On January 25, 1990, Detective Bentley made a written application to Judge Richard Kinzly of the Tonawanda City Court for a warrant to search the claimant's apartment and the attic of the subject premises. Item 19, Ex. A (Application for Search Warrant). After holding an in camera hearing at which the CI appeared and gave testimony, Judge Kinzly found that probable cause existed and signed the search warrant submitted to him by Detective Bentley (Item 19, P 5). The search warrant signed by Judge Kinzly contained a recitation of probable cause on the first page of the warrant which stated that "the attic of 500 Delaware Street, Tonawanda, Erie County, New York, said property belonging to Martin Isenberg, is used to cultivate marihuana in felony quantities, that said attic is enclosed even at the windows to prevent discovery of said activity." Item 19, P 5 and Ex. A (Search Warrant, p. 1). On the same page, the Search Warrant stated that "marihuana, it's [sic] derivatives, plants and paraphernalia are present at 500 Delaware Street, upper apartment on the south east corner of the house, and in the attic, both owned and controlled by Martin Isenberg." Warrant, p. 1.
In the command clause which appeared on the second page of the warrant, however, the description of the premises to be searched did not mention the attic. Instead, the warrant commanded the police to search "[a] multiple dwelling, located at 500 Delaware Street, Tonawanda, NY 14150 (Erie County) To search the apartment on the second floor, first door on left at top of steps, the apartment of Martin Isenberg and wife; located on the SW corner of Koch & Delaware St." Warrant, p. 2. The command clause further authorized a search of a van owned by claimant and a search of both claimant and his wife. Warrant, p. 2.
The search warrant was executed on January 26, 1990, by Bentley and other officers from the City of Tonawanda Police Department. Item 19, P 6. The officers began the search in claimant's apartment but apparently found no evidence of drugs or drug-related activities within the apartment. During the search, officers sought to enter the attic of the premises to continue their search. Claimant blocked the doorway to the attic, which was double-locked, and refused to allow the officers to enter. The officers forcibly took the keys to the attic from claimant and entered the attic. The attic contained 27 marijuana plants, weighing a total of approximately 5.2 pounds, as well as marijuana-growing equipment including heaters, grow lights, chemical feeding equipment, control panels, drying trays, and fertilizer. Item 19, P 6. While the officers were searching the attic, claimant allegedly told Bentley that "my wife has no part in this. I was growing the pot, and she never touched it." Item 19, P 8. Following the search, claimant was arrested and charged with criminal possession of marijuana, cultivating marijuana without a license, and obstructing governmental administration. Item 19, P 9.
An Erie County Grand Jury indicted claimant on July 6, 1990, 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. Item 19, P 10 and Ex. D (Indictment). A motion to suppress the evidence obtained in the search of the premises made by claimant was denied, and he subsequently pled guilty to both charges. On December 30, 1992, the New York State Supreme Court Appellate Division, Fourth Department, unanimously overturned his conviction on the grounds that 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 instant action was commenced by the United States on August 27, 1990. Following this court's ruling that claimant was the owner of the premises for purposes of this forfeiture action, claimant filed a claim and answer as owner of the premises. Items 41, 51. Presently before the court are the government's motion, and claimant's cross-motion, for summary judgment. Items 53-55, 58-62. At issue is whether the government has introduced sufficient lawfully-obtained evidence to meet its burden of demonstrating probable cause for forfeiture.
Under 21 U.S.C. § 881(a), property subject to forfeiture in 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. . . .
21 U.S.C. § 881(a)(7) (1988). In a forfeiture action, the government bears the initial burden of establishing that there is probable cause to believe the property is subject to forfeiture. 21 U.S.C. § 881(a)(7) (1988). In a forfeiture action, the government bears the initial burden of establishing that there is probable cause to believe the property is subject to forfeiture. United States v. Two Parcels of Property Located at 19 and 25 Castle Street, 31 F.2d 35, 39 (2d Cir. 1994). Once the government has met this burden, the burden of proof then shifts to the claimant opposing forfeiture, who must demonstrate "by a preponderance of the evidence that either (1) the property was not used for an illegal purpose; or (2) the illegal use of the property was without his knowledge or consent." Id.
In order to establish probable cause, the government must have "'reasonable grounds, rising above the level of mere suspicion, to believe that [the] property is subject to forfeiture.'" Id. at 39 (quoting United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir. 1986)). Where the property is alleged to be subject to forfeiture because of the use of the property for drug activity, or for the facilitation thereof, the government must connect the property with the drug activity to establish probable cause. However, "there need not be a substantial connection between the drug activity and the property in question, but only a nexus between them." United States v. 785 St. Nicholas Ave., 983 F.2d 396, 403 (2d Cir. 1993).
In establishing the required nexus between drug activity and the subject property, the government may not rely upon evidence which has been obtained in violation of a claimant's rights under the Fourth Amendment. United States v. Lasanta, 978 F.2d 1300, 1305 (2d Cir. 1992) (citing One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965); Boyd v. United States, 116 U.S. 616, 622, 29 L. Ed. 746, 6 S. Ct. 524 (1886)). The central issue in this case is whether the government has introduced sufficient lawfully obtained evidence to establish probable cause for forfeiture of the subject premises.
It is clear from the facts of this case that, if the evidence obtained in the search of the attic of the subject premises was lawfully obtained, the government has established probable cause for the forfeiture.
Initially, this court notes that the state court decision suppressing the evidence obtained in the search of the subject premises is not binding upon a federal court. United States v. Ponce, 947 F.2d 646, 650 (2d Cir. 1991), cert. denied, 503 U.S. 943, 117 L. Ed. 2d 633, 112 S. Ct. 1492 (1992). In this case, the warrant was invalidated by the state court not for a lack of probable cause, but instead for non-compliance with a technical requirement of state criminal procedure law. People v. Isenberg, 188 A.D.2d 1042, 592 N.Y.S.2d 1006 (1992). The relevant question in a federal forfeiture proceeding, however, is whether the evidence which the government seeks to rely upon was obtained in a manner consistent with the Fourth Amendment. United States v. Lasanta, 978 F.2d at 1305.
In the present case, the claimant contends that the search of the attic of the subject premises violated his rights under the Fourth Amendment because the command clause of the warrant did not include the attic within the description of the place to be searched.
The Fourth Amendment's particularity requirement exists to protect the rights of individuals by preventing general exploratory searches. Maryland v. Garrison, 480 U.S. 79, 84, 94 L. Ed. 2d 72, 107 S. Ct. 1013 (1987). As the Supreme Court stated in Garrison :
By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found. . . ."
Id. (quoting United States v. Ross, 456 U.S. 798, 824, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982).
In the present case, the search warrant signed by Judge Kinzly includes a clear recitation of probable cause to believe that a marijuana-growing operation was being conducted, and that marijuana and marijuana-related derivatives and paraphernalia would be found, in the attic of the subject premises. Warrant, p. 1. Claimant, in fact, does not challenge the underlying finding of probable cause to search the attic, but instead challenges the validity of the warrant solely on the omission of the attic from the description of the place to be searched in the command clause of the warrant.
With respect to such challenges, the Second Circuit recently stated that:
Courts of Appeals have rejected Fourth Amendment challenges to warrants that contain partial misdescriptions of the place to be searched so long as the officer executing the warrant could "ascertain and identify the target of the search with no reasonable probability of searching another premises in error," . . . . Warrants have been upheld despite "technical errors," such as an incorrect street address, when the possibility of actual error is eliminated by other information, whether it be a detailed physical description in the warrant itself, supplemental information from an appended affidavit, or knowledge of the executing agent derived from personal surveillance of the location to be searched.