U.S. v. Parcel of Land and Residence at 28 Emery Street, Merrimac, Mass.

• Decision Date: 04 June 1990
• Docket Number: 90-1172,Nos. 90-1090,s. 90-1090
• Citation: 914 F.2d 1
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. PARCEL OF LAND AND RESIDENCE AT 28 EMERY STREET, MERRIMAC, MASSACHUSETTS, Defendant, Appellee (Two Cases). Appeal of Donald A. McLAINE, Claimant. Appeal of Catherine McLAINE, Claimant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

914 F.2d 1

UNITED STATES of America, Plaintiff, Appellee, v. PARCEL OF LAND AND RESIDENCE AT 28 EMERY STREET, MERRIMAC MASSACHUSETTS, Defendant, Appellee (Two Cases) Appeal of Donald A. McLAINE, Claimant Appeal of Catherine McLAINE, Claimant.

Nos. 90-1090, 90-1172.

United States Court of Appeals First Circuit.

Heard June 4, 1990.

Decided Sept. 6, 1990.

Judith H. Mizner, Newburyport, Mass., with whom Ronald F. Spagnoli, Lynn, Mass., was on brief, for appellants.

Wayne A. Budd, U.S. Atty., with whom Jeffrey S. Robbins, Sp. Asst. U.S. Atty., Boston, Mass., was on brief, for plaintiff, appellee, U.S.

Before SELYA and SOUTER ^*, Circuit Judges, and BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

Donald A. McLaine and Catherine McLaine (the McLaines), the record owners of the property ¹ at 28 Emery Street, appeal from the granting of summary judgment in favor of the United States by the district court resulting in the civil forfeiture of their home. The McLaines argue that evidence was seized from their home without probable cause in violation of the fourth amendment and should not have been considered in the district court proceeding. Moreover, they argue that even with the use of that evidence, the government has not met its burden of connecting the home sufficiently to drug transactions to forfeit the house. We agree that the government has not adduced sufficient proof to justify forfeiture on summary judgment. ²

Summary judgment is appropriate when, in the absence in the record of a "genuine issue as to any material fact," "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also United States v. 5 Bell Rock Road, 896 F.2d 605, 611 (1st Cir.1990) ("[S]ummary judgment is precluded if there is a dispute over facts that might affect the outcome of the suit under the governing law[.]") (citations and quotations omitted). On a motion for summary judgment, we must examine, as we do here, the facts in the light most favorable to the appellants. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988).

I.

In June of 1987, the Beverly, Massachusetts, police department received information from a confidential informant that Donald McLaine was selling cocaine from his pickup truck at various places in Beverly. The informant also stated that s/he had been inside the McLaines' home at 28 Merrimac Street and had seen large quantities of cocaine and large quantities of money inside a safe. The informant was not of proven reliability. Over a year later, the police received a tip from another informant that Donald McLaine and a friend, Glenn Spear, were selling cocaine in Beverly. Shortly after that, a police detective observed Spear make (what the officer thinks) a drug order to a telephone number registered to Mrs. McLaine. That deal, according to the officer, was to be consummated the next morning in a parking lot. Neither Donald McLaine nor any other seller showed up and the sale never occurred.

Later that day a third informant, this one of confirmed reliability, told the police that a sale would take place the next day in the same parking lot. Based on this information, the Beverly police officers and the Drug Enforcement Agency obtained a warrant to search Donald McLaine and his truck. The Merrimac police searched the McLaines' residence pursuant to another warrant at the same time. In the search of the truck, police officers found extensive evidence of drug trafficking including cocaine, marijuana cigarettes, and what were believed to be drug sale notes. Based on this evidence, Donald McLaine was charged with trafficking in cocaine and the possession of marijuana. He pled guilty to charges of unlawful possession of marijuana, possession of a dangerous weapon (brass knuckles), and possession with intent to distribute of cocaine in connection with the search of the truck. He is now apparently serving his sentence.

The search of the house revealed less than 5 grams of a "white powder substance resembling cocaine," ³ a plastic bag with "green vegetable matter," some marijuana cigarettes and cigarette butts, various drug paraphernalia, and numerous firearms. Based on this evidence, the government sought the forfeiture of the McLaines' home, claiming that the house was used for or facilitated cocaine trafficking. The government moved for summary judgment based on the affidavits of two police officers. ⁴ The district court granted that motion and this appeal followed.

II.

