Fell v. Armour , 355 F. Supp. 1319 ( 1972 )

GRAY, Chief District Judge

(concurring in part and dissenting in part).

I concur in the Court’s conclusion that the Act in question violates the Constitution of the United States because the post-seizure procedures prescribed by the Act fail to meet the standards of the Fourteenth Amendment. I believe, however, that the pre-seizure provisions of the Act are also constitutionally impermissible, and I must, therefore, respectfully dissent from the conclusion that due process protections do not apply to such provisions.

Specifically, I believe that the Constitution prohibits the warrantless seizure, not incident to an arrest, of a vehicle and requires provisions for notice and hearing prior to seizure of vehicles, not incident to an arrest, where the owner whose vehicle is sought to be seized is not charged with transporting the contraband, absent such exceptional circumstances as would demonstrate probable cause to believe that the giving of notice would result in the vehicle’s being spirited away by the owner.

At the outset it appears that only traditional forfeiture doctrine, supported by voluminous precedent, has persuaded the majority in this case that traditional constitutional requirements cannot be applied to forfeiture procedures. Thus it is necessary to examine the roots of the forfeiture doctrine and its current status.

Traditional forfeiture law is built upon a fiction, the fiction that the chattel or, in this case, the vehicle is guilty of some wrongdoing. The sovereign, therefore, pursued the thing and not the owner thereof. Consequently, the proceeding through which the sovereign accomplished forfeiture of this type was in rem, rather than in personam. Building upon this fiction, it was held that the thing, the chattel, became forfeited to the sovereign at the, time it committed the wrongdoing. Since the chattel was the wrongdoer and it was the chattel, not the owner, against which the sovereign was proceeding, it followed that there were in fact no rights that could be asserted against the sovereign. The owner had no rights he could assert because the action was not in personam and, of course, the chattel itself had no rights.

This chain of reasoning is manifested in the early American cases which dealt with and defined forfeiture. For example, the Supreme Court held in 1827:

“In the contemplation of the common law, the offender’s right was not divested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the exchequer. The thing is here considered as the offender, or rather the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum, or malum in se.” The Palmyra, 12 Wheat. 1, 15, 6 L.Ed. 531 (1827).

This reasoning led the Court to the conclusion that “ . . . the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam.” Id., p. 16, 6 L.Ed. 531.

In 1878 the Supreme Court, in Dobbins Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637, discussed with approval the opinion of Mr. Chief Justice Marshall, written while the Chief Justice was “riding circuit” under the system then prevailing, in United States v. The Little Charles, Fed.Cas.No.15,612, 1 Brock, 347 (1818), saying at p. 402 of 96 U.S.:

“Neither confessions nor admissions of the master, it was contended, were admissible to prove the guilt of the owner; and the Chief Justice added that, if the case was such as was supposed in argument, the objection would be entitled to great weight. But he remarked that the [forfeiture] proceeding was one against the vessel, for an offense committed by the vessel, which is not less an offense, and does not the less subject her to forfeiture because it was committed without the authority and against the will of the owner.”

In the case of Goldsmith, Jr.—Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921), the Court thrust at the heart of the forfeiture doctrine when it said,

“ . . . Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong. In such case there is some analogy to the law of deodand, by which a personal chattel that was the immediate cause of the death of any reasonable creature was forfeited.

“But whether the reason for § 3450 be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.” Id., pp. 510-511, 41 S.Ct. at 191.

These cases make it clear that the aspect of forfeiture that made it unique in the law was the fiction of the chattel committing the wrongdoing, and the basis of the rationale underlying traditional forfeiture doctrine is this fiction.

The nature and use of this legal fiction led to the view that the constitutional protections were inapplicable. A sanctum was thereby created in which forfeiture was enclosed, a sanctum that the earlier courts refused to invade. And, although the courts repeatedly criticized the broad thrust and scope of forfeiture, particularly the absence of the usual procedural guarantees, those same courts upheld forfeiture laws because they felt so compelled by the weight of-precedent. [An example of this reasoning can be found in the case of Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962).] This is the view adopted by the majority in the case at bar.

What has been referred to as traditional forfeiture doctrine, then, is simply the view that forfeiture is unique in the law, a bird of a different feather, and that this peculiar nature of forfeiture, together with the legal fiction inherent in that nature, somehow avoids the application of the usual constitutional guarantees. The courts that have followed this doctrine have held implicitly that they were helpless to apply the constitutional standards as long as the sanctum enclosing forfeiture, as a legal doctrine, remained intact.

I am of the opinion that certain recent decisions have either eroded or destroyed the underlying rationale that has prevented the application of the constitutional standard of fundamental fairness, and this is the basis for this dissent. This view is premised on the fact that traditional forfeiture doctrine depends on the continued validity or viability of the legal fiction; and, if the fiction is destroyed, the entire rationale falls of its own weight and there is then no bar to subjecting forfeiture proceedings to the eye of constitutional scrutiny. The significance of these recent cases relied on by me and discussed infra lies in their treatment of the fiction and not in the factual situations presented or the precise holdings.

