United States v. $128,035.00 IN US CURRENCY

• Decision Date: 11 February 1986
• Docket Number: No. C-2-85-897.,C-2-85-897.
• Citation: 628 F. Supp. 668
• Parties: UNITED STATES of America, Plaintiff, v. ONE HUNDRED TWENTY-EIGHT THOUSAND THIRTY-FIVE DOLLARS ($128,035.00) IN U.S. CURRENCY and Real Estate Known as 1325-1337 West Fifth Avenue, Columbus, Ohio and All Appurtenances and Improvements Thereon, Defendants.
• Court: U.S. District Court — Southern District of Ohio

628 F. Supp. 668

UNITED STATES of America, Plaintiff, v. ONE HUNDRED TWENTY-EIGHT THOUSAND THIRTY-FIVE DOLLARS ($128,035.00) IN U.S. CURRENCY and Real Estate Known as 1325-1337 West Fifth Avenue, Columbus, Ohio and All Appurtenances and Improvements Thereon, Defendants.

No. C-2-85-897.

United States District Court, S.D. Ohio, E.D.

February 11, 1986.

COPYRIGHT MATERIAL OMITTED

Barbara L. Beran, Asst. U.S. Atty., Columbus, Ohio, for plaintiff.

William H. Bluth, Columbus, Ohio, for claimant.

OPINION AND ORDER

KINNEARY, District Judge.

This case comes before the Court to consider the motions of claimant Jay T. Will to quash an in rem arrest warrant issued by the Clerk of Courts for his real property located at 1329-1335 West Fifth Avenue and to dismiss the complaint for forfeiture filed by the government.

This matter arises from the arrest of claimant Jay T. Will on numerous counts including unlawful possession of cocaine in violation of 21 U.S.C. § 841(a)(1). On March 1, 1985, United States Magistrate Norah McCann King determined that there was probable cause to issue a search warrant of the premises located at 1329-1335 West Fifth Avenue, Columbus, Ohio. The warrant authorized the seizure of cocaine as well as other controlled substances, including "notebooks, ledgers, and business records, an office safe together with other fruits, instrumentalities and evidence in violation of Title 21, U.S.C. § 841(a) ..."¹ Upon executing the search warrant, authorities discovered and seized currency, large quantities of cocaine, drug paraphernalia, firearms, ammunition and various records. The authorities also arrested Jay T. Will at the time of the search. Thereafter, on March 28, 1985, Jay T. Will was indicted on various counts alleging violations of Title 21 of the United States Code.

On May 28, 1985, before any determination of guilt was made in the criminal case,² the United States filed the current civil complaint for forfeiture of defendant Will's currency and realty pursuant to 21 U.S.C. § 881(b) and Supplemental Rule C(2) of the Federal Rules of Civil Procedure. The Deputy Clerk of the District Court issued a warrant for the arrest of the property. There was no judicial review of the matter or determination of probable cause prior to the Clerk's issuance of the warrant as none was required by the applicable law. The United States Marshal executed the warrant and took the realty into possession on May 29, 1985. The government only permitted Will access to the property after Will agreed to forfeit all gross receipts and pay all costs associated with the property. Jay T. Will subsequently filed a claim for the above property and moved to quash the arrest warrant and dismiss the government's complaint.

The Attorney General instituted the current forfeiture proceeding under 21 U.S.C. § 881(b) which authorizes the forfeiture of property used or intended to be used in the illegal manufacture, distribution or sale of drugs. 21 U.S.C. § 881(b) states, in pertinent part:

Any property subject to civil or criminal forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdication over the property, except that seizure without such process may be made when—

(1) seizure is incident to an arrest or a search under a search warrant ...;

(2) the property subject to seizure has been the subject of a prior judgment in favor of the United States in a criminal injunction or forfeiture proceeding under this subchapter;

(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety;

(4) the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter.

The above statutory section permits the Attorney General to commence civil forfeiture proceedings in one of two ways. First, he may initiate the forfeiture proceeding by following the Supplemental Rule for Certain Admiralty and Maritime Claims. These rules require the Attorney General to file a verified complaint containing specific information with the Clerk of Court. The Clerk may then proceed to issue an in rem arrest warrant. Alternatively, the Attorney General may seize the property without a warrant pursuant to one of the four options listed in 21 U.S.C. § 881(b). In the instant case, the Attorney General proceeded by filing a verified complaint and seizing the property pursuant to an arrest warrant issued by the Clerk of Courts.

