 223 Woodhill Glen Bur- JOSEPH nie, Maryland, for civil forfeiture.1 Until government appeals suppres- The then, the had been unsuccess- sion evidence in- a criminal trial. De- of ful in its beginning efforts to locate the car charged in two indictments on fendant was checking in June or July, Kemp’s April 15, 1981, with intent to possession for and distribution marihuana in known addresses. distribute 841(a). violation of 21 After a § U.S.C. vehicle in officers located the was superseding indictment returned con- lot parking apartment building solidating July the two indictments on Kemp’s girlfriend where lived. Receiving 1981, Kemp suppress moved to the evidence they no answer when knocked door on September seized from his 1973 Cadillac apartment keys, to obtain the book, book, ledger telephone 1979—a agents a tow truck to summoned remove two and a personal notebooks roll book. public parking the car from the lot to DEA district court found the seizure of headquarters. Prior to the arrival pursuant the vehicle to U.S.C. 881 was truck, and Kemp appeared tow surrendered conformity sup- not in statute and Thereupon keys to the vehicle. pressed pursuant the evidence found to an ágents opened the car and conducted an “inventory” of the seized vehicle. Because contents, returning person- inventory of its not be contemporaneity may read into the al, owner, non-vehicular items to who under the facts present. was case, we reverse the court. district FACTUAL BACKGROUND During inventory, two books were car, found on the seat of the one front leading to in- investigation Kemp’s An ledger which was a of controlled substance relating to charges began on PCP dictment transactions, phone the other a and and Special of 1978 when DEA the summer Jones, opened address book. The books were Agent Elmer Harrell met an infor- inspected agents. mant. In the course of several interviews the DEA and retained * signs telling Young, Joseph lice officers Dis- do not wear Honorable H. under Judge Maryland, sitting authority they statutory acting. for the District trict what by designation. issued, prior process no nor Since warrant was for, 881(b), applied under which is ultimately 1. The was forfeited to automobile case, precisely the issue in this this Court sees government pursuant justified no could not be reason that the seizure This forfeiture was also cited as author- statute irrespective either of which statute stat- ity why is no for the seizure. There indication ultimately on for ute the relied authority for was not alternate civil forfeiture. available to the under 49 U.S.C. agents Presumably, po- DEA and local proper because of the sei- forfeiture appropriate

After the agents initiated. The did proceedings rise to zure with the events warrant and seizure a search obtain there required, cause is not and that is no of the automobile the seizure prior to necessity for either a warrant constitutional they filed a nor had September judicial pursuant to the prior to 21 complaint for forfeiture 881(b). De- general terms of 21 U.S.C. § proc- 881(b)(4), exception an constitu- urges fendant that the seizure was requirements.2 ess it and even if was tionally impermissible, not, pre- the car had inventory merely held that The district agents, by the DEA improperly been investigatory text an search. for of the search fol- the fruits suppressed constitutionality We need not reach The sole reason seizure. lowing invalid issue, leave those for the pretext or the but was invalid determining that the seizure *4 hold, We how- district court on remand. proba- rise to the facts was that the ever, may not read that be sufficiently contempora- ble cause were not probable cause of 21 into the satisfy the Court seizure to neous with the property if the U.S.C. § “to believe probable cause there was in violation of the allegedly “has been used” being or would be that the automobile drug laws. illegal drug dealing in used connection 20, 1979, the date September on or around begin with the statute. analysis Our must of the seizure.” 881(a) 21 of the of Title United Section which shall be property Code defines States F.2d Pappas, v. 613 Citing United States subject to the United States. to forfeiture 1979), only published as the (1st 324 Cir. property any conveyances includes situation, Such similar dis- involving case a which have been used or are intended of the First with so much agreed trict court manner facilitate transport any that held that use to or in banc Circuit en this statute cause in laws.3 probable notion of the violation of Section contempora- notion of by carries “at least some provides methods which Unit- court also determined neity.” The district possession of this may ed States obtain necessarily not be read that the need “term government may either file property. The contemporaneity, requiring as ‘immediate’ pursu- issued complaint process and have necessarily circumstances exigent nor need Supplemental ant Rules of Certain to ruling of its always shown.” Because be Claims, Admiralty may Maritime or it issue, the consti- the court did not reach this process under certain seize without such pretext or the issue now tutional exception enumerated circumstances. urged upon us the defendant. on is process requirement relied 881(b)(4), which allows a warrantless sei- urges us to find that the Thé search, ensuing probable zure if the has cause and hence the Admiralty provides pertinent part: Maritime Rules for Certain in 2. 21 U.S.C. 881 by any United district court of the Claims Property subject jurisdiction property, having over the States (a) following subject to forfei- shall be except such that seizure without property ture to the United States and no may be made when— right shall exist in them: probable (4) Attorney has General aircraft, (4) conveyances, All ve- property has been cause to believe that hicles, vessels, or which are or in violation of intended to be used used or is use, transport, in man- intended for to or subchapter. this sale, transportation, re- ner to facilitate the pursuant paragraph the event of seizure ceipt, possession, or concealment subsection, proceedings (3) (4) or (2), except (1) paragraph or described in (d) of section shall be instituted subsection this that— promptly. Any property subject (b) forfeiture to may subchapter the United States under this statute, portion 21 3. This proc- Attorney upon be seized General 881(a)(4), overlaps thus 49 Supplemental ess issued

