The opinion of the court was delivered by: THOMAS J. MCAVOY
Chief U.S. District Judge
MEMORANDUM-DECISION & ORDER
On December 22, 1992 plaintiff United States of America ("the Government") filed an application for the issuance of a Warrant of Arrest In Rem/Writ of Entry ("warrant of arrest in rem") for the defendant property pursuant to the Supplemental Rules of Admiralty and Maritime Claims, Rule C(3). Unlike many such applications heard by this court, in this matter the claimant, one Travers John Hanast ("Claimant") has appeared and contested the Government's application.
On February 26, 1993 the court heard oral argument on the Government's application for the warrant of arrest in rem. The court reserved decision, and, in an order dated March 2, 1993, ordered further briefing. Now, having considered the arguments advanced, this Memorandum-Decision & Order constitutes the decision of the court on the Government's application.
Claimant is the owner of the defendant real property located at 152 Scotch Hill Road, in Delaware County, New York. In the amended verified complaint for forfeiture, the Government alleges, upon information and belief, that there is probable cause to believe that during the months leading up to January 14, 1992, the defendant property was used or intended to be used to facilitate the commission of various federal offenses; specifically, the manufacture and distribution of a controlled substance, possession with intent to distribute a controlled substance, and/or conspiracy to commit such offenses. (Amended Verified Complaint at P 6). As more fully alleged in the complaint, there are three bases for this assertion of probable cause: the statement of a confidential informant; evidence seized during the execution of a search warrant on January 14, 1992; and, the expert opinion of a New York State Police investigator. The instant application for a warrant of arrest in rem is based upon the allegations in the complaint and its supporting documentation, and the Government's supporting memorandum of law. Claimant asserts that the evidence seized during the January 14, 1992 search was unconstitutionally obtained and therefore should not be considered by the court in ruling on the Government's application. The Government asserts that this is not the proper stage of the proceedings for such a challenge to the underlying search.
The amended verified complaint alleges the following facts. In January of 1992 the New York State Police ("State Police") received information from one Zacharias William Fuller ("Fuller") that Claimant was actively involved in the manufacturing and sale of marihuana from the defendant property. (Affidavit of New York State Police Investigator Robert Fernandez, P 3, attached as Exhibit 3 to the Amended Verified Complaint). Fuller was arrested and subsequently "developed" as an informant by New York State Trooper Richard Lopez (Fernandez Affidavit at P 4). Fuller related to both Trooper Lopez and Investigator Fernandez that he had been to the defendant property with Claimant in January of 1992, and that he had observed a large number of marihuana plants in the basement, a watering system, and grow lights. (Fuller Affidavit, attached as Exhibit 4 to the Amended Verified Complaint). Investigator Fernandez then "verified" Fuller's report by "finding that the electronic [sic] usage [at the defendant property] was exorbitant. . . ." (Fernandez Affidavit at P 4). Based upon Fuller's affidavit and his own investigation into the electrical usage at the defendant property, Investigator Fernandez prepared an application for a search warrant of the defendant property.
On January 14, 1992, Investigator Fernandez appeared before New York State Supreme Court Justice Carl J. Mugglin seeking a search warrant for the defendant premises. Justice Mugglin granted the request for a search warrant and directed the seizure of marihuana and related paraphernalia. (Id. at P 5). On that same day, along with other members of the State Police, Investigator Fernandez executed the search warrant at the defendant premises. Investigator Fernandez recounts in his affidavit that he observed a hydroponic growing operation in the basement of the premises, and seized various drug related paraphernalia.
(Id. at P 6). Based upon the fruits of the search, Claimant was charged with criminal possession of marihuana in the fourth degree, criminal possession of marihuana in the fifth degree, criminal possession of a weapon in the fourth degree, and unlawful growing of cannabis. (Id. at P 12). He was arrested on February 4, 1992. (Id.). Investigator Fernandez opines, based upon his experience and his observations at the defendant premises, that the operation found in the defendant premises was established for the distribution of marihuana. (Id. at P 13).
In his opposition to the instant application claimant argues that the January 14, 1992 search of the defendant premises was in violation of the United States Constitution. In his affidavit in opposition, Claimant asserts that he was hospitalized during the period in which Fuller claims to have been present in the defendant premises, and that he has never met anyone by the name of Zacharias William Fuller. Therefore, he contends that Fuller's statements were false. Additionally, Claimant submits the affidavit of Wayne Marshfield, Assistant General Manager for Delaware County Electrical Co-op. in further support of his objections to the Government's application. Mr. Marshfield explains that he is familiar with the defendant premises, and that in his opinion the electrical usage at the premises was within the ordinary and normal range for 1990 and 1991. Claimant argues, therefore, that the information provided to Justice Mugglin was false; and furthermore that the falsity of the information was known to Investigator Fernandez or at the very least, the information was provided with reckless disregard for the truth.
The Government seeks forfeiture of the defendant property pursuant to 21 U.S.C. § 881(a)(7). That section provides that real property "used, or intended to be used, in any manner or part, to commit, or facilitate the commission of, or violation of this title punishable by more than one year's imprisonment . . ." may be subject to forfeiture. See 21 U.S.C. § 881(a)(7). In order to obtain a judgment of forfeiture, the Government must demonstrate probable cause to connect the property with narcotics activity. See generally United States v. One 1987 Jeep Wrangler, 972 F.2d 472, 476 (2d Cir. 1992); United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir. 1986). Once the Government has made this probable cause showing, the burden shifts to the claimant to demonstrate that the factual predicates for forfeiture are not present. See United States v. Property Located at 15 Black Ledge Drive, 897 F.2d 97, ...