Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

U.S. v. $37

United States District Court, Southern District of New York


May 7, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$37,590.00, DEFENDANT IN-REM.

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 complaint.

Background

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. ¶ 16.

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 organizations 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.

Discussion

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 Fourth Amendment.

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 investigation 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
  statute.

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 added).

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).

In the case at bar, for purposes of Fourth Amendment analysis there is no question but that the two officers "seized" Masel when they forcibly removed his shoulder bags, restrained him from fleeing and searched the bags. See Terry, 392 U.S. at 19, 88 S.Ct. at 1878. Accordingly, I must consider whether officers Mueller and McCormick had sufficient reasonable suspicion to justify the seizure. As the Supreme Court noted in Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968), "[b]efore [the police officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." 392 U.S. at 40, 88 S.Ct. at 1889.

Officers Mueller and McCormick were securing a three-floor building which housed a suspected "drug den" and the offices and operations of the Youth International Party. A man walked to the front door, knocked repeatedly and looked up "to the windows on the upper floor of the building." Mueller Aff. ¶ 8. The "upper floor" would be the third floor, which is where the printing operations of YIP are located. This is entirely consistent with what Masel told the policemen and with what his attorney stated to the United States Attorney's Office, namely, that Masel was engaged in political advertising and was using the printing operations of YIP to lay out the impeachment ad. Stadnyk Aff. ¶ 8; Rubin Letter ¶ 5-7. The fact that Masel was banging on the door and staring at the offices of YIP does not raise any suspicion that would justify further investigation.

Assuming that officers Mueller and McCormick believed Masel was staring at the windows on the middle floor of the building — where the suspected drug den was located — that would still not provide reasonable suspicion to support a stop and frisk. Simply because someone is in the company of others who themselves are suspected or convicted of criminal activity does not alone provide the basis for a Terry stop and frisk; the reasonable suspicion must be particularized with respect to the suspect.*fn1 "[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). Cf. United States v. Del Toro, 464 F.2d 520, 521 (2d Cir. 1972) (pat-down permissible where particularized belief that companion was armed bodyguard).

Officers Mueller and McCormick, however, did not "seize" Masel solely on the basis of his presence at 9 Bleeker Street. First, the officers identified themselves, displayed their badges and guns, and informed Masel that "no one could go in or out of the building until after the warrant had arrived." McCormick Aff. ¶ 7. Certainly, that warning would have been adequate to deflect any potential confrontation with an armed suspect. Nevertheless, instead of leaving matters as they stood, the officers began questioning Masel repeatedly: "I asked him repeatedly to identify himself, and what his business was at the premises. He again refused to answer . . ." McCormick Aff. ¶ 8. Masel began acting nervous and yelling "political conspiracy."

Still, the police officers had not yet "seize" Masel. It is only after Masel refused to respond to the officers' inquiries about his shoulder bag that the officers seized him and searched his belongings. Officer McCormick, who conducted the search, states:

  Finally, Agent Mueller and I asked him what he had in his bags,
  suspecting that he might have a weapon or a bomb. Based on the
  way Masel was acting, I thought his bag might have contained
  explosives . . . After Masel refused to respond to our
  inquiries as to what he had in his bags, I pulled 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. ¶ 11-12.

Officer Mueller adds that he personally became nervous when Masel "refused to answer [their inquiries about his bags] and started to go into his shoulder bag." Apparently he thought "Masel might be going into his bag for a weapon." Mueller Aff. ¶ 12-13.

I cannot conclude on these facts — namely, that Masel "clutched" his bags or refused to answer inquiries about his shoulder bags or reached for them when asked what they contained — that the officers had an objective, reasonable, "particularized" suspicion that Masel was armed and presently dangerous.

But even assuming arguendo that the officers had reasonable grounds to justify a pat-down search, the nature of the search conducted by officer McCormick was not reasonably limited to its intended purpose. Sibron, 392 U.S. at 65, 88 S.Ct. at 1904. Under the circumstances, it was unreasonable for McCormick to reach into the shoulder bags and conduct a full-scale search of Masel's belongings when a limited pat-down would have defused the situation entirely.

The initial scope of a Terry search is limited to a pat-down search for weapons. The Court emphasized in Terry that the "frisk" must "be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id. at 29, 88 S.Ct. at 1884. This, of course, is because "[t]he sole justification of the search . . . is the protection of the police officer and others nearby." Id.*fn2

In Sibron v. New York, the companion case to Terry v. Ohio, a law enforcement officer was held to have exceeded the scope of a Terry search when he made "no attempt at an initial limited exploration for arms" but instead "thrust his hand into Sibron's pocket and took from him envelopes of heroin." Sibron, 392 U.S. 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968). The Court noted that "[t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man." Id.; see also United States v. Romero, 692 F.2d 699, 703 (10th Cir. 1982) (officer "transgressed the permissible limits of a Terry pat-down search for weapons" where officer felt stiff object while patting-down individual, did not suspect it was a weapon, but nevertheless reached in pocket and pulled out small bag of marijuana).

