UNITED STATES v. ONE 1973 DODGE VAN, ETC.

MEMORANDUM OPINION

KAESS, District Judge.

This is an action under the provisions of 49 U.S.C. §§ 781-788 and 21 U.S.C. § 881, et seq., for forfeiture of a motor vehicle, one 1973 Dodge Van, VIN B21AE3X095937, bearing 1973 Michigan License Number 4037 EU.

The following facts have been stipulated to by the parties:

1. That Robert Nickel was the owner of the 1973 DODGE VAN, Vehicle # B21AE3X095937, on November 19, 1973.

2. That Robert Nickel was arrested on November 19, 1973, by agents of the D. E. A. without an Arrest Warrant and without a Search Warrant.

3. That at the time of the arrest of Robert Nickel, he was seated behind the wheel of the van, which was parked in a parking lot, in the company of a Mr. Bledsoe, and that the motor had been turned off.

4. That Robert Nickel had in his personal possession and for his own use, 10.3 grams of marijuana.

5. That the Complaint filed against Robert Nickel on November 20, 1973, sets forth that he had in his possession approximately 11 grams of marijuana.

6. That Robert Nickel plead guilty to the charge of possession of 10.3 grams of marijuana on November 11, 1975, in the case of United States v. Robert Nickel, Criminal Action # 74-80799, and that he was sentenced on March 24, 1976.

The constitutionality of this statutory scheme which authorizes the forfeiture of a vehicle prior to judicial determination has been recently upheld by the Supreme Court in Calero-Toledo, et al. v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

Courts are given little discretion in forfeiture cases. As the Court observed in U. S. v. One 1971 Porsche Coupe Auto., V. I. No. 9111100355, 364 F.Supp. 745 (E.D.Pa. 1973)

In a forfeiture action, the government bears the initial burden of showing probable cause for the institution of the suit. 19 U.S.C. § 1615; U. S. v. One 1950 Buick Sedan, 231 F.2d 219 (3rd Cir. 1956); U. S. v. One 1973 Volvo, 377 F.Supp. 810 (D.C.Tex.1974).

Probable cause for forfeiture exists if there is evidence sufficient to warrant the reasonable belief that a vehicle was used in violation of narcotics laws. U. S. v. One 1967 Buick Riviera, 2-Door, 439 F.2d 92 (9th Cir. 1971); In re One 1957 Buick Roadmaster Convertible, 262 F.2d 583 (6th Cir. 1958); Ted's Motors v. U. S., 217 F.2d 777, 780 (8th Cir. 1954); U. S. v. One 1949 Pontiac Sedan, 194 F.2d 756 (7th Cir. 1952). The parties have stipulated that at the time of his arrest, Robert Nickel was seated behind the wheel of the Van, and had in his possession 10.3 grams of marijuana.1 This fact alone constitutes a sufficient showing of probable cause to believe that the vehicle was involved in the violation of narcotics laws. The burden of absolving the vehicle from culpability, therefore, shifts to the claimant to prove that the forfeiture does not come within the forfeiture statutes. U. S. v. One 1973 Volvo, supra; U. S. v. One 1950 Buick Sedan, supra, at 223; U. S. v. One 1971 Porsche Coupe Auto., supra.

The claimant argues that the vehicle was not used to facilitate the transportation, concealment, receipt, possession, purchase, sale, barter or exchange of marijuana within the meaning of the forfeiture statute, since the narcotics were for personal use only and were carried on his person.

This argument has been unsuccessfully advanced several times. In U. S. v. One 1971 Porsche Coupe Auto., supra, the claimant argued that Congress had intended to subject a vehicle to forfeiture only when it is a substantial incident in the traffic of narcotics, and not when the vehicle was carrying only an amount suitable for personal use of an addict. The court carefully analyzed the statutory language, stating

Thus, in Associates Investment Co. v. U. S., 220 F.2d 885 (5th Cir. 1955), forfeiture was ordered when two partially smoked marijuana cigarettes were found in a vehicle. The Court of Appeals noted that so long as contraband was concealed or possessed in the vehicle, it was unnecessary to show anything more. The small amount involved and the fact that only one illegal incident took place were both irrelevant. In U. S. v. One 1957 Oldsmobile, 256 F.2d 931 (5th Cir. 1958), forfeiture was ordered although only 13 grams of marijuana were found. In U. S. v. One 1967 Buick Riviera, 2-Door, supra, a single packet of heroin in possession of a passenger established probable cause. In U. S. v. One 1973 Volvo, supra, an automobile used to transport money to be paid for a shipment of marijuana and to be paid for the rental of an airplane was held to have "facilitated" violation of the narcotics laws.

Claimant argues that Howard v. U. S., 423 F.2d 1102 (9th Cir. 1970), controls. In that case, Defendant Howard was arrested while driving a Chevrolet loaded with concealed marijuana. The Chevrolet had been under continuing surveillance since its entry into the United States from Mexico. It had been driven across the border by a Government informant, and left in a designated place. Howard arrived in the area in a Buick automobile, drove around the block, then parked the Buick across the street from the "load car." A few minutes later he was arrested and searched while driving the Chevrolet "load car." The keys to the Buick were taken from him by the arresting officers. As the court stated

The facts of Howard are not applicable to the present situation. The Dodge Van in the present case was not used to transport an individual to the scene of a criminal activity. The criminal activity, possession of marijuana, was completed during the time the claimant was in the vehicle. The contraband was within the vehicle. It was not so far removed from the crime charged as to be unaffected by the criminal activity.

The claimant also argues that forfeiture should be denied in the present case because the government caused unreasonable delay in the prosecution of this matter, which has resulted in the material diminution of the value of the vehicle.

Six months elapsed between the seizure of the automobile and the commencement of the forfeiture action. The record indicates that there was attempt to serve the defendant during July and August of 1974. The Marshal certified that he was unable to locate the individual within the Judicial District. There was additional delay, caused by the disposition of the underlying criminal prosecution. In light of all the circumstances, it does not appear that the delay in the present matter was sufficient to constitute a denial of due process, or necessitate the dismissal of the forfeiture action.

In certain instances, the government's action in seeking forfeiture may be quite harsh. However, as the Third Circuit noted, "However sympathetic we may be, we are bound when Congress, in the proper and prudent exercise of its authority, has spoken." U. S. v. One 1950 Buick Sedan, 231 F.2d 219, 223 (3rd Cir. 1956). See also, U. S. v. One 1957 Oldsmobile Automobile, supra; U. S. v. Addison, 260 F.2d 908 (5th Cir. 1958); U. S. v. One 1971 Porsche Coupe Auto., supra.

In light of the above considerations, an order of forfeiture is to be entered as to the 1973 DODGE VAN, VIN B21AE3X095937, bearing Michigan License 4037 EU. Costs are to be borne by the Government.