United States v. 5 Reynolds Lane
| Decision Date | 03 October 2012 |
| Docket Number | No. 3:09–cv–543 (CSH).,3:09–cv–543 (CSH). |
| Citation | 895 F.Supp.2d 305 |
| Parties | UNITED STATES of America, Plaintiff, v. ONE PARCEL OF PROPERTY LOCATED AT 5 REYNOLDS LANE, WATERFORD, CONNECTICUT, With All Appurtenances and Improvements Thereon, Defendant. [Claimants: Seth Marder and Beth Marder]. |
| Court | U.S. District Court — District of Connecticut |
OPINION TEXT STARTS HERE
David X. Sullivan, Ndidi N. Moses, U.S. Attorney's Office, New Haven, CT, for Plaintiff.
William T. Koch, Jr., Lyme, CT, for Defendant.
RULINGS ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND CLAIMANTS' MOTION FOR AN EVIDENTIARY HEARING PURSUANT TO FRANKS V. DELAWARE
This is an action by Plaintiff United States of America pursuant to 21 U.S.C. § 881(a)(7) to forfeit the Defendant Real Property on account of the Property's use in a violation of 21 U.S.C. § 841(a)(1). The Claimants of the Property, its owners and residents, resist forfeiture and seek an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), into the legality of the State of Connecticut search and seizure warrant which preceded the United States' forfeiture action. The Government contendsthat Claimants' Franks application is facially without merit and no evidentiary hearing is required.
Two motions are presently pending before the Court. Claimants move for a Franks hearing. The Government moves for a summary judgment of forfeiture under Fed.R.Civ.P. 56. These Rulings address resolve both motions.
This factual background is drawn from the pleadings, motion papers, the Government's Local Civil Rule 56(a)1 statement and the Claimants' responses thereto, depositions of the Claimants, and other evidentiary materials in the record. Those materials include affidavits executed by federal and state law enforcement agents to obtain the Connecticut court search and seizure warrant described infra.
Claimants Seth Marder and Beth Marder are husband and wife. They were married in the State of California in 2003. In 1996, Seth Marder had received a medical marijuana card which was valid in California, under the laws of that state. He suffered from mental illness, and in his experience the effects of marijuana and its freedom from side effects worked better for his infirmities than prescription medications. Seth Marder cultivated marijuana in California for his personal use, and also sold the substance to medical marijuana clubs in Alameda County, California. By the time the Marders were married in 2003, Seth Marder had been cultivating marijuana in California under these circumstances for seven years.
The Marders moved to Connecticut in 2005. They purchased and currently reside in a residential dwelling at 5 Reynolds Lane, Waterford, Connecticut (“the 5 Reynolds Lane Residence” or “the Defendant Property”). This is a single family two story wood and cement building with a detached barn-style garage.
During the week of March 9, 2009, agents of the United States Drug Enforcement Agency (“DEA”) assigned to the agency's New Haven, Connecticut district office received information from an individual they designated as “CC” for “concerned citizen.” This individual told the DEA agents that on or about March 10, 2009, he and another individual, a friend of the CC, were inside the Reynolds Lane Residence. The CC told the agents that the other individual purchased a quantity of marijuana from a person he identified as “Seth Marder.” The CC stated further that when he and his friend entered the garage, he noticed inside that structure approximately 200 marijuana plants in various stages of growth, together with eight to ten large heating lamps.
On March 12, 2009, DEA agent Jon Rubinstein subpoenaed electricity usage records from Northeast Utilities, which furnished electrical power to houses on Reynolds Lane. These records showed that for the period of February 4, 2009 to March 5, 2009, the 5 Reynolds Lane Residence had an electricity usage balance of $755.92, while the balances for the adjoining homes at 7 Reynolds Lane and 9 Reynolds Lane for the same period were $171.42 and $169.75 respectively. Expanding the inquiry to the 10–month period just past, agent Rubinstein ascertained that the average utility bill at 5 Reynolds Lane was about $629 per month, as opposed to an $89 monthly average at 7 Reynolds Lane and a $159 monthly average at 9 Reynolds Lane. DEA agent Rubinstein involved in his inquiries detective Jeremiah E. Shea of the Waterford Police Department. These officers, both experienced in narcotics investigations, knew from that experience and additional training that the electrical equipment used to grow marijuana plants routinely produced variances in the amounts of utility bills comparable to those reflected by the Reynolds Lane residences.
Pursuing that line of inquiry, Rubinstein reviewed documents concerning real estate and appraisal information related to the 5 Reynolds Lane Residence. He ascertained that the house was heated by oil heat, not electricity, and there was no mention of central air conditioning or a hot/tub sauna which could account for at least part of the high electrical usage revealed by the Northeast Utility bills. These findings increased the officers' reasons to believe that marijuana plants might be under cultivation in the 5 Reynolds Lane Residence.
