US v. One Parcel of Real Property

• Citation: 769 F. Supp. 445
• Decision Date: 14 May 1991
• Docket Number: Civ. A. No. 89-0603 P.
• Parties: UNITED STATES of America v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS PLAT 20, LOT 17, GREAT HARBOR NECK, NEW SHOREHAM, RHODE ISLAND.
• Court: U.S. District Court — District of Rhode Island

769 F. Supp. 445

UNITED STATES of America v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS PLAT 20, LOT 17, GREAT HARBOR NECK, NEW SHOREHAM, RHODE ISLAND.

Civ. A. No. 89-0603 P.

United States District Court, D. Rhode Island.

May 14, 1991.

Michael P. Iannotti, Asst. U.S. Atty., Providence, R.I., for U.S.

Robert Flanders, Flanders & Medeiros, Providence, R.I., for claimants Carol and Joel Beane.

John MacFadyen, Lise Gescheidt, Providence, R.I., for claimant Peter Beane.

OPINION AND ORDER

PETTINE, Senior District Judge.

Joel and Carol Beane, prevailing intervenor claimants in this civil in rem forfeiture case, 21 U.S.C. § 881(a)(7) contend that the government was not "substantially justified" in seeking forfeiture of their two-thirds interest in certain real estate on which marijuana plants were being cultivated. Subsequent to the seizure and the filing of a complaint, the government dismissed its claims against their interest; the claimants now move for an order granting attorneys' fees and expenses, pursuant to 28 U.S.C. § 2412. For reasons which follow, the motion is denied.

I.

"The property consists of approximately sixteen acres located on a point that forms the northern channel of New Harbor on Block Island and contains three separate buildings: a main house, a cottage, and a pumping house." Claimants' brief. It was jointly owned by Peter, Joel and Carol Beane. Joel and Carol live out of state; they visit and use the property only as a vacation spot for a few weeks in the summer. Peter Beane resides there in the summer.

In a Memorandum and Order dated December 5, 1990, I concluded that the government presented proof of probable cause to believe that the defendant property was subject to forfeiture in accordance with 21 U.S.C. § 881(a)(7) and granted the government's motion for summary judgment under Fed.R.Civ.P. 56.¹ The facts premising the forfeiture are as I stated in the order: "the instant case began when, in 1988, a juvenile reported that he observed marijuana growing on the defendant property. Moreover, the juvenile asserted that he had harvested marijuana from the field without permission and that this conduct lead to threats from the claimant, Peter Beane. The juvenile also reported that `it was Beanes sic habit to cultivate marijuana every summer.' ... On the basis of this information, the police conducted two `fly-overs' of the property; one on August 9, 1989 and the other on September 5, 1989. William Helm, a member of the Scituate Police Department and a `trained observer in aerial surveillance for the purpose of detecting the growing of marijuana, observed what appeared to be marijuana growing ... on the defendant property.' ... On the basis of this information a state search warrant for the property was obtained."

On September 5, 1989, the search warrant was executed. During the search, 385 marijuana plants were seized and the police observed a garden hose running from a small house just off the main house to two fields with 97 and 115 marijuana plants, respectively. In total, 385 marijuana plants were growing in twelve separate fields. At approximately 6:05 p.m. that evening, Peter Beane was arrested and charged with the cultivation of marijuana.

On October 23, 1989, a federal seizure warrant was issued by U.S. Magistrate Judge Jacob Hagopian; he found that there were "sufficient facts and circumstances to support the probable cause standard to believe that the defendant property was used to commit a violation of Title 21, United States Code, punishable by more than one year imprisonment.... Upon execution of said warrant by the Drug Enforcement Administration (`DEA') the agents found Peter Beane in the small house on the property. Beane executed a consent to search form. In the house the agents found a small quantity of marijuana, marijuana seeds and photographs showing Beane surrounded by marijuana plants." Memorandum and Order of December 5, 1990 at 4.

