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POU v. U.S. DEA

April 26, 1996

SALVADOR POU, JR., Plaintiff, against U.S. DRUG ENFORCEMENT ADMINISTRATION, JOSEPH LOSZYNZKI, ROBERT FRITZEN, JAMES L. ROGERS, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.,

 Pursuant to 42 U.S.C. § 1983, plaintiff Salvador Pou, *fn1" acting pro se, brings the instant action against defendants United States Drug Enforcement Agency (the "DEA"), Joseph Loszynzki, Robert Fritzen and James L. Rogers seeking to recover $ 18,200 in cash seized by the DEA and forfeited to the United States Government (the "Government"). Pou claims that defendants conducted an illegal search and seizure and gave him inadequate notice of the forfeiture proceeding in violation of his federal statutory and constitutional rights. Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants DEA, Fritzen and Rogers (collectively "defendants") move to dismiss the amended complaint for lack of subject matter jurisdiction and failure to state a claim. *fn2" In the alternative, pursuant to Federal Rule of Civil Procedure 56(c), defendants move for summary judgment on the ground that the forfeiture notice complied with both statutory and constitutional requirements and that collateral estoppel and qualified immunity bar the claim for illegal search and seizure. *fn3" For the reasons set forth below, defendants' motion for summary judgment is granted.

 BACKGROUND

 In or about 1988, the New York State Police and the DEA Central New York Drug Enforcement Task Force (the "DEA Task Force") conducted an investigation into narcotics trafficking in Jefferson County, New York. See Affidavit of John Blumer Sworn to September 29, 1988 ("First Blumer Aff.") P 3. Defendants Robert Fritzen and James Rogers are New York State Police investigators who served as members of the DEA Task Force and participated in the aforesaid investigation. See Declaration of Robert Fritzen Sworn to November 26, 1993 ("Fritzen Decl.") P 1; Declaration of James L. Rogers Sworn to November 18, 1993 ("Rogers Decl.") P 1; Plaintiff's Statement Pursuant to Rule 3(g) ("Pltff. 3(g) Stmt.") P 2, 3.

 On October 16, 1988, New York State Police and DEA Task Force agents pulled over the vehicle driven by Salvador Pou, Jr. and arrested him on drug charges in Jefferson County, New York. See Complaint ("Compl.") P IV.1; First Blumer Aff. P 3; Affidavit of John Blumer Sworn To October 16, 1988 ("Second Blumer Aff.") P 2. Following the arrest, DEA Task Force Investigator Matthew Tynan searched Pou's person and vehicle pursuant to a search warrant. See Fritzen Decl. P 7; Scarvalone Decl. Exh. F at 1162; Pltff. 3(g) Stmt. P 7. The search revealed, inter alia, $ 18,200 in currency, which was thereafter seized by DEA Task Force Investigators Brian Tousant and Joseph Loszynski as proceeds or instrumentalities of a drug crime. Compl. PP IV.2. Defendant Fritzen was present during but did not participate in either the search or the seizure. See Fritzen Decl. P 7-9. Defendant Rogers participated in the surveillance on that day but was not present during the search of the vehicle. See Rogers Decl. P 6-7.

 On January 17, 1989, the DEA commenced proceedings to forfeit the $ 18,200 seized from Pou's vehicle. See Declaration of James F. Bohn Sworn to October 29, 1991 ("Bohn Decl.) P 4(b). In an attempt to comply with statutory notice requirements, the DEA arranged publication of notice of the forfeiture for three successive weeks in USA Today, a newspaper of general circulation in the Southern District of New York. See Bohn Decl. P 4(d).

 In addition, on January 17, 1989, the DEA mailed two copies of the forfeiture notice to Pou by certified mail, return receipt requested. See Bohn Dec. P 4(b) & (c). The first copy of the forfeiture notice, addressed to the Jefferson County Jail in Watertown, New York, was returned to the DEA by the Postal Service unsigned. See Bohn Decl. P 4(b). The second copy, addressed to what the DEA believed at that time to be Pou's residence at 106 49th Avenue in Queens, New York, was returned to the DEA by the Postal Service marked "no such number." Id. P 4(c).

 Upon investigation, the DEA Office of Forfeiture Counsel thereafter learned that Pou's correct address was 106-27 49th Street, Queens, New York. See Declaration of William J. Snider Sworn to July 26, 1994 ("Snider Decl.") P 6. On March 24, 1989, the DEA sent a third notice to that address by certified mail, return receipt requested (the "March 24 forfeiture notice"). See Bohn Decl. P 4 (c), Exh. 6. Thereafter, the DEA received from the Postal Service a signed postal receipt card from the March 24 forfeiture notice bearing the signature "Salvatore Pou." See Bohn Decl., Exh. 7.

 On August 3, 1989, having received no claims for the $ 18,200, the DEA declared the $ 18,200 in currency administratively forfeited to the United States pursuant to the federal forfeiture statutes, 19 U.S.C. §§ 1607-1618 and 21 U.S.C. § 881. See Bohn Decl. P 4(f), Exh. 8.

 In the underlying conspiracy trial in the County Court, Criminal Term for Jefferson County, Pou moved to suppress, inter alia, the $ 18,200 seized from Pou's vehicle on the ground that there had been no probable cause for the search. See Scarvalone Decl. Exh H. After conducting a four day hearing, the court ruled that probable cause for the search warrant had existed and denied Pou's suppression motion, see Fritzen Decl., Exh. J.

 On June 11, 1990, Pou was convicted of conspiring to distribute narcotics in violation of N.Y. Penal Law § 105.15. See Scarvalone Decl., Exh. A. On appeal, Pou raised his claims of illegal search and seizure. See Scarvalone Decl. Exh. L, 24-33. The New York State Appellate Division for the Fourth Department affirmed his conviction. See People v. Pou, 185 A.D.2d 642, 585 N.Y.S.2d 911 (4th Dep't 1992).

 In early January 1991, a neighbor residing in Pou's three story Queens residence delivered to Pou's wife the March 24, 1989 forfeiture notice. See Plaintiff's Memorandum of Law In Support of His Answer To Defendant's Motions To Dismiss The Amended Complaint Or For Summary Judgment ("Pltff. Mem. II") at 3. Shortly thereafter, Pou's wife mailed the March 24 forfeiture notice to Pou, who was at that time incarcerated at the Sing Sing Correctional Facility. Id. On January 10, 1991, Pou actually received the March 24 forfeiture notice forwarded by his wife. *fn4" Id.

 On March 15, 1991, Pou filed the instant action against defendants DEA and DEA Task Force Agents Joseph Loszynski and Brian Tousant, whom Pou alleges conducted the search. By Order dated September 13, 1991, the complaint was dismissed sua sponte as against defendants Loszynski and Tousant on the ...


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