U.S. v. Real Property Located in El Dorado County at 6380 Little Canyon Road, El Dorado, Cal., No. 93-15982

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtSNEED
Citation59 F.3d 974
Parties95 Cal. Daily Op. Serv. 5390, 95 Daily Journal D.A.R. 9185 UNITED STATES of America, Plaintiff-Appellee, v. REAL PROPERTY LOCATED IN EL DORADO COUNTY AT 6380 LITTLE CANYON ROAD, EL DORADO, CALIFORNIA, APN: 092-500-09, including Appurtenances and Attachments Thereto, Defendant, Robert M. Price, Claimant-Appellant. . Submitted *
Docket NumberNo. 93-15982
Decision Date16 December 1994

Page 974

59 F.3d 974
95 Cal. Daily Op. Serv. 5390, 95 Daily Journal
D.A.R. 9185
UNITED STATES of America, Plaintiff-Appellee,
v.
REAL PROPERTY LOCATED IN EL DORADO COUNTY AT 6380 LITTLE
CANYON ROAD, EL DORADO, CALIFORNIA, APN:
092-500-09, including Appurtenances and
Attachments Thereto, Defendant,
Robert M. Price, Claimant-Appellant.
No. 93-15982.
United States Court of Appeals,
Ninth Circuit.
Submitted * Dec. 16, 1994.
Decided July 12, 1995.
As Amended on Denial of Rehearing Sept. 13, 1995.

Page 978

William E. Jageman, Kensington, CA, for claimant-appellant.

Erik Schlueter, Asst. U.S. Atty., Placerville, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: SNEED, NORRIS, and HALL, Circuit Judges.

SNEED, Circuit Judge:

Robert Price appeals from a judgment of civil forfeiture against his 29.6 acres of property, including his own barn-residence, another residence, and outbuildings. Price argues that (1) summary judgment in favor of the United States was improper because its evidence was obtained through an illegal search in violation of the Fourth Amendment, (2) his due process rights were violated when his property was seized without prior notice and a hearing, (3) forfeiture of his interest in the entire property violates the Eighth Amendment, (4) the civil forfeiture proceeding subjected him to double jeopardy, and (5) the civil forfeiture statute is unconstitutional.

These arguments, as informed by a rapidly expanding body of case law authority, have transformed a case commenced by a few bungling local sheriffs that initially appeared fairly straightforward into one bristling with quite complex constitutional issues. On reflection, this should not be surprising, inasmuch as drug-related forfeitures have become quantitatively quite large, while remaining until recently procedurally uncomplicated.

For reasons related to Price's Eighth Amendment argument and recent developments under the Fifth Amendment relating to property seizures, we must reverse the judgment of civil forfeiture and remand to the district court for further proceedings.

I.

FACTS AND PROCEEDINGS BELOW

It all began on August 15, 1988, when four local sheriffs attempted to execute a search warrant on property owned by a Joseph Legan, which abutted the south side of Robert Price's property. Confused by their maps, two of the officers entered Price's property, thinking it was Legan's. The deputies looked around the premises and through the windows of the barn, which served as Price's residence. At some point they detected an odor of marijuana coming from within the barn-residence. They then rejoined the other two officers on Legan's property and reported their observations. All four returned to Price's property, entered the barn-residence, and searched it, despite the fact that at least one detective was aware that the barn was not on Legan's property and that the barn was in fact a residence. Inside the barn they found an elaborate marijuana-growing operation. Price was found on the premises and arrested. Thereafter, a search warrant for his property was obtained. From the state's point of view, already the prosecution faced problems.

Price was charged with cultivation of marijuana and possession of marijuana for sale under California Health & Safety Code

Page 979

Secs. 11358 and 11359. He moved to suppress the state's evidence, claiming that the warrantless search of his property violated the Fourth Amendment. After a hearing, the superior court denied Price's motion. Price pleaded guilty to possession of marijuana for sale on July 25, 1990. He was sentenced to two years' imprisonment. Price then appealed the denial of his motion to suppress. The state appellate court rejected his appeal on February 3, 1992. Price, who had been out on bail pending appeal, was remanded to state custody to serve his sentence.