Will moves to quash the arrest warrant. He also moves to dismiss the government's complaint on grounds that it fails to state a claim for which relief can be granted and that the procedures employed in seizing his real property violated his Fourth Amendment constitutional rights.

After reviewing the record, the Court finds that Will's motion to dismiss the government's complaint is frivolous and it is, therefore, DENIED. The government's complaint seeks forfeiture of the West Fifth Avenue premises under § 881(b) because of its use in illegal drug dealings. The record reveals that there was probable cause to issue a warrant for the search of the West Fifth Avenue premises. Moreover, defendant Will pled guilty to violations of Title 21 which occurred at the West Fifth Avenue location. Thus, it is clear that Will's premises is subject to forfeiture under the provisions of § 881(b). Although the Court finds that the government's complaint should not be dismissed, the Court nonetheless has significant reservations regarding the constitutionality of the procedures used and authorized by the statute to seize Will's property.

Will argues that seizure of his real property pursuant to a Clerk's warrant issued under Rule C violates the Fourth Amendment's proscriptions against issuing a warrant without probable cause. Will directs the Court's attention to a recent district court decision in Application of Kingsley, 614 F.Supp. 219, 223 (D.Mass.1985). Kingsley involved the seizure of the bank accounts and residence of an unindicted individual under investigation by the Drug Enforcement Administration for potential violations of the federal narcotics laws. The seizure was carried out pursuant to § 881(b). The court found that the procedures authorized by the statute for seizing property pursuant to a Clerk's warrant to be violative of the Fourth Amendment. More specifically, the court held that in § 881 cases, it is necessary 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."

Id. at 223.

In considering the claim that seizure of real property pursuant to a Clerk's warrant violates the Fourth Amendment, the Court first notes that the Fourth Amendment applies to the forfeiture provisions of 21 U.S.C. § 881(b) because of the statute's punitive, quasi-judicial nature. One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S.Ct. 1246, 1248, 14 L.Ed.2d 170 (1965); U.S. v. Spetz, 721 F.2d 1457, 1469-70 (9th Cir.1983); U.S. v. Hershenow, 680 F.2d 847, 851 (1st Cir.1982). Thus, the statute must comply with the various procedural requirements imposed by the Fourth Amendment. After reviewing the statute and relevant case law, the Court believes that the procedure authorized by § 881(b) for issuance of a Clerk's warrant runs afoul of minimal Fourth Amendment procedural requirements in several respects.

The Fourth Amendment states, in pertinent part:

The rights of the people to be secure ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...

The Court first notes that in a long line of cases beginning with Johnson v. U.S., 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 the Supreme Court has consistently held that the Warrants Clause of the Fourth Amendment requires that a neutral and detached judicial officer determine whether probable cause exists prior to the issuance of a warrant. Jones v. U.S., 362 U.S. 257, 270-71, 80 S.Ct. 725, 735-36, 4 L.Ed.2d 697 (1960); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Spinelli v. U.S., 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969). However, § 881(b) authorizes the issuance of a warrant by the Clerk of Court solely on the basis of filing of a verified complaint by the Attorney General. The statute imposes no requirement of a determination by a qualified judicial officer of whether there is probable cause for the belief that a connection exists between the property to be seized for forfeiture and the criminal activity covered by Title 21. Without such a determination of probable cause, the Court finds that the procedure authorized by § 881(b) violates the Warrants Clause of the Fourth Amendment. Thus, this Court joins with the district court in Kingsley in concluding that the Fourth Amendment requires a determination of probable cause prior to the issuance of an in rem arrest warrant. Consequently, the warrant issued by the Clerk for the seizure of the Fifth Avenue premises is invalid.

Secondly, although not raised in either parties' briefs, the Court questions the constitutionality of the provision of § 881(b) which authorizes the Clerk of Court to issue a warrant. As stated above, the Fourth Amendment requires that a warrant issue only after a determination of probable cause by a neutral and detached judicial officer. The Court is aware of the Supreme Court's decision in Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972) that a municipal court clerk qualifies as a neutral and detached judicial officer for purposes of issuing warrants for violations of municipal ordinances....