The opinion of the court was delivered by: Weinstein, District Judge:
II. Procedural Background
A. Household Members
B. Connection of Household to Drug Activity
C. Clara Smith and the Apartment
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
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
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
II. PROCEDURAL BACKGROUND
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
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 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.
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
apartment; they are Fatima Smith, age 4, and Jasmine Carr, 22
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
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
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