part of the premises at 500 Delaware Street. Based upon Bentley's written application and the informant's testimony, Judge Kinzly found probable cause to believe that marijuana was being cultivated in felony quantities in the attic of 500 Delaware Street, and that marijuana, its derivatives, plants, and paraphernalia were present both in the upper apartment on the southeast corner of the house and in the attic. He issued a warrant setting forth his findings, and authorizing the search of "a multiple dwelling, located at 500 Delaware Street, Tonawanda, NY 14150 (Erie County) To [sic] search the apartment on the second floor, first door on left at top of steps, the apartment of Martin Isenberg and wife . . ." Item 19, Ex. A. It is notable that although the section of the warrant authorizing the search described the location of the entrance to Martin Isenberg's apartment with specificity, it made no mention of the attic. The door to the attic was on the second floor of the building, near the entrance to, but outside, the Isenberg apartment.
On January 26, 1990, Bentley and several other police officers, armed with the warrant issued by Judge Kinzly, conducted a search of Martin Isenberg's apartment. Over Martin's strenuous objections they also searched the attic, the door to which had been double-locked. They found evidence of marijuana cultivation, and seized 27 marijuana plants, with a combined weight of 5.2 pounds, as well as growing equipment, grow lights, control panels, drying trays and fertilizer. During the course of the search, Martin allegedly said to Bentley, "my wife has no part in this. I was growing the pot, and she never touched it." Item 19, P 8. He was then arrested, and charged with criminal possession of marijuana, obstructing governmental administration, and cultivating marijuana without a license.
Shortly after his arrest, on April 9, 1990, Martin Isenberg executed a warranty deed transferring title to 500 Delaware Street to his father, Edward Isenberg, for the sum of one dollar. The deed was recorded on May 31, 1990. At deposition on July 6, 1992, Edward Isenberg stated that he took the property back from Martin "knowing that the property was in jeopardy, because of the trouble [Martin] got into." Item 20, Ex. 2, p. 7. He admitted that by "in jeopardy" he meant that the property could be taken from Martin by the government. He also admitted knowing, at the time of the transfer, that the "trouble" that Martin had got into was growing marijuana. In his affidavit of May 23, 1993, Edward stated that "when Martin was arrested for allegedly growing marijuana on the premises, I took the title to the property back from him in order to protect my investment in it." Item 24, P 8.
Although Edward Isenberg regained title to 500 Delaware Street in April, 1990, Martin continued to occupy the second floor apartment and manage the property. At deposition on July 6, 1992, Edward admitted that nothing changed in his involvement with the property after the transfer of title in April 1990; that he received no income from the property; that Martin received all rent payments from the tenants, and was fully responsible for leasing the apartments when vacancies occurred; that he (Edward) did not know who the current tenants were; that Martin was responsible for making all mortgage, property tax, and insurance payments, for paying the utility bills, and for maintaining the property and making repairs. In his affidavit of May 25, 1993, however, Edward asserted that he has a bona fide ownership interest in the property since title to the property is in his name, he continues to be obligated under the mortgage, he is free to dispose of the property as he sees fit, and Martin lives at and manages the property only on his sufferance.
On July 6, 1990, Martin Isenberg was indicted by an Erie County Grand Jury on charges of criminal possession of marijuana in the second degree, in violation of New York Penal Law § 221.25, and growing marijuana plants without a license, in violation of New York Public Health Law § 3382. On July 8, 1991, following the denial of his motion to suppress the evidence obtained in the search of 500 Delaware Street, he pled guilty to both charges. On December 30, 1992, the New York State Supreme Court, Appellate Division, Fourth Department, unanimously overturned his conviction. The court found that at the time Judge Kinzly issued the warrant authorizing the search of 500 Delaware Street, there was not "substantial compliance" with New York Criminal Procedure Law § 690.40(1). People v. Isenberg, 188 A.D.2d 1042, 592 N.Y.S.2d 1006 (4th Dept. 1992).
The evidence discovered during the search therefore had to be suppressed. Id. (citing People v. Taylor, 73 N.Y.2d 683, 690, 543 N.Y.S.2d 357, 360, 541 N.E.2d 386 (1989)).
The United States commenced the instant action on August 27, 1990, shortly after Martin Isenberg had been indicted. Edward Isenberg filed a claim on October 9, 1990, asserting an interest as owner of the property. Although copies of the summons, complaint, and warrant of arrest of property in rem were served upon Martin Isenberg, Martin has filed no claim.
The government has moved for summary judgment against Edward Isenberg. It contends that there is probable cause for forfeiture because 500 Delaware Street played an essential role in the marijuana-growing operation allegedly conducted by Martin Isenberg. Edward Isenberg cannot contest the forfeiture, it argues, because he is no more than a straw owner who took title to the property for the sole purpose of circumventing the forfeiture laws. In reply, Mr. Isenberg maintains (i) that he has standing to contest the forfeiture by virtue of his "substantial ownership interest," (ii) that the government cannot establish probable cause for forfeiture, because the only evidence that the property played a role in Martin's alleged marijuana-growing operation was obtained in violation of the Fourth Amendment, and such evidence is not admissible in a civil forfeiture proceeding, and (iii) summary judgment is precluded because he has introduced evidence sufficient to raise a genuine issue of fact as to whether or not he is an "innocent owner" of the property. The government responds that Edward Isenberg has no standing to challenge the search of 500 Delaware Street, since he had no legitimate expectation of privacy in the areas searched on January 26, 1990. It maintains that the evidence was lawfully seized pursuant to the warrant issued by Judge Kinzly. And it argues that Mr. Isenberg cannot establish an interest as an "innocent owner," or indeed any legitimate ownership interest, in the property.
Under 21 U.S.C. § 881(a), property subject to forfeiture to the United States includes:
all real property, including any right, title, and interest . . . in the whole of any lot or tract of land . . ., which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment . . . .