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March 26, 1991


The opinion of the court was delivered by: Weinstein, District Judge:



I. Introduction

II. Procedural Background

III. Facts

     A. Household Members
     B. Connection of Household to Drug Activity
     C. Clara Smith and the Apartment

IV. Law

    A. Public Housing Forfeiture
    B. Preseizure Notice and Hearing Required
    C. Procedures to Obtain Forfeiture
       1. Adequate Notice
       2. Claimants' Objection
       3. Scope of Preseizure Hearing
    D. Probable Cause to Forfeit
    E. Defenses to Forfeiture
       1. Burdens of Proof
       2. Innocent Ownership
       3. No Unlawful Activity
       4. Fifth Amendment
    F. Forfeiture of Other Claimants' Interests

V. Conclusion


The Government seeks to enforce an anti-drug forfeiture statute (21 U.S.C. § 881) against occupants of an apartment in a city-run housing project for the poor. By reducing the number of locations from which illegal narcotics are sold, the recently adopted law is expected to help alleviate the nation's drug problem and to increase the well-being and safety of occupants of public housing.

Drugs and drug-related crime are widespread in low-income housing. Dwellers in public housing need relief from the presence of drug sellers and buyers in and near their homes. Evicting drug dealers from their apartments, it is hoped, will make housing projects safer and more decent.

This case reveals some of the limitations of apartment forfeiture as a means of eliminating drugs from public housing complexes. For the poor, the shortage of livable, low-priced housing is especially acute. Tenants — and especially their minor children — who are evicted are likely to become homeless, with whatever stability their lives afforded seriously jeopardized.

For reasons stated below, the owner of the defendant leasehold is entitled to retain her home. Her children, grandchildren and great-grandchildren, who look to her for shelter as the family's matriarch, may not be dispossessed because one of them has sold drugs from their apartment. That person may, however, be forced from the apartment since it was illegally used by her as a base for her own illicit drug activities. An injunction against future illegal use will be granted.


By order to show cause, the Government requested warrants for the arrest in rem and for interim seizure of the leasehold. It served a copy of the order to show cause, the verified complaint in rem and declarations with attached exhibits on Mrs. Clara Smith, a potential claimant to the leasehold and responsible resident of the apartment.

A hearing on the order to show cause was held on May 22nd. The court ordered pro bono counsel appointed for Mrs. Smith and her progeny. Further proceedings were postponed until appointed counsel had consulted with their clients. The court notes that these uncompensated counsel have, in the highest tradition of the bar, served their clients with great skill.

By letter of July 9th, the Government requested an expedited hearing to obtain interim seizure of the apartments. In light of the novel and complex legal issues, counsel for potential claimants requested additional time in which to file motions and to respond to the request for interim relief. On July 30th the court ordered that motions for intervention or interim relief be filed by August 22nd and be made returnable on September 7th. The stay of further proceedings was continued.

To correct a possible defect in service, the Government posted supplemental warrants for arrest in rem and a second copy of the verified complaint at the apartment on August 2nd. A "Notice of Attachment," which provided that the apartment would remain in the custody of the United States Marshal until the claim was settled or a bond was furnished, was also posted.

By order to show cause, the potential claimants sought to have the August 2nd warrant and notice of attachment vacated. Pursuant to a stipulation dated August 6th, the notice of attachment was withdrawn, and the date for filing of motions for intervention or interim relief was extended to September 10th. The Government published legal notice of the arrest of the defendant leasehold on August 7th, 8th, and 9th in a newspaper of general circulation within this district.

Clara Smith, the leaseholder of apartment 1-C, by notice of motion dated September 10th moved to intervene in the forfeiture proceedings on behalf of herself and any minor children living in the apartment. The proposed verified intervenor complaint, while nominally brought under Rule 24(a) of the Federal Rules of Civil Procedure, was also intended to serve as a verified notice of claim under the rules governing forfeiture proceedings. The proposed claimants sought a stay of discovery and of further proceedings until their Fifth Amendment privileges were given full protection in related and threatened criminal drug prosecutions. They also requested a ruling on the scope and effect of any defenses available at the interim seizure hearing.

