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U.S. v. ALL RIGHT

September 18, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALL RIGHT, TITLE AND INTEREST IN REAL PROPERTY AND APPURTENANCES THERETO KNOWN AS 35 FULLING AVENUE, TUCKAHOE, NEW YORK, ETC., DEFENDANTS-IN-REM.



The opinion of the court was delivered by: Brieant, Chief Judge.

  MEMORANDUM AND ORDER

By a Complaint filed April 15, 1991 the United States sought the forfeiture of various properties used in connection with the drug trade. Forfeiture of these defendants-in-rem was sought pursuant to 21 U.S.C. § 881(a)(6) and (7).

By motions fully submitted for decision on August 1, 1991 defendant-in-rem Jupiter Wine Corp. moved for summary judgment in its favor on the counterclaims and to dismiss the complaint, and the plaintiff also sought summary judgment dismissing the counterclaims.

One of the in-rem defendants is a leasehold known as Patterson Wine and Spirits a retail liquor store located at Routes 22 and 311 in Patterson, New York in this district. Jupiter Wine Corp. is the tenant under the lease. Mr. William Henry is its President, and lives over the liquor store.

The complaint as to Patterson Wine and Spirits alleges among other things that Angel Martinez, now a fugitive on a drug indictment, utilized a monitored telephone at 35 Fulling Avenue in Tuckahoe, New York, to contact William Henry at the Patterson Wine and Spirits retail liquor store. It is claimed that during these monitored telephone conversations, Martinez and Henry discussed narcotic transactions and arranged meetings for the sale and delivery of narcotics from Henry to Martinez.

On February 1, 1991, DEA surveillance agents observed William Henry driving a 1989 Chevrolet Blazer at a drive-in teller's window at Pawling Savings Bank in Pawling, New York. After leaving the bank, Henry drove in the Blazer to the liquor store and entered carrying a bag under his arm. Shortly thereafter he left the store and placed something in the Blazer on the driver's side and thereafter brought a cardboard box from the store which he placed in the rear of the Blazer.

Allegedly, as a result of a consent search on the Henry Hudson Parkway in Bronx County, New York, the agents located and seized approximately 10 pounds of marijuana (packaged in individual one pound bundles) from the cardboard box found in the rear of the Blazer. They also seized a shoulder bag containing approximately $70,000.00 in cash packaged in small denominations. A search of Henry's person revealed a piece of paper with Angel Martinez's beeper number.

On April 12, 1991 the joint task force agents executed a search warrant for the leasehold premises at Patterson Wine and Spirits and seized approximately 35 pounds of marijuana. An indictment was returned against Henry in Bronx Supreme Court on June 13, 1991 in connection with the seizure of marijuana from the Chevrolet Blazer. The Court understands that this indictment has not yet been reached for trial.

Jupiter Wine Corp. filed a verified answer and counterclaim on May 1, 1991. In the verified answer and counterclaim, Jupiter Wine Corp. alleged that it was the tenant of the leasehold of the premises of Patterson Wine and Spirits, denied essentially all of the material allegations of the complaint, and pleaded various affirmative defenses including failure to state a claim, and lack of subject matter jurisdiction. The answer specifically raises the issue of whether 21 U.S.C. Section 881(a)(7) extends to the forfeiture of a leasehold only, separate from a seizure or forfeiture of the real property. The answer also pleaded misjoinder and that the evidence in support of the forfeiture was obtained illegally.

The answer also pleaded counterclaims, (1) to recover $70,000.00 in currency seized from William Henry, President of Jupiter Wine Corp. without consent, lawful cause or justification and in violation of Henry's civil rights, and (2) to recover the Chevrolet Blazer truck seized from William Henry.

The motions were fully submitted for decision on August 1, 1991 upon docketing a copy of the lease.

Claimant attacks the arrest of William Henry as improper, made without probable cause and attacks the in-rem forfeiture of the lease because the identity of William Henry and the fact that illegal drugs were being stored at and delivered from the liquor store premises represents information learned by virtue of an eavesdropping warrant issued to a joint task force by a Justice of the Supreme Court of the State of New York pursuant to Article 700 of the New York Criminal Procedure Law.

Essentially the argument is that this joint task force could have obtained a Title III warrant from a Federal Court, but for tactical or other reasons sought not to do so. Having once obtained a State wire tap order, it is argued, the agents could not use the information discovered through the State wire tap order except in the manner consistent with State law. The argument then continues to its next premise, that the forfeiture was the product of an illegal use of information lawfully obtained under a State Court wire tap order and therefore invalid.

This Court concludes there is no prohibition against use by the Federal Government in a Federal forfeiture proceeding, of information ...


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