LUONGO, District Judge.
This is an action under the provisions of 49 U.S.C. §§ 781-788 and 21 U.S.C. § 881 for forfeiture of a motor vehicle used in the transporting of a contraband article, namely a quantity of heroin. Following hearing, I made certain oral findings of fact and afforded the parties an opportunity to submit memoranda of law as to whether the findings so made warranted or required a decree of forfeiture.
The facts, as earlier found by the court, may be summarized as follows:
Claimant purchased the vehicle in question, a Porsche, for approximately $8,000 in 1971. Although claimant titled the vehicle in his own name, it was purchased as a gift for his son who had just returned from military service. At the time claimant purchased the vehicle, he was aware that his son had become addicted to narcotics while serving with the Marine Corps in Vietnam. In January 1972, the Porsche, driven by claimant's son, was observed on two occasions at a residence in West Philadelphia which was under surveillance by Federal narcotics agents for suspected traffic in narcotics. On both occasions an occupant of the vehicle was seen leaving the vehicle, entering the suspect residence, emerging in a few minutes, re-entering the vehicle, after which the vehicle was driven off in the direction of the suburban community where claimant's son lived. On the second occasion, Federal narcotics agents followed the vehicle. When they encountered difficulty keeping the Porsche in view, they called upon local police (who knew claimant's son as a user and suspected trafficker in drugs), and requested assistance in apprehending the vehicle and its occupants.
As one of the local police cars closed in, the Porsche pulled onto the shoulder of the road. As it was coming to a stop, the police observed a white object being thrown from the occupant's side of the vehicle. A search of the area was made and two glassine packets of heroin were found. Claimant's son subsequently pleaded guilty in a local court to a charge of conspiracy to possess narcotic drugs.
It should be noted at the outset that the courts are given little, if any, discretion in forfeiture cases. Whatever discretion there is in these matters is committed to representatives of the executive branch of government, not to the judiciary. The United States Attorney initially exercises his discretion in determining whether to initiate a forfeiture action. When such proceedings are instituted, if a decision is rendered adverse to a claimant, the claimant may appeal to the Attorney General,
who may "remit or mitigate [the forfeiture] upon such terms and conditions as he deems reasonable and just" if he feels that "forfeiture was incurred without willful negligence or without any intention on the part of the petitioner . . . to violate the law," or that other "mitigating circumstances" exist. 19 U.S.C. § 1618. By "long-standing, judge-made rule" the Attorney General's decision is unreviewable. See, e.g., United States v. One 1970 Buick Riviera, 463 F.2d 1168, 1170 (5th Cir. 1972), and cases cited therein.
In a forfeiture action the government bears the initial burden of showing probable cause for the institution of the suit. 19 U.S.C. § 1615; United States v. One 1950 Buick Sedan, 231 F.2d 219 (3d Cir. 1956). Based on the findings that heroin was thrown from the car and that subsequently claimant's son entered a guilty plea to the conspiracy charge, it is evident that the government had made out a sufficient showing of probable cause. The burden therefore shifts to the claimant who must present a valid defense in order to defeat the forfeiture action. 19 U.S.C. § 1615; United States v. One 1950 Buick Sedan, supra, at 223.
Claimant advances two arguments against forfeiture of the vehicle: (1) as the innocent owner of the vehicle, not involved in any way with the illegal activity, he should not be punished by forfeiture of his property; and (2) the small quantity of heroin involved in this case is not the type of narcotics traffic that the forfeiture statutes are intended to penalize. While both arguments are appealing, neither proves to be substantial upon analysis.
Traditionally, it was firmly established that personal property could be seized and forfeited even though the owner of the property was completely innocent of any conduct which could be characterized as criminal or even willfully negligent.
This principle "flowered upon the legal fiction that inanimate objects themselves are guilty of the wrongdoing and therefore it is they that are being punished." United States v. One 1971 Ford Truck, 346 F. Supp. 613, 618 (C.D.Cal.1972). In recent years, the courts have grown increasingly outspoken about the injustices which have flowed from this principle which Blackstone characterized as a "superstition" inherited from the "blind days" of feudalism. 1. W. BLACKSTONE, Commentaries, c. 8, *300. Both the Supreme Court and the lower Federal courts have expressed doubt as to whether forfeiture statutes which penalize the innocent can be reconciled with the Fifth Amendment's prohibition against taking "property . . . without just compensation."
In United States v. United States Coin and Currency, 401 U.S. 715, 91 S. Ct. 1041, 28 L. Ed. 2d 434 (1972), discussing a different forfeiture statute, the court eased this constitutional tension by concluding that "it is manifest that [the forfeiture statute . . . is intended to impose a penalty only upon those who are significantly involved in a criminal enterprise." 401 U.S. at 721-722, 91 S. Ct. at 1045. The Fifth Amendment may well require that this limiting interpretation be given to all forfeiture statutes.
It must be emphasized, however, that the judicial reactions to the injustice of forfeiture have been limited to cases in which innocent parties are punished. When the loss of property is inflicted upon the innocent, it can only be justified by the increasingly outmoded legal fiction that the instrumentality is actually being punished. When the loss is visited upon the person whose conduct is criminal, the forfeiture can be viewed as an additional punishment, which, however harsh, can be imposed by an exercise of congressional judgment without serious constitutional objection.
In this case, the finding has been made that claimant is only the nominal owner of the Porsche. He had made a gift of the vehicle to his son, who had sole possession and exercised dominion and control over it. Because claimant's son is the actual owner,
the instant case is plainly distinguishable from those cases in which forfeiture has been denied. For example, in United States v. One 1971 Ford Truck, supra, it was undisputed that the claimant was the actual owner of the truck, and that he had forbidden his son to drive it except for a limited purpose on one occasion. In United States v. One 1954 "98" Oldsmobile Convertible, 152 F. Supp. 616 (M.D.Pa.1957), the evidence established that the owner of the seized car had prohibited her son from using it, and that on the occasion in question, he had taken it without her permission. The court there acknowledged that a legal owner is not entitled to relief merely by virtue of good faith, but refused to decree forfeiture in the face of the owner's specific injunction forbidding her son to use the car.
In sum, claimant here is not the innocent victim of an unjust forfeiture; he lacks the requisite real interest in the car. Under the circumstances present here, it is claimant's son who will suffer the loss occasioned by forfeiture, and he was by no means innocent with respect to the prohibited activity. To deny forfeiture under the facts of this case would require me to go considerably beyond what any court has yet held.
Claimant's other argument is that a vehicle is subject to forfeiture only when it is a substantial incident in traffic of narcotics, i.e., when it makes a series of illegal conveyances or carries a substantial amount of contraband. Claimant contends that the vehicle seized here should not be forfeited since it was carrying only an amount of narcotics suitable for personal use of an addict.
The statutory language furnishes no support for this distinction. 49 U.S.C. § 781 provides:
"(a) It shall be unlawful (1) to transport, carry, or convey any contraband article, in, upon, or by means of any . . . vehicle . . .; (2) to conceal or possess any contraband article in or upon any . . . vehicle . . ., or upon the person of anyone in or upon any . . . vehicle . . .; or (3) to use any . . . vehicle . . . to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
"(b) As used in this section, the term 'contraband article' means --