On March 16, 2009, detective Shea conducted a surveillance of the 5 Reynolds Lane Residence. Its appearance conformed to the description of the building given by the CC to agent Rubinstein. A check of Waterford Police Department records showed that in 2006 that Department had contact with one “Seth Marder,” who gave his address as 5 Reynolds Lane: that being the name of the individual given to Rubinstein by the CC as a seller of marijuana to the CC's friend on the occasion of their visit to the Residence.
On March 17, 2009, detective Shea collected garbage from a Town of Waterford garbage can located directly in front of the 5 Reynolds Lane Residence. The can contained discarded mail addressed to one or the other of the Marders at that address. It also contained an opaque, tied plastic bag which in turn contained numerous stems and leafs of a green plant-like material, twenty-one burned rolling paper butts, two small round burnt screens, a rolling paper box cover, and two cut cigar tips with cigar filler. Later on March 17, Shea subjected a portion of the plant-like substance to a frequently used chemical test which showed a positive reaction indicative of the presumptive presence of marijuana.
In these circumstances, on March 18, 2009 agent Rubinstein and detective Shea swore to affidavits in support of an application for a search and seizure warrant pursuant to Connecticut law. The affidavits and proposed warrant were presented on that day to Hon. Kevin P. McMahon, a Judge of the State of Connecticut Superior Court. Judge McMahon signed the warrant on that day. 1
Law enforcement officers executed the warrant later on March 18 at the Defendant Property. Seth Marder and Beth Marder were both present at the Property. During execution of the search warrant, approximately 100 marijuana seedling plants were discovered by law enforcement officers in the laundry room of the Defendant Property. In the barn-style garage on the Defendant Property, the officers discovered: four clear plastic containers containing 38 clear plastic bags containing marijuana; a metal container containing approximately 2,020 grams of marijuana; an Ohaus triple beam balance scale; a wireless notebook labeled “grow diary”; and approximately 100 marijuana plants in various stages of growth.2
The officers arrested both Seth and Beth Marder. Each was charged with cultivation of marijuana, in violation of Conn. Gen.Stat. § 21a–246(a); and with possession of marijuana with intent to sell, in violation of § 21a–277(b).
On April 6, 2009, the United States filed the complaint in the case at bar [Doc. 1]. The Government chose not to indict and prosecute either of the Marders personally. Instead, the government instituted this civil in rem forfeiture action against 5 Reynolds Lane, the sole party defendant. The Marders appear only as Claimants of the Property. They answered the complaint on June 11, 2009 [Docs. 13, 14]. By Order dated June 6, 2009 [Doc. 17], the Court stayed proceedings in this civil case pending resolution of the criminal charges against the Marders.
It appears from the Government's brief on its present motion for a summary judgment of forfeiture [Doc. 33–1] and its uncontested Rule 56(a)1 statement [Doc. 34] that Seth Marder pled guilty in the Connecticut criminal case to a felony charge of illegal cultivation of marijuana. As part of plea negotiations, Beth Marder was not convicted of any criminal drug offense with respect to the marijuana cultivation taking place on the Defendant Property. These dispositions are also described in the depositions of the Marders taken by the Government in the instant civil case.
Activity in this civil action resumed on March 28, 2010, with the filing of a scheduling order and status report [Doc. 21]. Depositions taken during the summer of 2011 by counsel for Claimants serve to identify the “CC” (concerned citizen) and his “friend” referred to in the Rubinstein and Shea affidavits in support of the search warrant signed by Judge McMahon in March 2009. Specifically, counsel ascertained that the “concerned citizen” is a man named Jeffrey Pearson, and his “friend” is his uncle, a man named Mike Clark, whose father is Pearson's grandfather. Counsel for Claimants deposed both Pearson and Clark. Claimants now contend that the account given by Pearson to law enforcement officers in March 2009, as recounted in the Rubinstein and Shea affidavits, was replete with inaccuracies to an extent that the warrant based upon those affidavits is constitutionally infirm. In these circumstances, Claimants move for a Franks hearing to explore and establish that...
To continue reading
Request your trial
-
United States v. One Parcel of Prop. Located At 5 Reynolds Lane
...of their home would violate the Constitution's prohibition of excessive fines.I. INTRODUCTION In a Ruling reported at 895 F.Supp.2d 305 (D.Conn.2012) (“Marder I ”), familiarity with which is assumed, the Court granted partial summary judgment to the Government, and held the Property is subj......
-
United States v. 5 Reynolds Lane
...S. HAIGHT, JR., Senior District Judge. In a Ruling entered on October 3, 2012 [Doc. 44] reported at 895 F.Supp.2d 305, 2012 WL 4514490 (“Marder I ”), familiarity with which is assumed, the Court granted partial summary judgment to Plaintiff United States and held that the property located a......