Krimstock v. Kelly

• Decision Date: 15 August 2007
• Docket Number: No. 99 Civ. 12041(HB).,99 Civ. 12041(HB).
• Citation: 506 F.Supp.2d 249
• Parties: Valerie KRIMSTOCK, et. al., individually and on behalf of all other persons similarly situated, Plaintiffs, v. Raymond KELLY, in his official capacity as Commissioner of the New York City Police Department, Property Clerk, New York City Police Department, and the City of New York, Defendants, and The District Attorneys of the City of New York, Intervenor.
• Court: U.S. District Court — Southern District of New York

506 F.Supp.2d 249

Valerie KRIMSTOCK, et. al., individually and on behalf of all other persons similarly situated, Plaintiffs, v. Raymond KELLY, in his official capacity as Commissioner of the New York City Police Department, Property Clerk, New York City Police Department, and the City of New York, Defendants, and The District Attorneys of the City of New York, Intervenor.

No. 99 Civ. 12041(HB).

United States District Court, S.D. New York.

August 15, 2007.

COPYRIGHT MATERIAL OMITTED

Steven B. Wasserman, Thomas M. O'Brien, The Legal Aid Society, New York, NY, for plaintiffs.

Chlarens Orsland, Corporation Counsel of the City of New York, New York, NY, for defendants.

Mark Dwyer, New York, NY, for intervenor.

OPINION & ORDER

HAROLD BAER, JR., District Judge.

Plaintiff class in this long-running litigation challenges the constitutionality of the seizure and detention of vehicles by the City of New York. This action was remanded by the Second Circuit to this Court on September 15, 2006 to determine the procedures by which a district attorney may apply to retain, as evidence in a criminal proceeding, a vehicle seized pursuant to a warrantless arrest. See Krimstock v. Kelly, 464 F.3d 246 (2d Cir.2006) ("Krimstock III").¹

The Amended Order of this Court of December 2, 2005 that governs such procedures is again amended, in accordance with the principles articulated by the Second Circuit, and for additional reasons outlined below.

I. BACKGROUND

This action was originally brought in 1999 by plaintiffs who challenged the constitutionality of New York City's civil forfeiture statute as it applied to those whose vehicles were seized pursuant to a warrantless arrest as an "instrumentality of a crime." See Krimstock v. Safir, 2000 WL 1702035, 2000 U.S. Dist. LEXIS 16444 (S.D.N.Y. Nov. 13, 2000) (Mukasey, C.J.), citing N.Y. CITY ADM.CODE § 14-140. The Second Circuit, on appeal, held that due process in such situations requires a prompt hearing before a neutral fact-finder to test the probable validity of the deprivation pendente lite, including the probable cause for the initial warrantless seizure and the necessity and legitimacy of continued impoundment. See generally Krimstock v. Kelly, 306 F.3d 40, 69-70 (2d Cir.2002) ("Krimstock I"). The Circuit directed then-Chief Judge Michael Mukasey to fashion a post-seizure hearing process in accordance with those principles. Id.

On remand, Judge Mukasey, in an Order finalized on October 24, 2003, fashioned what is now known as a "Krimstock hearing." The "Krimstock hearing" requires that when a vehicle is seized as an "instrumentality of a crime," the New York Police Department ("NYPD") must give written notice to the claimant of his or her right to a hearing before the City's Office of Administrative Trials and Hearings ("OATH"). The claimant may be either the driver of the vehicle at the time the vehicle is seized or the owner (if different than the driver).² If the claimant requests a hearing, a Krimstock hearing is granted within 10 days of NYPD's receipt of the request.

At that "Krimstock hearing," NYPD has the burden to prove, by a preponderance of the evidence, that a) probable cause existed for the arrest of the vehicle's operator, b) it is likely the City would prevail in an action to forfeit the vehicle, and c) it is necessary that the vehicle remain impounded in order to ensure its availability in the eventual civil forfeiture action. The Second Circuit affirmed these procedures to the extent they governed vehicles seized as an "instrumentality of a crime." See Jones v. Kelly, 378 F.3d 198, 204 (2d Cir. 2004) ("Krimstock II").

At this point, however, the related, but distinct, issue had arisen of vehicles concurrently seized as evidence in a pending criminal investigation.³ Upon the City's appeal, the Second Circuit remanded this issue to Judge Mukasey's Court for an evidentiary hearing to determine the potential impact of a post-seizure hearing process for these vehicles on the effective prosecution of criminal cases. See Krimstock II, 378 F.3d 198, 199. After that evidentiary hearing, Judge Mukasey modified his Order to hold that if the District Attorney merely notified the administrative OATH judge that the vehicle in question should be retained as evidence in a criminal proceeding, the "Krimstock" hearing would not go forward. See generally Krimstock v. Kelly, 2005 U.S. Dist. LEXIS 43845 (S.D.N.Y. Dec. 2, 2005). Otherwise, Judge Mukasey generally left his Order unchanged.

