U.S. v. Certain Real Property, Commonly Known as 6250 Ledge Road, Egg Harbor, Wis.

• Decision Date: 11 September 1991
• Docket Number: No. 90-3590,90-3590
• Citation: 943 F.2d 721
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY, COMMONLY KNOWN AS 6250 LEDGE ROAD, EGG HARBOR, WI, Defendant-Appellant, and James Gordon, Claimant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 721

943 F.2d 721

UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN REAL PROPERTY, COMMONLY KNOWN AS 6250 LEDGE ROAD, EGG HARBOR, WI, Defendant-Appellant, and James Gordon, Claimant-Appellant.

No. 90-3590.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 1991.

Decided Sept. 11, 1991.

William J. Lipscomb (argued), Office of the U.S. Atty., Asset Forfeiture Unit, Milwaukee, Wis., for plaintiff-appellee.

Robert G. LeBell, Nikola Kostich (argued), Styler, Kostich, LeBell & Dobroski, Milwaukee, Wis., for defendant-appellant and claimant-appellant.

Before CUMMINGS and POSNER, Circuit Judges, and NOLAND, Senior District Judge. ^*

NOLAND, Senior District Judge.

This is an appeal from the district court's order of forfeiture, which was entered on the parties' cross-motions for summary judgment. On September 18, 1990, the district court granted the government's Motion for Summary Judgment and entered an order pursuant to 21 U.S.C. § 881(a)(7) directing forfeiture of the defendant property. United States v. Certain Real Property, Commonly Known as 6250 Ledge Road, Egg Harbor, Wisconsin, 747 F.Supp. 505, 507 (E.D.Wisc.1990). On appeal, Gordon argues that the forfeiture order must be reversed because (1) the warrant authorizing the search of his residence was not supported by probable cause, (2) the forfeiture order itself was not supported by sufficient evidence, (3) forfeiture of the defendant property was improper under the circumstances and disproportionate under the Eighth Amendment, and (4) the district court erred in denying Gordon's motion to stay the forfeiture proceedings pending the resolution of the criminal charges against him. We affirm.

I. BACKGROUND

Based upon his own observations as well as information supplied by an unnamed reliable informant, Door County (Wisconsin) Sheriff's Department Sergeant Bies came to believe in late 1988 and early 1989 that Anne Miller, a Baileys Harbor, Wisconsin resident, was involved in illegal drug activity. On January 7, 1989, the informant told Sergeant Bies that he had sold cocaine to Miller, and purchased the same from her, within the past six (6) months. He also told Bies that he knew Miller received her cocaine from Florida through the United States mail.

Ten (10) days later, on January 17, 1989, Bies was informed by the Baileys Harbor postmaster that a package from Florida (which Bies later learned was from a non-existent address) had arrived for delivery at Miller's residence. On the following day, the package, which was retrieved by a postal inspector, flunked a "canine sniff test" by a well-trained and reliable canine. The package, which was addressed "A & M Enterprises, c/o Monk, 8215 Hwy 57, Baileys Harbor, WI 54202," was then delivered to Miller's residence. Shortly thereafter, Miller's residence was searched pursuant to a warrant. Those executing the warrant discovered cocaine, marijuana, and various items which confirmed that Miller was engaged in illegal drug activity. The search also confirmed Bies' belief, which was based in part upon his personal observations, that Gordon and Miller had a relationship. Bies had observed Gordon and Miller together on "hundreds of occasions." He also had observed that Gordon's car was "commonly parked" at Miller's residence. Bies noted that as the officers were about to execute the warrant, Gordon and Miller drove up to her residence together. During the search of Miller's residence the officers discovered men's clothing in one of her bedroom drawers.

Significantly, Bies had been informed by another reliable informant that on several occasions in late summer of 1988, claimant-appellant James Gordon had given the informant cocaine and marijuana. Believing, based upon these facts, that evidence of illegal drug trafficking would be present in Gordon's residence, Bies prepared an affidavit and application for a search warrant. He submitted the same to Door County Circuit Judge John D. Koehn who proceeded to issue the requested warrant.

On January 19, 1989, Gordon's residence and outbuildings were searched. The officers who conducted the search, assisted by a trained canine, discovered two (2) secret rooms behind hidden walls in Gordon's residence. The rooms contained 460 marijuana plants, plant food and manure (which was used as fertilizer), florescent grow lamps, a temperature control and humidifying system, a carbon dioxide monitoring system, a food dehydrator, and drying marijuana plant material. On a bulletin board under a photograph of Gordon, the officers discovered a business card which identified Gordon as "The Big Monk." Shortly thereafter, Gordon was charged with felonies in two (2) state criminal actions. One or both of the actions were filed on March 2, 1989.

