asked Runowski for permission to look into the Automobile. In response Runowski asked whether Maloney wanted to look in his briefcase, and upon Maloney's affirmative response the briefcase was opened (disclosing books and no contraband). That same sequence followed as to the car's trunk, again with no contraband disclosed. But then Maloney went ahead without Runowski's consent to search the car's interior, resulting in discovery of a number of items of drugs and drug paraphernalia. Only then did Maloney tell Runowski he was under arrest.
10. Maida substantially (though not entirely) corroborated Maloney's story about Runowski's driving and about the minor traffic violations it reflected. As already stated, Maida also corroborated Maloney's story about the smell of burned marihuana and the presence of the leafy substance (which Maida believed to be marihuana) on the passenger car seat. But as indicated earlier, Maida did not corroborate Maloney's testimony as to the plain-view sighting of drug materials referred to in Finding 7, nor did he confirm Maloney's claimed viewing of any such materials in the glove compartment.
11. According to Runowski, he smoked an ordinary cigarette and not marihuana when he was seated with a fellow Sears employee at the canoe launch site. When Runowski later went to Adler's house (not by prearrangement, something Adler confirmed), they spent a few minutes talking, then got into Runowski's car to drive to Johnson's house. Both Runowski and Adler denied any smell of burned marihuana and denied the presence of any crushed green leaves on the seat, as well as denying that the materials to which Maloney (but not Maida) testified were in plain view on the floor of the front seat. It is also wholly without dispute that Runowski did not consent to the search that eventuated in the discovery of the other contraband (or the discovery of the contraband referred to in the preceding sentence, if that material was indeed not in plain view either).
12. In terms of credibility, the Runowski-Adler story is clearly more plausible than that of Maloney. Their story is also more plausible than the portions of Maida's testimony that partly corroborate Maloney's version. It simply does not ring true that officers who have smelled burned marihuana and who have seen the substance in plain view (assertedly scattered all over the front passenger seat of the automobile) would not have placed Runowski under arrest then and there. What all four witnesses agreed upon is that (a) the subjects of the burned marihuana smell and of the alleged contraband on the car seat were never mentioned to Runowski or Adler by either Maloney or Maida and that (b) Maloney announced that Runowski was under arrest only after he had located all the other materials he found during the course of his search.
13. Finding 12's credibility determination applies with equal force to Maloney's testimony (this time uncorroborated by Maida) as to his having allegedly spotted the Finding 7 materials in plain view on the floor of the front seat (an area that Maida had within his own plain view shortly before that) and in the glove compartment as well. Again it does not ring true that Maloney, armed with such cumulative evidence of narcotics violations, would not have placed Runowski under arrest at that point. Again the fact of Maloney's having proceeded with his requests for further access to the Automobile, followed by the unconsented-to search that he then conducted, discredit his testimony that he already had evidence (as contrasted with no more than a suspicion) of illegal drug activity.
14. Because Maloney and Maida did not in fact smell burned marihuana when they said they did and because there was in fact no evidence of illegal substances in plain view, Maloney lacked probable cause for the unconsented-to search of the Automobile. Accordingly the materials located as the result of that search must be and are suppressed for the reasons stated in the Conclusions.
Conclusions of Law
1. This proceeding is brought under Section 881(a)(4). This Court has jurisdiction of this action under 28 U.S.C. §§ 1345 and 1355, and this proceeding is governed procedurally by the Supplemental Rules for Certain Admiralty and Maritime Claims.
2. If account is taken of the materials ultimately obtained as the result of Maloney's search of the Automobile, there is certainly probable cause to believe that the Automobile was used (in the language of Section 881(a)(4)) "to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of" a controlled substance (United States v. $ 84,000 U.S. Currency, 717 F.2d 1090, 1101 (7th Cir. 1983)). That shifts the burden of proof to claimant Runowski to establish any available affirmative defense by a preponderance of the evidence (id.).
3. One possible such defense could stem from Runowski's ability to show that the traffic stop represented a pretextual arrest masking the officers' real purpose of searching for narcotics (see United States v. D'Antoni, 856 F.2d 975, 979 (7th Cir. 1988)). Although here the officers' interest in Runowski at the outset stemmed wholly from their unsupported suspicion about drug-related activity, and though it is more than reasonable to assume that such continued suspicion rather than Runowski's minor observed traffic violations remained the reason for the officers' pursuit and for the actual apprehension of Runowski in the first instance, United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989)(citation omitted) has rejected such subjective intent as the standard for Fourth Amendment
reasonableness of a post-arrest search and seizure:
Given this language in a Supreme Court opinion [ Gustafson v. Florida, 414 U.S. 260, 265, 38 L. Ed. 2d 456, 94 S. Ct. 488 (1973)], we, as an intermediate appellate court, do not feel empowered to evaluate the reasonableness of a particular arrest based on the arrest's conformance to usual police practices. Rather, we believe that the reasonableness of an arrest depends upon the existence of two objective factors. First, did the arresting officer have probable cause to believe that the defendant had committed or was committing an offense. Second, was the arresting officer authorized by state and or municipal law to effect a custodial arrest for the particular offense. If these two factors are present, we believe that an arrest is necessarily reasonable under the fourth amendment. This proposition may be stated in another way: so long as the police are doing no more than they are legally permitted and objectively authorized to do, an arrest is constitutional.
4. By that standard the arrest of Runowski for the traffic violations was constitutional. In turn, a search of Runowski himself purely incident to that arrest (like the search in Trigg) would have passed constitutional muster. But here the contraband was not located on Runowski's person (as it was on Trigg's). Instead the discovery of the contraband stemmed from an unconsented-to search of the Automobile, lacking probable cause to do so.
5. With no evidence of narcotics-related illegal activity having manifested itself to the officers' senses -- either by the smell of burned marihuana or by the plain viewing of any illegal substances or narcotics paraphernalia -- Maloney's search of the Automobile was no more than an impermissible pursuit of his factually-ungrounded suspicions. And the law of search and seizure does not reason from results -- it does not permit post hoc ergo propter hoc justification of a search. Because the evidence obtained as the result of the illegal search is inadmissible in this forfeiture proceeding ( One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-702, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965)), no forfeiture of the Automobile is sustainable here.
* * * *
For the reasons stated in the foregoing Findings and Conclusions, the Automobile is not forfeited to the United States. Judgment is ordered to be entered dismissing the Complaint and this action and returning the Automobile to claimant Eric Runowski.
Date: January 5, 1990