US v. 2401 S. CLAREMONT, INDEPENDENCE, MO., 89-0541-CV-W-8.

• Decision Date: 14 September 1989
• Docket Number: No. 89-0541-CV-W-8.,89-0541-CV-W-8.
• Citation: 724 F. Supp. 670
• Parties: UNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL PROPERTY Described as the North 57.75 Feet of the West 139.5 Feet of the Following Described Tract: All of Lot 16, and Vacated East 20 Feet of Clarmont Avenue West and Adjacent to Said Lot in Block 21, Englewood, a Subdivision in Independence, Jackson County, Missouri, According to the Recorded Plat Thereof, also KNOWN AS 2401 S. CLAREMONT, INDEPENDENCE, MISSOURI, Together with All its Buildings, Appurtenances, and Improvements, Defendant.
• Court: U.S. District Court — Western District of Missouri

724 F. Supp. 670

UNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL PROPERTY Described as the North 57.75 Feet of the West 139.5 Feet of the Following Described Tract: All of Lot 16, and Vacated East 20 Feet of Clarmont Avenue West and Adjacent to Said Lot in Block 21, Englewood, a Subdivision in Independence, Jackson County, Missouri, According to the Recorded Plat Thereof, also KNOWN AS 2401 S. CLAREMONT, INDEPENDENCE, MISSOURI, Together with All its Buildings, Appurtenances, and Improvements, Defendant.

No. 89-0541-CV-W-8.

United States District Court, W.D. Missouri, W.D.

September 14, 1989.

Frances Reddis, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.

Thomas F. Hutchison, Bernard B. Levine, Kansas City, Mo., for defendant.

ORDER

STEVENS, District Judge.

Plaintiff filed this civil forfeiture action against defendant property alleging that the property was used, or was intended to be used, to facilitate the commission of a violation of Title 21 of the United States Code punishable by more than one year's imprisonment. On June 5, 1989 the Honorable John T. Maughmer, United States Magistrate for the Western District of Missouri, made a finding of probable cause and directed the clerk of court to issue an order authorizing arrest of the property. The clerk issued the warrant for arrest the same day. On June 8, 1989 this court issued an order authorizing the United States Marshal to enter the property, as well as all of its buildings, appurtenances and improvements in order to effectuate the warrant of arrest. 724 F.Supp. 668. On June 16, 1989 a Deputy United States Marshal arrested the property.

Claimant Daniel L. Muzingo filed his notice of a claim on the property on June 22, 1989. In this claim Muzingo demands restitution of the property. In addition, on July 5, 1989 Muzingo filed his answer to plaintiff's complaint, defending against the complaint by stating that his due process rights had been violated since the government waited over one year between the time of the last alleged violation of Title 21 and the seizure of the defendant property. Claimant also affirmatively pled that the government lacked probable cause to believe that the property had been used to commit or facilitate the commission of a violation of Title 21 of the United States Code. The case is currently before the court on claimant's motion for leave to file an amended answer and on the government's motion for summary judgment.

In his motion for leave to file an amended answer claimant adds an affirmative defense that the provisions of 21 U.S.C. § 881 authorizing seizure and forfeiture of property violate his fifth amendment due process rights. The government has no opposition to this amendment,¹ noting that this defense is argued by claimant in his response to the government's summary judgment motion. Accordingly, the court will grant claimant's motion for leave to file an amended answer.