On September 26th, the court heard argument on the availability of intervention and the request for interim relief. After taking judicial notice of the extreme public housing shortage in New York City and the likelihood that dispossession would lead to homelessness, the following tentative, interim rulings were issued:

  1. The leaseholders have a property interest under
  New York law and under the statute. It gives the
  equivalent, for our purposes, of the real property
  interest of the owner of a home. . . .
  2. Other legal occupants . . . have property
  interests equivalent to the leaseholders. That
  includes minors in residence.
  3. An intervention right exists and the procedure
  used here by the intervenors is a satisfactory
  method of filing a proof of claim.
  4. The innocent occupant defense is available to .
  . . leaseholders and the other occupants.
  5. Fifth Amendment protections are entitled to
  substantial consideration. . . .
  6. The following protections against
  self-incrimination should be provided:
    A. Filed affidavits will be under seal for in
  camera ex parte inspection by the court.
    B. If the court decides to reveal the
  intervenor's affidavits, the affiants will have
  the power to withdraw them blocking revelation.
    C. Whether or not withdrawn, the affidavit may
  not be used in any criminal proceeding against the
  affiant. . . .
    D. Exercise of Fifth Amendment rights to refuse
  to file any affidavit or to testify at the
  preliminary hearing or subsequently may lead to an
  inference against the occupant in construing the
  evidence but is not itself sufficient proof of
  lack of innocence. . . .
    E. A stay of the forfeiture proceeding to
  protect Fifth Amendment rights pending completion
  of all criminal matters is not desirable in this
  kind of case and Congress seems to have intended
  that the civil and criminal proceedings advance
  along parallel tracks with neither one slowing or
  inhibiting the other. . . .
  7. Pending decision, the occupants are not to be
  dispossessed for reasons based upon 21 U.S.C. § 881.
  8. Pending decision, all occupants are enjoined
  from possessing any drugs or dealing with any
  drugs within the apartments, the buildings and the
  land upon which the building rests plus the
  curtilage, the entire housing project. . . .
  9. This order does not limit in any way the
  enforcement of criminal laws as by search and
  seizure, arrest, jail or prison, that have the
  effect of dispossession.
  10. This order does not limit in any way the power
  of the city, state, federal or other authorities
  or private persons to dispossess for reasons other
  than seizure pursuant to 21 U.S.C. § 881, such as
  the failure to pay rent or other violations of the
  11. In construing the innocent owner defense, the
  court expects to use the actual knowledge test
  supplemented by the equivalence of knowledge test
  — i.e., deliberately avoiding knowledge by closing
  one's eyes and ears to what is going on in order to
  claim ignorance. . . .

Following the preliminary rulings, the Government withdrew its request for interim seizure. Instead, it requested an expedited trial.

In preparation for trial, the claimants sought discovery of police officers who conducted the undercover operations that led to the forfeiture action. The Government objected to the examination of police officers who were still engaged in undercover investigations. Discovery was denied.

In correspondence prior to trial, the United States agreed that if Clara Smith was found to be an innocent owner, it would not attempt to forfeit the interests of the minor intervenors. If Clara Smith did retain the apartment, however, the Government still desired to forfeit any occupancy rights of the apartment's other adult occupants, Juanita Smith, Sylvia Smith and Chenelle Smith. By their action in this litigation, these occupants have effectively claimed an interest in the apartment.


Apartment 1-C is a small three bedroom, one bath, one kitchen and one living room unit at the Marcy public housing project in the Williamsburg section of Brooklyn. The leaseholder of record for 32 years has been Mrs. Clara Smith.

A.  Household Members

Mrs. Clara Smith, age 51, is a great-grandmother. Most of the children, grandchildren and great-grandchildren bear the surname of Smith. She has six children. Two of her daughters, Juanita Smith, age 36, and Sylvia Smith, age 32, live in the apartment with her.

Juanita Smith is a reformed heroin addict. She has a prior conviction for possession of narcotics for which she received seven days in jail. Juanita Smith's four children reside with her in the apartment. They are Chenelle Smith, age 19; Jamele Smith, age 15; Nicole Smith, age 14; and Ramel Smith, age 11. Ramel was born drug addicted; as a result, Mrs. Clara Smith has legal custody of him. Chenelle Smith has two daughters who live in the apartment; they are Fatima Smith, age 4, and Jasmine Carr, 22 months.

All of Sylvia Smith's children live with her in the apartment. They are Tara Smith, age 12; Anthony Smith, age 11; Marcus Smith, age 9; Kevin Smith, age 8; Kelima Smith, age 8; and Quentay Smith, age 4.

Mrs. Clara Smith also has legal custody of another three grandchildren whose mother, Pearl Smith, another of her daughters, does not live in the apartment. They are Shawn Lindsy, age 13; Shonda Lindsy, age 9; and Melissa Smith, age 23 months.

The relationship of the family members appears in Claimant's Exhibit Number One, set out below. The exhibit is printed with claimants' permission; they consent to the use of their names and pictures.

All the members of the household apparently depend on public assistance for survival. The family's monthly rent of $153.00 is paid directly by the welfare department. Except for the income from drug sales, there was no evidence of other sources of funds.

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