US v. PROPERTY AT 850 S. MAPLE, ANN ARBOR, MICH.

• Citation: 743 F. Supp. 505
• Decision Date: 30 June 1990
• Docket Number: Civ. A. No. 90-CV-71173.
• Parties: UNITED STATES of America, Plaintiff, v. A LEASEHOLD INTEREST IN PROPERTY LOCATED AT 850 S. MAPLE, ANN ARBOR, WASHTENAW COUNTY, MICHIGAN.
• Court: U.S. District Court — Western District of Michigan

743 F. Supp. 505

UNITED STATES of America, Plaintiff, v. A LEASEHOLD INTEREST IN PROPERTY LOCATED AT 850 S. MAPLE, ANN ARBOR, WASHTENAW COUNTY, MICHIGAN.

Civ. A. No. 90-CV-71173.

United States District Court, E.D. Michigan.

June 30, 1990.

Julie Kunce Field, Mark D. Mitshkun, Paul D. Reingold, Nicholas J. Rine, University of Michigan Law School, Clinical Law Program, Ann Arbor, Mich., for plaintiff.

Stephen J. Markman, U.S. Atty., John C. Engstrom, Asst. U.S. Atty., Detroit, Mich., for defendant.

ORDER

JULIAN ABELE COOK, Jr., Chief Judge.

On April 23, 1990, the United States commenced this civil in rem forfeiture proceeding against the premises at 850 South Maple, in Ann Arbor, Michigan, which consists of a public housing unit that had been leased to Charlotte Juide by the City's Housing Commission. The Complaint alleged that the Defendant property was used to facilitate the distribution of cocaine, a controlled substance, and was therefore subject to forfeiture under 21 U.S.C. section 881(a)(7).

On April 23, 1990, a federal magistrate signed a seizure warrant which authorized the immediate removal of Juide from her premises, and the seizure of the property by the United States Government. The Government's application for the warrant was supported by an affidavit from the Ann Arbor Police Department.¹

On April 27, 1990, the United States Marshal seized the apartment and evicted Juide and her two children. Juide and her family, who were asleep when they were awakened by the shouting of Government agents inside their apartment, were not given any prior notice of this action. According to Juide, one agent came into her bedroom with a gun drawn and pointed directly at her head. She was told to leave her apartment immediately. Juide also claims that when she sought to use the toilet prior to her eviction, an agent approved after an initial search of the bathroom and then watched her as she used the lavatory. (Juide affidavit at 2)

Juide and her children were given less than fifteen minutes in which to gather their belongings before they were removed from their apartment. An unidentified person with a video camera filmed the activities in the apartment. In addition, several members of the news media were waiting outside the apartment unit with additional cameras when Juide exited. Id.

The Complaint against the premises in this case is based upon Title 21 U.S.C. section 881(a)(7) which provides for the forfeiture of "real property, including any right, title and interest (including leasehold interest) in the whole of any lot or tract of land ... which is used, or intended to be used, in any manner or part, to commit or to facilitate the commission of certain criminal violations ..." In 1984, section 511(a)(7) of the Controlled Substance Act 21 U.S.C. section 881(a)(7) was amended to allow the United States to forfeit real property which has been used in any manner to facilitate the commission of a felony drug transaction. The Anti-Drug Abuse Act of 1988 amended section 881(a)(7) again to clarify that real property included leasehold interests.

Although there are no specific procedural rules to be followed in such civil forfeiture actions, Section 881(b) allows for the seizure of property under any one of three summary procedures. First, the Government may file a complaint in accordance with the Supplemental Rules for Certain Admiralty and Maritime Claims whereupon a court clerk can "issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances." Supplemental Rule C(3). Second, when the Government has probable cause to believe that the property is subject to civil forfeiture, it may seize the property following customs laws, pursuant to 21 U.S.C. section 881(d). Finally, the Government may request the issuance of a seizure warrant in the manner that has been prescribed by the Federal Rules of Criminal Procedure, which require an ex parte probable cause determination to be made by a judicial officer.² See Fed.R.Crim.P. 41.; United States v. Property at 4492 Livonia Road, 889 F.2d 1258, 1262-63 (2nd Cir.1989).

