The opinion of the court was delivered by: LUONGO
This is an action brought by the government pursuant to 49 U.S.C. § 781 et seq., for forfeiture of an automobile. At the close of the hearing in this matter, oral findings of fact were made and I granted the parties additional time to submit memoranda of law as to whether these findings warranted a forfeiture decree. A brief summary of the facts, earlier found, follows:
Claimants Morey and Susan Fisher, husband and wife, are owners as tenants by the entireties under Pennsylvania law of a 1971 Chevrolet Corvette automobile. The vehicle was purchased with Mrs. Fisher's earnings, was used predominantly by her and claimants considered it to be "her" car. Morey Fisher (Fisher) has a history of criminal activity and his wife warned him on numerous occasions not to involve her property, including this automobile, in any illegal activity. Notwithstanding such knowledge, Mrs. Fisher did title the automobile in both names and did permit her husband to use it occasionally and even gave him a set of keys for the vehicle.
On May 3, 1974, Fisher was arrested by local police near a shopping mall in Lower Southampton Township, Pennsylvania, with forty-two counterfeit twenty dollar bills in his possession. He was taken to the local police station. An agent of the United States Secret Service, whose duties include the detection and arrest of individuals engaged in counterfeiting activities, was informed of the arrest. The Secret Service agent visited Fisher at the police station and advised him of his constitutional rights. Fisher signed a written waiver of rights and agreed to cooperate.
Fisher admitted that he purchased the counterfeit twenty dollar bills on the evening of May 2, and then passed six of these bills in the shopping mall on May 3, 1974. In response to an inquiry, Fisher informed the agent that he had driven to the mall, with the currency in his possession, in a 1971 Chevrolet Corvette. After obtaining Fisher's statement, the Secret Service agents seized the vehicle which has since been held in storage pending the outcome of these proceedings. Fisher subsequently pleaded guilty to a charge of passing counterfeit currency in violation of 18 U.S.C. § 472. Mrs. Fisher had no knowledge that her husband had driven the vehicle, nor that he intended to engage in illegal activity on May 3, 1974.
Title 49 U.S.C. § 782 provides that any vehicle used in violation of § 781 shall be "seized and forfeited." Section 781 provides that:
"(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article."
Contraband, as defined in § 781, includes counterfeit currency. 49 U.S.C. § 781(b)(3).
In a forfeiture proceeding, the government bears the initial burden of showing that probable cause existed for the institution of the suit. 49 U.S.C. § 784, 19 U.S.C. § 1615, United States v. One 1950 Buick Sedan, 231 F.2d 219 (3d Cir. 1956). The government's complaint alleges that the seized vehicle was used to "facilitate the transportation, carriage, conveyance . . ." of the counterfeit currency. 49 U.S.C. § 781(a)(3).
Claimants, citing Howard v. United States, 423 F.2d 1102 (9th Cir. 1970), contend that the vehicle merely enabled Fisher to commute to the mall and was not used to "facilitate" the counterfeiting offense. The Ninth Circuit in Howard reversed a conviction based on transportation of illegally imported heroine and marihuana. Defendant Howard had driven in a Buick automobile to a predetermined rendezvous site to pick up a shipment of marihuana. He parked the Buick, found a second car loaded with the marihuana and drove it away. The authorities, who had placed the second vehicle under surveillance, arrested Howard and also seized and searched the Buick and found heroin in it. The separate charge of transportation of heroin depended upon the validity of the search of the Buick, which search was justified solely as incident to a seizure under the automobile forfeiture statute for the transportation of marihuana. The seizure, in turn, was valid only if there was probable cause to believe the Buick "facilitated" the transportation of the marihuana. The Court there held that there was no probable cause since the Buick had been used merely as a means of locomotion to the site of the illegal activity involving marihuana. It declared the heroin seizure invalid and noted, 423 F.2d at 1103: "there was no evidence that the seizing officers had cause to believe that the Buick then contained, or ever had contained, contraband. Nor was there any evidence that an illegal transaction had taken place within the vehicle." (Emphasis added)
In sharp contrast to Howard, in the instant case Fisher admitted driving to the mall with the counterfeit currency in his possession. The Third Circuit has defined the term "facilitate" as used in this statute as "'to make easy or less difficult'" citing Webster's Dictionary. United States v. One 1950 Buick Sedan, supra, at 222. Fisher's admission, together with the information furnished by the police that he has been arrested with counterfeit currency in his possession furnished adequate basis for probable cause to believe that the vehicle had "facilitated" the illegal act under § 781(a)(3). It was also sufficient for probable cause to believe that the vehicle, while in Fisher's possession, was used to "transport" (§ 781(a)(1)) and "conceal or possess" (§ 781(a)(2)) the contraband. As one Court has stated: "It is clear that any intentional transportation or concealment of contraband in a conveyance, no matter how small the amount, will subject the conveyance to forfeiture," [Citations omitted] United States v. One 1972 Datsun, 378 F. Supp. 1200, 1202 (D.N.H. 1974), and as I stated in an earlier opinion, United States v. One 1971 Porsche Coupe, 364 F. Supp. 745, 749 (E.D. Pa. 1973): "The statute clearly requires forfeiture where any contraband article has been physically within the vehicle."
Tenancy by the entireties is a form of title recognized in Pennsylvania since at least the early 19th Century. Lewis v. United States, 202 Ct. Cl. 829, 485 F.2d 606, 610 (Ct. Cl. 1973), citing Fairchild v. Chastelleux, 1 Pa. (Barr) 176, 44 Am. Dec. 117 (1845); Beihl v. Martin, 236 Pa. 519, 84 A. 953 (1912). Real and personal property may be titled in this manner by husbands and wives. Spinelli v. Spinelli, 264 F. Supp. 107 (E.D. Pa. 1967), Blumner v. Metropolitan Life Ins. Co., 362 Pa. 7, 66 A.2d 245 (1949). "To the four unities of a joint tenancy [interest, title, time and possession] . . . is added the unity of the husband and wife as a person in the law" to create tenancy by the entireties. Madden v. Gosztonyi S. & T. Co., 331 Pa. 476, 481, 200 A. 624 (1938). As the Pennsylvania Supreme Court in Berhalter v. Berhalter, 315 Pa. 225, 227, 173 A. 172 (1934), has stated: "The theory of joint estates of this character is that each of the tenants holds the entire estate by the half and by the whole. . . ...