One 1958 Plymouth Sedan v. Pennsylvania

PETITIONER:One 1958 Plymouth Sedan
RESPONDENT:Pennsylvania
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 294
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 693 (1965)
ARGUED: Mar 31, 1965
DECIDED: Apr 29, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 31, 1965 in One 1958 Plymouth Sedan v. Pennsylvania

Earl Warren:

Number 294 [Inaudible] Mr. Shmukler.

Stanford Shmukler:

Mr. Chief Justice, and may it please the Court.

This case is here on a petition for forfeiture of an automobile which was seized as it crossed the Stateline from New Jersey to Pennsylvania.

The car was stopped.

The driver was arrested and the car was seized as was 375 bottles of liquor contained in the trunk and the rear seat of the car.

These bottles of liquor were legitimate brand name bottles of liquor which did not contain Pennsylvania state license tax stamps.

The lower court denied the petition for forfeiture, concluding that there had been an unreasonable search and seizure, that there had been no probable cause for stopping the car.

The Superior Court of Pennsylvania reversed, concluding that the State does and should have the right to stop travelers to find out if they are transporting any items upon which a tax would be due.

And they concluded without actually making a factual finding that the search and seizure had been reasonable under the circumstances.

The Supreme Court of Pennsylvania completely invade — or avoided this question by concluding that the exclusionary rule is not applicable in a forfeiture proceeding which it concluded was not a criminal proceeding.

Less than four years ago, this Court in Mapp versus Ohio concluded that it was going to close the only courtroom door, remaining open to evidence secured by official lawlessness in flagrant abuse of the basic right of privacy reserved to all persons as a specific guarantee against that very same lawless conduct.

The Commonwealth of Pennsylvania apparently finding the courtroom doors closed is apparently trying to get into the courtroom windows.

Here, they are arguing that the exclusionary rule does not apply in a forfeiture proceeding, it applies only in criminal cases.

I believe that the Mapp citation — quotation from Mapp does not so restrict the rule.

The first question here to be decided I believe, is whether there was probable cause or stopping the car, arresting the driver and seizing the liquor and the automobile without a warrant.

Potter Stewart:

Well that’s a question that the Pennsylvania Supreme Court did not get to because they cite a standard wrong, because that court held that even if there was a probable cause, still a disciplinary rule did not apply to a forfeiture proceeding, is that correct?

Stanford Shmukler:

That’s correct sir.

Potter Stewart:

So if we should agree with the Pennsylvania Supreme Court, we would — wouldn’t get to this question although you had properly refer to the first question in your argument, is that right?

Stanford Shmukler:

That’s correct Justice Stewart.

The Supreme Court of Pennsylvania concluded that there are no property rights in contraband and that therefore, they never got to the question whether there was an unlawful search and seizure.

It’s respectfully submitted however that this car is not itself contraband unless and until it has been proved in a court of law that its use was illegal.

Potter Stewart:

You mean Mr. Shmukler they had to make you change around the order of your argument at all?

I just want to be sure I understood (Voice Overlap) —

Stanford Shmukler:

That’s quite right sir.

I — both questions have to be faced and I’m willing to face it now.

It is respectfully submitted that we are not questioning here, items which are per se contraband.

We are questioning here the seizure and forfeiture of an automobile which is not itself contraband, but which is contraband only because evidence is submitted in a court of law showing that it was used illegally.

In other words, it is not per se contraband like narcotics, counterfeit plates and other items which the — mere possession would be a crime.

William J. Brennan, Jr.:

[Inaudible] contraband?

Stanford Shmukler:

Sir, the Pennsylvania statute provides that the possession of unstamped liquor is a crime and that the liquor itself would be forfeit as could the vehicle used in transportation.

Stanford Shmukler:

I am not going to —

William J. Brennan, Jr.:

In this case, I gathered 375 bottles of liquor —

Stanford Shmukler:

Yes sir.

William J. Brennan, Jr.:

Were they contraband as you make the statement?

Stanford Shmukler:

Well Justice Brennan, in this case, the liquor was forfeit without a — an answer being filed to the petition and it was contraband —

William J. Brennan, Jr.:

— distinction to say the car in which they were is not contraband, is that right?

Stanford Shmukler:

Yes sir.

And I’m trying to (Voice Overlap) avoid the question for this reason Your Honor.

I don’t think that the liquor is here before us today and I would be sorely pressed to determine whether a bottle which does not contain a tax stamp is itself contraband.

I don’t think we have to arrive at that decision — that question at all.

If this were moonshine liquor, there might be a different question.

The mere fact that the bottle does not contain a tax stamp, under the statute it appears to be sufficient to render it contraband by itself and I would say that it appears to be so.

Whether that statute as so applied would be constitutional, is not before this Court really, because in this case, the liquor was forfeit without an answer being filed.

