U.S. v. One Piece Prop., 5800 Sw 74TH, Miami, Fla., 03-11736.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Kravitch
• Citation: 363 F.3d 1099
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE PIECE OF REAL PROPERTY LOCATED AT 5800 SW 74TH AVENUE, MIAMI, FLORIDA, more particularly described as Lot 3, Block 3 of camner estates according to the Plat Book 58, at page 21 of the public records of Dade County, Florida together with all appurtenances thereto and all improvements thereon, Defendant, Stephen Haban, Defendant-Appellant.
• Docket Number: No. 03-11736.,03-11736.
• Decision Date: 24 March 2004

Page 1099

363 F.3d 1099 UNITED STATES of America, Plaintiff-Appellee,
v.
ONE PIECE OF REAL PROPERTY LOCATED AT 5800 SW 74TH AVENUE, MIAMI, FLORIDA, more particularly described as Lot 3, Block 3 of camner estates according to the Plat Book 58, at page 21 of the public records of Dade County, Florida together with all appurtenances thereto and all improvements thereon, Defendant,
Stephen Haban, Defendant-Appellant. No. 03-11736. United States Court of Appeals, Eleventh Circuit. March 24, 2004.

Page 1100

Roy D. Wasson, Miami, FL, for Haban.

Eduardo L. Sanchez, Anne R. Schultz, Madeleine R. Shirley, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before WILSON and KRAVITCH, Circuit Judges, and GOLDBERG^*, Judge.

KRAVITCH, Circuit Judge:

This case involves the forfeiture of property allegedly used to commit or facilitate the commission of a drug crime, in violation of 21 U.S.C. § 881(a)(7). The main issue on appeal is whether the district court properly granted the government's motion for summary judgment when the defendant did not file a memorandum opposing summary judgment. We conclude, after reviewing the record, that there is a disputed issue of material fact and, therefore, summary judgment was inappropriate.

I. BACKGROUND

In June 2001, the Drug Enforcement Agency and Miami-Dade police officers initiated an investigation into possible marijuana cultivation and distribution activities at the house of Stephen Haban, the defendant. Exactly what happened that day is not clear. According to the government, several officers knocked on Haban's front door. Haban's girlfriend responded and then went to find Haban. A few minutes later, Haban, who had been in the shower, stepped outside wrapped in only a towel. The lead officer informed Haban that they were investigating a marijuana tip and presented Haban with a "consent-to-search" form and a "Miranda rights" form. Haban initially had reservations about waiving his Miranda rights and began to check the "no" box on the form. When the police explained the rights more thoroughly, Haban indicated his understanding. The officer checked the box indicating a waiver and Haban initialed above each checkmark. Haban also initialed a box stating that he was "willing to answer [any] questions without having a lawyer present," and signed the Miranda form

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and the consent-to-search form. The police commenced the search of Haban's house, finding eighty-four live marijuana plants, growing equipment, 767 grams of processed marijuana, and $45,000 in cash. During this time, Haban made several incriminating remarks.

According to Haban, he did not voluntarily consent to the search of his residence. Rather, he claims that he only signed the consent-to-search form because the police refused to allow him to speak to a lawyer, although he asked several times. In addition, he claims that the police told him that he would be forced to wait outside until the police obtained a warrant, and once they obtained that warrant they would tear his house apart and arrest his girlfriend.¹

The United States brought a forfeiture action, claiming that Haban's residence was used to commit, or facilitate the commission of, a drug crime, in violation of 21 U.S.C. § 881(a)(7). On November 1, 2002, Haban filed a motion to suppress the evidence seized during the search, and to suppress the statements he made during the interview with law enforcement agents. The magistrate judge held an evidentiary hearing on January 14 and 16, 2003, and, on January 23, 2003, issued an order recommending denial of the suppression motion. Previously, on November 27, 2002, while the suppression motion was pending but prior to the suppression hearing, the United States filed a motion for summary judgment. Haban never responded to this motion and, on January 31, 2003, the district court granted summary judgment for the United States. At the same time, the district court denied all pending motions, including Haban's suppression motion, as moot.

II. STANDARD OF REVIEW AND RULES OF LAW

We review a district court's grant of summary judgment de novo. Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir.2001). We view the facts and inferences in the light most favorable to the non-moving party. Id. Where "the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e) (emphasis added). Thus, summary judgment, even when unopposed, can only be entered when "appropriate."

Summary judgment is appropriate where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added). Thus, the district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion. See Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir.1988) (per curiam). The district court need not sua sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensure that the motion itself is supported by evidentiary materials. See id. At the least, the district court...