he told the manager he had the search warrant. He was told the
warrant was unnecessary and was admitted. The five officers
proceeded to the paint shop of the garage where the O.S.I.
officers stood some 15 to 20 feet from the Cadillac while the
Sheriff and his deputies searched it. Hendrickson requested a key
to the glove compartment from the manager and it was given to
him. In the glove compartment was found an envelope, not bearing
a tax stamp, containing 10 capsules of heroin, which was
contraband. 49 U.S.C.A. § 781(b)(1).
Howard Robinson admitted the ownership of the envelope but
denied the ownership and knowledge of the narcotics. He said he
had been to the garage on two occasions to obtain papers from the
glove compartment but had not removed the envelope nor found
Foreman, the intervenor, now contends that the search warrant
was invalid and that since the search was made in cooperation
with federal officers any evidence secured in the search of the
Cadillac was in violation of the Fourth Amendment to the
Constitution of the United States and should be excluded. It is
unnecessary for this decision to determine whether the search
warrant was invalid or whether the O.S.I. officers had such
authority as to make the search in their presence illegal as a
joint action of federal and state officers.
The Fourth Amendment which prohibits unreasonable search and
seizure is not available to Foreman in objection to the
admissibility of this evidence. The privilege of the Fourth
Amendment is personal and can only be claimed by the person whose
rights have been invaded. Jeffers v. United States, 88
U.S.App.D.C. 58, 187 F.2d 498, affirmed 342 U.S. 48, 72 S.Ct. 93,
96 L.Ed. 59; Goldstein v. United States, 316 U.S. 114, 62 S.Ct.
1000, 86 L.Ed. 1312; Lovette v. United States, 5 Cir.,
230 F.2d 263; United States v. Eversole, 7 Cir., 209 F.2d 766; Grainger v.
United States, 4 Cir., 158 F.2d 236. At the time the alleged
illegal search was conducted Foreman had neither the possession,
the right to possession, or the ownership of the Cadillac. He was
not the defendant in the action. A libel is an action in rem
against the automobile. Dobbins' Distillery v. United States,
96 U.S. 395, 24 L.Ed. 637. In an action in rem the same rule has
been held applicable and the claimant who has no interest in the
property searched or in the contraband has no legal objection to
the evidence obtained by an unreasonable search and seizure.
United States v. One 1951 Cadillac Sedan, D.C.Okla., 107 F. Supp. 491,
affirmed sub nom. City National Bank, Lawton, Okla. v. United
States, 10 Cir., 207 F.2d 741, and United States v. One Buick
Automobile, D.C.Vt., 21 F.2d 789.
Furthermore, the weight of authority is that an illegal search
and seizure will not vitiate the seizure in a libel. United
States v. Eight Boxes, etc., 2 Cir., 105 F.2d 896; United States
v. Pacific Finance Corp., 2 Cir., 110 F.2d 732; Strong v. United
States, 1 Cir., 46 F.2d 257, 79 A.L.R. 150, appeal dismissed per
stipulation, 284 U.S. 691, 52 S.Ct. 27, 76 L.Ed. 583; Bourke v.
United States, 6 Cir., 44 F.2d 371, certiorari denied
282 U.S. 897, 51 S.Ct. 182, 75 L. Ed. 790. Contra: United States v.
Plymouth Coupe, 3 Cir., 182 F.2d 180; United States v. 5 Gambling
Devices, D.C.Ga., 119 F. Supp. 641.
Since the evidence obtained by the alleged illegal search and
seizure is admissible the government has established probable
cause and the burden of proof shifts to the claimant Foreman to
exculpate the vehicle. 19 U.S.C.A. § 1615. Forman has failed to
sustain this burden. A decree of forfeiture will be entered.
This opinion may be considered as findings of fact and
conclusions of law. An order of forfeiture in accordance herewith
may be submitted.
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