The opinion of the court was delivered by: SHAPIRO
This is an action brought by the United States of America in which the Government seeks forfeiture of an automobile allegedly used in a transaction involving a controlled substance in violation of federal law. Such forfeiture is authorized by 21 U.S.C.A. § 881(a) (4) (West 1981) and 49 U.S.C.A. § 782 (West 1963). The registered owner of the defendant vehicle, Robert J. Bogol, has appeared as a claimant in this action. The case was tried to the court, and the court now enters judgment in favor of Mr. Bogol and the defendant vehicle. The following constitute the findings of fact and conclusions of law required by Fed.R.Civ.P. 52.
In early August, 1984, claimant Robert J. Bogol lived in Elmer, New Jersey, with his wife, Janet Bogol, and their two daughters, Roxanne and Shelly Bogol.
All four members of the Bogol household were adults who could drive automobiles. Mr. Bogol then owned four or five cars, all of which were licensed and insured, except for one car which could not be driven. These were the only cars owned by any member of the household.
Mr. Bogol was employed as a master maintenance mechanic by the West Company of Nebraska, Inc., and Mrs. Bogol served as a court clerk for the Township of Penn's Grove. In 1983 Mr. Bogol earned an adjusted gross income of $26,880.54. In 1984 Mr. and Mrs. Bogol earned a combined adjusted gross income of $33,663.65.
In August, 1984, Roxanne Bogol had just become an employee of the Ancora Psychiatric Hospital, near Hammonton, New Jersey, approximately 45 minutes' driving time from the Bogol residence. Roxanne Bogol used one of her father's cars for transportation to and from work, but frequently experienced mechanical difficulties with the car; this necessitated Mr. Bogol's driving to Roxanne Bogol's workplace after he got home from his job. Mrs. Bogol used another of her husband's cars for transportation to and from work, and that car was also in relatively poor condition.
Because of the problems with these two cars, Mr. Bogol decided to purchase an additional car to be used by that member of the family who had to drive the furthest; that was then Roxanne Bogol. Janet and Roxanne Bogol looked at cars which Mr. Bogol might purchase. On August 13, 1984, Janet and Roxanne Bogol placed a $100.00 deposit on a used white 1981 Datsun 280ZX, VIN: JN1HZ04S4BX407742, the defendant vehicle in this action, at Woodbury Datsun, Inc., in Woodbury, New Jersey. The deposit money was provided by Janet Bogol but the receipt was given in the name of Roxanne Bogol. The final decision on the purchase was to be made by Mr. Bogol.
On August 15, 1984, Mr. Bogol paid an additional $2,500.00 in cash to Woodbury Datsun, Inc., to hold the car until a final price was agreed upon and paid. A receipt was issued in Roxanne Bogol's name only because her name was on the original deposit slip; she was not present when Mr. Bogol paid the $2,500.00. Mr. Bogol had obtained $2,200.00 of that sum by cashing a check made out to him by his wife; the remaining $300.00 was cash saved by Mr. Bogol at his home.
While she was a minor, Roxanne Bogol had recovered approximately $8,000.00 pursuant to a civil judgment. That money had been placed in an account with the brokerage firm of Dean Witter Reynolds, Inc. in Vineland, New Jersey. Mr. Bogol's name had appeared on the account with that of Roxanne Bogol until she had his name removed in April, 1984. On August 22, 1984, she closed the account and received a check for $6,248.52 from the brokerage firm. In part because no bank would cash her check, Roxanne Bogol deposited this money into her parents' checking account.
On August 22, 1984, Mr. Bogol purchased the Datsun. He paid $2,070.00 in cash that he had saved, and wrote a check for $6,000.00 drawn on the checking account that he and his wife maintained, into which Roxanne Bogol's check had been deposited. He also made the trade-in. Without the deposit by Roxanne Bogol, there would have been insufficient funds in the checking account to cover Mr. Bogol's check. A receipt was issued by Woodbury Datsun, Inc. in Roxanne Bogol's name, again only because the original deposit slip was in her name. Only Mr. Bogol is listed as a buyer on the bill of sale for the Datsun, and the car's title was and is registered solely in his name. On October 9, 1984, Mr. and Mrs. Bogol paid the $860.00 insurance premium on the Datsun. There is no evidence that title to the car was placed in Mr. Bogol's name to reduce the insurance premium, nor that he could obtain a lower premium than Roxanne Bogol could.