Almost seven months after Price's guilty plea, on February 19, 1991, the United States entered the case and filed a complaint in the United States District Court for the Eastern District of California for in rem forfeiture of Price's property under 21 U.S.C. Sec. 881(a)(7). This proceeding was stayed pending the outcome of Price's appeal in the state criminal case. Thereafter, both the United States and Price moved for summary judgment. The district court granted the government's motion for summary judgment, denied Price's motion, and entered a judgment of forfeiture against Price's 29.6 acres of property and structures on April 28, 1993.

Price timely appeals. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II.

DISCUSSION

A. The State Search

The district court granted summary judgment in favor of the United States upon its showing of probable cause to believe that Price's property was involved in illegal drug activity, which Price failed to rebut. See United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1362 (9th Cir.1986). Price contends, however, that the primary evidence of drug dealing--the fruits of the warrantless state search of his property--should have been excluded from the civil forfeiture proceeding, because the search was invalid under the Fourth Amendment, as incorporated by the Due Process Clause of the Fourteenth Amendment. 1 Therefore, Price argues, the questionable legality of the search creates an issue of material fact, making summary judgment in favor of the United States improper. 2 We reject this argument.

Price is collaterally estopped from raising the Fourth Amendment issue as a defense to the civil forfeiture action. 3 See Ayers v. City of Richmond, 895 F.2d 1267 (9th Cir.1990); 4 see also United States v.

Page 980

U.S. Currency in the Amount of $228,536.00, 895 F.2d 908 (2d Cir.) (applying collateral estoppel to prevent relitigation in a civil forfeiture proceeding of a Fourth Amendment issue raised during suppression hearings at prior criminal trial), cert. denied, 495 U.S. 958, 110 S.Ct. 2564, 109 L.Ed.2d 747 (1990). The legality of the state search was fully and fairly litigated in the state court prosecution. Price raised the issue at the original suppression hearing, and his motion to suppress was denied. He then pleaded guilty, but appealed the denial of the motion; his appeal was also denied. Obviously, Price was a party to the state criminal proceeding, and, given the seriousness of the charges, he was motivated to fully litigate the issue at the time. See Ayers, 895 F.2d at 1271-72.

Price does not get two bites at the apple. The Supreme Court has expressly rejected the idea that "every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises." Allen v. McCurry, 449 U.S. 90, 103, 101 S.Ct. 411, 419, 66 L.Ed.2d 308 (1980) (holding that the state law of collateral estoppel applies in civil rights actions brought under 42 U.S.C. Sec. 1983). This is so even if "the state court's decision may have been erroneous." Id. at 101, 101 S.Ct. at 418.

The evidence from the search of Price's property was thus properly admitted in the forfeiture proceeding. Viewing the evidence in the light most favorable to Price, we find that there are no genuine issues of material fact and that the government's evidence is more than sufficient to establish probable cause. Grant of summary judgment in favor of the United States on the issue of probable cause was appropriate.

B. Federal Preforfeiture Seizure

While this appeal was pending, Price properly brought to our attention the Supreme Court's decision in United States v. James Daniel Good Real Property, --- U.S. ----, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). In that case, the Court held that the seizure of real property for forfeiture under 21 U.S.C. Sec. 881(a)(7) without prior notice and a hearing violates the owner's due process rights under the Fifth Amendment. The Court reasoned that the immobility of real property ordinarily removes any resort to exigent circumstances to justify dispensing with the proper preseizure notice and hearing. Id. at ----, 114 S.Ct. at 503. Recently, this court held that Good applies retroactively. United States v. Real Property Located at 20832 Big Rock Drive, 51 F.3d 1402, 1405 (9th Cir.1995).

Because this case is an in rem proceeding in federal court separate and apart from the in personam criminal proceedings in state court, the focus of our attention must be upon the former. Even though Price pleaded guilty to the state charges on July 25, 1990, the United States, to repeat, did not commence its forfeiture proceeding until February 19, 1991. Two days later, a warrant authorizing the seizure was obtained by the United States and a lis pendens notice was mailed to Price on the same day. This was the extent to which Price was given notice of the seizure. Obviously, no preseizure hearing was afforded, although under the law existing at that time its absence is understandable. Nonetheless, the constitutional requirements recognized by Good must be applied to this case. Id. at 1405-06.