In its motion for summary judgment the government argues that it properly seized the defendant property pursuant to 21 U.S.C. § 881(a)(7). It is well-established that in a civil forfeiture proceeding pursuant to 21 U.S.C. § 881 "the government has the initial burden of showing that there is probable cause to believe that the property seized is linked to the illegal activity." United States v. U.S. Currency $31,828, 760 F.2d 228, 230 (8th Cir.1985). Accord United States v. Premises Known As 3639-2nd Street, N.E., Minneapolis, Minnesota, 869 F.2d 1093, 1095 (8th Cir. 1989) (government has the burden of making an initial showing that probable cause for forfeiture exists); One Blue 1977 AMC Jeep CJ-5, VIN J783EA076436 v. U.S., 783 F.2d 759, 761 (8th Cir.1986) ("The government bears the burden of going forward in a forfeiture proceeding, but it must establish only that reasonable grounds exist to believe that the property was used or intended to be used for prohibited purposes."). Once the government establishes probable cause, "the burden shifts to the claimant to demonstrate by a preponderance of the evidence that the property is not subject to forfeiture, or that a defense to forfeiture applies." One Blue 1977 AMC Jeep, 783 F.2d at 761. Accord Premises Known As 3639-2d Street, N.E., 869 F.2d at 1095. If the claimant is unable to meet this burden, "a showing of probable cause alone will support a judgment of forfeiture." Premises Known As 3639-2d Street, N.E., 869 F.2d at 1095.

In his order authorizing the clerk to issue a warrant for arrest of the property, Magistrate Maughmer stated that based on the complaint for forfeiture and the affidavit of Barbara J. Sloan, forfeiture analyst for the Federal Bureau of Investigation, probable cause existed "to believe that the defendant real property, together with all its buildings, appurtenances and improvements, was used, or intended to be used, to commit, or to facilitate the commission of, a violation of Title 21, United States Code, punishable by more than one year's imprisonment. ..." June 5, 1989 Order at 1. The complaint and affidavit referred to by Magistrate Maughmer note that claimant and his wife received title to the defendant property on January 30, 1980 and that on February 5, 1980 claimant's wife conveyed her interest in the property to claimant by a quitclaim deed. Complaint at ¶¶ 5 and 6. In her affidavit in support of the warrant for arrest Barbara J. Sloan testified that on May 12, 1988 Detective D. Curby of the Jackson County Drug Enforcement Task Force, accompanied by a confidential informant, visited the defendant property to meet with claimant. After a short conversation in the driveway claimant invited the detective and the confidential informant into the house where, approximately ten minutes later, claimant asked the detective and the confidential informant if they wanted to purchase a quarter pound of marijuana. The detective and confidential informant replied affirmatively and paid claimant $300 for the marijuana. After the transaction occurred the claimant told the detective and the confidential informant that in addition to an unlimited supply of marijuana he also had mushrooms (PSILOCYN) to sell.

On May 18, 1988 a similar transaction took place at the defendant property. Once again, the detective discussed future drug transactions with claimant before leaving the house. On May 25, 1988 claimant met for a third time with Detective Curby, this time without a confidential informant being present. On this occasion Detective Curby purchased one ounce of mushrooms in addition to the one quarter pound of marijuana. While in the house Detective Curby observed a tray containing a substance that he believed to be marijuana and a triple beam scale. The detective again met with claimant on June 1, 1988 at claimant's residence and again bought one quarter pound of marijuana and one ounce of mushrooms.

Once again, on June 9, 1988 Detective Curby visited claimant at the defendant property and purchased one quarter pound of marijuana. At that time the detective asked claimant if he could return in the evening or the next day to purchase an additional half pound of marijuana. Claimant replied affirmatively. After leaving the defendant property Detective Curby conducted a field test on the marijuana that he purchased and, after it tested positive for marijuana, he contacted Associate Circuit Court Judge Robert L. Trout and applied for a search warrant for the defendant property. Judge Trout signed the warrant and at approximately 5 p.m. that day members of the Jackson County Drug Enforcement Task Force executed the search warrant. The materials seized during execution of the search warrant were tested by The Regional Criminalistics Laboratory. The lab report confirmed that 650.3 grams of marijuana and 141.8 grams of PSILOCYN mushrooms were seized. From this information Sloan concluded that the defendant property was used or intended to be used to commit or facilitate the commission of a violation of Title 21 of the United States Code, specifically, a violation of 21 U.S.C. § 841(a)(1).

Based on a review of this information the court concludes that the magistrate properly found that probable cause existed to issue the warrant for arrest in accordance with 21 U.S.C. § 881(a)(7). Consequently, the burden shifts to claimant to show that the defendant property is not subject to forfeiture or that a defense applies to the case. In the instant case defendant does not contend that probable cause did not exist for the...