US v. Property at 4492 So. Livonia Rd.

• Decision Date: 13 August 1987
• Docket Number: No. CIV-86-1229T.,CIV-86-1229T.
• Citation: 667 F. Supp. 79
• Parties: UNITED STATES of America, Plaintiff, v. The PREMISES AND REAL PROPERTY AT 4492 SOUTH LIVONIA ROAD, LIVONIA, NEW YORK, That is, All That Tract or Parcel of Land Situate in the Town of Livonia, Livingston County, State of New York, Lined and Being in Land Lot # 39 and Recorded in Liber 570 at Page 173 of the Livingston County Land Records, Defendant.
• Court: U.S. District Court — Western District of New York

667 F. Supp. 79

UNITED STATES of America, Plaintiff, v. The PREMISES AND REAL PROPERTY AT 4492 SOUTH LIVONIA ROAD, LIVONIA, NEW YORK, That is, All That Tract or Parcel of Land Situate in the Town of Livonia, Livingston County, State of New York, Lined and Being in Land Lot # 39 and Recorded in Liber 570 at Page 173 of the Livingston County Land Records, Defendant.

No. CIV-86-1229T.

United States District Court, W.D. New York.

August 13, 1987.

Bradley E. Tyler, Asst. U.S. Atty. of Counsel, Rochester, N.Y., for plaintiff.

LaDuca, McGinn & Burbank (John J. LaDuca, of counsel), Rochester, N.Y., for defendant.

DECISION and ORDER

TELESCA, District Judge.

This is a civil forfeiture proceeding filed by the plaintiff, United States of America, in which it is alleged that the defendant premises was used, or was intended to be used, to distribute, or facilitate the distribution, possession and concealment of cocaine, a Schedule II controlled substance and is thus forfeited to the United States pursuant to the Comprehensive Crime Control Act, 21 U.S.C. § 881(a)(7). The Federal Land Bank of Springfield, which holds a mortgage on the defendant premises, has filed an answer and a claim to real property. Peter G. Serafine, a person identified by the complaint as having an interest or estate in the defendant premises which will be extinguished by the successful conclusion of these forfeiture proceedings, has filed a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) and a motion for the return of property pursuant to Fed.R.Crim.P. 41(e).

FACTUAL BACKGROUND

The plaintiff filed its complaint for forfeiture on December 15, 1986. The proceedings are in rem and, pursuant to 21 U.S.C. § 881(b), process is governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. On December 16, 1986 plaintiff filed a Notice of Lis Pendens which identified Peter G. Serafine as the person whose estate or interest is intended to be affected.

Also on December 16, 1986 the plaintiff sought, and received, a seizure warrant and writ of entry from the Honorable David G. Larimer, United States Magistrate for the Western District of New York. Magistrate Larimer issued the warrant of seizure based upon the complaint and an affidavit filed by Benjamin C. Brainard, Special Agent of the United States Drug Enforcement Administration ("DEA"). The affidavit states that a DEA surveillance team twice observed a known drug dealer take money from an individual cooperating with the DEA, go to the defendant premises with the money, and return with cocaine. Pursuant to a search warrant issued by a Livingston County Court Judge, DEA agents and Sheriff's Deputies discovered small quantities of a wide variety of controlled substances, a triple beam scale, a variety of pistols and revolvers, and $19,000.00 in cash on the defendant premises. A portion of the cash included money the DEA had fronted to the cooperating individual.

Magistrate Larimer found that probable cause existed to believe that the defendant premises were used to facilitate exchanges of controlled substances in violation of Title 21, United States Code, and therefore ordered the DEA, other federal officers, or Sheriff's Deputies of Livingston County, New York, to seize the defendant premises and conduct a "reasonable and necessary structural inspection."

In a separate application the plaintiff also received a Warrant of Seizure and Monition issued by Deputy Court Clerk Melissa Baird, pursuant to Supplemental Rules for Certain Admiralty and Maritime Claims ("Admiralty Rules"), Rule C(3) which provides that: "In an action by the United State for forfeiture for federal statutory violations, the Clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances." Pursuant to these warrants, on December 17, 1986, the United States Marshals seized the defendant premises but permitted Peter G. Serafine to remain on the property.

