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February 25, 1952


The opinion of the court was delivered by: MARSH

This action was instituted by Anthony DeBonis against the United States on October 26, 1950, to recover damages for the illegal seizure of a 1941 Plymouth coupe.

By stipulation it was agreed that on May 19, 1948 Anthony DeBonis was the owner of a 1941 Model Plymouth coupe, and that on that date the same was seized without a warrant on the DeBonis premises at Sharon, Mercer County, Pennsylvania, by two representatives of the Alcohol Tax Unit for the Western District of Pennsylvania. The Government failed to sustain libel proceedings and on June 30, 1950, this vehicle was returned to the plaintiff, Anthony DeBonis. It was further agreed by stipulation that the record of the libel proceeding in the District Court, D.C.W.D. Pa. 1950, 88 F.Supp. 93, and in the Court of Appeals, 3 Cir., 1950, 182 F.2d 180, be made a part of this record.

 From these prior proceedings, we find that it was established that state police officers on February 14, 1948, discovered a still near Sharon, Pennsylvania, and learned that a man named Rocco DeBonis had visited the still in a 1941 black Plymouth coupe. Rocco DeBonis was charged with conspiracy to violate the Internal Revenue Laws, 18 U.S.C.A. § 88, revised Sec. 371, and pleaded nolle contendere. The District Court found this Plymouth

 '* * * was used by Rocco DeBonis to transport ingredients and materials that were necessary for the manufacture and production of the alcoholic beverages. This activity occurred at one time or the other during the period from October 1, 1947 to February 12, 1948.

 'During this time Amelia Theresa Vince, a daughter, was the owner of the motor vehicle. Title was held from November, 1944 until April, 1948. Title was transferred to Anthony DeBonis in April of 1948. He was the owner when the car was seized by Federal Revenue Agents on May 19, 1948, and he is the present owner and claimant.

 '* * * Anthony DeBonis claims to be the purchaser of the car in good faith.

 From the opinion of the Court of Appeals, it appears (182 F.2d 181): 'At 6:30 in the morning on May 19, 1948, three months after the raid on the still. two investigators of the Alcohol Tax Unit entered the yard of the DeBonis residence, where the automobile and a truck *fn1" were parked, and drove both vehicles away. The officers had no search warrant. They seized the automobile. It is conceded that when the automobile was taken it contained no contraband, nor is there any evidence that the vehicle had been used for illegal purposes since the seizure of the still or that it was so to be used in the future. Nor is there any suggestion that the car was in danger of being removed from within reach of the authorities.'

 On these facts the forfeiture libel was granted by the District Court, but the judgment was reversed by the Court of Appeals, with directions to dismiss the libel.

 In addition to these facts, we find that the revenue agents committed a wrongful act in seizing the vehicle without a warrant while acting in the scope of their employment. *fn2" From the instant proceeding it appears that the vehicle was not used but was stored from May 19, 1948 to June 30, 1950, when it was returned to plaintiff. As a result of the temporary loss of this chattel, plaintiff suffered damages in the sum of.$ 99, which is the amount he paid to a brother-in-law for transportation to and from work at the rate of $ 1.80 per week for about 55 weeks. *fn3" Plaintiff also claimed damages for depreciation and loss of use of his vehicle but these cannot be taken into consideration because the former was not a proximate result of the seizure and detention, and damages assessed for the latter would be too speculative.

 Anthony DeBonis claims this Court has jurisdiction of his complaint for damages under Section 1346(b), 28 U.S.C.A., as amended, being a section of the Federal Tort Claims Act.

 This section provides in part: '* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'

 The Government contends that the Court does not have jurisdiction of this action for the reason that it comes within the exceptions to the Federal Tort Claims Act, Secs. 2680(a) and 2680(c) of Title 28, U.S.C.A. The Court does not agree. Section 2680(a) exempts the Government from liability upon a claim based 'upon an act or omission of an employee * * * exercising due care, in the execution of a statute:, or based upon a discretionary function or duty. These Government agents did not take the subject vehicle in the exercise of due care; on the contrary, the illegal seizure without a warrant, as characterized by the Court of Appeals, was a 'brazen and unwarranted' act. Under the circumstances they did not have any discretion in this operation,- it was their obligation and duty to comply with the mandate of the Fourth Amendment and procure a search warrant before entering upon the premises of a private citizen. As to Section 2680(c), we do not think it applies.

 Although not raised by the defendant, the Court is of the opinion that this action is barred by Section 2401(b), Title 28 U.S.C.A., which provides: 'A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues or within one year after ...

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