In this case though, we submit that this is one step farther removed even if the liquor itself were contraband and could be forfeit on the spot without a judicial determination, we submit here that the car itself does not fall on this category by any stretch of reasoning because the only way the car can become contraband is when its use has been proved in the court of law.

And here, the entire evidence relating to the use of the automobile is expressly excluded from proof in the court of law by the Mapp case if we are correct that there was an unreasonable search and seizure of this car and its contents.

Arthur J. Goldberg:

This is the way you distinguish Jeffers and Trupiano?

Stanford Shmukler:

Well sir, Jeffers and Trupiano were not forfeiture proceedings.

The only way in which this issue came up in Jeffers and Trupiano was that in the pish — petition to suppress the evidence, apparently, the counsel asked for the return of the items.

The Court concluded in both cases that since they were contraband, they could not be returned, but Jeffers and Trupiano involved one instance narcotics, which by themselves fall into a different category, are clearly contraband because as in the — in other case, I believe it was (Inaudible), the Court had said that these narcotics and I think in that case, heroin, are never valid, never — the possession of narcotics is never valid.

And in the other case, it was white — white whiskey that, it was moonshine liquor and distilled, distill equipment which of course could never be used for a valid purpose.

In this case, however, we have an automobile which of course is used for a valid purpose.

The addressing myself to the question of whether there was valid —

Byron R. White:

But you wouldn’t — I suppose if the officer didn’t had a search warrant or if they had followed the car and have seen liquor being taken out of it and then the – there would be no question about the car being forfeit I guess.

Stanford Shmukler:

Sir, on the statute I believe there would be no question because under those circumstances —

Byron R. White:

Just would — just the evidence that they used here to prove that it was a car —

Stanford Shmukler:

That’s right sir.

In this case Justice White, it was strictly the evidence which we complain, cannot be admitted in the courtroom under the Mapp rule.

Byron R. White:

Even though the government could keep it even though they illegally seized –

Stanford Shmukler:

Well, if the government can illegally keep the — I mean, can keep the —

Byron R. White:

They can destroy it but they could not introduce it into evidence?

Stanford Shmukler:

They could destroy the liquor if — at least, that’s what the facts in this case far, that they did seize and it was not contested and they could destroy the liquor but they cannot introduce it into a courtroom to prove that the car was being improperly used.

If however, as Justice White has suggested, the officers had observed a violation of law and had observed the automobile being used illegally for transportation of illegal liquor, this would be a different question because there, we would have evidence, proper evidence in a courtroom showing the illegal use and then the car would be forfeitable.

I don’t really think that there is too much argument left in this Court that the search and seizure here were valid.

I think the Beck case has pretty clearly lay that question to rest as does the Henry case.

The factual background behind the seizure here is very short.

It appears on approximately three or four pages of this transcript.

A — an enforcement officer of the Liquor Control Board testified that he observed this automobile crossing the bridge from Camden into Philadelphia, that it was riding low in the rear.

He admitted that there was no other violation of law observed.

He admitted that he observed nothing wrong with the car other than it was riding low in the rear.

They stopped the car, they placed the individual under arrest and searched the car.

The lower court, the fact-finding court here, did find as a matter of fact that there was no reasonable search and seizure and that the — there was no probable cause for stopping the car whatsoever.

As this Court has said in the Carroll case and the Beck case, the factual findings of the trial court must be given great difference.

Furthermore, there were no appellate findings to the contrary here.

The only finding in either of the appellate courts, the Superior or the Supreme Court that there was reasonable cause for a stopping of the — and0 a search of the car was the broad statement by the Superior Court that under the circumstances, they opinioned that search and seizure were reasonable.

They apparently suggested that because this was December the 16th, near a holiday season, they could take judicial notice of the fact that automobiles would be transporting illegal liquor from New Jersey into Pennsylvania.

I think that the dissenting opinions in that court lay that question to rest.

The Superior Court majority also points out that the — there was a very skimpy record here made in the trial court and couldn’t tell whether the officers could observe the back of the car or whether they are — had observed a misdemeanor thing committed in their presence.

And I believe again, that a search of the record, an independent search of the record by this Court taking only the uncontested facts will show clearly that the trial court was correct in its conclusion that there was absolutely no evidence of any illegality.

The government did not sustain its burden of proving that the car had been used illegally or that there was any probable cause for stopping the car at that time.

In the Beck case of course, the facts were even stronger.

There, they had a police picture of the driver of the car.

They knew that he had a record and they had some information about his activities.

In this case, we have none of that whatsoever.

We have no prior observation of this car, although one of the officers testified that he had observed some other late model black Plymouth car traveling.

It was not this car.

He admitted that he had never seen this car before.

He admitted that they did not know the driver of the car, the plaintiffs in this case, and he admitted that he had no reason to stop the car except mere suspicion, and the lower court so found.

