for the campaign. Torbush Aff. ¶ 5. According to his attorney,
Merrill Rubin, Masel was a member of the Grassroots Campaign
and the Grassroots Impeachment Inquiry, and, until June of
1987, was acting treasurer for the Grassroots Impeachment
organization. Rubin Letter ¶ 1. These organizations had
accumulated contributions in excess of $30,000 by May 1987 and
had agreed to take out a full page advertisement in the Sunday
New York Times. Masel indicated that the cost of such an
advertisement would be a little less than $40,000. Masel Aff. ¶
10. Masel had travelled to New York to arrange the advertising.
He was using the offices of "Overthrow Magazine" on the third
floor of 9 Bleeker Street to do the graphic, typesetting and
layout for the ad. Rubin Letter ¶ 5-7.
The police obtained the search warrant at approximately 7:45
p.m. and carried out the search of the second floor apartment
of 9 Bleeker Street. The police seized marijuana and peyote
mushrooms from the second floor apartment. Guerriere Aff. ¶
12-13. The police also discovered two pieces of identification
belonging to Masel during the search. It is not clear from the
affidavits, however, whether the identification was found in
the second floor apartment or elsewhere on the premises of 9
Bleeker Street. Complaint ¶ 11; Guerriere Aff. ¶ 14.
On October 29, 1987, the charge against Masel for possession of
marijuana was dismissed by the New York County District
Attorney for lack of prosecutorial merit. Neufeld Aff. ¶ 6;
Guerriere Aff. ¶ 16. The alleged marijuana seeds were not
tested and thus never determined to be marijuana. Despite the
dismissal of the charge, however, the money was not returned to
Masel. Instead, the government instituted these forfeiture
proceedings under 21 U.S.C. § 881(a). Meanwhile, the
Impeachment Campaign borrowed money and placed a 1/6 page
advertisement in the New York Times calling for the impeachment
of the President. Rubin Letter, page 3.
Masel petitions this Court to dismiss the forfeiture action and
to direct the government to return the $37,590. Masel argues
first that the complaint fails to state a claim because it does
not make any factual allegation regarding a nexus between the
money seized and any past or future narcotics transaction.
Second, he contends that he is entitled to summary judgement
because the undisputed facts do not support a finding of
probable cause that the money was intended to be used for
narcotics transactions. Third, he argues that the forfeiture
action is impermissible as the fruit of a poisonous tree since
the money was illegally seized.
The government responds, first, that the issue of probable
cause need not be resolved until the time of trial and that
summary judgment is not appropriate because there exist genuine
issues of material fact as to whether the money is subject to
forfeiture. Second, the government contests Masel's standing to
challenge the forfeiture action. Finally, the government argues
that the seizure of the money was not in violation of the
Section 881(a) of Title 21, U.S.Code, makes subject to
forfeiture "[a]ll monies . . . furnished or intended to be
furnished by any person in exchange for a controlled substance
. . . [or] used or intended to be used to facilitate any
violation of [the laws regulating controlled substances]."
21 U.S.C. § 881(a)(6).
I have recently had occasion to state in some detail the law
applicable to drug-related forfeitures. United States v.
$134,752 United States Currency, 706 F. Supp. 1075 (S.D.N Y
1989) (hereafter $134,752"). In $134,752, law enforcement
agents observed two men sitting in the front seat of a parked
automobile, counting and handling numerous one-hundred dollar
bills. One of the men, the claimant, "was perspiring profusely,
had blood-shot eyes and was constantly wiping his nose." Id.
at 1077. Upon visually inspecting the car, the agents observed
three vials of the sort commonly used to hold cocaine on the
floor of the vehicle. The two men were arrested, but
subsequently released and the charges were dismissed. Further
revealed that the claimant, who had no source of income other
than from gambling, had a record of gambling offenses, forgery,
burglary and felonious assault.
In $134,752, I first rejected the government's argument that
the claimant, who was found in possession of the res, lacked
standing to contest the forfeiture. As I noted there, "[i]t is
well established that a possessory interest in the res is
sufficient to confer standing upon a claimant." Id. at 1081
(citing United States v. $38,000 in United States Currency,
816 F.2d 1538, 1544 (11th Cir. 1987), and United States v.
$122,043 in United States Currency, 792 F.2d 1470, 1473 (9th
Cir. 1986)). I also rejected the government's contention that
probable cause cannot be tested prior to trial and that
forfeiture actions are not subject to summary judgment. Id.
at 1082, n. 12.