One of the most powerful weapons in the government's arsenal in the continuing "war" on drugs is its ability to obtain the civil forfeiture of property that is used for or facilitates violations of the drug laws ⁵. 21 U.S.C. Sec. 881(a)(7). ⁶ To obtain a civil forfeiture of such property, the government need only show probable cause to believe that the property was used for a specified illegal purpose. United States v. $250,000 in United States Currency, 808 F.2d 895, 897 (1st Cir.1987) (adjudicating an action under section 881(a)(6)). Probable cause to forfeit requires only a "reasonable ground for belief of guilt[,] supported by less than prima facie proof but more than mere suspicion" that the property is subject to forfeiture. Id. Once the government makes this showing, the burden shifts to the claimant to prove by a preponderance of the evidence that the property was not used in violation of the statute or that it was so used without the owners' knowledge or consent. United States v. 5 Bell Rock Road, 896 F.2d 605, 606 (1st Cir.1990); $250,000, 808 F.2d at 897. After the burden has shifted the claimant has the burden of proof in a civil forfeiture case. 19 U.S.C. Sec. 1615 (made applicable by 21 U.S.C. Sec. 881(d)). In this case the claimants have only entered general denials to the facts (in addition to contesting the validity of the search warrant). That is insufficient to defeat a showing by the government of probable cause. So, if the government meets its burden, summary judgment should be granted.

This court and other circuit courts have consistently required that the government show some connection between the property forfeited and an illegal drug transaction in order to obtain forfeiture. ⁷ We have consistently required that there be a "substantial connection" between the property forfeited and the drug activity. See, e.g., United States v. One Parcel of Real Property, 900 F.2d 470, 472 (1st Cir.1990) ("substantial connection"); United States v. One 1972 Chevrolet Corvette, 625 F.2d 1026 (1st Cir.1980) (not finding substantial connection between car and drug transaction); accord United States v. 3639-2nd St-N.E., 869 F.2d 1093 (8th Cir.1989); United States v. Santoro, 866 F.2d 1538 (4th Cir.1989); United States v. Various Parcels of Real Property, 650 F.Supp. 62, 65 (N.D.Ind.1986) (government must present specific facts to show substantial connection; evidence of eight telephone calls to and from house not enough on summary judgment even when there was no claimant).

Other courts have tried to determine whether the property being forfeited was the "situs" or "nexus" of an illegal drug transaction. 3639-2nd St-N.E., 869 F.2d at 1096-97 (situs of sales means house had sufficient connection); United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1427 (11th Cir.1983) (nexus); United States v. $22,287 U.S. Currency, 709 F.2d 442, 447 (6th Cir.1983) (government must establish a nexus between property and criminal activity). Finally, one circuit has specifically rejected the "substantial connection" test but required that the government demonstrate a nexus that "is more than incidental or fortuitous." United States v. 916 Douglas Ave., 903 F.2d 490, 494 (7th Cir.1990). ⁸

III.

The controlling issue is whether, consistent with the summary judgment standard, the government has presented enough evidence to connect McLaine's drug trafficking to the house, or to put it another way, whether the government, taking the record in the light most favorable to the nonmovants, has necessarily shown more than mere suspicion that the house facilitated the sale of drugs from McLaine's truck.

The problem with the government's proof is the lack of a solid evidentiary basis linking the house to the sale of drugs. Unlike a more typical forfeiture case, no direct connection has been established between drug trafficking charges stemming from the sales by McLaine from his truck and the McLaine home. For example, there is no evidence, by implication or allegation, that the McLaines sold, processed or produced the drugs at their home. Cf. United States v. 1933 Commonwealth Ave., 913 F.2d 1, 2-3 (1st Cir.1990) (telephone calls and complaints about sale of drugs from house); United States v. 40 Moon Hill Road, 884 F.2d 41 (1st Cir.1989) (cultivation of 130 live marijuana plants on property). There is no evidence from which an inference must be drawn that the drugs in the truck were put there after being stored in the house. There is not even evidence that Donald McLaine drove directly from the house to the meeting place as the government asked at oral argument that we infer. ⁹ Cf. United States v. Butler, 763 F.2d 11 (1st Cir.1985). ¹⁰ Most tellingly, the record contains no evidence that any of the substances found in the search were determined to be drugs, rather than suspected of being drugs. Cf. United States v. 5 Bell Rock Road, 896 F.2d 605, 607 (1st Cir.1990) (police lab report showing that "dried vegetation" found in search was marijuana). We do not understand why tests were not conducted or if they were, why the results were not introduced. Without such evidence, all that is before us is the government's suspicion that Donald McLaine stored and packaged the drugs that were found in his truck in the house.

The government's case on summary judgment is based on three things:

1. A confidential informer of untested reliability who at some unspecified time more than a year before the...