In fact Your Honor, if we are correct that this an unreasonable search and seizure and if the Mapp decision is taken to exclude from a courtroom, any evidence direct or circumstantial arising from that search and seizure, then we would be forced to strike from the record here, almost all of pages 4, 5 and 6 in which the officer testified to what he observed and then the only thing left in the record would be the bald statement that a car was traveling from New Jersey to Philadelphia and that it was stopped.

If you strike from the record all observations of the liquor which was seized after the stopping of the car and the arrest of the driver, then that is all that is left and this leaves us a picture of the State of Pennsylvania forfeiting a car on testimony that is traveled from New Jersey to Pennsylvania.

Now the rationale of the Mapp case, the reason for the decision in the Mapp case according to this Court appears to be that it is to deter official governmental lawlessness, to remove the incentive for governmental violations of the Constitution.

Stanford Shmukler:

To allow the government to benefit from its lawlessness here in stopping this car by seizing that car and taking the car for its own benefit is to leave the same incentive which this Court in Mapp tried to remove.

True, they’re not using the car in evidence against the driver.

They are not using the liquor in evidence against the driver.

But they are using the liquor illegally seized against the driver’s property, his automobile.

If it is not usable against him, under the Fourteenth Amendment, it should equally be unusable against him to forfeit his property.

Whether we call this a quasi criminal case or whether we analogize a forfeiture proceeding to a penalty, a criminal proceeding, we still come to the same conclusion that to allow the illegally seized evidence to be used in this proceeding in court, would be to take a man’s property without the due process — without the factors which this Court said, fall within the concept of ordered liberty, by permitting the exclusionary rule not to apply here.

Potter Stewart:

Looking back for a moment Mr. Shmukler to your basic question of whether or not there was probable cause and assuming that you’re correct that in the ordinary kind of a situation within the State of Pennsylvania, you would have a situation here even less probable cause, you could say that Beck against – there was Beck against Ohio.

Stanford Shmukler:

Yes sir.

Potter Stewart:

But what is involved here of course is the search of a vehicle for — to find out whether or not it was importing — illegally importing into Pennsylvania, alcoholic, intoxicating liquors and while it may very well be true that there’s no general power on part of the state officers to search all or even any vehicles coming into the state for the general matter that after all was one of the United States has created in the Constitution to prevent the balkanization of the newly independent colonies and see to it that there were not be failures and that kind of thing directed one state against the other.

Still, we have in this case Twenty-first Amendment, the Twenty-first Amendment to the constitution which does — you have each state great unlimited autonomous power or very close it, doesn’t it, to take any steps at once to prevent the importation of intoxicating liquors into its borders in violation of its law, and it — might it not be true that the — this is an exception to the — first to the general rules to search and seizure and secondly, as to the general of prohibition of indiscriminate stopping and searching of vehicles coming into the state, when the purpose is to — a purpose clearly covered by the Twenty-first Amendment.

Stanford Shmukler:

Sir, I believe that there are two answers to that.

The first answer is that I believe that the Twenty-first Amendment did not repeal the other portions of the Constitution.

In the Hostetter case before this Court just this last term, the — this Court said that to conclude that the Twenty-first Amendment repealed the Commerce Clause is in absurd over simplification.

In this case, to conclude that it also repeals the Equal Protection and Fifth Amend — Fifth and Fourth Amendments, would I think to be even more absurd of a simplification.

I think Your Honor that the Fourth and Fifth Amendments would still apply to protect the driver against the self-incrimination, the — from the items that were seized and his property from being forfeited.

Now, that is not to say and this is the second answer Justice Stewart, that if they — if the states do or should have the right to stop cars entering or travelers entering its borders to determine whether a tax has been paid on the items that were brought, the remedy is not necessarily the forfeiture of the items which they claim upon which no tax had been paid.

The remedy may very well be a civil proceeding to obtain the tax against the individual — from the individual who was bringing it in or possesses it or controls it but not necessarily a forfeiture of his property which they have found through official governmental lawlessness.

Arthur J. Goldberg:

Could state under the Twenty-first Amendment acquire every car coming into the state to file an affidavit to the state law that he has no untaxed with it, in your opinion?

Stanford Shmukler:

Justice Goldberg, I wouldn’t think so.

I think that if this Court were so do hold we would be creating a series of 50 European countries rather than 50 federated states and I shouldn’t think that any state would have this right.

It would seem to me that the states have still to follow the constitutional provisions in order to protect their own revenue.

Although I don’t think that that is the question which is raised in this case —

William J. Brennan, Jr.:

Well Mr. Shmukler, I have the experience of being stopped when I cross from one state to another.

I have one inspector asked if I had certain garden items, corn and that sort of thing.

They’d asked me to open the trunk rack and that sort of thing.

Done as I understand it because they have a problem of certain kinds of illegal to something like that and so they as I understand what they do is they find the stuff like that, they take it.

You think that’s all?