The most significant recent decision regarding forfeiture doctrine is United States v. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), wherein the Court indicated that the seizure of an innocent individual’s personal property would raise serious questions under the due process clause of the Fifth Amendment.

“But before the Government’s attempt to distinguish Boyd could even begin to convince, we would first have to be satisfied that a forfeiture statute, with such a broad sweep, did not raise serious constitutional questions under that portion of the Fifth Amendment which commands that no person shall be ‘deprived of . property, without due process of law; nor shall private property be taken for public use, without just compensation.’ Even Blackstone, who is not known as a biting critic of the English tradition, condemned the seizure of the property of the innocent as based upon a ‘superstition’ inherited from the ‘blind days’ of feudalism. And this Court in the past has recognized the difficulty of reconciling the broad scope of traditional forfeiture doctrine with the requirements of the Fifth Amendment. . . . ” Id., pp. 720-721, 91 S.Ct. at 1044 [Emphasis added].

Admittedly, the foregoing language is dicta, the Court having declined to rule on due process grounds in favor of the ground of self-incrimination. The language does indicate the Court’s predisposition to impose due process standards where property is seized from an innocent person under the broad sweep of a forfeiture statute and, indeed, is convincing that the Court would have relied on those standards had not others been presented therein. The language also indicates that the Court was referring to more than just forfeiture of the property in its ultimate sense; it was also referring to seizure of property under the forfeiture statute. Moreover, it is implicit in the opinion that the Supreme Court ignored the fiction that the chattel was the wrongdoer and that it automatically was forfeited to the sovereign at the time that the wrong was committed.

Another important decision in this respect, particularly for this Court, is McKeehan v. United States, 438 F.2d 739 (6th Cir. 1971), wherein the United States Court of Appeals for the Sixth Circuit refused to follow traditional forfeiture rules and the fiction. The Court found four features in the case that “gave a basis” for holding as follows:

“The lack of any valid legislative, administrative or revenue purpose for pursuing the item in rem, rather than the person of the possessor, gives us a basis for conceiving of this action for certain constitutional purposes as an action in personam. In so doing, we are not creating a ‘legal fiction’, but destroying one.” Id., p. 745.

McKeehan is, of course, not strictly analogous to the case at bar. Neither can it be contended that McKeehan overturned all the traditional forfeiture law, nor that the case compels the result urged by this dissent. But it does express the Court’s willingness to look behind that great wall of precedent, as well as indicating that the fiction on which traditional forfeiture doctrine rests is no longer viable in this circuit. The importance of McKeehan lies in its focus on the rights of the owner and, in this respect, shows that this circuit has taken a direction consistent with that indicated by the Supreme Court in United States v. Coin & Currency, supra. It can be said fairly, therefore, that these two decisions support the narrow proposition that the courts are no longer prevented from applying constitutional standards to forfeiture proceedings merely by reason of the existence of the wealth of precedent concerning traditional forfeiture doctrine.

The third case represents the logical terminus of the trend and the adherence to the proposition stated above. In United States v. One Bally Sun Valley Pinball Machine, 340 F.Supp. 307 (W.D.La.1972), the Court noted that, prior to Coin & Currency, there was no doubt as to the validity of forfeiture proceedings, even against innocent owners; but the Court observed that Coin & Currency and subsequent cases (among which is McKeehan v. United States, supra) have illustrated sharply the changing attitude toward what once was a routine procedure. Based on that observation, the Court went on to hold that where the chattel was not per se contraband, it could not be seized without prior notification to the owner. Although Bally Sun is factually dissimilar to the instant case and involved a somewhat different type of forfeiture from that presented herein, its analysis of the trend established by Coin & Currency, its utter disregard for the fiction inherent in the action and the in rem characterization of the proceedings and its focus on the owner’s rights in due process terms support the conclusion I would reach in the case at bar.

Simply stated, that conclusion is that the fiction that the chattel, the thing, is guilty of wrongdoing is no longer intact and that, therefore, the Court is not precluded from applying the due process clause to forfeiture proceedings. Thus I believe that this Court can, and should, subject the forfeiture provisions of the Tennessee Drug Control Act of 1971 to the limitations commanded by the Constitution.

I would therefore hold, as indicated in the opening paragraphs of this opinion, that the Act violates the Constitution, in addition to the violations found by the majority, by permitting the warrantless seizure, not incident to an arrest, of a vehicle, and by its failure to provide for notice and hearing prior to seizure, not incident to an arrest, where the owner whose vehicle is sought to be seized is not charged with transporting the contraband, absent such exceptional circumstances as would demonstrate probable cause to believe that the giving of notice would result in the vehicle’s being spirited away by the owner. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).