The procedural events leading to the present controversy were as follows:

1) August 9, 1989: state agents flew over the property.

2) September 5, 1989: a state search warrant was issued and served. The warrant indicated Peter and Carol Beane owned the property.² Police seized 385 marijuana plants from the property.

3) October 23, 1989: the United States applied for a Seizure Warrant/Writ of Entry; this was granted and it authorized a seizure of the property. Joel and Carol Beane received no notice of this seizure.

4) November 1, 1989: a Complaint for Forfeiture in Rem was filed and a Warrant of Arrest and Notice in Rem issued; this warrant commanded the marshal to "arrest, attach, and retain" the property at issue and to personally serve all persons claiming any interest therein ordering that such persons file their claims within ten days after the execution of the warrant and serve their answers within 20 days. The warrant also provided for notice by publication in the newspaper if the property was not released within 10 days, informing possible claimants of the procedure for filing any claims to the property. The complaint and warrant were properly served on all parties.

The affidavits accompanying the application for seizure described the property by metes and bounds and recited the owners to be Peter F. Beane, Carol A. Beane, and Joel W. Beane. In due course, Carol, Joel and Peter Beane filed claims for their one-third interests. The government pressed for forfeiture only as against Peter Beane's interest.

5) December 5, 1990: I granted the government's forfeiture motion for summary judgment against Peter Beane's interest.

6) December 12, 1990: a settlement stipulation was filed dismissing any claims by the government against the interests of Carol and Joel Beane in the property and restoring their full two-thirds property interest in the land.

7) May 13, 1991: as I stated, supra note 1, I reaffirmed my original conclusion regarding Peter Beane's interest in the property.

II.

28 U.S.C. § 2412 justifies a fee award to a prevailing party (the government does not challenge that the claimants are prevailing parties) unless "the position of the United States was substantially justified or that special circumstances make an award unjust." "Substantial justification" has been definitively established by the United States Supreme Court in Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). To be "substantially justified" there must be a "reasonable basis in law and fact" and the government must be "justified to a degree that could satisfy a reasonable person." Id. 108 S.Ct. at 2550. In McDonald v. Secretary of Health and Human Services, 884 F.2d 1468 (1st Cir.1989), the First Circuit, citing to Underwood went on to explain "which `government positions' had to be `substantially justified' in order to preclude" an award. Id. at 1475. It held that the "position of the United States" means that both the government's litigating position and the underlying government action needed to be justified. Id. at 1476. As set forth, supra, in my Memorandum and Order dated December 5, 1990, I found there was probable cause to believe that the property was subject to forfeiture. The claimants cannot contest this but they do challenge the government's prosecution of the forfeiture.³ They claim: that the Beanes were entitled to a pre-seizure notice or opportunity to be heard since there was an absence of exigent circumstances; that due to such failure, the government's position was not substantially justified in "light of the information available to it at the time" and thereby their property was taken without affording them procedural due process in violation of the Fifth Amendment; that it was an unreasonable seizure under the Fourth Amendment; and that the government's action was so cruel and unusual as to violate the Eighth Amendment.

Procedural Due Process

Ineluctably a property interest is at stake; the deprivation of such an interest carries with it the mandate of due process. The constitutional question centers on what process is due the claimants.

In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), the Supreme Court stated:

An essential principle of due process is that a deprivation of life, liberty or property "be preceded by notice and opportunity for a hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). We have described "the root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). This principle requires "some kind of a hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S. 564 569-70, 92 S.Ct. 2701 2705 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972).

Thus, the question here is whether due process was violated in not affording the claimants a pre-seizure notice and hearing. If this is answered affirmatively, the government was not "substantially justified"; on the other hand, if due process has not been denied, then the question is whether the criteria to satisfy substantial justification, set forth supra, has been met.

In considering pre-seizure notice as it may be required by the Fifth Amendment, some courts have used the standards articulated by the Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 80-82, 92 S.Ct. 1983, 1993-95, 32 L.Ed.2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family...