Stanford Shmukler:

Justice Brennan, I think again that this — we are questioning the remedy that is left to the states, I —

William J. Brennan, Jr.:

Well they take it and destroy it?

Stanford Shmukler:

I think in those —

William J. Brennan, Jr.:

(Voice Overlap) — before?

Stanford Shmukler:

In those instances, the health of the community may require, this would be equivalent to something which is contraband per se and no matter how they find it as in the Frank versus Maryland case or as in that hypothetical Your Honor has suggested once they find it, it might be contraband per se or contrary to public health and safety and therefore could be forfeit.

William J. Brennan, Jr.:

But the tax stamp — you mean this unstamped liquor involved only a revenue problem?

Stanford Shmukler:

That’s right sir, this is a revenue problem.

The automobile I again go — dodge the question of the liquor itself whether that is contraband per se, but I go back to the question that the automobile itself was certainly not —

William J. Brennan, Jr.:

They don’t take my automobile —

Stanford Shmukler:

And in the — I’ve got to go Your Honor I suppose certainly they do not take the automobile for transporting corn with — or whatever may be.

Byron R. White:

Well is there any thing in the record indicating any amount of — any significant amount of traffic in the non-tax paid liquor between New Jersey and Pennsylvania?

Stanford Shmukler:

Sir, there’s absolutely nothing in the record except the statement in the Superior Court that they are taking judicial knowledge that around the holiday season, this traffic increases.

Byron R. White:

Do you —

Stanford Shmukler:

Sir —

Byron R. White:

Did you accept to that?

Stanford Shmukler:

I would also — I would like to add to it if not accept to it that at the same time of the year, traffic in legitimate gifts and the bicycles being transported in the back of automobiles also increases so the mere fact that an automobile is riding low in the rear does not lead ineluctably to the —

Byron R. White:

Well I’m suggesting — I’m just wondering whether they couldn’t stop all cars, not just one blow in the rear but forget that fact, why couldn’t they stop all cars coming in New Jersey to Pennsylvania at that time of the year if it’s likely that people coming from New Jersey have non-taxed liquor?

Stanford Shmukler:

Justice White, if that were possible then they could extend that through all times of the year because it is not only a holiday times that people in Pennsylvania drink liquor which had been obtained from New Jersey.

Byron R. White:

So you do say that there is a significant amount of traffic —

Stanford Shmukler:

I would say that there is not a significant increase in that period of time.

Of course, whether my opinion is important or not, that is not in the record here and it was not in the record before the court below.

I would say that has — if Your Honor were cared about my opinion, I wouldn’t say that an increased significantly had Christmas time or Easter time or at any other times —

Byron R. White:

[Inaudible]

Stanford Shmukler:

Thank you sir.

Arthur J. Goldberg:

Is there at any event would you not say Mr. Shmukler that Carroll pretty much settled this problem because at that time if I remember the case, they had a national prohibition of law and the court said that that didn’t warrant stopping all cars to enforce the national prohibition law, is that correct?

Stanford Shmukler:

That’s correctly —

Arthur J. Goldberg:

Am I correct in that?

Stanford Shmukler:

That’s absolutely correct Your Honor.

I think the citation from the Carroll case is set forth in our brief, and I think that they also should be noted that in the Carroll case, the Court specifically said that under the Act that if no probable cause were found, the driver gets back his car, he may lose the liquor, but he gets back his car and the evidence cannot be used against him.

Thank you sir.

Thomas J. Shannon:

If it please the Court.

The facts given by my worthy adversary are correct.

I would like to add of course one thing.

Thomas J. Shannon:

The driver of the car when he was stopped, what was in the record, stated that he was given $30 to go over the Margate, New Jersey and get this load of liquor and bring it back to Philadelphia, that was his own testimony.

Now that is in the record and should be taken into consideration.

In going into this question, we stated in our brief —

Potter Stewart:

I — I don’t want to detain you but I don’t see why that should be taken into consideration because what we’re concern with here is the probable cause for stopping and not for what happened afterwards.

Thomas J. Shannon:

Well, Mr. Justice Stewart, the contention of the Commonwealth is and I think this Court has reiterated many times, we are in a forfeiture proceeding here —

Potter Stewart:

Yes.

Thomas J. Shannon:

— not in a criminal proceeding.

Potter Stewart:

I understand that.

Thomas J. Shannon:

And the basic question before this Court is only defining of the Supreme Court of Pennsylvania and that question is, does the exclusionary rule which apply to search and seizure in criminal prosecutions apply in the proceedings in rem for the contraband.

Here, we have contraband.

Potter Stewart:

Yes.

Thomas J. Shannon:

We do not have anything that is not contraband.

It’s been declared by the Commonwealth of Pennsylvania to be contraband.

It was [Inaudible]

Thomas J. Shannon:

Yes Your Honor, but — Mr. Justice Harlan.

