Application of Kingsley, M.B.D. No. 85-30-F.

• Decision Date: 12 July 1985
• Docket Number: M.B.D. No. 85-30-F.
• Citation: 614 F. Supp. 219
• Parties: In the Matter of the Application of Michael J. KINGSLEY For the Return of Seized Property.
• Court: U.S. District Court — District of Massachusetts

614 F. Supp. 219

In the Matter of the Application of Michael J. KINGSLEY For the Return of Seized Property.

M.B.D. No. 85-30-F.

United States District Court, D. Massachusetts.

July 12, 1985.

COPYRIGHT MATERIAL OMITTED

John Thompson, Springfield, Mass., for petitioner.

Henry Rigali, Asst. U.S. Atty., Springfield, Mass., for respondent.

MEMORANDUM AND ORDER

FREEDMAN, District Judge.

INTRODUCTION

On May 3, 1985 agents of the United States Drug Enforcement Administration ("DEA") seized petitioner Michael Kingsley's residence and its "contents" pursuant to the civil forfeiture provisions of the federal narcotics laws, 21 U.S.C. § 881. Relying on a subsequently-impounded affidavit, the government procured a warrant from a federal magistrate before seizing petitioner's property. Petitioner has moved for a preliminary injunction that would allow petitioner to return to his home and make use of its contents.¹ In support of his motion, petitioner makes two arguments: 1) that the seizure warrant violates the Fourth Amendment's particularity requirement by authorizing seizure of the "contents" of petitioner's house; and 2) that the particular civil forfeiture provision on which the government relies, 21 U.S.C. § 881(a)(6), should not apply here.

On June 21 the Court entertained oral argument on petitioner's preliminary injunction motion. Now, having very carefully considered the matter, the Court has concluded that petitioner's motion should be granted as to the contents of his residence, but not as to the residence itself. In so ruling, the Court relies on reasons different from those put forth by petitioner.

FACTS

Petitioner is under investigation by the DEA for violations of the federal narcotics laws. However, petitioner has not yet been indicted for any crime. On May 3 and 6 the DEA obtained eight warrants for the seizure of virtually all of petitioner's property, including bank accounts, petitioner's residence and the residence's contents. The Magistrate issued the warrants on the strength of an affidavit of DEA Special Agent Edward O'Brien. The Court has perused this affidavit, which is impounded and shall remain so until further order of the Court.

Concisely stated, the government's theory is that everything petitioner owns is forfeitable under § 881(a)(6), which allows forfeiture of all proceeds traceable to an exchange of money for drugs,² because it appears that petitioner's only source of income during the last ten years has been illegal narcotics activity.

DISCUSSION

I.

This case raises several important and disturbing issues which the Court must address before reaching the merits of petitioner's preliminary injunction motion. Throughout this entire proceeding the government has maintained that it could have proceeded against petitioner's property without a warrant. Because the unchecked scope of this seizure threatens to turn § 881 into a powerful weapon of oppression by the government, the Court feels compelled to respond to this contention.

Under the seizure provisions of the civil forfeiture statute, 21 U.S.C. § 881(b),³ the government may seize property in one of two ways. First, the government may seize property "upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims...." Id. This process requires the government to file a verified complaint with the clerk of the court in the district in which the property may be found. The clerk then "shall forthwith issue a warrant for the arrest of the ... property." Supplemental Rule C. Second, the government may seize property without this process if the situation falls within one of four exceptions, only two of which could possibly be relevant here: one, if the seizure is incident to a search, arrest or inspection under a search or administrative inspection warrant or two, if the Attorney General has probable cause to believe the property is subject to civil or criminal forfeiture under the drug laws.

Neither of these exceptions is applicable here. Seizure of petitioner's property was not effected incident to the execution of any search or inspection warrant; indeed, the warrant the government used here could not be classified as either of the above.