In response to the seizure of her apartment, Juide has brought a series of motions before this Court: (1) Motion to Proceed in Forma Pauperis and to Waive Bond; (2) Motion to Vacate the Seizure or for a Temporary Restraining Order; (3) Motion to Strike Portions of Complaint; (4) Motion to Dismiss; (5) Motion for Preliminary Injunction and Sanctions; (6) Motion for Protective Order; and (7) Motion for a Stay. This Court will address each of these motions individually.

I.

As a preliminary matter, Juide filed a Motion to Proceed in Forma Pauperis and to Waive Bond. Juide states that her sole source of income is received from public assistance benefits, and, as such, she is unable to pay court costs, bonds, or any other costs that may be associated with this action. In addition, she states that there is no need for any security to be posted in this action since her leasehold interest does not have any market value, and is subject to the ownership rights of the Ann Arbor Housing Commission.

This Court will grant the motion, pursuant to 28 U.S.C. section 1915(a), and allow Juide to proceed in forma pauperis. Accordingly, no bond will be required to be posted by Juide in this cause.

II.

On May 16, 1990, Juide filed a motion to vacate the seizure and arrest warrants which had been issued on April 23, 1990, or in the alternative, for the issuance of a temporary restraining order against the Government and its agents. Juide contends that the seizure warrant was improperly issued by the federal magistrate because, in the absence of demonstrated exigent circumstances, she had not been provided with notice of the pending action or an opportunity to be heard prior to the issuance of the warrant.

On May 22, 1990, Juide and the Government entered into a temporary occupancy agreement whereby she was allowed to regain the use of her apartment for a thirty-day period. Thus, the Government argues that the instant motion is moot since the only relief that Juide seeks is the occupancy of her apartment. This Court disagrees.

Local Rule 35 requires that, in in rem actions, the Court Clerk must issue a summons which directs any person having control of intangible property to show cause why it should not be placed under the control of the court. The only exception to this requirement is if the party who seeks the seizure certifies to the court prior to the contemplated action that "exigent circumstances" exist which would make such a review "impractical." The purpose of the Rule is to insure that the basic standards of due process are met before seizures occur.

However, Juide, who claims that no such certification was undertaken by the Government, submits that her removal from the apartment is a clear violation of a local rule of the court. In her judgment, this claimed failure by the Government to comply with Local Rule 35 constitutes a per se violation of her due process rights which makes this default actionable and independent of any other relief which she may seek.

Upon a review of the record, this Court believes that Juide's leasehold interest in the 850 Maple Road apartment could qualify as an "intangible property" interest since she does not own the dwelling, and pays for it through her government subsidy. Thus, the Court agrees with Juide that the removal efforts by the Government on April 23, 1990 arguably represent a prima facie violation of her right to due process. However, there appear to be three additional grounds upon which to reach the merits of Juide's motion, and reject the Government's mootness argument.

First, the occupancy agreement, which was only valid for thirty days, expired on June 18, 1990. Therefore, this issue continues to be ripe for review. Moreover, if this Court should deny Juide's pending motion to dismiss and grant her motion for a stay, this forfeiture action could continue for a prolonged period of time, thereby putting the Juide and her family in the precarious position of having to rely upon the good graces of the Government to extend the temporary occupancy agreement.

Second, where a case raises important constitutional issues which are of a public interest, it may not be involuntarily dismissed for mootness. See Wirtz v. Glass Bottle Blowers Ass'n, Local 153, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This exception to the general mootness rule requires that (1) an important public interest exist and (2) the case be "capable of repetition, yet evading review." Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam).

These conditions apply in the instant case, in that this type of action is capable of repetition. The Government has expressed a clear policy decision to continue seizing homes and leasehold interest under 21 U.S.C. section 881(a)(7).³ The Government has also informed this Court that it intends to enter into occupancy agreements in the future.⁴ However, if courts refuse to rule on the due process issues that arise out of seizures and evictions which have been authorized only in ex-parte hearings because of temporary occupancy agreements, then claimants would have neither the means to challenge the constitutionality of these evictions nor any prospect of reacquiring their property as a matter of right. See Application of Kingsley, 802 F.2d 571, 580 (1st Cir.1986). Thus, the Government could continue to evade constitutional review of their actions simply by entering into temporary occupancy agreements with residents after the seizures and evictions of their homes had already occurred.

This issue also satisfies the second prong of the "capable of repetition yet evading review" test because it presents an important issue of public interest. Clearly, an intrusion of the Government into the...