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UNITED STATES v. ONE 1968 CADILLAC COUPE DEVILLE

January 5, 1990

UNITED STATES OF AMERICA, Plaintiff
v.
ONE 1968 CADILLAC COUPE DeVILLE, VIN NO. J8129552, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This is an action for forfeiture of a 1968 Cadillac Coupe DeVille (the "Automobile") under 21 U.S.C. ยง 881(a)(4) *fn1" because it was used to transport controlled substances in violation of the federal narcotics laws. Claimant Eric Runowski ("Runowski," the Automobile's owner) and the United States developed the factual and legal issues in a bench trial before this Court. Before that trial the United States filed its Trial Memorandum, and Runowski filed his Trial Brief post-trial.

 In accordance with Fed.R.Civ.P. ("Rule") 52(a), this Court finds the facts specially as set forth in the following Findings of Fact ("Findings") and states the following Conclusions of Law ("Conclusions"). To the extent if any the Findings as stated reflect legal conclusions, they shall be deemed Conclusions; to the extent if any the Conclusions as stated reflect factual findings, they shall be deemed Findings.

 Findings of Fact

 1. On October 18, 1988 Warrenville Police Officer Robert Maloney ("Maloney") was on routine squad car patrol. Newly hired Warrenville Police Officer Daniel Maida ("Maida") was a passenger in the squad car driven by Maloney, to obtain both an overview of the town and a demonstration of routine procedures (part of Maida's on-the-job training).

 2. At about 4 p.m. October 18 Maloney entered one of the areas regularly covered as a matter of routine: the canoe launch access area next to one of the main thoroughfares, Mack Road. Maloney saw two vehicles parked side by side (one was the Automobile, the other a Sears van), with two men sitting in the front seat of the Automobile. One of the men was smoking.

 3. After the officers (solely on the basis of generalized suspicion, rather than having any degree of probable cause to believe that an offense had been committed) *fn2" had called in for computer information about the Automobile's registration, but before that information had been received from the station, the passenger left the Automobile and entered the van -- and the two vehicles then pulled out of the canoe launch area. Maloney followed the Automobile onto Mack Road, then lost sight of the vehicle after it had turned onto Batavia Road. *fn3"

 4. While Maloney was following the Automobile, Runowski (who was then driving and was the sole occupant of the vehicle) exceeded the posted speed limit of 30 miles per hour by a few miles per hour. Within a short time after Maloney and Maida had lost sight of the Automobile, Maloney again saw it (this time on nearby Williams Road, where Runowski had gone and was in the process of picking up his young friend John Adler ("Adler"), then planning to drive to the home of another friend, Robert Johnson ("Johnson")). *fn4"

 6. Both Maloney and Maida then approached the Automobile. Each testified there was a strong odor of burned cannabis *fn7" coming from the car and that there was a crushed green leafy substance (presumably marihuana) scattered all over the passenger car seat. For the reasons stated in later Findings, this Court does not credit that testimony. In any event, it is undisputed that both Runowski and Adler were promptly asked to and did step out of the Automobile, so that the searches and seizures that took place thereafter were unrelated to the traffic violation -- and indeed they have not been sought by the government to be justified on that basis.

 7. Maloney also said there were, in plain view upon his looking into the front seat area of the Automobile (to be precise, located on a tray resting on the transmission hump on the floor in front of the seat), a glass pipe (usable to smoke marihuana) and a circular mirror (usable to cut "lines" of cocaine to be snorted) with a white powdery substance on it. Although Maida had earlier stood in the same position at the passenger door with the window down, he did not corroborate Maloney's testimony about such items being in plain view. This Court also does not credit Maloney's testimony in that respect.

 8. Maloney also said that Runowski then agreed to the opening of the glove compartment, where Maloney says he found more of the green substance and some other drug-related materials. That testimony also was uncorroborated by Maida and is not credited by this Court.


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