Nor can the government claim the "probable cause" exception in this case. In United States v. Pappas, 613 F.2d 324 (1st Cir.1979), the Court of Appeals read into this exception the dual prerequisites of contemporaneous probable cause and exigent circumstances.⁴ The Court of Appeals first held that the warrant the clerk issues under § 881(b) requires a showing of Fourth Amendment probable cause. Given this, the Court of Appeals reasoned that a literal reading of the probable cause "exception" would render this warrant requirement meaningless. Id. at 328-29. In the case at bar, there is not even a hint of exigent circumstances that would excuse the government's procuring a warrant. Thus, the Court concludes that the government in this case was bound to comply with § 881(b)'s admiralty process and warrant requirement because the case falls within none of the exceptions to the warrant requirement.

However, technically in this case the government did not properly comply with § 881(b)'s admiralty process because it seized petitioner's property on May 3 but did not file a verified complaint until June 26. Invalidating the entire seizure at this juncture and requiring the government to do things in their proper order would only delay until another day resolution of the important questions this case raises and the Court will therefore not pursue such a course. However, the Court stresses that in the future when a warrant is necessary, the government should follow the statutory procedure. Failure to do so may well result in the Court's invalidating the entire seizure.

This brings the Court to the following question: if the government had merely gone before the clerk of the court as Rule C of the Supplemental Rules provides and procured a warrant for the arrest of petitioner's property upon the filing of a verified complaint, would that procedure — without more — be legal? The Court has concluded that it would not. The Court holds that it is necessary in § 881 cases for a magistrate or other detached judicial officer to review the clerk's warrant prior to its issuance to insure it satisfies the Fourth Amendment's requirements of probable cause and particularity.

In Pappas the First Circuit held that the Rule C clerk's warrant can issue only on a showing of probable cause because to interpret the warrant requirement otherwise "would conflict with the Fourth Amendment's proscription that `no Warrants shall issue, but upon probable cause.'" Pappas, 613 F.2d at 328 (emphasis in original). Even though in rem warrants such as those authorized by Rule C can issue without probable cause, the Court of Appeals reasoned, "Section 881 is a punitive, quasi-criminal statute ... and we suspect that Congress gave little consideration to the Fourth Amendment implications of applying the Supplemental Rules in this context." Id. Thus, this Court concludes that the Fourth Amendment applies to the general warrant requirement of § 881(b). Furthermore, the Court has determined that both the probable cause and particularity requirements of the Fourth Amendment⁵ apply, given that the two are "closely interconnected." United States v. Hershenow, 680 F.2d 847, 851 (1st Cir.1982). Finally, this Court holds that the only way to ensure that a clerk's warrant issued under Rule C satisfies the Fourth Amendment is to require that a detached judicial officer review it before the clerk issues it.⁶Cf. Techem Chemical Co., Ltd. v. M/T Choyo Maru, 416 F.Supp. 960 (D.Md.1976) (intimating no opinion as to whether independent judicial review of complaint and affidavit before clerk issues warrant would cure due process problems with Rule C).

The question remains, if a clerk's warrant issues without the probable cause or the particularity the Fourth Amendment demands, then what is the remedy? It is possible the traditional remedy for Fourth Amendment violations would be available, namely, the exclusion from the forfeiture proceeding of any evidence obtained in violation of the Fourth Amendment. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); United States v. One 1977 Mercedes Benz, 450 SEL, 708 F.2d 444, 448 (9th Cir.1983), cert. denied sub nom. Webb v. United States, ___ U.S. ___, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). But see United States v. Leon, ___ U.S. ___, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984) (adopting good faith exception to the exclusionary rule). It is also possible that a property owner might have a cause of action for damages against the federal agents effecting seizure. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). But see Mitchell v. Forsyth, ___ U.S. ___, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity available where law not clearly established at time of violation). However, whether a property owner would be entitled to the outright return of his property when that property had been seized under § 881(b) in violation of the Fourth Amendment is an unresolved and intriguing question. Fortunately, the Court need not answer this question, as the Court has concluded that petitioner is entitled to relief in the form of a preliminary injunction because petitioner has shown he is likely to prevail at the forfeiture proceeding on the grounds that the government will be unable to prove probable cause under the statute to forfeit petitioner's property.

II.

In a preliminary injunction situation, of course, it is the movant's burden to establish four elements: 1) movant must show he will suffer irreparable harm if the court does not grant the injunction; 2) movant must demonstrate that the harm to him of denying the injunction outweighs the harm to the opposing par...