The opinion of the court was delivered by: LARIMER
Currently pending before me are McDermoth's motion for summary judgment or, in the alternative, to suppress evidence obtained at the time of the seizure, and the Government's cross-motion for summary judgment.
For the reasons that follow, the Government's motion for summary judgment is granted and McDermoth's motion is denied in its entirety.
I. Summary Judgment Standard
Fed.R.Civ.P. 56 provides that a motion for summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, in the forfeiture context, "if there [is] no genuine factual issue as to whether the seized currency was linked to an exchange involving illegal narcotics, summary judgment [is] proper." United States v. $ 31,990 in U.S. Currency, 982 F.2d 851, 854 (2d Cir. 1993).
II. Forfeiture Under 21 U.S.C. § 881(a)(6)
Pursuant to 21 U.S.C. § 881(d), "proceedings for summary and judicial forfeiture and condemnation of property shall follow the provisions for forfeiture that are set forth in the customs laws. These provisions are found at 19 U.S.C. §§ 1595a to 1615. Section 1615 provides that in a civil forfeiture action the claimant shall bear the burden of proof ' Provided, That probable cause shall be first shown for the institution of such suit or action'." United States v. $ 37,780 in U.S. Currency, 920 F.2d 159, 162 (2d Cir. 1990) (quoting 19 U.S.C. § 1615). Thus, although the burden ultimately falls on the claimant, the Government bears the "initial burden of establishing probable cause for instituting the forfeiture proceeding ..., that is, 'probable cause to believe that the properties are the fruits of illegal drug activity.'" United States v. Daccarett, 6 F.3d 37, 55 (2d Cir. 1993)(citations omitted), cert denied, 510 U.S. 1191, 510 U.S. 1192, 127 L. Ed. 2d 648, 114 S. Ct. 1294, and 128 L. Ed. 2d 190, 114 S. Ct. 1538 (1994).
In this case, the Government moves for summary judgment on the grounds that the present record clearly establishes probable cause for forfeiture of the money. McDermoth moves for summary judgment on the grounds that it does not.
To establish probable cause for the forfeiture, the Government must show that it has "reasonable grounds to believe that [the] property is subject to forfeiture. These grounds must rise above the level of mere suspicion but need not amount to what has been termed 'prima facie proof.' The Government must have probable cause to connect the property with narcotics activity, but need not link the property to a particular transaction." United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir. 1986)(citations and footnote omitted). "There need not be a substantial connection between the drug activities and the property in question, but only a nexus between them." Daccarett, 6 F.3d at 55 (citing United States v. 785 St. Nicholas Ave., 983 F.2d 396, 403 (2d Cir.), cert. denied, 508 U.S. 913, 124 L. Ed. 2d 258, 113 S. Ct. 2349 (1993). The Government may prove probable cause by circumstantial evidence. Daccarett, 6 F.3d at 56.
Furthermore, the Government need not demonstrate probable cause until the forfeiture trial or, as in this case, motion for summary judgment. Id. at 55. It may rely on evidence uncovered after the seizure. $ 37,780, 920 F.2d at 163. As the Second Circuit has noted, "'once a forfeiture proceeding is brought, if further evidence is legally obtained to justify the government's belief, there is no persuasive reason to bar its use.'" Id. (quoting United States v. Premises and Real Property at 4492 S. Livonia Road, 889 F.2d 1258, 1268 (2d Cir. 1989)).
Once the Government has made a showing of probable cause, the burden shifts to the claimant to show, by a preponderance of the evidence, that the defendant property was not in fact used unlawfully and hence is not subject to forfeiture. United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 487 (2d Cir. 1995)(citing Daccarett, 6 F.3d at 57); see also Livonia Road, 889 F.2d at 1267 ("claimant must prove either that the ...