a warrant for the arrest of the vessel or other property that is the subject of the action and deliver it to the marshal for service." Thus the rules contemplate that the clerk shall issue the warrants for arrest and the court shall determine whether the government had probable cause. Logic, therefore, dictates that probable cause need not be shown when the government obtains the warrants for arrest. Ultimately, the government must show that it had probable cause at the time of commencement of the actions. It need not establish this, however, until the forfeiture trial.
United States v. Banco Cafetero International, 608 F. Supp. 1394, 1405 (S.D.N.Y. 1985) (emphasis added), aff'd, 797 F.2d 1154 (2d Cir. 1986). The Second Circuit affirmed Judge Goettel's decision stating that:
Under the drug forfeiture statute, the Government may seize property upon the filing of a complaint and need not demonstrate probable cause until the forfeiture trial.
Banco Cafetero, 797 F.2d at 1162 (emphasis added). The court then rejected the moving banks' argument that they were entitled to an immediate probable cause hearing in advance of the forfeiture trial. Id. at 1163.
Banco Cafetero's holding is clear: as shown by the highlighted language from both the lower court and Second Circuit opinion, the United States need not demonstrate that it had probable cause to seize property until trial, and due process does not require a court to hold a hearing in advance of that trial. However, the government's argument fails to recognize that just because a court must determine probable cause at trial does not mean that the Attorney General may seize property without probable cause. As $ 37,780 in United States Currency established, the question of whether subsequently obtained evidence may be used to establish probable cause remains open. $ 37,780 in United States Currency, 920 F.2d at 162 ("The government claims that it . . . can now rely on that information, even if the seizing agents were not aware of it at the time of seizure. We do not decide this question . . . ."). Two recently decided cases from this Circuit help this court determine the correct response to whether a seizure without probable cause and without a warrant is lawful.
First, in LaSanta, 978 F.2d at 1300, a defendant who was convicted by a jury of conspiring to distribute and possessing with intent to distribute cocaine, challenged the admission of evidence derived from a seizure and search of a limousine that he drove. The officers effected the warrantless seizure pursuant to the civil forfeiture statute at issue in this motion. Addressing the "threshold question" of the government's authority to effect seizures without warrants under 21 U.S.C. § 881, Judge Pratt held that the statute did not -- and could not -- create an exception to the fourth amendment's warrant requirement. Id. at 1304. He explained as follows:
We find no language in the fourth amendment suggesting that the right of the people to be secure in their "persons, houses, papers, and effects" applies to all searches and seizures except civil-forfeiture seizures in drug cases. U.S. Const. amend. IV. We reject out of hand the government's argument that congress can conclusively determine the reasonableness of these warrantless seizures, and thereby eliminate the judiciary's role in that task of constitutional construction. See U.S. Const. art. VI, cl. 2. While congress may have intended civil forfeiture to be a "powerful weapon in the war on drugs," . . . it would, indeed, be a Pyrrhic victory for the country, if the government's relentless and imaginative use of that weapon were to leave the constitution itself a casualty. . . . In short, the fourth amendment always stands as a limit on legislative and executive action.
Id. at 1305. The LaSanta court then determined that none of the recognized exceptions to the fourth amendment's warrant requirement applied to the seizure but held that the erroneous admission of the tainted evidence constituted harmless error. Id. at 1305-06.
Very recently the Second Circuit again had a chance to revisit the question of probable cause in the context of the civil forfeiture statute here at issue. In United States v. $ 31,990 in United Stated States Currency, 982 F.2d 851 (2d Cir. 1993), the government appealed the district court's finding that there was no probable cause to believe that the seized funds were traceable to the sale of narcotics under 21 U.S.C. § 881(a)(6). Although in that case the government obtained warrants prior to seizure, the court's language is instructive to the case at hand:
Forfeiture is a "harsh and oppressive procedure" which is not favored by the courts. United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 454 (7th Cir. 1980); United States v. One 1981 Cadillac Eldorado, 535 F. Supp. 65, 67 (N.D. Ill. 1982). Since "there is little to discourage federal agents from seizing property illegally and then seeking evidence of probable cause," courts must guard against the abuse of forfeiture in the government's zeal to apprehend and prosecute drug dealers. George C. Pratt & William B. Peterson, Civil Forfeiture in The Second Circuit, 65 St. John's L. rev. 653, 668-69 (1991). . . . While we recognize the formidable task faced by the government in its war on drugs, we decline to condone the abuse of civil forfeiture as a means to winning that war.
