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

• Decision Date: 08 June 1989
• Docket Number: No. 89-0541-CV-W-8.,89-0541-CV-W-8.
• 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 the Vacated East 20 Feet of Claremont 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 SOUTH CLAREMONT, INDEPENDENCE, MISSOURI, Together with All its Buildings, Appurtenances, and Improvements, Defendant.
• Court: U.S. District Court — Western District of Missouri

724 F. Supp. 668

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 the Vacated East 20 Feet of Claremont 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 SOUTH 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.

June 8, 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.

This case is currently before the court on plaintiff's motion for an order allowing the United States Marshal to enter, inspect, inventory, and secure the defendant property. The government seeks this order so that the United States Marshal will have the authority to conduct an inventory search inside the house at the time he arrests the property pursuant to the Civil Forfeiture Statute, 21 U.S.C. § 881(a)(7). The order authorizing arrest of the property was entered on June 5, 1989 by Magistrate John Maughmer.

The government states that it has reason to believe that the owner of the property, and perhaps other individuals, currently reside in the house located on the property. As a result, the marshal does not wish to enter the property without an order of this court permitting him to inspect and inventory the premises to determine their present condition. Such an inspection would serve to protect plaintiff and the marshal from claims or disputes over lost or stolen property, as well as protect the marshal from any potentially dangerous conditions that exist in the house at the time it is seized. These reasons are among those listed as justifications for routine inventory searches of automobiles when they are impounded by the police. See South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976).

The government acknowledges that it may not have the right to enter the property without this order. Indeed, in United States v. Ladson, 774 F.2d 436 (11th Cir. 1985), the court held that evidence taken from a house at the time the house was seized pursuant to section 881 was illegally taken when the arresting officers did not have permission to enter the property but only to "prepare a written inventory of the real estate and property thereon seized." Id. at 438. The agent executing the seizure warrant in Ladson arrived at the property and conducted a "walk through" inventory of a home located on the property, even though the warrant did not authorize entry into the house. After conducting the inventory search, and seeing drug paraphernalia in plain view, the executing agent secured a search warrant and later found additional drugs and/or drug paraphernalia. Id. The Eleventh Circuit excluded the evidence found during the second search as "fruit of the poisonous tree," noting that the initial intrusion into the home was unauthorized. Id. at 439. The court specifically noted that the initial order "required nothing more than a cursory examination of the lot. The warrant authorized seizure of ... real estate and ordered an inventory of the `property ... seized.'" Id. (emphasis added to original).

The situation presented to the court in the instant case is different from that presented to the Eleventh Circuit in Ladson. Unlike Ladson, plaintiff in the instant case has specifically applied to the court for permission to enter the property and conduct an inventory search of the house. Thus, entry into the home would not be unauthorized as it was in Ladson. See also United States v. Showalter, 858 F.2d 149 (3d Cir.1988).

The court recognizes the important constitutional principle that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972)). As a result, "searches and seizures inside a home without a warrant are presumptively unreasonable." Id., 445 U.S. at 586, 100 S.Ct. at 1380.¹ Thus, it is not surprising that the Eleventh Circuit in Ladson found that an inventory search, which traditionally does not require any showing of probable cause, was unreasonable when the officers arresting the house had no warrant or other authority to enter the house. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987) ("an inventory search may be `reasonable' under the Fourth Amendment even though it is not conducted pursuant to warrant based upon probable cause").

In the instant case the court is presented with the difficult problem of balancing fourth amendment rights against the marshal's interests in safely securing the house. The case is unlike Ladson insofar as the plaintiff has made an effort to obtain authority to enter the house. In this case the court believes the balance weighs in plaintiff's favor. The fourth amendment does not prohibit "all searches and seizures; rather, it prohibits those which are unreasonable." Showalter, 858 F.2d at 152 (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985)). As a result, courts have held that a warrant must be obtained before authorities may enter a private residence.

Plaintiff in this case must therefore make...