Pardon me.

[Inaudible]

Thomas J. Shannon:

No, it would not be an influence.

Potter Stewart:

And it is only the fact that it was had all his liquor in the trunk that made it contraband.

Thomas J. Shannon:

That is correct.

Potter Stewart:

So without the introduction of liquor, you couldn’t have forfeited or you couldn’t have any forfeiture of the car.

Thomas J. Shannon:

Very true Your Honor.

Arthur J. Goldberg:

And even though the driver said — what he said, if in a criminal case, this evidence had been admitted without probable cause then the conviction could not stand.

Thomas J. Shannon:

That is correct.

The contention of the Commonwealth, however, is that the Twenty-first Amendment, gave to the Commonwealth the right to regulate or to prohibit the transportation of alcoholic beverages in a state.

In other words, the Commonwealth of Pennsylvania by this Amendment was given authority to regulate any transportation.

Now this Court has declared in the case in 1938, Mitchell v. Helvering that Congress can pass a law, providing for the forfeiture of offending vehicles.

Here, we have an advice that is stated in our brief, this is not a revenue statute per se.

This is a statute to regulate alcoholic beverages in Pennsylvania.

And this Court in the (Inaudible) case certainly stated that there’s no place if the state is given greater primary power to regulate the sale and use of anything as it is given in the sale and use of alcohol.

Thomas J. Shannon:

Now under that, and in the exercise of the rights given by the Twenty-first Amendment, Commonwealth of Pennsylvania passed not in the revenue laws but in the Liquor Code, two things which are before the Court of three two statutes.

Number one, it’s illegal in Pennsylvania to either posses or transport liquor without the seal of the Commonwealth on it.

Number two, that if you do, you have no right — no property right in the vehicle used to transport it, that vehicle is contraband and it maybe forfeited in a proceeding.

We set that out, those statute are set forth in the Commonwealth’s brief.

Now, what we have here before us today and I’d like to get into the case at the end of my argument is actually the opinion of Judge Wyzanski in the Berkowitz case.

I won’t discuss that now, but I will discuss that opinion and how far that goes.

But I think that the argument of my worthy counsel while certainly appealing and it — appealing to me and I know it’s appealing to the Court by the reaction I observed, certainly ignores all the principles of forfeiture law.

The first thing — the purpose of the forfeiture law is not to secure additional revenue, nor is it as my worthy colleague contends to penalize a violator by taking his property away from him.

That — neither one can be said to be the purpose of a forfeiture proceeding.

It’s rather to secure a compliance with the law by taking away from a possessor, something which had been shown to be the mean, the method and the instrument of violating the law, that’s what we’re getting at, the main key instrument and a method of violating the law.

[Inaudible]

Thomas J. Shannon:

No, not as a punishment.

[Inaudible]

Thomas J. Shannon:

Well, as the Court here had said some years I believe in 1890 in the Stillwell case that these statutes of this kind are for the public good and to prevent public wrong and therefore, they can’t be given a strained interpretation to help the claimant but must be given the interpretation to assist and to help bring out the intent of Congress.

The Congress passed the law and they did, Section 7302 of the Internal Revenue Code.

It’s the same as our Section 601, which we’re here before the Court on today.

That section was to stop the importation of liquors into Pennsylvania, Section 601 the same as 7302 was to stop traffic in the illicit liquors.

They both have the same purpose, and that is to seek compliance with the law.

Now Pennsylvania has a reason for passing that law at Section 601.

They wish to keep out whatever type of liquor they don’t want in.

Not because of revenue laws but because it’s in the liquor code, not in the revenue laws.

So the purpose is to secure compliance with our law.

Arthur J. Goldberg:

Mr. Shannon, if these were a criminal case where they were prosecuted in a criminal case is it in your view that this evidence could have been offered against him by reason of the Twenty-first Amendment?

Thomas J. Shannon:

No, it could not have been offered against him —

Arthur J. Goldberg:

And that’s by reason of what, Fourth Amendment?

Thomas J. Shannon:

That’s correct —

Arthur J. Goldberg:

And that its application for the states under the Fourteenth, is that correct?

Thomas J. Shannon:

That’s correct.

Arthur J. Goldberg:

So that in substance, then your argument is only that the Fourth Amendment as applied to states under the Fourteenth doesn’t apply in forfeiture proceedings?

Thomas J. Shannon:

That is correct.

Arthur J. Goldberg:

You don’t really rely upon the Twenty-first Amendment?

Thomas J. Shannon:

We do too —

Arthur J. Goldberg:

Because if you relied upon the Twenty-first Amendment, why shouldn’t that apply to a criminal case?

In fact, you’re saying that under the Twenty-first Amendment, you can do things which otherwise you cannot do in a criminal case.

Thomas J. Shannon:

That’s correct.

Arthur J. Goldberg:

But then I don’t follow you.

