The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
The United States of America has brought this action seeking
the forfeiture of $37,590.00 seized from Bennett Masel on June
2, 1987. Masel, the claimant, now moves to dismiss the
On or about June 2, 1987, two plain-clothed law enforcement
officers, police officer Jeffrey McCormick and DEA agent James
Mueller, were waiting to execute a search of the second floor
apartment at 9 Bleeker Street, New York City. Mueller Aff. ¶ 7;
McCormick Aff. ¶ 5. The resident of the second floor apartment,
Irwin Dana Beal, had been arrested that day for selling an
unspecified amount of marijuana and/or hashish. Guerriere Aff.
¶ 7. Beal had allegedly made statements to an undercover
officer about large quantities of marijuana he had for sale in
his apartment. Id. at ¶ 8. On the basis of those statements,
several law enforcement agents applied for a search warrant of
his apartment while the above-named officers, McCormick and
Mueller, secured the premises "to prevent
anyone from moving evidence in or out of the building while
[they] waited for a search warrant to arrive. Mueller Aff. ¶ 5.
9 Bleeker Street is a three story building. The first floor is
the office, headquarters and meeting room of the Youth
International Party ("YIP"). The second floor is Beal's private
residence. It is accessible solely through a door off the
second floor landing. The printing operations of YIP are
located on the third floor. It is there that the organization
publishes its newspaper, a book entitled "Blacklisted News,"
and various other periodicals and leaflets. Torbush Aff. ¶ 1-3.
While officers McCormick and Mueller were securing the
premises, Bennett Masel walked up to 9 Bleeker Street and
knocked repeatedly on the front door. Mueller Aff. ¶ 8.
According to officer Mueller, "Masel did not appear to have a
key . . .; however, it was clear from the way he was looking up
to the windows on the upper floor of the building that he had
some connection with the premises." Mueller Aff. ¶ 8.
The two officers approached Masel. They identified themselves
as police officers and told Masel they wanted to talk to him.
Officer McCormick immediately displayed his police
identification and his gun. McCormick Aff. ¶ 17. Officer
Mueller had a DEA badge around his waist and a gun on his hip.
Mueller Aff. ¶ 17. The officers first advised Masel that no one
could go in or out of the building until after the warrant had
arrived. McCormick Aff. ¶ 7. Then, they began asking Masel
repeatedly to identify himself and to state his business.
McCormick Aff. ¶ 8. According to the officers, Masel "became
verbally abusive and refused to answer [any] questions. He used
many profanities and drew attention to himself and the scene
around [them]." Mueller Aff. ¶ 10. Masel began yelling: "The
police are going to hurt me." McCormick Aff. ¶ 8.
After repeated questioning, Masel finally responded that he
sometimes lived at 9 Bleeker Street, that he has his mail
delivered there, and that the people who lived there were his
friends. McCormick Aff. ¶ 9.
The officers state that Masel was visibly nervous. He was
carrying two bags, a blue nylon book bag and a shoulder bag.
According to Mueller, Masel was in fact "clutching tightly" his
bags. Mueller Aff. ¶ 12. The officers asked him what he had in
his bags. Masel refused to answer. According to McCormick,
"[a]fter Masel refused to respond to our inquiries as to what
he had in his bags, I pull [sic] the bags forcefully from him
and put them on the ground as if they contained explosives.
While Mueller restrained Masel from fleeing, I opened the
bag. . ." McCormick Aff. ¶ 12. According to Mueller, Masel
"started to go into his shoulder bag" just before the officers
removed and searched his bags. Mueller Aff. ¶ 12.
Inside the bags, McCormick found (1) a petition, with
approximately 4,000 signatures, calling for the impeachment of
President Reagan, Vice-President Bush and Attorney General
Meese for their involvement in the Iran/Contra affair, (2)
$37,590.00 in currency, and (3) about 10 seeds in a small
plastic bag. Mueller Aff. ¶ 15; Neufeld Aff. ¶ 6.
The officers believed that the seeds were marijuana seeds. They
arrested Masel for violating the narcotics laws. They seized
the seeds and the money, but not the petition. Mueller Aff. ¶
Masel began "yelling" that his arrest was a political
conspiracy and that the police were "going to hurt him."
Mueller Aff. ¶ 16; McCormick Aff. ¶ 8. Masel told the officers
that the money he was carrying "was for political advertising
and had been collected all over the United States." Stadnyk
Aff. ¶ 8; McCormick Aff. ¶ 13 ("collected from donations he had
received that day").
According to the managing editor of the Youth International
Party newspaper, Alice Torbush, Masel was one of several
national organizers of the campaign to impeach President Reagan
for his involvement in the Iran/Contra affair during the spring
of 1987 and he frequently collected funds from local grassroots
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. ...