401 necessary for a search to be reasonable is had been used to believe that drug laws. cause to believe that law enforce- in violation place in a certain ment officials will find law, existing federal By of a crime. Zurcher contraband evidence it is used in violation is forfeited the instant 547, Daily, v. 436 U.S. 98 S.Ct. Stanford O’Reilly, v. laws. United States (1978). 56 L.Ed.2d 525 Such denied, Cir.), 414 (8th F.2d 208 cert. can become stale because contraband U.S. place can moved from the and evidence v. United (1973). also Weathersbee See See, e.g., Andresen v. to be searched. 1958) (26 States, (4th 263 F.2d 324 Cir. 463, 478-9, 9,n. Maryland, 427 96 S.Ct. Therefore, August, 7302). (1976); n. 49 L.Ed.2d 627 2747-48 Kemp defendant was al the automobile of Steeves, (8th F.2d v. of the United States. It ready 1975). Cir. to assert only remained for possession. right its to immediate See 881 of 21 U.S.C. is a sei Section States, 263 v. United F.2d Weathersbee statute, however; zure not search statute. govern The facts indicate that Bush, (3d 647 F.2d 357 Cir. right it had a ment was not aware purport to au 1981). The statute does November, 1978, when until “legitimate expec an intrusion on a thorize about agent told the DEA the informant which is now the focal privacy,” tation of By drug transactions *5 protection. Amendment point of Fourth into an government was well that time the 98, 448 100 Rawlings Kentucky, v. U.S. understandably did not investigation and 2556, (1980); 633 Rakas v. S.Ct. of possession its hand to obtain tip wish 421, Illinois, 99 58 439 S.Ct. $2,500. id. worth less than See property (1978). Attorney If the Gener L.Ed.2d 387 were returned After the indictments to believe “that the probable al has cause secrecy need for was May, in and the has been used or is intended to be property could focus on ob gone, the subchapter,” the used in violation stated, the already As taining property. its property. the If the government may seize property pursu its government could seize property that the Attorney General believes 881(b) or 49 to 21 U.S.C. § ant U.S.C. § drug of the “has been used” in violation without a warrant seizure was effected The laws, probable he has cause that means that in Admi process required without the belongs to the property that the believe 49 justifiable under ralty cases. To be property “has the States. Once comport must the seizure U.S.C. § law, used,” the its inno in violation of been warrantless accepted standards of generally at least while still regained, cannot be cence Amendment. To under the Fourth seizures of the violation. perpetrator owned 881(b)(4), 21 justifiable be U.S.C. § Coin & v. United States United States See proba have had Attorney must General 715, 91 S.Ct. Currency, 401 U.S. believe at the time of ble cause to (1971); v. United Weathersbee L.Ed.2d in had been used that the vehicle type This of States, 263 F.2d 324. supra, laws, must also drug and it violation of dissipate proba as can never probable cause the Fourth Amend reasonable under may become a search warrant ble cause for ment. Therefore, forfeit.4 Forfeit is stale. of the occurrence passage of time between probable The cause under cause probable cause facts rise probable 881(b)(4) is different is irrelevant.5 of the seizure cause the occurrence probable in most search cases. original fact not so belie the only that would Attorney believes that General If the belief. property be used in violation” of “is intended to laws, may probable drug that cause then passage Although irrel- of time is we hold the time, property is in if the become stale. After statutory proba- determination evant probable seizure of a vehicle with the cause 613 F.2d Contra, Pappas, v. United States respectfully I dis- that allows presented if magistrate, 324. A in agree with the First Circuit sent. there is establishing that facts (1st Pappas, 613 F.2d 324 property “has been that the cause to believe 1979) proper Cir. that construction laws, could used” in violation that the seizure be necessitates length of time extended not find that an in time to the manifestation proximate