The opinion of the court was delivered by: Brieant, Chief Judge.
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
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
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
This Court concludes there is no prohibition against use by
the Federal Government in a Federal forfeiture proceeding, of