Thus, we conclude that Price was deprived of his due process rights under the Fifth Amendment. Does this require us to declare the forfeiture invalid in all respects? We think not. This court, in a portion of its Good opinion not affected by the Supreme Court's subsequent decision, did not so hold. We observed:

If on remand the district court finds the filing of this proceeding to be timely [which the Supreme Court expressly found in its opinion], the violation of Good's due process rights need not invalidate the forfeiture. The " 'mere fact of the illegal

Page 981

seizure, standing alone, does not immunize the [seized] goods from forfeiture.' " Good is, however, entitled to the rents accrued during the illegal seizure of his home.

United States v. James Daniel Good Property Titled in the Name of James Daniel...

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87 practice notes
  • U.S. v. $186,416.00 in U.S. Currency, No. CV 05-6703 SVW (SHx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 10, 2007
    ...benefit from the spoils of civil forfeitures. See United States v. Real Property Located in El Dorado County at 6380 Little Canyon Road, 59 F.3d 974, 984 (9th Cir.1995) ("Forfeitures, in effect, impose an impressive levy on wrongdoers to finance, in part, the law enforcement efforts of both......
  • Von Hofe v. U.S., No. 05-2969-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 27, 2007
    ...of the forfeiture. See United States v. 829 Calle de Madero, 100 F.3d 734, 738 (10th Cir.1996); United States v. 6380 Little Canyon Rd., 59 F.3d 974, 985 (9th Cir.1995). CAFRA now requires, as part of the government's case-in-chief, that it prove to the jury "that there was a substantial co......
  • U.S. v. Dubose, Nos. 96-30369
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1998
    ...the harshness of the forfeiture, and the culpability of the property's owner. See United States v. Real Property Located in El Dorado, 59 F.3d 974, 985-86 (9th Forfeiture and restitution are distinct concepts. Although civil forfeiture analysis is inapplicable to the restitution inquiry, an......
  • U.S. v. Bajakajian, 961487
    • United States
    • United States Supreme Court
    • June 22, 1998
    ...must be proportional to the culpability of the owner. Id., at 336 (citing United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (C.A.9 1995)). A majority of the panel determined that the currency was not an "instrumentality'' of the crime of failure to report because ......
  • Request a trial to view additional results
87 cases
  • U.S. v. $186,416.00 in U.S. Currency, No. CV 05-6703 SVW (SHx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 10, 2007
    ...benefit from the spoils of civil forfeitures. See United States v. Real Property Located in El Dorado County at 6380 Little Canyon Road, 59 F.3d 974, 984 (9th Cir.1995) ("Forfeitures, in effect, impose an impressive levy on wrongdoers to finance, in part, the law enforcement efforts of both......
  • Von Hofe v. U.S., No. 05-2969-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 27, 2007
    ...of the forfeiture. See United States v. 829 Calle de Madero, 100 F.3d 734, 738 (10th Cir.1996); United States v. 6380 Little Canyon Rd., 59 F.3d 974, 985 (9th Cir.1995). CAFRA now requires, as part of the government's case-in-chief, that it prove to the jury "that there was a substantial co......
  • U.S. v. Dubose, Nos. 96-30369
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1998
    ...the harshness of the forfeiture, and the culpability of the property's owner. See United States v. Real Property Located in El Dorado, 59 F.3d 974, 985-86 (9th Forfeiture and restitution are distinct concepts. Although civil forfeiture analysis is inapplicable to the restitution inquiry, an......
  • U.S. v. Bajakajian, 961487
    • United States
    • United States Supreme Court
    • June 22, 1998
    ...must be proportional to the culpability of the owner. Id., at 336 (citing United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (C.A.9 1995)). A majority of the panel determined that the currency was not an "instrumentality'' of the crime of failure to report because ......
  • Request a trial to view additional results

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