Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
The United States of America has appealed from an order of the United States District Court for the Eastern District of Pennsylvania that dismissed a libel praying for forfeiture, under Section 782 of Title 49, U.S.C.A.,*fn1 of one 1950 Buick sedan, serial No. 56272505, owned by claimants-appellees, Rosetta Brown and Juanita Young, that allegedly had been used to facilitate the transportation and sale of contraband in violation of Section 781 of Title 49 U.S.C.A.*fn2
It is contended that the district court erred in holding that appellant had not shown probable cause for the institution of the action as required by Section 1615 of Title 19, U.S.C.A.*fn3 That section provides that the burden of proof in a forfeiture action is on the claimant, provided that probable cause shall be first shown for the institution of the action.
The facts as found by the district court are [130 F.Supp. 409]:
"Rudolph P. Crouch, a Federal Narcotics Agent, together with a special employee of the Narcotics Bureau, presumably an undercover informant, were standing on the street corner at the intersection of 19th and South Streets, in the City of Philadelphia, at about 2 o'clock p.m. on April 6, 1952. One Thomas Gaskins, driving the automobile in question, arrived at the intersection and stopped for a traffic light. The special employee called to Gaskins, who drove the automobile to the curb and parked it. Agent Crouch and the special employee then entered the car and engaged in conversation with Gaskins. The special employee introduced Crouch to Gaskins. Crouch then asked Gaskins whether he could supply him with one-sixteenth of an ounce of heroin. Gaskins, admittedly a narcotics dealer, agreed to supply the requested drug and demanded payment of $20 in advance as its purchase price. Gaskins further told Crouch that he, Gaskins, would have to go and get the heroin and instructed Crouch to meet him in fifteen or twenty minutes in a tavern a few blocks distant, located at the corner of 17th and Kater Streets in the City of Philadelphia. Gaskins then drove off in the car. Crouch and the special employee walked to the tavern and, some twenty minutes later, were joined by Gaskins inside the tavern. Gaskins handed Agent Crouch a package containing the heroin, which package bore no Internal Revenue stamps. Neither did Crouch furnish Gaskins with the Treasury Order Form required in a drug transaction. Gaskins demanded from Crouch $3 additional for transportation charges, which Crouch paid to him. The three then left the tavern. Gaskins entered the automobile in question, then parked at the corner, and drove off. Agent Crouch and the special employee left the scene and returned to the office of the Narcotics Bureau. The record is silent as to whether or not the Buick automobile was parked near the tavern when the two employees of the Narcotics Bureau entered it."
The district court concluded that "We have here a situation where the Government asks the Court to determine as a matter of fact that the automobile was used within the terms of the statute to either 'transport' or 'facilitate' the sale of the narcotics. It is just as reasonable to assume that Gaskins used public transportation, as that he used the automobile here in question. His demand for excess 'transportation costs' is more consistent with the use of public transportation than with the use of the automobile here in question." Accordingly, the district court found that probable cause for forfeiture of the automobile had not been shown. We think the district court erred.
The probable cause which the government must establish under Section 1615 of Title 19, U.S.C.A. does not mean that evidence must be presented which would conclusively establish that a violation of the law has taken place. In discussing the term "probable cause"*fn4 in Brinegar v. United States, 1949, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879, the Supreme Court said that,
"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
"'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' McCarthy v. De Armit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at page 161, 45 S. Ct. at page 288, 69 L. Ed. 543. And this 'means less than evidence which would justify condemnation' or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States, 7 Cranch. 339, 348, 3 L. Ed. 364. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543." 338 U.S. at pages 175-176, 69 S. Ct. at page 1310.
The facts and circumstances presented by the government and accepted by the district court showed that the arrangements for the sale and the handing over of the purchase money occurred in the automobile. The appellees have urged that this does not mean the automobile "facilitated" the sale within the meaning of the statute. The use of the automobile, they say, was incidental because the negotiations and the payment could easily have taken place on the sidewalk outside the car. The term "facilitate" is a term used in everyday transactions between people. There is no indication that Congress ascribed to this word any meaning other than its ordinary and accepted meaning. Webster defines facilitate as "to make easy or less difficult; to free from difficulty or impediment; as, to facilitate the execution of a task." Funk and Wagnalls says, "To make more or less difficult; free more or less completely from obstruction or hindrance; lessen the labor of." This ordinary meaning of "facilitate" has been accepted in cases similar to this one.See Platt v. United States, 10 Cir., 1947, 163 F.2d 165, 166-167; United States v. One 1949 Ford Sedan, D.C.N.C.1951, 96 F.Supp. 341, 343.
The question then is whether there was a reasonable ground for belief that the use of the automobile made the sale less difficult and allowed it to remain more or less free from obstruction or hindrance.
Negotiations for an illegal sale of narcotics do not take place openly and publicly. It is always convenient that some degree of privacy attend all phases of the sale. The automobile certainly provided a convenient place for conversation and payment. Of course, the parties might have talked on the sidewalk. By the same token, they could have transacted their business in a million other places. But that does not mean that the automobile did not facilitate the sale. The appellee's argument might have substance had the negotiations and payment taken place in an automobile parked in the middle of the desert miles away from any place or anyone, for then it would be doubtful whether the fact of negotiations and payment in rather than outside the automobile made the transaction less difficult or allowed more freedom. But the automobile here was parked in a street in the city of Philadelphia at 2 p.m. Under those circumstances, a reasonable belief is certainly warranted that the automobile facilitated the sale. Indeed, we think that the facts presented by the government were such that the judge would have been justified in submitting them to a jury considering the guilt of one indicted for violating Section 781.
But there is more in the facts to sustain a finding of probable cause. When Gaskins received payment, he told the parties that he had to go and get the narcotics and drove off in the car. Twenty minutes later, he arrived at the tavern with narcotics in his possession and gave them to the purchasers.He and the purchasers then left the tavern. Gaskins entered the car in question, which was parked at the corner, and drove off. A very reasonable, almost compelling inference would be that Gaskins during that twenty-minute period used ...