With regard to the legal standard for forfeiture, I explained:
The government does not meet its burden unless it shows
probable cause for believing a "substantial connection" exists
between the property and the criminal activity which the law
seeks to prevent. Probable cause to believe the property is
linked to some illegal activity does not permit its
forfeiture. There must be probable cause to believe the
property is linked to the activity proscribed in the relevant
Id. at 1081-82 (citations omitted)
On the merits, I concluded that "although the government has
presented evidence sufficient to support a reasonable belief
that there exists a connection between the $134,752 and some
illegal activity, it has not provided evidence that gives rise
to more than a suspicion of a connection between the money and
a transaction involving a controlled substance." Id. at 1084.
I also found that the government had no proof that the claimant
was involved in illegal gambling in the last decade and that
the evidence did not give rise to a reasonable belief that the
res was in fact used in violation of the gambling laws.
In the case at bar, the government also contends, as a
preliminary matter, that Masel lacks standing to contest the
forfeiture action and that probable cause cannot be tested
before trial. I reject these contentions on the basis of my
opinion in $134,752.
Masel argues that he is entitled to summary judgment because
the undisputed facts demonstrate that there is no probable
cause connecting the seized property with narcotics activity.
In forfeiture actions such as this one, the claimant carries
the burden of proving that the property is not subject to
forfeiture, provided, however, that the government first
demonstrate probable cause for the forfeiture. 19 U.S.C. § 1615
(made applicable to drug-forfeitures through 21 U.S.C. § 881(d)).
While the issue of probable cause is interesting, I
need not reach it since the fullscale search of Masel's
shoulder bags was not reasonable under the circumstances and
the evidence in this forfeiture action must be excluded.
Under the Fourth Amendment, governmental searches conducted
without a warrant or probable cause are unreasonable unless
they fall within one of the Amendment's exceptions. One such
exception is the Terry "stop and frisk" exception announced
by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). United States v. Streifel,
665 F.2d 414, 419-20 (2d Cir. 1981).
In Terry v. Ohio, the Supreme Court held that, consistent
with the Fourth Amendment, "there must be a narrowly drawn
authority to permit a reasonable search for weapons for the
protection of the police officer, where he has reason to
believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to
arrest the individual for a crime." Terry v. Ohio, 392 U.S.
at 27, 88 S.Ct. at 1883.
The Court ruled that a Terry "stop and frisk" triggers the
protection of the Fourth Amendment. 392 U.S. at 16, 88 S.Ct. at
1877. Nevertheless, since a "stop and frisk" is neither a
"technical arrest" nor a "full-blown search," the Court
announced that a predicate less than probable
cause would support such a search: officers may stop and frisk
someone suspected of being engaged in criminal activity if they
have a "reasonable suspicion" that he is armed and dangerous.
Id. at 19, 88 S.Ct. at 1878. Thus, the Court noted:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in light
of his experience that criminal activity may be afoot and that
the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior
he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or
other's safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search
of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884 (emphasis
In the Second Circuit, the legality of a stop and frisk depends
on (1) "the nature and extent of the government's need for the
stop, which must be judged according to the importance of its
law enforcement interests under the circumstances," and (2)
"the reasonableness of the stop, which depends mainly on the
degree of police intrusion on the defendants' freedom of
movement." United States v. Pelusio, 725 F.2d 161, 165 (2d
Cir. 1983). As the Second Circuit explained:
To make a stop the law enforcement authority must be aware of
"specific articulable facts" giving rise to a reasonable
suspicion that the individuals to be stopped are engaged in
criminal activity. Upon review, the court must consider the
totality of the circumstances. The permissible duration and
intrusiveness of an investigative stop depend on the extent of
the law enforcement interest and the seriousness of the conduct
giving rise to a reasonable suspicion of unlawful activity. The
longer and the more intrusive the stop, the stronger must be
the justification for it.
Id. at 165-66 (citations omitted).