Edna Salas appeals from a summary judgment of the district court forfeiting to the United States all monies resulting from the sale of a 1975 Mercedes 280S automobile, of which Mrs. Salas claims to be the registered owner. The Mercedes was seized in the course of a raid, with search warrant, upon the residence of Mrs. Salas and her husband in Romulus, Michigan. As a result of the raid and the execution of the search warrant, appellant's husband was arrested and charged with the possession of heroin.
According to the affidavit of Special Agent Arthur J. Goldenbaum of the Drug Enforcement Administration, he searched the Mercedes when it was parked in the garage of the premises at Romulus, Michigan, in the course of his execution of the federal warrant for the search of the house. His affidavit in support of the motion for summary judgment alleged in part:
The government's motion, with Agent Goldenbaum's affidavit attached, was brought on for hearing before the district court. No counter-affidavit was filed and no appearance
Under the admittedly harsh but nonetheless valid forfeiture laws of the United States applicable to this case, we conclude that summary judgment was warranted and accordingly affirm.
The instant action was brought under 49 U.S.C. § 782, which authorizes the forfeiture of vehicles used in violation of 49 U.S.C. § 781. The latter statute provides in part as follows:
While appellant urges that the presence in her automobile of four cigarette butts containing marihuana does not come within Section 781, case law construing that section does not support such a claim. Clearly it was not incumbent upon the government to show that the marihuana was both transported and concealed or possessed, the terms being in the disjunctive. Likewise, it was not necessary for the government to have shown that the narcotic was possessed with an intent to sell or offer it for sale in violation of the laws. It is sufficient if marihuana was found in measurable quantity and was possessed in the vehicle in violation of the laws of the United States. A "narcotic drug" for purposes of 49 U.S.C. § 781(b)(1) is defined to include marihuana. 49 U.S.C. § 787(d); 21 U.S.C. § 802(15).
Although the law in this respect appears harsh, it is well settled that it is immaterial whether the amount of marihuana contained in the car is relatively small. Thus, in Associates Investment Co. v. United States, 220 F.2d 885 (5th Cir. 1955), a judgment of forfeiture was sustained based upon one partially burned and one intact marihuana cigarette. See also United States v. One 1957 Oldsmobile Automobile, 256 F.2d 931 (5th Cir. 1958), a forfeiture involving thirteen grains of marihuana, and United States v. Nelson, 499 F.2d 965 (8th Cir. 1974), holding that a conviction for violation of the drug laws will be upheld "where any measurable amount of a prohibited narcotic drug is found." Id. at 966 and cases cited therein. If, therefore, the possession of any measurable amount by a given person will support a conviction of a criminal violation, surely it will be sufficient here to support a civil forfeiture under the less onerous burden of proof.
Mrs. Salas' denial of any intent to distribute the marihuana and, in fact, her claim that she was not shown to have been possessed of any knowledge of its presence in the car are irrelevant, and the forfeiture under such circumstances is not an unconstitutional taking under the Fifth Amendment. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-90, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); United States
Likewise, Mrs. Salas' argument that the affidavit was insufficient to support a grant of summary judgment must likewise fail. Summary judgment procedures under Rule 56, Fed.R.Civ.P., must necessarily be construed in the light of the statutory law of forfeitures, and particularly the procedural requirements set forth therein. Those procedures themselves are quite summary, especially when compared to normal civil actions. 49 U.S.C. § 784 provides in part:
The provisions relating to forfeitures for violation of the customs laws are set forth in 19 U.S.C. § 1615, which provides in part:
The plain meaning of the two forfeiture statutes, construed together according to the express provisions of 49 U.S.C. § 784, is well defined in United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1107 (9th Cir. 1976):
Further, it is apparent that "probable cause" in a forfeiture proceeding is not a special term of art, but is the same standard employed to test searches and seizures generally. Id. at 1108-09.
United States v. One Twin Engine Beech Airplane, supra, 533 F.2d at 1110. Accord, United States v. One 1949 Pontiac Sedan, 194 F.2d 756, 758-59 (7th Cir.), cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952); United States v. Davidson, 50 F.2d 517, 520-21 (1st Cir.), cert. denied, 284 U.S. 660, 52 S.Ct. 36, 76 L.Ed. 559 (1931).
While we cannot agree with the government's insistance that probable cause is all that is needed by way of proof to justify a forfeiture even in the face of overwhelming proof that the cause, though probable, was not ultimately sustained, it is apparent to us that a showing of probable cause is sufficient to warrant a forfeiture and that summary judgment was properly entered in the absence of any exercise by the claimant of her right to come forward and show that the facts constituting probable cause did not actually exist. United States v. One 1975 Ford F100 Pickup Truck, 558 F.2d 755, 756-57 (5th Cir. 1977).
Mrs. Salas did nothing here to controvert the facts which constituted probable cause. Accordingly, her default brought into operation that provision of Rule 56(e) that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
While the facts set forth in the affidavit of Agent Goldenbaum are admittedly abbreviated,