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U.S. v. PREM. AND REAL PROP. AT 250 KREAG

May 22, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THE PREMISES AND REAL PROPERTY AT 250 KREAG ROAD, DEFENDANT.



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.

FACTS

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 fined $100.

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.

DISCUSSION

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 appropriate.

A. Probable Cause

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). ...


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