Id. at *15-16; see also United States v. Real Poperty Known as 785 St. Nicholas Ave., No. 92-6077 (2d Cir. Jan. 6, 1993), slip op. at 701-02 (describing procedures by which government may seize property including seizure without judicial process but with probable cause under 21 U.S.C. § 881(b)(4)).
The lesson that this court extracts from the quartet of cases discussed above is that although the government need not demonstrate probable cause until trial, it must possess probable cause prior to effectuating its seizure. Any other conclusion renders meaningless both the language of 21 U.S.C. § 881(b)(4), which allows seizure without judicial process only when the Attorney General "has probable cause to believe that the property is subject to civil forfeiture," as well as the requirement that the government obtain a warrant for seizure in the first place. More importantly, it allows the civil forfeiture statute to circumvent the clear dictates of the fourth amendment. See LaSanta 978 F.2d at 1304-05. Recognizing that this conclusion may encourage claimants to bring motions for return of property prior to trial and thus may undermine the Banco Cafetero holding, this court nevertheless refuses to ignore an ancient lesson of fourth amendment jurisprudence: namely, that the government may not validate unlawful searches through the information and evidence that the search subsequently uncovers. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) ("[A] vague suspicion [cannot] be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked. . . . That result would have the same essential vice as a proposition we have consistently rejected--that a search unlawful at its inception may be validated by what it turns up."); Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 n.10 (1968) ("Any idea that a search can be justified by what it turns up was long ago rejected in our constitutional jurisprudence."); Whiteley v. Ward, 401 U.S. 560, 567, 28 L. Ed. 2d 306, 91 S. Ct. 1031 n.11 (1971) ("Of course, the discoveries of an illegal search cannot be used to validate the probable cause judgment upon which the legality of the search depends.").
Returning to the facts of this case, the government's sole basis for probable cause prior to obtaining judicial process is that the funds in question were intended for deposit in the American Express Bank accounts already under seizure. As noted above, however, for approximately forty years, Cambitur has been in the business of exchanging large sums of money. Therefore, this case is distinguishable from cases such as $ 37,780 in United States Currency, 920 F.2d at 163, in which the existence of large sums of money justifies the conclusion that an individual was involved in illegal -- and specifically drug -- activity. See also $ 31,990 in United Stated States Currency, 982 F.2d 851. This court therefore finds that the attempted deposit of $ 584,445.41 alone does not rise above the level of "mere suspicion" that the funds were traceable to drug proceeds; it is therefore insufficient to support a finding of probable cause.
Banco Cafetero, 797 F.2d at 1160.
The government also argues that exigent circumstances justified this seizure. See LaSanta, 978 F.2d at 1305. Certainly Cambitur's demand that the funds be immediately returned constituted "exigency," but it is not clear how this demand satisfied the exigent circumstances exception to the warrant requirement. For that exception to apply, a law enforcement officer must have probable cause to effect a seizure prior to believing that the subject property is threatened with disappearance. See United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) (en banc) (quoting Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc), to establish requirements for exigent circumstances, including "a clear showing of probable cause"), cert. denied, 111 S. Ct. 1071, 112 L. Ed. 2d 1177 (1991).
Accordingly, as the government lacked probable cause to believe that the DHL package contained monies traceable to narcotics activity when it seized that package without judicial process under 21 U.S.C. § 881(b)(4) on November 12, 1992, this court finds the seizure unconstitutional. It is important to note, however, that even though the $ 584,445.41 must be returned to Cambitur, the government may continue its forfeiture action against those funds under 21 U.S.C. § 881(d). See $ 37,780 in United States Currency, 920 F.2d at 162-63. Acknowledging the impracticality of maintaining a forfeiture action against returned monies and also recognizing the tension between the procedures for seizure pursuant to the civil forfeiture statute and the fourth amendment's requirement of probable cause, this court hereby stays execution of this order for five days to allow the government an opportunity to file an expedited interlocutory appeal under 28 U.S.C. § 1292. See Banco Cafetero Panama, 797 F.2d at 1156-57 (stating that district court may approve interlocutory appeal when order "involves a controlling question of law as to which there is substantial ground for difference of opinion" and "an immediate appeal from the order may materially advance the ultimate termination of the litigation").
For the reasons described above, the United States is hereby ordered to return to claimant Cambitur the $ 584,445.41 seized prior to its deposit in defendant bank accounts at American Express Bank. However, as explained above, this order is stayed for five days to allow the government time to file an interlocutory appeal with the Second Circuit.
Dated: Brooklyn, New York
February 9, 1993
I. LEO GLASSER, U.S.D.J.