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July 12, 1993


The opinion of the court was delivered by: MORRIS E. LASKER


 In this action, the government seeks forfeiture of a Chevrolet S-10 Blazer and $ 70,000 in United States currency allegedly used in connection with the possession of marijuana intended for distribution. The claimants William Henry (as to the defendant-in-rem vehicle) and Jupiter Wine Corporation, by its president, Henry (as to the defendant-in-rem currency) have moved to dismiss the action on the basis of collateral estoppel, and the government has cross-moved for summary judgment on its forfeiture claims.

 The claimants' collateral estoppel argument is without merit, and accordingly their motion to dismiss is denied. As to the government's motion for summary judgment, genuine questions of material fact remain as to whether a nexus exists between the currency and alleged narcotics activity, and, accordingly, the government's motion for summary judgment is denied as to the currency. However, the government's motion is granted as to the vehicle.


 In May 1989, the United States Attorney's Office for the Southern District of New York began an investigation of alleged heroin trafficking by Angel Martinez and other defendants. A DEA Task Force, headed by special agent James Kerrigan, was assigned to the case. In late November 1989, the investigation was converted to a "joint investigation" in which state and local authorities participated with federal authorities.

 In late December 1990, the Task Force learned that Martinez had found a new source of supply and intercepted what they interpreted to be "coded narcotics related" conversations between Henry and Angel Martinez, which indicated that Henry might be supplying heroin to Martinez. Henry is the owner of a liquor store and the conversations took the form of discussions about the sale of wine. Henry was heard making plans to meet Martinez, seen meeting him and, on at least two occasions, seen exchanging packages with him -- packages which the agents believed contained drugs and money.

 On February 1, 1991, after observing Henry loading a large cardboard box into the back of his vehicle -- having intercepted a conversation the day before in which Henry promised to deliver to Martinez "ten things packed up" on February 1, 1991 --, DEA agents stopped Henry on the Henry Hudson Parkway with guns, including machine guns, drawn and conducted a search of his Chevrolet S-10 Blazer (the defendant-in-rem vehicle). Henry was forcibly removed from the car, handcuffed, and ordered to lie face down on the ground while the agents conducted the search of the car. Approximately ten (10) pounds of marijuana, packaged in 10 separate plastic bags, were discovered inside a cardboard box in the rear of the trunk, and $ 70,000 in cash in small denominations (the defendant-in-rem currency) was found in a leather bag on the front seat. The agents also found a piece of paper in Henry's wallet containing Angel Martinez's beeper number and Martinez's brother's telephone number. The agents seized the currency and the marijuana, but did not arrest Henry or tell him that he was the subject of a drug investigation. Instead, assertedly to protect their ongoing investigation, the DEA agents told Henry that they had stopped him in the mistaken belief that he resembled a bank robber then at large.

 On April 12, 1991, Henry was arrested and charged with possession of marijuana. On June 13, 1991, he was indicted in New York Supreme Court, Bronx County.

 Henry subsequently pled guilty to possession of marijuana and was sentenced to five (5) years probation. He appealed the denial of his motion to suppress the marijuana, and, on December 29, 1992, the Appellate Division, First Department, unanimously reversed Judge Bamberger's ruling as to the marijuana, suppressing all evidence seized as a result of the stop and search on February 1, 1991, including the marijuana, on the ground that the "manner" in which the search was conducted was unconstitutional. In its December 1992 decision, the Appellate Division stated:

we are not so much concerned with the justification for the search . . as with the manner in which the stop and seizure took place.
. . . .
The overly intrusive nature of this law enforcement action requires us to suppress all the evidence so acquired.

 On or about July 16, 1991, the United States commenced administrative forfeiture proceedings against Henry for the currency and the vehicle. The government initiated the instant judicial forfeiture proceedings before this Court on September 20, 1991. Following the December 1992 Appellate Division ruling suppressing all of the evidence seized in the February 1, 1991 search, the claimants moved to dismiss this forfeiture action on the ground that the Appellate Division decision collaterally estopped the government from presenting ...

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