On May 3, 1989, the government filed a Complaint for Civil Forfeiture in rem. In due course, Gordon answered the Complaint. His counsel asserted an interest in the property. The district court dismissed Gordon's counsel's claim after noting that subsequent correspondence from him "suggest[ed] that th[e] issue remain[ed] unresolved." Id., 747 F.Supp. at 509.

The parties, having filed cross-motions for summary judgment, agreed to submit this cause to the district court on stipulated facts. On September 18, 1990, in a twenty-eight (28) page Decision and Order, the district court granted the government's Motion for Summary Judgment, denied Gordon's Motion, and entered an order directing the forfeiture of Gordon's property. ¹

II. ANALYSIS

A. Probable Cause to Search Residence

The primary argument advanced by Gordon is that the district court erred in determining that the search warrant which authorized the search of his residence was not supported by probable cause. In essence, Gordon argues that the evidence was confined to establishing his "guilt by association" with Miller and that it was stale because it pertained to a period so far in advance of the officers' request for, and execution of, the search warrant. Appellant's Brief, pp. 6-27. ²

While the standard of review applicable to appellate review of probable cause supporting the issuance of a search warrant "is not entirely settled" in this Circuit, see United States v. Romo, 914 F.2d 889, 897-898 (7th Cir.1990) (citing cases), cert den., --- U.S. ----, 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991), and United States v. McKinney, 919 F.2d 405, 418-423 (7th Cir.1990) (Posner, J., concurring), the district court's probable cause determination in the present case should be affirmed, as in Romo, even under the less deferential de novo standard.

In United States v. Ingrao, 897 F.2d 860, 864 (7th Cir.1990), which was cited in the district court's Opinion, this Court stated that "[i]n order to find probable cause based upon association with persons engaging in criminal activity, some additional circumstances from which it is reasonable to infer participation in criminal enterprise must be shown." Id. (Quoting United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984), and citing United States v. Ceballos, 654 F.2d 177, 185 (2d Cir.1981)). We agree with Judge Gordon that in the present case the government demonstrated that such additional circumstances were present. The circumstances identified by the court, which it found constituted "indicia of [Gordon's] involvement" in the same criminal enterprise which Miller was involved in, included Sergeant Bies' personal observations of Gordon's association with Miller (who was herself involved in drug trafficking), the recent arrival at Miller's residence of a package containing cocaine, and the information regarding Gordon's drug dealings which was supplied by reliable informants.

Gordon's suggestion during oral argument that the evidence indicates only that he "gave" (rather than sold) drugs to the informant is based upon a hypertechnical reading of Sergeant Bies' affidavit. Read in context, it is clear that the informant was stating that Gordon was involved in drug trafficking. The paragraph which contains the informant's statements to Sergeant Bies regarding Gordon's drug activities begins with a recitation of the fact that the informant had been providing Door County authorities with information regarding drug suppliers and others who facilitated drug trafficking. When read in context, it is clear that the statement that Gordon "gave" the informant drugs did not mean that he gave them to him as a gift.

In response to Gordon's staleness argument, the district court noted that drug investigations are often of a "protracted and continuous nature" and that resultant delay (between the investigation and the issuance of a search warrant) is permissible as long as the informant's information remains reliable (as it found occurred in the present case). The court correctly cited United States v. McNeese, 901 F.2d 585, 596-597 (7th Cir.1990), and United States v. Batchelder, 824 F.2d 563, 564 (7th Cir.1987), for the proposition that while the age of information supporting a probable cause determination is a factor to be considered, it is not determinative. United States v. Lamon, 930 F.2d 1183, 1187-1188 (7th Cir.1991).

Given the facts as set out in the Sergeant Bies' Affidavit, the state court judge was justified in concluding that a search of Gordon's residence would uncover evidence of his drug activities. "In the case of drug dealers, evidence is likely to be found where the dealers live." United States v. Lamon, 930 F.2d at 1188 (Quoting, United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)).

B. Sufficiency of the Evidence to Support Forfeiture Determination

Gordon also argues that the district court's forfeiture order was not supported by sufficient evidence. However, his argument emphasizes what the evidence did not show rather than what it did. He argues, for example, that the officers' warrant return did not indicate that the officers discovered records of profits from the sale of marijuana, and that the...