Then I — the only reason I follow you is that it’s a forfeiture, I understand that argument.

Thomas J. Shannon:

And the (Voice Overlap) – we are arguing one further point that —

Arthur J. Goldberg:

But then the Twenty-first Amendment, is irrelevant in your stand because it’s a question of whether the Fourth Amendment as applied for the states, applies to a forfeiture proceeding to see that it reapplies to a criminal proceeding.

Thomas J. Shannon:

That’s correct.

Potter Stewart:

You’re making alternative arguments.

That’s the point isn’t it Mr. Shannon.

Thomas J. Shannon:

That is right Mr. Justice —

Potter Stewart:

The two reviewing courts place their decisions on quite different grounds and you’re making both alternative arguments here —

Thomas J. Shannon:

Yes.

Arthur J. Goldberg:

If you are relying upon the Twenty-first Amendment as giving greater rights then the problem that bothers me is how do you distinguish Carroll in which this Court said of notwithstanding the prohibition amendment that gave the United States presumably equal rights that it gave to the state under the Twenty-first Amendment, but nevertheless, the officers, enforcement officers to enforce the liquor law of the prohibition amendment as Chief Justice Taft said, may not stop cars on the highway at will.

Thomas J. Shannon:

Correct.

Arthur J. Goldberg:

But your other argument would be that the portion of laws, the State of Pennsylvania in the Twenty-first Amendment could stop any car coming into the state?

Thomas J. Shannon:

No, we’re not saying that.

We’re not arguing that at all.

What —

Potter Stewart:

I wonder under National Prohibition – under National Prohibition surely the United States would stop any cars coming in from Canada, couldn’t it?

Thomas J. Shannon:

That’s correct.

Potter Stewart:

Well that’s more — that’s the analogy here rather than the seizure within the United States during National Prohibition.

Arthur J. Goldberg:

That’s accustomed.

Thomas J. Shannon:

What we’re arguing here Mr. Justice Goldberg is this.

That man lost the title to that property as soon as he entered Pennsylvania.

He cannot even come in here to complain that somebody has taken that property from me, doesn’t have title to it no more than a person can complain if the representatives of Internal Revenue services go to a plant and get a bank safe in showing your deposits and withdrawals, that’s not your property.

This man lost any right, title of interest in this property, this automobile when it came into Pennsylvania.

Now we’re saying here also that the fact that is an automobile, doesn’t change it.

Thomas J. Shannon:

The Court here will recall the Ryan case.

In Ryan case, you had the back bar, the bar with the stools and the other equipments which go with the bar.

When you sell liquor, this was during prohibition, and this Court very wisely said, it’s not the object, it’s the use to which it is put and they permitted the condemnation of forfeiture of all of these equipments.

They said that is being used to violate the law.

Therefore, it doesn’t come within the protection of the Fourth Amendment.

Now we’re contending here that of course of an article of contraband comes into the position of the United States or the State of Pennsylvania, either one, the man has lost his right to title and interest in that and has no right to the return of it.

Now the automobile is contraband because it has been declared so by the Pennsylvania statute.

Now this Court also is — had two cases, the Jeffers case referred to previously by the Court and the Trupiano case.

The Jeffers was narcotics, Trupiano was a untaxed liquor and distilling equipment.

The Court said there, if it suppressed the evidence as far as a criminal case is concerned, but when it came to the forfeiture, it was a different thing.

The evidence would not be suppressed.

The Fourth Amendment did not apply.

[Inaudible]

Thomas J. Shannon:

Yes, I believe they could.

Our contention is the Fourth Amendment, does not apply to contraband.

And the car is —

[Inaudible]

Thomas J. Shannon:

Well he — it couldn’t be used in the criminal case, very definitely.

But the idea —

Earl Warren:

[Inaudible]

Thomas J. Shannon:

I wouldn’t want to pass on that.

We have here of course towards — which is a moving —

Earl Warren:

Well so many out these days have a garage as part of the house or part of the home.

Do you think they could — for that purpose they could break in and —

Thomas J. Shannon:

I would say no, they are — the car was not moving if they get a warrant to put someone to watch there and get a warrant and come back and get the car.

I don’t think they could break into the house.

Earl Warren:

How do you make a constitutional difference under the Twenty-first Amendment and under your statute which says the possession or transportation?

Thomas J. Shannon:

Well, if he broke in for some other reasons and then found it, no you couldn’t win just to get the liquors on a mere suspicion with liquor, but if he was in looking for something else, like in the Harris case and run across it, if had probable cause to believe that they had narcotics in there, and they’re going to get in and then found the automobile, I think it could be a forfeit have get in and then found the automobile, I think it could be forfeited if it approves.

Earl Warren:

That’s different —

Thomas J. Shannon:

Yes, it is different.

Thomas J. Shannon:

But I don’t think he could just go in there to enforce the liquor on there.

