The opinion of the court was delivered by: CURTIN
This is a civil in rem forfeiture action brought by the United States against the premises and real property located at 500 Delaware Street, Tonawanda, New York, pursuant to 21 U.S.C. § 881. The owner of the property and claimant herein, Martin Isenberg, is contesting the forfeiture. The government has moved for summary judgment on the grounds that it has established probable cause for forfeiture since it is undisputed that claimant conducted a marijuana-growing operation on the subject premises. Claimant has filed a cross-motion for summary judgment, in which he argues that the evidence upon which the government relies to establish probable cause must be suppressed because it was obtained in violation of his rights under the Fourth Amendment.
The property at issue is a residence containing several apartments and an attic. The owner of record of the property is Edward Isenberg, Martin Isenberg's father. This court has previously determined, however, that Edward Isenberg is merely a straw owner of the contested property and that Martin Isenberg must be regarded as the owner of the premises for the purposes of this forfeiture proceeding. United States v. Premises and Real Property with Buildings, Appurtenances and Improvements at 500 Delaware St., Tonawanda, New York, 868 F. Supp. 513 (W.D.N.Y. 1994).
In January 1990, Detective David Bentley of the City of Tonawanda Police Department was contacted by a confidential informant ("CI"), who told Bentley that claimant was conducting a marijuana-growing operation on the subject premises. Item 19, P 2. The CI told Detective Bentley that claimant lived in a second-floor apartment on the premises; that the marijuana growing operation was run from the attic of the same building; that claimant had been growing and cultivating marijuana in the attic for three years; that there was an elaborate set-up of heaters, chemical feeders, and grow lights concealed in the attic behind dry-wall-covered windows; and that claimant had been selling the marijuana grown in the attic for approximately $ 150.00 per ounce. Item 19, PP 1-4. Further police investigation confirmed the location of the specific apartment in which claimant resided, as well as the location of the door to the attic and the fact that the windows of the attic appeared to be "be covered over and lights are never observed therein." Item 19, P 4 and Ex. A (Application for Search Warrant, p.1, P 2).
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).
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 ...