In late 1979 or early 1980, Mr. Bogol had given $5,000.00 in cash to his half-sister, Catherine Jean Orange, to be held until various contingencies occurred or Mr. Bogol directed otherwise. Both Mr. Bogol and Ms. Orange believed in keeping large sums of money on hand; he had accumulated this cash over many years. Although he previously had had savings accounts, Mr. Bogol had no such account in August, 1984.
On August 22, 1984, Mr. Bogol telephoned Ms. Orange and told her that Roxanne would come to Ms. Orange's home, in Bridgeton, New Jersey, to get the $5,000.00. Shortly after midnight on August 23, 1984, Roxanne Bogol got the money from Ms. Orange's home. Mr. Bogol gave this money to Roxanne Bogol to pay her back for most of her money from Dean Witter Reynolds, Inc., that had been deposited in his and his wife's checking account.
Roxanne Bogol picked up the Datsun from the car dealer after it was purchased. The Bogol family anticipated that she would have primary use of the Datsun until around Christmas, 1984, when she was expected to have enough money to buy her own car. When Roxanne Bogol purchased her own car, the Datsun was to be used primarily by Janet Bogol; Mr. Bogol was to pay Roxanne Bogol the remainder of the money owed to her for the money from Dean Witter Reynolds, Inc. deposited in her parents' checking account.
In the months following the purchase of the Datsun, the car was driven primarily by Roxanne Bogol but it was also driven by Robert Bogol. Roxanne Bogol also used the Datsun to give driving lessons to Janet Bogol. In November, 1984, Roxanne Bogol moved in with her boyfriend, Henry Garrison, but she still visited her parents' home.
At approximately 4:50 p.m. on November 27, 1984, Supervisory Special Agent Henry J. Sweeney of the Philadelphia office of the Federal Bureau of Investigation received a telephone call from a confidential informant known to him to be an informant for the F.B.I. The informant alleged the following:
Based on this information, Mr. Sweeney took several F.B.I. agents and at 5:30 p.m. instituted surveillance at 402 Jackson Street. Upon their arrival, the agents observed a white 1981 Datsun 280X, the defendant vehicle in this action, New Jersey license plate 339ZCE, parked at the southwest corner of 4th and Jackson. By radio Mr. Sweeney learned that the Datsun was registered to Robert J. Bogol of Elmer, New Jersey.
At 6:10 p.m., Mr. Sweeney and the other agents then saw a white male with "bright" hair and a stocky build, wearing a jacket, walk down Jackson Street carrying a brown lunch bag and go into the building at 402 Jackson Street. At 6:27 p.m., this same individual left the building without the brown lunch bag. At 6:40 p.m., the F.B.I. office conveyed to Mr. Sweeney the informant's report that Cook had delivered a quantity of methamphetamine in a brown lunch bag. The informant had also said that Henry's girlfriend would be leaving 402 Jackson Street shortly with two other white males and that they would drive away together. At 6:45 p.m., the agents saw two white males and a white female later identified as Roxanne Bogol leave the building at 402 Jackson Street, get into the Datsun, and drive away. The agents followed the Datsun onto Broad Street, where traffic was heavy and the agents were in danger of "losing" the Datsun. The agents stopped the Datsun, which Roxanne Bogol was driving, and recovered a brown lunch bag from her pocketbook. The agents arrested Roxanne Bogol and seized the Datsun. The contents of the brown lunch bag were tested and proved to be approximately 103 grams of methamphetamine.
The Datsun has remained in the custody of the F.B.I.
Prior to her arrest on November 27, 1984, Roxanne Bogol had no criminal record and had never been arrested. Mr. Bogol had never known her to use any illicit drugs
nor to be involved in any transaction involving such drugs. Roxanne Bogol had Mr. Bogol's permission to use the Datsun but her father had no advance knowledge of Roxanne Bogol's plans for November 27, 1984, ...