We have always held that a man before it can go into a home must have a warrant.

Now this was a moving vehicle that they followed across the bridge. This was not a vehicle of –-

[Inaudible]

Thomas J. Shannon:

– in motion at the time it was stopped.

Now, in the Jeffers and Trupiano case, the Court clearly definitely stated that arrest, search and seizure which apply in criminal cases, do not apply in forfeiture cases.

A very — right at the end of both of those cases, they come up with that conclusion.

Now under 7302 of the Internal Revenue law, the courts have found that money can be contraband.

It doesn’t have to be liquor or narcotics as claimed here, money can be contraband if it’s used in an illegal gambling operation, used to violate if it’s a method means and the vehicle used to violate the law, it’s not — it’s certainly contraband and can be forfeited.

And in interpreting Section 7302, the courts have held this, and this is the thing that I think is important in our case, a forfeiture occurs simultaneously with the use of that vehicle to violate the law, whether it’s an automobile or money or whatever it might be.

That car was forfeited before it was stopped.

That car was forfeited to the Commonwealth way before the officers of the Pennsylvania Liquor Board stopped that car.

The courts have also held and this Court under Helvering v. Mitchell case in 1938 that these proceedings for forfeiture of a vehicle are civil and not criminal.

There’s never been a case and my worthy colleagues has been quoting criminal cases where the Fourth Amendment is applied but not one civil case where the Fourth Amendment, in the Helvering case by this Court has stated, that forfeiture cases are civil in nature.

Now there are two very good circuit cases, the Ford Tudor case and the Saunders case in 1958, which definitely hold that any legal infirmity in the seizure will not affect the forfeiture proceeding because the guarantees of the Fourth Amendment the just do not apply to search.

Because the right to the property has passed, you don’t have to search.

There’s no search necessary in the forfeiture proceeding.

A property right the man has no title or interest in that property and you’re only going out in getting your own property.

That property belongs to the Commonwealth of Pennsylvania either when a man loaded the liquor in it in Margate, New Jersey or at least when he touched the soil of the Commonwealth of Pennsylvania.

So there’s no search necessary and the Fourth Amendment only guarantees against unreasonable search — and you don’t need a search, you just go out and take what belongs to you, you seized it.

And there’s no search involved, the Fourth Amendment is not involved.

Now, we’ll certainly admit but there’s someone’s —

[Inaudible]

Thomas J. Shannon:

That is right, but no search.

No one have to have a search as in a property, you only have to go and —

You have to have [Inaudible]?

Thomas J. Shannon:

That belongs to us and we find it for — as this Court has said comes into possession as someone else or comes into possession someone unlawfully, you can take it from person or a shop — I’m going to get in to those cases right now.

The first case that we have on that I believe was the case of 142.

Mr. Justice Brandeis speaking for the court there stated that what happened there, prohibition —

William J. Brennan, Jr.:

I’m sorry.

William J. Brennan, Jr.:

I can’t hear you when you stand back there.

Thomas J. Shannon:

Prohibition agencies and automobiles, with the question whether they had authority to do it.

Mr. Justice Brandeis said in that case, “It doesn’t matter if he didn’t have authority to do it.

Once the United States accepted it, the fact that he didn’t have authority in the beginning, gave the United States the right to forfeit the vehicle because they had the right title and interest in it and could take it from one who brought it in unlawful.”

There’s no question, it was raised there that that was unlawful taking of a vehicle.

Now that was followed by the Dodge case, that was a ship case.

Some local policeman took this ship.

That was a adopted.

Mr. Justice Holmes in that case, he concluded there, the exclusion of evidence obtained by an unlawful search and seizure stands on a different ground in a forfeiture proceeding.

In the brief of the petitioner, he relies on the Cooke case.

Now the Cooke case would — and we must look at it in the facts in that case.

The Cooke case involves a treaty with England.

We had a treaty with England which provided that a ship could be seized if it was within the area where you could get in the port within one hour.

We had the case of a ship which was out 11 miles.

Its top speed was 10 miles per hour.

It certainly couldn’t come in within one hour.

We seized that ship.

Now that case and this is Mr. Justice Brandeis, while quoting the Dodge case in the Ford Coupe case held, and it should be only for this narrow holding that where a treaty provides if you cannot take a ship which is out a distance which will not take it into port within one hour, it cannot be seized.

My worthy colleagues want the Court to believe that the Cooke case explains the Ford Coupe case and the Dodge case, it certainly does not.

It must be taken for the very narrow holding which simply states that what is involved is the effect of a treaty with the nation and that’s all, nothing.

It does not take and explain either the Ford Coupe or the Dodge case and also Mr. Justice Brandeis here reiterated, that we’re liable to enforce a forfeiture if before the Court, the fact that possession was obtained by a wrongful act is irrelevant, immaterial he said, in that case —

How many of this forfeiture cases do you have [Inaudible]

Thomas J. Shannon:

Around 50 —

50?