sei- and the of forfeiture between the time reading other Any cause. To probable cause. would vitiate the zure of the stat- provisions vitiates the other law the stat- be to rewrite would hold otherwise ute. has a provide ute to that only if property in right forfeited ma objectionable the particularly I find of time period certain can reasoning it is seized within a that the jority’s was not the This about an tip after the violation occurs. from an informant receive earlier, year wait that occurred a Congress.6 event intent of receiving any addi year another without the ev suppressed district drug transactions information about tional illegal the seizure idence because it found automobile, that the and then assert reading the stat improper based on an owned the automobile government has there ute. Defendant concedes analogy proper years. warped This two vehicle for seizure of his probable cause law, Eighth ty adopted from 881(a)(4) in pursuant to 21 (8th O’Reilly, 486 F.2d 208 United States v. that 21 1977. We hold Cir.) denied, cert. 414 U.S. contempora element of require does not an (1973), destroys 38 L.Ed.2d 334 establishing probable of events neity 881(b). construing logic semblance subject to forfei with seizure of is Contrary to the assertion reasonable Attorney ture if the General has in violation the moment it is used forfeited of the seizure to believe cause at the time laws, may not be used” in viola that the “has been is long until after it forfeited *6 seizure was tion of the laws. The California, 386 Cooper v. government. Cf. requisite made with the therefore (1967) on whether express no cause. We four months not forfeited until (property necessary, or circumstances are exigent it seized under a state forfeiture after was bar, in the case at to sustain present statute). to either 21 U.S.C. this seizure result justification Additional for 782 under or a close Pappas can be found reached Amendment. We remand Fourth (b) reading (a) and of § of subsections ques district court for consideration of this of sub- The first sentence pari materia. tion, constitutionality of the as well as the “[a]ny (b) application section limits its legal. search if the finds the seizure Court ” . . .. subject to forfeiture Sub- AND REMANDED. REVERSED subject (a) to for- section defines feiture, being following paragraph ERVIN, dissenting: Judge, “(4) conveyances, All applicable to our case: vessels, vehicles, aircraft, or 21 U.S.C. Because I believe use, to or are intended contemporaneity which requires Fourth Amendment on a belief that the cause, based a due irrelevant if there is ble it is not argument might permits arise warrantless claim. Such an might rights subject long delay innocent belief if to forfeiture. This affected agents superior possessory parties government’s used third or if the based per- power private to cir- under this statute and the their seizure interest in the expectation warrant. for a search cumvent diminished concomitant son’s property. privacy This is reasonably Congress have court, Court, find that could Pappas 6. We to decide. decline and this way passed it does read the this statute to transport, or in manner to facilitate the sale,

transportation, receipt, possession, or para-

concealment of described in ____” graph (1) (2) or 21 U.S.C. added). 881(a)(4) (emphasis The use-of subject present requires tense to be (b), object

to seizure under subsection use, currently

the seizure must be in use,

intended for in violation of the must, Assuming,

laws. as we that our na- legislators

tional not intend to contra- did (a)

dict the language of subsection (b),

use of “has been used” in subsection

can only conclude that necessary legal cause is to effect a proba-

seizure of the vehicle. Because

ble allegedly cause in this case arose two

years respectfully before the I must

dissent. SEWELL,

In re K. Charles Petitioner.

No. 82-1125. Appeals, Court of

Fourth Circuit.

Argued June Sept.

Decided Rehearing En Banc

Rehearing and *7 17, 1982.

Denied Nov. Orleans, W. Christy,

Walter New La. (Kullman, Bee, Lang, Inman & New Orle- ans, La., brief), petitioner.