VANHORN v. DEA

• Decision Date: 29 May 2009
• Docket Number: Case No. 8:09-cv-258-T-23EAJ.
• Citation: 677 F. Supp.2d 1299
• Parties: Kent Allen VANHORN, Plaintiff, v. D.E.A., Defendant.
• Court: U.S. District Court — Middle District of Florida

677 F.Supp.2d 1299

Kent Allen VANHORN, Plaintiff, v. D.E.A., Defendant.

Case No. 8:09-cv-258-T-23EAJ.

United States District Court, M.D. Florida, Tampa Division.

May 29, 2009.

Kent Allen VanHorn, Thonotosassa, FL, pro se.

ORDER

STEVEN D. MERRYDAY, District Judge.

Pursuant to 18 U.S.C. § 983(e), the pro se plaintiff, Kent Allen VanHorn, moves (Doc. 9) to set aside a March 31, 2005, declaration of forfeiture to the United States of $19,460.00 in U.S. currency seized from VanHorn's home by agents of the Drug Enforcement Administration. The United States responds (Docs. 12 & 13) in opposition, and both parties submitted evidence and examined witnesses at a May 19, 2009, evidentiary hearing.

BACKGROUND

Acting on information obtained from a cooperating defendant and confirmed by independent investigation, on November 10, 2004, at approximately 1:00 p.m., DEA agents of the Tampa District Office arrived at 10701 Canoe Drive, Thonotosassa, Florida, 33592, the location of a two bedroom, single-wide mobile home (the "trailer"), which VanHorn describes as his "only residence" and his residence for about twenty years. After questioning VanHorn's son and thereby obtaining VanHorn's cellular telephone number, Special Agent Mark Webb briefly¹ spoke by telephone with VanHorn. Special Agent Webb (a) informed VanHorn that Special Agent Webb (along with other law enforcement officials) was outside VanHorn's home and (b) asked VanHorn to return immediately. Special Agent Dan McCaffrey recalled that, during the call, Special Agent Webb (who was standing approximately two feet away from Special Agent McCaffrey) stated, "`We are at your residence... we are the DEA, we're the police, please come to your residence.'" Although VanHorn's testimony appears inconsistent on the point, VanHorn admitted that, during the call, VanHorn learned that DEA agents were at the trailer.² Following the abrupt end of the call, Special Agent Webb repeatedly but unsuccessfully attempted to reach VanHorn at the same telephone number. Despite Special Agent Webb's request, VanHorn failed to return home during November 10, 2009.

Soon, about 1:00 or 2:00 p.m., Deputy Todd Schrock of the Hillsborough County Sheriff's Office ("HCSO"), who had arrived after the DEA agents, departed the scene to seek a search warrant for the trailer. The DEA agents remained. VanHorn telephoned his mother and asked her to go to the trailer and assume custody of VanHorn's son. VanHorn's mother arrived about thirty minutes after Special Agent Webb's conversation with VanHorn and departed with the son.

About six hours later, at approximately 7:00 p.m., Deputy Schrock returned with a search warrant signed by the Honorable Ralph Stoddard of the Circuit Court for Hillsborough County. The DEA agents, Deputy Schrock, and other HCSO officers jointly executed the search warrant. A search of the master bedroom disclosed a large quantity of marijuana and a bag of U.S. currency.

Because (as Special Agent McCaffrey testified) the quantity of marijuana discovered in the bedroom (along with a smaller amount found in a freezer in the kitchen) "was below our threshold," "the deputies at the Hillsborough County Sheriff's Office agreed to seize the marijuana and have it tested here in Florida. The DEA seized administratively the money."

Special Agent McCaffrey further testified (1) that DEA Group Supervisor Nicki Hollman completed a DEA Form 12 ("Receipt for Cash or Other Items") describing the items seized by the DEA and (2) that, just before departing the trailer and securing the door, the agents placed a copy of the receipt on the coffee table and next to the search warrant.³ The Form 12, signed by Hollman and witnessed by Special Agent Embrey, lists "1 Bag U.S. Currency sealed for official count," "1 Ohaus Scale," and "3 bags Misc. Documents."⁴ As to the "3 bags Misc. Documents," Special Agent McCaffrey stated that, based on a brief examination of a few of the documents, he believed the documents consisted of "pieces of junk mail that had VanHorn's name and address on there to verify he lived there."⁵

Deputy Schrock testified that he completed a receipt enumerating the items seized by the HCSO Officers, left a copy of the receipt on a coffee table along with the search warrant, and filed the receipt as part of his official report. The receipt (USA Ex. 5 at 14 "Inventory and Receipt of Property Seized Under the Within Search Warrant") enumerates the seized items as (i) "Several Bags Boxes Marijuana" found in the "South Bedroom Master" by Deputy Schrock, (ii) a "Bag of Marijuana" found in a "Refrigerator (Freezer)" by Corporal Lisa Glasscock, and (iii) "Paperwork (Matthew)" found on a "Living Room Floor" by Corporal Glasscock.