Thomas J. Shannon:

Yes.

It is quite a problem and as the Court asked previously, it is a problem throughout the entire year.

As the Court well know, Pennsylvania is a monopoly state.

All the liquor must be sold through the Commonwealth of Pennsylvania.

Our price is far much higher than in any states, of Ohio and New Jersey principally and Washington D.C.

And we have traffic coming in from three areas.

Thomas J. Shannon:

The principal traffic though is over the bridges from New Jersey into Philadelphia.

Now there are a couple of other cases, the Galveston versus Point case which was in 1818, and the Court there talks about in a forfeiture case, there must be rightful possession.

But a reading of that case will show what the Court would say you must have the property right in it and not the means or methods by which it was taken.

I think a good analogy in the answer to the questions you’ve been posing to me, can be found in the Illinois case.

It’s in the $4171 in U.S. currency.

There, the Court made a very fine analogy in that case and they said this.

“Thus, as I the judge, do not have to inquire how a person is before me in an in-persona action, neither do I have to inquire how the arrest was obtained.”

I think that is an analogy there that is very important — that’s in the United States — the United States versus $4171 in U.S. currency.

Now these cases I believe clearly show that the seizure of property, the title to which has been previously forfeited by the illegal act to the United States, stands on an entirely different ground than the Fourth Amendment prohibition in a criminal case of unlawful search and seizure.

In the first case — in the forfeiture case, the title is already in the government.

Therefore, the government is entitled to the property.

Somebody is holding that wrongly there, they’re entitled to it.

In the other, it is not.

In the criminal case, they’re not entitled to that property.

Now one case that’s quoted here and quoted by Judge Wyzanski is the Boyd case in the Supreme Court that some 75 years ago, the Supreme Court decided that.

In that case, you have plate glass that the Commonwealth wished to condemn for non-payment of certain importee and the attorney then tried to subpoena the books, documents and records of the person who had the glass.

That case is entirely different.

We have quoted in our brief from that case and that shows in that case not what the other side which is to show the petitioner in this case, states that searches and seizures of forfeited goods are not embraced within the prohibition of the Fourth Amendment.

Now I stated — I have five minutes I think and I just like to make a few references to this Berkowitz case in the First Circuit.

In that case, you had revenue agents who dealt with Berkowitz who was a gambler and some of his cronies.

They saw money passing and so on.

They made an affidavit to that effect.

They seized the money and the Fourth said you can’t do that because there were not enough facts in the affidavit, it was an unlawful search.

Now what the Court does in the — Judge Wyzanski in that case, he stated this, that where you have contraband, if that contraband was obtained through unlawful search and seizure, you can’t forfeit it.

Now the minority or the concurring opinion from the case states differently.

The concurring opinion seems to state, that you can providing it is against public policy to have that property.

Those cases and there is one other case in the Seventh Circuit which states that search and seizure and the prohibitions of the Fourth Amendment apply in forfeiture cases.

There of course, they remanded it.

The government got the money in that case, so that’s never was appealed.

Thank you.

Earl Warren:

Mr. Shmukler.

Stanford Shmukler:

I don’t wish to over state my welcome here by exceeding the recess time but I have just several short points I would like to make, if I may.

Mr. Shannon has told us that the Twenty-first Amendment gave the states the right to prohibit liquor traffic and I’m not disputing that.

However, even the statute in Pennsylvania set forth in page 2 of our brief, Section 2209, requires reasonable and probable cause.

And as Justice Goldberg asked Mr. Shannon, you do need probable cause even to exam — to stop the car without a warrant here, under the state statute as well as under the constitutional provisions.

Second of all, Mr. Shannon told us that there are no property rights in contraband and that the driver lost the title to the car when he entered the State of Pennsylvania.

To conclude such is to allow an enforcement official to make the exact determination which the Constitution requires to be made by an impartial objective individual in determining whether probable cause has been shown for stopping the car.

I think Judge Wyzanski in the Berkowitz case sets this out very well in his opinion, in which he is talking in reference to Section 7203 of the Federal Act and he points out that the Congress cannot preclude the holder of the interest, the possessor of the interest from bringing it in before the court of confident jurisdiction for evaluation and such vindication as it deserves on the merits.

Somewhere in our constitutional regime, so long as it remains constitutional, the holder of the interest has a right to present for adjudication and appraisal by an independent court his claim that his interest has been cut-off by the allegedly unconstitutional application in this case of an act of Congress, in our case, by in act of Pennsylvania.

If Mr. Shannon is correct, then any law enforcement official makes that determination exclusively and solely to the exclusion of all court determinations.

Third of all, Mr. Shannon accused us of quoting only criminal cases in which this doctrine applies and I think the very case from which this old line arises, the Boyd case was itself not a criminal case but a forfeiture case.

Thank you very much.