The rule in the Second Circuit is no different. "A police officer may forcibly stop a suspect, and promptly conduct a superficial pat-down for weapons if in the light of his experience he reasonably perceives the threat of harm in a given factual situation." United States v. Del Toro, 464 F.2d 520, 521 (2d Cir. 1972). In Del Toro, a police officer conducted a cursory frisk of the companion — and suspected armed bodyguard — of a known narcotics dealer. When he felt a small, creased object in his handkerchief pocket, he removed the object fearing the presence of a knife or razor blade. The object turned out to be a folded ten dollar bill containing a small amount of cocaine. Del Toro, 464 F.2d at 521. The Second Circuit suppressed this evidence, holding that, although the cursory frisk for weapons may have been justified, "as a matter of law a ten dollar bill folded to a size of 2" X 3/4" and containing 2.2 grams of cocaine felt in the handkerchief pocket of [the defendant's] suit coat could not reasonably have aroused the suspicion of a weapon." Id.; see also United States v. Vasquez, 638 F.2d 507, 520-21 (2d Cir. 1980), cert. den., 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981) ("if a weapon is feared, a `pat-down' may suffice, and make unreasonable an actual search of the individual's pockets").

The same limitations on the scope of Terry searches apply to protective searches that extend beyond the person of the individual to the contents of any bags carried by that individual. See United States v. Ruiz-Estrella, 481 F.2d 723, 729 (2d Cir. 1973) ("we would require `similar compelling circumstances' to justify the opening and examination of a passenger's bag"); United States v. Vaughan, 718 F.2d 332, 335 (9th Cir. 1983) (pat-down of soft briefcase would have complied with Terry because weapon could have been detected without opening briefcase, but any search beyond that was unwarranted).*fn3 To be sure, in limited circumstances, a full search of a bag, without a preceding pat-down, has been held to satisfy Terry; however, those situations have always been attended with extraordinary circumstances.*fn4

The touchstone of Fourth Amendment analysis is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Terry, 392 U.S. at 19, 88 S.Ct. at 1878-79; Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977). I conclude on the facts at bar that the full search of Masel's shoulder bag was not reasonable. Officer McCormick could easily have allayed his fear that Masel was carrying a concealed weapon or explosives by "patting-down" the soft shoulder bags. A traditional pat-down would have served the officer's purpose while protecting Masel's legitimate expectation of privacy. As the Second Circuit noted in Del Toro, "the limited intrusion of a pat-down would promptly defuse what officers experienced in narcotics enforcement perceived as a potentially explosive situation." 464 F.2d at 521. The full search of Masel's bags in public view on a New York City street — when there was no danger that Masel could even reach the two bags that had been forcefully removed from his shoulders — clearly falls outside the limits of reasonableness. Accordingly, I must conclude that the money was illegally seized.

The government argues that "[e]ven if the Court determines that the money was illegally seized, the forfeiture action is not barred." Government's Memorandum at page 27 n. "*". That statement is not entirely correct. While it is true that the illegal seizure does not bar the forfeiture action, it is equally true that illegally seized evidence must be excluded from these proceedings unless their seizure could be supported by untainted evidence. As the Fifth Circuit stated in the case of a seized vehicle:

  even if the seizure was illegal, it would not bar the
  government's right to claim the vehicle through forfeiture
  proceedings. Improper seizure does not jeopardize the
  government's right to secure forfeiture if the probable cause
  to seize the vehicle can be supported with untainted
  evidence. . . [A]n object illegally seized cannot in any way be
  used either as evidence or as the basis for jurisdiction.
  Therefore, evidence derived from a search in violation of the
  fourth amendment must be excluded at a forfeiture proceeding.

United States v. One 1978 Mercedes Benz, 4-Door Sedan, 711 F.2d 1297 (5th Cir. 1983) (quoted in United States v. Monkey, 725 F.2d 1007, 1012 (5th Cir. 1984)).

In the case at bar, there is no untainted evidence to support probable cause for a search of Masel's bags. Therefore, the evidence found in his bag — the ten seeds and the money — must be excluded and the forfeiture action dismissed.

Conclusion

Plaintiff's motion to dismiss is granted. The Clerk of the Court is directed to dismiss the complaint with prejudice. The government is directed to turn the res and any accrued interest over to the claimant, Bennett Masel, no later than five (5) days after the time for filing an appeal of this decision has expired.

It is SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.