The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
The United States of America ("the government") brought this
forfeiture action pursuant to 21 U.S.C. § 881(a)(4) which
provides for the forfeiture to the United States of vehicles
used or intended to be used for the transportation or to
facilitate the transportation of illegal controlled
substances.*fn1 This matter is presently before the Court on
the motion of Doris Collier ("the claimant"), as the purported
owner of a 1981 Cadillac Eldorado seized by the Drug
Enforcement Administration ("DEA") in May of 1981, seeking
summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that
no probable cause exists for the forfeiture of the vehicle
within the meaning of section 881(a)(4). For the reasons set
forth below, claimant's motion for summary judgment will be
In order to properly effect a forfeiture under section
881(a)(4), the government must initially establish the
existence of probable cause to believe that the vehicle
involved, in this case a 1981 Cadillac Eldorado, was used or
intended for use in transporting or in facilitating the
transportation of illegal controlled substances. United States
v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210, 212
(5th Cir. 1974); United States v. One 1976 Buick Skylark,
453 F. Supp. 639, 641-42 (D.Colo. 1978). Probable cause can be shown
if "reasonable grounds exist for the belief of guilt supported
by less than prima facie proof but more than mere suspicion"
under all the circumstances of a particular case. United States
v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.
1980); 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). Once the government has established
the existence of probable cause, the burden shifts to the party
claiming an interest in the vehicle to show by a preponderance
of the evidence that the vehicle was not used or intended for
use in the transportation or to facilitate the transportation
of controlled substances. EA Shipping Company, Inc. v.
Bazemore, 617 F.2d 136, 138 (5th Cir. 1980); United States v.
United States Currency, 495 F. Supp. 147, 150 (E.D.N.Y. 1980).
Although the government's burden in a civil forfeiture
proceeding is not as great as in a
criminal context, forfeitures are not favored and section 881
should be strictly construed in order to mitigate the
harshness in a procedure that deprives an innocent person of
his property because it was used by other persons for unlawful
purposes. United States v. One 1976 Mercedes Benz 2805,
618 F.2d 453, 454 (7th Cir. 1980).
In the context of a motion for summary judgment, the movant
must show that there is no dispute as to any genuine issue of
fact material to a judgment in its favor as a matter of law.
Cedillo v. International Association of Bridges and Structural
Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir.
1979); Kirk v. Home Indemnity Company, 431 F.2d 554 (7th Cir.
1970). In support of her motion for summary judgment in the
instant case, the claimant contends that the government has not
met its threshold burden of showing that probable cause exists
for the forfeiture. Viewing the facts in the light most
favorable to the government, as we are required to do in the
context of a motion for summary judgment, we must agree with
the claimant that probable cause for the forfeiture does not
exist in this case.
The facts in this case are relatively straightforward. For
some time prior to May 12, 1981, DEA Agent John Bott and his
partner had been investigating the claimant's husband, William
Collier, and his daughter, Willa Mae Holman, for alleged
involvement in heroin sales. During the course of their
surveillance on the evening of May 12, 1981, the agents
attempted to stop the 1981 Cadillac Eldorado in which Collier
and his daughter were riding. But when Agent Bott pulled his
car alongside the Cadillac and displayed his badge indicating
that Collier should curb his vehicle, Collier, who apparently
recognized Bott from previous encounters, sped away. After a
high-speed chase through the south side of Chicago, Agent Bott
and his partner finally succeeded in stopping the Cadillac.
Agent Bott ordered Collier out of the Cadillac and conducted
a brief pat-down search for weapons. Collier was then
handcuffed and placed in the back seat of Bott's 1979
Chevrolet Malibu, which is permanently assigned to Bott by the
DEA. Holman, who was not handcuffed, was directed to sit in
the front passenger seat of the Malibu.*fn2 The DEA Agents,
accompanied by Chicago police who had arrived on the scene,
then took Collier and Holman to the Chicago police station at
51st Street and Wentworth Avenue.*fn3 At the station,
Collier, Holman and the Cadillac were searched, but no heroin
or other illegal drugs were found. The search did reveal that
Collier was carrying $1,626 which he claimed he had won
gambling. Collier and Holman were then released.
At the end of the evening, Agent Bott drove the Malibu home
and parked it in his driveway. The next morning, as he
prepared to leave for work, Agent Bott entered the Malibu and
reached into the back seat, either to retrieve something or
place something there. In doing so, he folded the front
passenger seat forward and noticed two aluminum foil packets
in the space between the seat and back portion of the front
passenger seat, a space that is only visible when the
seat-back is folded forward. Chemical analysis of the contents
of the aluminum foil packets revealed that they contained a
total of 52.9 grams of heroin. According to Agent Bott's
affidavit, nobody except his partner, Collier and Holman had
been in the Malibu for at least two days prior to the time the
Cadillac was stopped and no one other than his partner and
himself were in the Malibu between the time that Collier and
Holman were in the car and the heroin was discovered.
On the basis of these facts, the DEA seized the Cadillac and
the government brought this forfeiture proceeding.
Significantly, no criminal charges were brought against
Collier or Holman. Nevertheless, the government reasons that
either Holman or Collier pushed the heroin into the crease
between the cushion and back of the front seat so that it
would not be found on their person when they were later
searched at the police station. Since Holman and Collier
entered the Malibu immediately after they exited the Cadillac,
the government maintains that the Cadillac must have been used
to transport controlled substances within the meaning of
Even taking these facts in the light most favorable to the
government in the context of claimant's motion for summary
judgment, the Court must conclude that they establish no more
than a mere suspicion that, under all the circumstances of
this case, the Cadillac was used or intended to be used to
transport illegal controlled substances. Such a showing is not
sufficient to meet the government's threshold burden of
probable cause in a forfeiture action. United States v. One
1978 Chevrolet Impala, supra, 614 F.2d at 984; United States v.
One 1949 Pontiac Sedan, supra, 194 F.2d at 758-59.
Although Agent Bott states in his affidavit filed in
opposition to the motion for summary judgment that, to his
knowledge, no one except he and his partner had been in the
Malibu for two days prior to the evening that they arrested
Collier and Holman, and that no one was in the car between
that time and the time that Bott discovered the heroin, the
government cannot account for the many times during the week
prior to the arrest and immediately thereafter that the Malibu
was left unattended in the General Services Administration
garage, at police headquarters at 11th and State Streets, at
the Wentworth District police station on the evening in
question, and in the driveway in front of Bott's house.
Moreover, at his deposition, Agent Bott testified that he had
not cleaned out the Malibu for about a week before Collier and
Holman were arrested and placed in the car. The government has
not established the requisite chain-of-custody to negate the
real possibility that someone other than Collier or Holman put
the packets of heroin in the Malibu either before or after
they were arrested with or without the knowledge of Agent Bott
or his partner. There is apparently no additional evidence
that the government could present at trial in this issue.
In the course of its own research in connection with the
pending motion, the Court has been unable to uncover a case in
which the discovery of the controlled substance was so
attenuated from the initial arrest of the suspects and search
of the vehicle that is the subject of the forfeiture
proceedings. The connection that the government has been able
to show in the case at bar, while not wholly unreasonable, is
not sufficient to pass the threshold of probable cause that
the vehicle in question was involved in the transport of
narcotics as a matter of law. For this Court to permit
forfeiture of claimant's vehicle under these tenuous fact
circumstances would sanction a precedent — subject to
potential abuse — for the disposition of other forfeiture
Accordingly, claimant's motion for summary judgment is