The opinion of the court was delivered by: Platt, Chief Judge.
United States of America filed this libel against one 1955
Cadillac Eldorado automobile which was seized June 14, 1956 under
a warrant of seizure and monition duly issued for the reason that
the vehicle had been used to transport or conceal untaxed heroin,
a contraband narcotic drug. 49 U.S.C.A. § 781 et seq. At the
trial before the court, jury trial having been waived, Ray M.
Foreman was substituted as intervening claimant for Velva L.
Robinson, who had filed answer and intervened as the owner of the
The court finds that the automobile was originally owned by
Howard Robinson. On May 14, 1956, he executed a bill of sale to
Velva L. Robinson, his mother, to whom an Illinois Certificate of
Title was issued on May 26, 1956. In June, both Robinson and his
mother executed bills of sale to Ray M. Foreman for his attorney
fee to represent Howard Robinson on a state narcotics charge at a
preliminary hearing and for investigating the case.
During the fall of 1955 and the early part of 1956, William C.
Hendrickson, Sheriff of Vermilion County, Illinois, was
investigating the sale of narcotics in Danville. He was informed
that Robinson, who was in the Air Force, stationed at Bunker
Hill, near Peru, Indiana, was transporting and selling narcotics
in Danville. Hendrickson had seen Robinson driving the Cadillac
but did not see it for some time following March 1956, although
he did see Robinson driving another automobile. He was informed
in May, 1956, by a Danville Police Officer that the Cadillac was
in a garage in Danville, having been placed there for repair by
Robinson following a mishap in early April, 1956.
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.
© 1992-2003 VersusLaw ...