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UNITED STATES v. ONE 1988 FORD MUSTANG

August 17, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
ONE 1988 FORD MUSTANG, Vin #1FABP45E7JF268886, Defendant


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

Claimant Jeff C. Levin moves to dismiss the United States' complaint for forfeiture of his 1988 Ford Mustang automobile under the provisions of 21 U.S.C.A. § 881(a)(4) (West 1981 & Supp. 1988). Levin contends that such forfeiture violates the proportionality of punishment requirement of the Eighth Amendment of the United States Constitution. For the reasons stated below, we deny Levin's motion to dismiss.

 I.

 In its complaint, the government sets forth the following allegations, which we take as true for purposes of this motion to dismiss. Levin is the registered owner of one 1988 Ford Mustang GT convertible. Late at night on November 2, 1988, Officer John A. Sebben of the Deerfield, Illinois, Police Department observed Levin and a companion sitting in the Mustang, which was in the parking lot of a Deerfield bowling alley. Levin and his companion were smoking from a pipe that appeared to be the type commonly used for cannabis. Upon approaching the vehicle and smelling the odor of burning cannabis, Officer Sebben identified himself and requested the pipe from Levin. Levin responded, "We were only smoking a bowl full. Are you going to bust us for that?" Levin gave the pipe containing a "residue of cannabis" to Officer Sebben. Levin and his companion were arrested for the possession of cannabis, and the defendant vehicle was seized. Upon an inventory search of the vehicle, the police found items known to be drug paraphernalia.

 The government seized the Mustang under the authority of 21 U.S.C. § 881(a), which provides with certain exceptions not relevant here that

 
(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
 
(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.
 
* * * *
 
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1). . . .

 Levin contends that forfeiture of his automobile to the United States on the basis of possession of a pipe containing only a "residue of cannabis" violates the constitutional requirement that punishment be proportional to the crime. He charges that the complaint on its face offends the Eighth Amendment of the United States Constitution *fn1" and, therefore, fails to state a claim on which relief properly may be granted. Fed.R.Civ.P. 12(b)(6).

 We must begin our analysis by looking at the nature of forfeitures. Courts have long distinguished between criminal in personam forfeitures and civil in rem forfeitures. The Seventh Circuit has described the difference this way:

 
Criminal forfeiture "is an in personam proceeding against a defendant in a criminal case and is imposed as a sanction against the defendant upon his conviction." S.Rep. No. 225, 98th Cong., 2d Sess. 193, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3376. In contrast, civil forfeiture is an in rem proceeding against the property that the government seeks to obtain, without regard to the guilt or innocence of the property owner "because the theory is that the property itself has committed the wrong." United States v. Nichols, 841 F.2d 1485, 1486 (10th Cir. 1988) (citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-81, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974)).

 United States v. Moya-Gomez, 860 F.2d 706, 721 n.15 (7th Cir. 1988), cert. denied sub nom. Estevez v. United States, 492 U.S. 908, 109 S. Ct. 3221, 106 L. Ed. 2d 571 (U.S. 1989) (No. 88-6623). The Seventh Circuit has held that forfeiture under section 881 provides for civil in rem forfeiture. United States v. $ 79,123.49 in United States Cash and Currency, 830 F.2d 94, 97 (7th Cir. 1987); see also United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532, 543 (5th Cir. 1987), cert. ...


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