The opinion of the court was delivered by: SMITH
This is a civil proceeding under Sections 781 to 788 of Title 49 U.S.C., 49 U.S.C.A. §§ 781 to 788 to enforce the forfeiture of a motor vehicle seized by the local police and thereafter surrendered to the Narcotics Division of the Bureau of Internal Revenue. The libel charges generally that the said vehicle was used to transport a narcotic drug and to facilitate the transportation, concealment and possession of the said drug in violation of Section 781 of the said Act. The forfeiture is resisted by Elizabeth King and the Jefferson Credit Corporation, who claim ownership of the vehicle.
The vehicle, although registered in the name of Elizabeth King, was purchased jointly by her and one Malcolm McIntosh. The vehicle was encumbered by a chattel mortgage, which was executed and delivered in the state of New York. The mortgage was held by the Jefferson Credit Corporation, and was in default at the time of the seizure hereinafter described. The default is admitted in the answer filed herein by the claimants.
The vehicle was in the possession of Malcolm McIntosh on October 16, 1950, at approximately twelve o'clock noon, when he, while en route to New York in the company of one Edward Miller, was stopped by an officer of the Hudson County Police Department. The officer acted on information that a vehicle of similar description had been used earlier in a 'hold-up.' The vehicle and the persons of its occupants were searched and then released when McIntosh explained that he was on his way to work.
The officer, who testified that one of his assignments was the enforcement of the narcotic laws, 'thought' he recognized Miller as one who had been previously arrested and charged with the violation of the narcotic laws. The information had been obtained some weeks before at the office of the Narcotics Division where the officer had seen a photograph of Miller upon inspection of the files. The officer testified that he frequently visited the office of the Narcotics Division and while there inspected the files which were available to him.
The vehicle was still in the possession of Malcolm McIntosh two hours later when he, while en route from New York in the company of Edward Miller, was observed by the same officer. The vehicle was again stopped and a search made of it. The officer found a small package, which he suspected contained narcotic drugs, between the two front seats, and he immediately placed the occupants of the vehicle under arrest. The initial test made soon after the arrest confirmed the officer's suspicions. The search of the vehicle was made without a warrant and without probable cause.
The narcotic drugs did 'not bear appropriate tax-paid internal-revenue stamps as required by law' and were therefore contraband within the meaning of Section 1(b) of the Act, 49 U.S.C.A. § 781(b).
The right of the libelant to seize and enforce the forfeiture of a motor vehicle used to transport contraband is governed by Sections 1(a) and 2 of the Act of August 9, 1939, 49 U.S.C.A. §§ 781(a) and 782. Section 1(a) declares: 'It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any * * *, vehicle, or * * *; (2) to conceal or possess any contraband article in or upon any * * *, vehicle, or * * *; or (3) to use any * * *, vehicle, * * * to facilitate the transportation, carriage, conveyance, * * *, possession * * *, of any contraband article.' Section 2 provides: ...