Upon Plaintiffs' appeal, the Second Circuit reversed Judge Mukasey. See generally Krimstock v. Kelly, 464 F.3d 246 (2d Cir.2006) ("Krimstock III"). The Circuit held that under the Fourth Amendment, no adversarial review is required of a District Attorney's decision to retain a vehicle as potential evidence in a criminal proceeding. Krimstock III, 464 F.3d at 252. A District Attorney "must be permitted to seek retention orders ex parte so that defendants cannot use the [Krimstock] hearings for discovery or to restrict the prosecution's theories at trial." Id. at 253. Under the Fourteenth Amendment, however, the Circuit held that although "no adversarial hearing is required," due process requires "some immediate judicial review" by a neutral fact-finder of the District Attorney's decision to retain a vehicle.⁴ Id. at 255. The Circuit noted the "importance of a vehicle to an individual's ability to work and conduct the affairs of life," and the "serious harm" resulting from the "undue retention of a vehicle." Id. The Circuit vacated Judge Mukasey's Amended Order of Dec. 2, 2005, insofar as it allowed District Attorneys to decide unilaterally that a vehicle could be retained as potential evidence, and remanded the matter to the district court.⁵ Id. at 248.

Upon remand, Plaintiffs, the NYPD, and the District Attorneys submitted supplemental briefing that proposed potential revisions to Judge Mukasey's Order as it governed vehicles seized as evidence in a pending criminal proceeding.

Plaintiffs also proposed revisions to Judge Mukasey's Order as it governed vehicles seized as an "instrumentality of a crime," in light of evidence Plaintiffs submitted regarding the efficacy of the implementation of those portions of Judge Mukasey's Order.⁶ Specifically, Plaintiffs propose that a) the NYPD should bear the initial burden to show proof of service of the Krimstock notice, else the NYPD's petition to retain the vehicle shall be dismissed; b) the Krimstock notice should convey notice of the "innocent owner" defense; c) the NYPD's petition to retain the vehicle should convey greater factual specificity as to the underlying claim; and d) that settlements of Krimstock petitions should be made by a colloquy on the record before the administrative OATH judge. NYPD generally opposes Plaintiffs' proposals.

I held a hearing on the record in Chambers on February 1, 2007, at which the parties presented argument.

II. STANDARD OF REVIEW

The district court has broad discretion, in an action such as this to remedy due process violations, to fashion a remedy to ensure that the mandate of the Second Circuit is carried out. See Krimstock III, 464 F.3d at 250; Krimstock II, 378 F.3d at 204; Krimstock I, 306 F.3d at 69.

III. DISCUSSION

Two sets of issues are presented here on remand. First, as directed by the Second Circuit on remand, I must fashion procedures to govern the District Attorney's retention of vehicles as evidence in a criminal proceeding. Secondly, I will address Plaintiffs's proposed changes to the applicable procedures that govern vehicles seized as an "instrumentality of a crime."

A. District Attorney's Retention of Vehicles as Evidence in a Criminal Proceeding

i. Ex Parte Application For a Retention Order

"... [D]istrict attorneys must be permitted to seek retention orders ex parte so that defendants cannot use the hearings for discovery or to restrict the prosecution's theories at trial." Krimstock III, 464 F.3d at 253. Although no "adversarial hearing" is required, the prosecutor's decision to retain the vehicle as evidence must be reviewed by a "neutral-fact finder." Id. at 255. Essentially, the District Attorneys argue that whereas a law enforcement officer can approach a judge ex parte for a wiretap or search warrant, in an analogous manner, the ADA supervising the case should be permitted to approach a judge ex parte for a "retention order" to hold a vehicle as evidence.

Accordingly, the District Attorneys propose, and I agree, that an ADA may approach a Criminal Court Judge or Supreme Court Justice ex parte for such a retention order that would allow the District Attorney to hold the vehicle as evidence.⁷ That ex parte affirmation should not restrict the prosecutor in any way from making later arguments in the underlying criminal proceeding.

Plaintiffs do not dispute the District Attorneys' right to seek a retention order ex parte, so long as the ADA's application for a retention order meets two requirements. First, Plaintiffs propose that the ADA must affirm that there are reasons for the retention, what they are, and that they relate to the contested issue in the underlying criminal proceeding.⁸ Secondly, Plaintiffs propose that the ADA must affirm that no other means besides impoundment (such as more time-limited photographing or forensic testing) will suffice to preserve the evidentiary value of the vehicle.⁹ The District Attorneys do not particularly dispute that such affirmations could be made. Indeed, the District Attorneys concede that ADA's currently submit an affirmation to hold a vehicle as evidence, and in some situations, ask for more limited retention orders of 30 to 90 days in which to ensure that the photographing or forensic testing is completed.

Accordingly, the ADA's application for a retention order should include an affirmation that meets those two requirements. The judge will be the ultimate arbiter of whether the application is to be granted, and for how...