The opinion of the court was delivered by: Larimer, District Judge.
This is a civil forfeiture action brought against the
defendant premises under 21 U.S.C. § 881(a)(7). Claimant Robert
C. Saurini, the record owner of the premises, has filed a claim
asserting his interest in the property. Before me is the
Government's motion for summary judgment, which, for the
reasons stated below, is granted.
On August 31, 1988, agents of the Monroe County Sheriff's
Office seized approximately 17 stalks of marijuana from
Saurini's backyard. The agents acted at the direction of Deputy
Sheriff Bruce Weidrick, who had heard from an informant that
Saurini was growing marijuana on his property. After receiving
the tip, Weidrick ordered deputies Glen Main and John Dorsey to
conduct a "plain view" search of the claimant's premises, which
led to their seizure
of the plants. No search warrant was obtained.
Magistrate Kenneth R. Fisher issued a Seizure Warrant/Writ of
Entry on November 18, 1988, allowing the Marshal to seize the
property on December 1. The premises have been in the Marshal's
custody since that time.
Meanwhile, on the basis of the August 1988 seizure of the
marijuana from his property, Saurini was convicted in Monroe
County Supreme Court of Criminal Possession of Marijuana in the
First Degree on November 29, 1989. The violation carries a
maximum term of imprisonment exceeding one year.
This is not the first time that Saurini has been involved in
the growing of marijuana at his home. According to the
affidavit of Deputy Bruce Weidrick, sworn to November 18, 1988,
Robert Saurini was arrested and charged in 1981 for growing
cannabis without a license at this same address. He
subsequently pleaded guilty in Perinton Town Court to the
unlawful possession of marijuana on November 17, 1981. He was
The Government seeks summary judgment, asserting that it has
demonstrated probable cause to believe that the property in
question was used to manufacture marijuana, in violation of
21 U.S.C. § 841(a). In opposition to the motion, claimant Saurini
contends that: 1) the evidence relied upon by the government
was obtained by an illegal search, conducted without a warrant
or probable cause; 2) in any event, any marijuana growing upon
his property was not "manufactured" by him within the meaning
of the statute, intended as it was for his personal use; and 3)
forfeiture of the entire tract of land amounts to a
disproportional penalty in violation of the Eighth Amendment.
When the Government moves for summary judgment in a
forfeiture proceeding under § 881(a)(7), the court must
determine whether it has met its burden of showing the absence
of a genuine issue of fact "in the context of the `peculiar
procedural requirements of the forfeiture laws.'" United States
v. One Parcel of Property Located at 15 Black Ledge Dr.,
Marlborough, Connecticut, 897 F.2d 97, 101 (2d Cir. 1990),
quoting United States v. One 56-Foot Motor Yacht Named Tahuna,
702 F.2d 1276, 1283 (9th Cir. 1983).
In a civil forfeiture proceeding, the Government bears the
burden of demonstrating probable cause to believe that the
property was used in violation of the statute, in this case,
§ 841(a). See United States v. Property at 4492 S. Livonia Rd.,
Livonia, N.Y., 889 F.2d 1258, 1267 (2d Cir. 1989). The standard
of proof at trial is less than the preponderance of the
evidence test required in civil proceedings. United States v.
All Right, Title and Interest in Real Property and Building
Known As 303 West 116th Street, New York, New York,
901 F.2d 288, 290-291 (2d Cir. 1990), citing United States v. Banco
Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir. 1986). In other
words, "the Government must have reasonable grounds, rising
above the level of mere suspicion, to believe that certain
property is subject to forfeiture." 15 Black Ledge Drive, 897
F.2d at 101. Once probable cause is shown, the burden shifts to
the claimant to "prove either that the property was not used
unlawfully . . . or that the illegal use was without the
claimant's knowledge or consent." See 4492 S. Livonia Rd., 889
F.2d at 1267 (citation omitted). If the claimant fails to
introduce proof creating a genuine issue of material fact
regarding these statutory defenses, summary judgment is
Saurini challenges this motion on the ground that the
Government has not shown probable cause to believe that the
property was used in violation of the statute. Claimant
contends that the property was searched and the marijuana
seized in violation of the Fourth Amendment, without a warrant
and on the basis of hearsay informant testimony, and therefore
evidence derived from the search should not be considered.
Without deciding whether the seizure of the marijuana
violated claimant's Fourth Amendment rights, I find sufficient
facts in the record, independent of the evidence revealed by
the search, to create probable cause to believe the property
was unlawfully used.
Saurini was convicted in New York state court of Criminal
Possession in the First Degree, on the basis of his having
cultivated approximately 12 pounds of marijuana on his
property. He therefore is collaterally estopped in this action
from denying that he made such use of the premises. See United
States v. Parcel of Land & Buildings Located Thereon at 40 Moon
Hill Rd., Northbridge, MA, 721 F. Supp. 1 (D.Mass. 1988), aff'd
884 F.2d 41 (1st Cir. 1989). The prior conviction has
independent legal effect, so that regardless of whether
probable cause existed when the premises initially were seized
by the Marshal, for the purposes of this motion, the fact of
conviction supports a finding of probable cause to suspect that
the property was unlawfully used. See United States v.
"Monkey", 725 F.2d 1007, 1010, 1012 (5th Cir. 1984). ...