Additionally, Deputy Schrock's November 10, 2004, HCSO "Property receipt" (USA Ex. 5 at 3) states that HCSO officers seized 138.9 pounds of marijuana and a "suitcase with plastic bags," Deputy Schrock's November 10, 2004, incident report (USA Ex. 5 at 2) names "S.A. Mark Embry (DEA)" and refers (as do other parts of the report) for elaboration to a supplemental report. Deputy Schrock's November 19, 2004, supplemental report (USA Ex. 5 at 6-7) describes the events of November 10, 2009, in detail. The report states that Deputy Schrock responded to the scene to assist "DEA Special Agent Mark Embry"; describes Special Agent Embrey's account to Deputy Schrock of the origin of the DEA investigation; notes that DEA agents remained on the scene while Deputy Schrock sought the search warrant; narrates the DEA agents' part in executing the search; reports that "U.S. currency was located by DEA and was seized by DEA"; and directs the reader, "For more information regarding this case see DEA case number G6-05-0028." Finally, Corporal Glasscock's November 10, 2004, report (USA Ex. 5 at 4-5), after describing the search and related matters, directs the reader, "For additional information refer to main report by Deputy Schrock and the DEA."

On November 23, 2004, VanHorn surrendered to arrest in Hillsborough County case no. 04-CF-02287. On November 24, 2004, VanHorn posted bond and was released from custody. VanHorn claims that, from the morning of November 10, 2009, until his release on bond, he never returned to his trailer, not even to check his mail.⁶ VanHorn further claims that, upon his release and return home, VanHorn observed the effects of the search in and around the trailer and discovered the absence of the currency. Within a week of the discovery VanHorn (when retaining an attorney to represent him in the state court criminal proceeding) consulted his attorney about obtaining the return of the currency. Although VanHorn admits consulting his attorney about the currency, he explains his failure to initiate a legal effort by saying, "I'm ignorant of the law. I thought I had to be convicted before the currency could be forfeited." Asked about his failure to act before October 19, 2005, to obtain the return of the currency, VanHorn stated, "I hired an attorney. . . . My attorney should have done this on my behalf." Again, when asked whether he "first started worrying about getting the money back" after October 19, 2005, VanHorn replied, "Yes, ma'am. I had access to a law library and law clerks and people to help me with this. And that's when I said. . . I am entitled to this. This is my right to do this."

VanHorn testified that, about three or four days following his release on bond, he discovered the search warrant (unaccompanied by a property receipt, state or federal), not on a coffee table but "shoved in my couch."

Additionally, VanHorn testified (a) that his attorney in the state court criminal case filed a discovery request on February 3, 2005,⁷ and (b) that a February 21, 2005, letter from his attorney (received by VanHorn about February 24 or 25, 2005) contained the requested discovery (or information containing its substance) and included information about the DEA's seizure of the currency. Before then, VanHorn testified, "I didn't receive discovery and find out about the DEA having the money. . . ."⁸ Although testifying that he did not "find out about the DEA having the money until I got a February 21, 2005 letter from my attorney," VanHorn also testified that he was unaware that the DEA (rather than HCSO) had custody of the currency until a September 17, 2007, evidentiary hearing in state court.⁹

Following the November 10, 2004, seizure of the currency, the DEA initiated administrative forfeiture proceedings in DEA case no. G6-05-0020. On December 30, 2004, the DEA sent written notice of the seizure by certified mail, return receipt requested, to VanHorn at 10701 Canoe Drive, Thonotosassa, Florida 33592. At that time and at all pertinent times following his release on bond, VanHorn resided at the trailer and routinely checked his mail (which included important information about his state court criminal case), although often absent during the work day.

Billy Ray Edwards, postmaster of Thonotosassa, testified at length about (1) U.S. Postal Service procedures for handling certified mail, return receipt requested ("certified mail"), and (2) the route and postal carrier covering VanHorn's residence at the pertinent time. The route was handled by Martha Worth, an able, experienced, "exceptional" carrier familiar with the route. Upon arrival at the pertinent address, a carrier delivering certified mail ("accountable mail," for which the carrier signs when withdrawing and returning each item, and which is segregated from other mail) sounds the horn (or, less often on a rural route, dismounts and knocks on the door). If the customer fails to respond, the carrier completes a U.S. Postal Service Form 3849 ("Delivery Notice/Reminder/Receipt") and deposits a copy of the completed form in the customer's mailbox. The completed form (a) states that the carrier attempted on the pertinent date to deliver certified mail to the addressee, (b) names the sender of the...