On December 23, 1986, a notice of complaint and arrest of property was served, by mail, upon Peter G. Serafine, his attorney, John J. LaDuca, Esq., and the Federal Credit Bank of Springfield, Agawam, Massachusetts. Pursuant to Admiralty Rule C(4), the notice of claim and arrest of property was also published in a newspaper of general circulation for three successive weeks.

On January 20, 1987, the Federal Land Bank of Springfield filed an answer and a claim to real property, pursuant to Admiralty Rule C(6), in which it alleges that it holds a mortgage on the defendant premises, had no knowledge of any alleged illegal activity conducted on the defendant premises, and that its interest in the property is prior to and superior to any interest asserted by the United States of America in its complaint for forfeiture. The claim to real property alleges that as of December 1, 1986, Peter G. Serafine was indebted to the bank in the amount of $72,560.90. The bank seeks to recover that amount, plus interest and attorneys' fees, if the property is sold pursuant to 21 U.S.C. § 881(e).

Peter G. Serafine moved for the return of property pursuant to Fed.R.Crim.P. 41(e) and for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The motion to dismiss the complaint for forfeiture is made based on the arguments that probable cause did not exist for the issuance of the warrant by Magistrate Larimer and that 21 U.S.C. § 881(a)(7), which provides for forfeiture of real property, is unconstitutional on its face and as applied. For the reasons stated, Peter G. Serafine's motion for return of the property and for dismissal are denied.

DISCUSSION

With the passage of the Comprehensive Crime Control Act of 1984, the civil forfeiture statute, 21 U.S.C. § 881, was amended to include real property for the first time in the list of types of properties subject to civil forfeiture.

(7) All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, ...

Claimant Serafine argues that subsection (a)(7), which allows for the seizure of real property, when combined with either subsection (b)(4) or Admiralty Rule C(3), both of which allow for seizure to be made without notice and hearing, constitute a violation of his due process rights.

In determining whether the procedures followed here satisfy the due process requirements of the Fifth Amendment, this Court must balance the risk of an erroneous deprivation through the procedures used and the probable value of additional safeguards, the Government's interest in immediate pre-notice seizure, and the strength of Serafine's property interest. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494 (1985); Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Because Serafine has a significant property interest in the real property seized by the Government, due process requires that he be afforded the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). I find that the ex parte probable cause hearing before Magistrate Larimer satisfied the procedural due process requirements of the Fifth Amendment in this instance.

Traditionally, due process has been held to require notice and opportunity for a hearing prior to the deprivation of a property interest. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 1995, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969) (Harlan, J. concurring). However, as the Supreme Court noted in Fuentes, certain "extraordinary situations" justify postponing notice and opportunity for a hearing. Seizure without opportunity for a prior hearing has been permitted where:

First ... the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.

Fuentes v. Shevin, supra, 92 S.Ct. at 2000. Thus, the summary seizure of property has been permitted in situations of exigent circumstances, overriding governmental interest, or both. North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (contaminated food); Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 48 S.Ct. 244, 72 L.Ed. 768 (1928) (imminent bank failure); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (misbranded drugs); United States v. Pfitsch, 256 U.S. 547, 41 S.Ct. 569, 65 L.Ed. 1084 (1921) (war effort); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931) (Internal Revenue collection).

Supplemental Admiralty Rule C(3) provides for summary seizure in actions by the United States for forfeitures for federal statutory violations. Upon the Government's filing of a complaint for forfeiture, the Clerk issues a summons and warrant. Neither an ex parte probable cause hearing before a judicial officer nor a showing of exigent circumstances are required.

In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) the Supreme Court upheld the summary seizure of a movable res, a yacht. The Puerto Rican statute at issue in that case was modeled after § 881(a). The yacht was summarily seized without prior notice to the owner or lessee, and...