CONCLUSIONS OF LAW
The Government did have probable cause to believe that the Lincoln was used to transport narcotics or to facilitate the sale of narcotics, and the Lincoln was therefore properly seized. There is sufficient evidence to establish probable cause without the testimony of the Government witnesses which the claimant has objected to as hearsay. Probable cause for seizure having been demonstrated by the Government, forfeiture was established, and the burden shifted to the claimant to prove the forfeiture was not within 21 U.S.C. § 881 and 49 U.S.C. §§ 781-782.
Innocence of crime, by itself, is not a defense to a forfeiture proceeding. U. S. v. One 1971 Lincoln Continental, 460 F.2d 273 (8th Cir. 1972); U. S. v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964). Courts have little, if any, discretion in statutory forfeiture cases, and authority to remit forfeiture in appropriate cases is vested in representatives of the executive branch of government, not in the judiciary. 18 U.S.C. § 3617, U. S. v. One 1971 Porsche Coupe, 364 F. Supp. 745 (E.D.Pa.1973).
Provisions vesting unlimited discretion in the Attorney General to remit forfeiture of vehicles used in violation of federal regulations do not bear on the constitutionality of forfeiture in individual cases. U. S. v. One 1962 Ford Thunderbird, 232 F. Supp. 1019 (N.D.Ill.1964).
The United States Supreme Court has recognized a narrow exception to its general holding that forfeiture statutes are constitutional even where the owner of a forfeited vehicle is innocent of the crime with which the vehicle is charged. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 690, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974).
In order to fit within the constitutional claim exception to the forfeiture statute the owner of a vehicle must prove "not only that he was uninvolved in and unaware of the wrongful activity but also that he had done all that reasonably could be expected to prevent the proscribed use of his property." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S. Ct. 2080, 2095, 40 L. Ed. 2d 452 (1974).
It has been stipulated by the parties as a matter of fact that the claimant herein was uninvolved in and unaware of any wrongful activity, and since the Court finds that he acted as a reasonably prudent person under all the circumstances, doing all that could be expected of him to prevent illegal use of his property, forfeiture in this case would be improper under the standard established by the Supreme Court. Nor would the purpose of the forfeiture statute "to impose a penalty only upon those who are significantly involved in a criminal enterprise" be furthered by its use in this case. United States v. United States Coin and Currency, 401 U.S. 715, 721-22, 91 S. Ct. 1041, 1045, 28 L. Ed. 2d 434 (1971).
Therefore, the Government's petition for forfeiture will be denied.
This is indeed a difficult area of the law one in which logic and legal principle struggle against established precedent and practice. District courts which have recently taken up the battle have split in their decisions and differed in their reasoning.
In this case we are asked to decide whether Mr. Kallaway, who the Government admits was not in any way involved in illegal activity, must forfeit an automobile which he lawfully owns because that automobile itself was involved in criminal activity.
The Hearsay Question and Probable Cause
We will first dispose of a hearsay question raised during the forfeiture hearing before discussing the state of the law in forfeiture actions. The claimant, Kallaway, objected to the testimony of several government witnesses which included statements made to them by the criminal defendants, Pesci and Benevides, as hearsay. The Government has argued that the statements are admissible. Reviewing the evidence and other testimony, we find that the Government has sufficiently established probable cause to seize the vehicle absent the contested testimony, so the hearsay question need not be decided.
The probable cause necessary in the context of forfeiture statutes is a reasonable ground for belief of guilt or as the Fifth Circuit has phrased it, "less than prima facie proof but more than mere suspicion," United States v. One 1975 Ford F100 Pickup Truck, 558 F.2d 755 (5th Cir. 1977). See also U. S. v. One 1971 Chevrolet Corvette, 393 F. Supp. 344, 346 (E.D.Pa.1975); U. S. v. One Dodge Van, 416 F. Supp. 43 (E.D.Mich.1976).
In U. S. v. One 1975 Lincoln Continental, 72 F.R.D. 535 (S.D.N.Y.1976), the Government met its burden of establishing probable cause by producing circumstantial evidence leading to a reasonable inference of use of the vehicle for trafficking in drugs. In the case at hand the Government has established that Pesci and Benevides came from Detroit to Pittsburgh for the purpose of completing a planned drug transaction, that Pesci had borrowed the Lincoln from Kallaway in Michigan on September 19, 1977 and that the same car was seized in Pittsburgh in the early hours of September 20 after Pesci's arrest; also, that Benevides had previously sold heroin to a DEA agent at the Detroit airport, and that Pesci and Benevides sold heroin to a DEA agent in Pittsburgh on September 20, 1977.
To be sure, since the sale was consummated in the agent's car, there is no direct proof that the drugs were ever inside the Lincoln. However, the most reasonable inference to be drawn from the facts proven is that Pesci and Benevides brought the heroin from Detroit to Pittsburgh to sell it here. Moreover, even if they had secured the drugs after arriving in Pittsburgh, there is precedent allowing the Court to find facilitation of the sale through the use of a vehicle even though drugs were not present in the vehicle. See United States v. One 1974 Cadillac Eldorado, 548 F.2d 421, 426 (2d Cir. 1977) (automobile may be used to facilitate narcotics sale although drugs not physically transported by automobile); U. S. v. One 1941 Pontiac Sedan, 83 F. Supp. 999 (S.D.N.Y.1948) (transporting drug peddler to and from place of advance payment sufficient).
The Nature of a Forfeiture Proceeding
The basic nature of a forfeiture proceeding is an In rem action against the vehicle itself, U. S. v. One 1971 Chevrolet Corvette, 393 F. Supp. 344 (E.D.Pa.1975), pursuant to the fiction that the vehicle is guilty of facilitating crime, Various Items of Personal Property v. U. S., 282 U. S. 577, 51 S. Ct. 282, 75 L. Ed. 558 (1931); U. S. v. One 1940 Packard Coupe, 36 F. Supp. 788 (D.Mass.1941). Once the Government has established probable cause for seizure of the vehicle, forfeiture is automatic unless the claimant can absolve the vehicle from culpability, U. S. v. One 1972 Toyota Mark II, 505 F.2d 1162 (8th Cir. 1974), or establish that the forfeiture is not properly within the forfeiture statute,
U. S. v. One 1973 Pontiac Grand AM, 413 F. Supp. 163 (W.D.Tex.1976); U. S. v. One 1973 Volvo, 377 F. Supp. 810 (W.D.Tex.1974).
For years many cases held that the only exceptions to the forfeiture of vehicles were those contained in the literal language of the statute itself at 21 U.S.C. § 881(a)(4) exceptions for common carriers and stolen vehicles:
"(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.