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United States v. $7

United States District Court, W.D. New York

May 10, 2017

United States of America, Plaintiff,
v.
$7, 679.00 United States Currency, Defendant. United States of America, Plaintiff,
v.
$15, 104.00 United States Currency and One Blue 2011 Ford F150 XLT, VIN 1FTEX1CM5BFB76077, Defendants.

          REPORT AND RECOMMENDATION

          Honorable Hugh B. Scott United States Magistrate Judge

         I. INTRODUCTION

         The Hon. Richard J. Arcara has referred both Case No. 13-CV-727 (the “First Case”) and Case No. 13-CV-1057 (the “Second Case”) to this Court under 28 U.S.C. § 636(b). (First Case Dkt. No. 7; Second Case Dkt. No. 11.) Pending before the Court is a motion to suppress filed in each case by pro se claimant Andrew Fitch (“Fitch”). (First Case Dkt. No. 80; Second Case Dkt. No. 71.) Fitch does not specify any source of legal authority for his motion, but the Court will construe his motion as one made under Rule G(8)(b) of the Supplemental Rules for Admiralty and Maritime Claims that accompany the Federal Rules of Civil Procedure (“FRCP Supp.”). As he has done an unfortunate number of times in these cases (see, e.g., First Case Dkt. Nos. 35, 40, 42, 43, 46, 47, 57, 60, 62, 64, 70, 71), Fitch throws a stream-of-consciousness series of observations at the Court, covering bitter relationships that he has had with previously retained attorneys; threats that law enforcement agents allegedly made against him; attacks on counsel for plaintiff in this case and on certain state prosecutors; criticism of rulings against him in state court; and an assertion that any reasonable jury will vote for summary judgment in his favor.[1] Plaintiff responds by defending the points in these cases that might implicate suppression issues and by criticizing Fitch for repeatedly filing frivolous papers. Plaintiff also wants the Court to enjoin Fitch filing any more papers without advance permission, given the disorganized, repeated, and frivolous nature of his prior filings.

         The Court will refer to the twin motions collectively as one motion and deems the motion submitted on papers under FRCP 78(b). The Court is not quite ready to go as far as to recommend an injunction against future filings by Fitch. Technically, Fitch had not filed any motions to suppress before. Despite the Court's explicit advice to consult the Pro Se Assistance Program (see First Case Dkt. No. 74 at 4, Dkt. No. 74-1; Second Case Dkt. No. 65 at 4, Dkt. No. 65-2), Fitch clearly has refused to do so. If Fitch does not wish to make a more useful argument for suppression then so be it. Meanwhile, the Court has attempted to extract some substance from what Fitch has filed. For the reasons below, the Court respectfully recommends denying the motion to suppress.

         II. BACKGROUND

         A. Initial Arrest

         Both cases originated with Fitch's arrest in Lockport, New York in the early morning of February 23, 2013. At about 12:40 AM, Fitch was the sole driver and occupant of the blue 2011 Ford F150 pickup truck (the “Vehicle”) that is a named in rem defendant in the Second Case. Lockport Police Department officers pulled Fitch over when they allegedly observed him drive through a stop sign and turn without signaling. When officers approached Fitch at his driver-side window, they noticed an odor of marijuana coming from him and the Vehicle. The officers asked Fitch to exit the Vehicle and conducted a search of it. “A search of Fitch's vehicle resulted in the discovery of a clear glass jar containing marijuana; a plastic cup containing a black, hardened substance; a marijuana grinder, a clear plastic bag containing more than[2] ounces of marijuana, and 4 cellular phones.” (Dkt. No. 38 at 6; Dkt. No. 54-1 at 2; Dkt. No. 54-7 at 2.) 2 The record does not clarify whether Fitch consented to a search or whether the officers decided immediately that they had probable cause to search the Vehicle; the record seems to indicate only that the decision to arrest came after the search. (Dkt. No. 54-7 at 2.)

         No matter how events played out exactly, Fitch's encounter with officers on the night of February 23, 2013 ended with his arrest, a search of his person, and a search of the Vehicle. Officers charged him with misdemeanor possession of marijuana and two traffic violations. Officers found a total of $7, 679.48 on Fitch's person-$679.48 in his wallet and $7, 000 hidden inside the front of his pants. At his deposition, Fitch explained that he had money in the waistband of his pants because “[o]bviously any police officer whether you get pulled over with a gram of marijuana or not is going to assume that the funds came from that. So I just-I put it in there.” (Dkt. No. 54-3 at 39.) A search of the Vehicle yielded a little over two ounces of marijuana in a clear plastic baggie, a clear glass jar containing marijuana, a plastic cup containing a black hardened substance, a marijuana grinder, and four cellular telephones. Fitch allegedly told officers during a post-arrest interview that the currency found on his person came from a settlement of a personal injury case.

         On July 17, 2013, Fitch pled guilty to the marijuana charge and was sentenced to a conditional discharge. On March 3, 2016, the Government filed an addendum to the pending motion containing laboratory confirmation that the Vehicle contained marijuana and two other psychoactive controlled substances at the traffic stop and during the execution of the seizure warrant described below. (See generally Dkt. No. 58.)

         B. Federal Seizure Warrant and State Search Warrant

         The next set of events in the present cases began in April and May 2013. On April 22, 2013, Magistrate Judge Leslie Foschio issued a seizure warrant for the Vehicle. Federal agents executed the warrant on May 21, 2013, stopping Fitch shortly after he started driving away from his residence. After searching the Vehicle, agents recovered $15, 104.00 in currency, 4.43 ounces of marijuana, three more cellular telephones, and two cellular telephone phone batteries. “The defendant currency was found wrapped in plastic and secreted within a shoe box which was also located in the bed of the defendant vehicle, a short distance away from the marijuana. The majority of the defendant currency was found to be in smaller denominations, including 481 twenties.” (Dkt. No. 54-1 at 5.) Also on May 21, 2013, local law enforcement officers executed a state search warrant for Fitch's residence in Barker, New York. (Dkt. No. 54-6 at 14-17.) “There officers recovered a quantity of marijuana, a glass baking pan containing concentrated cannabis oil, a small tin containing a white rock like substance and a purple chunk like substance, several assault rifles, ammunition and a ballistic vest. In the basement, officers discovered equipment they recognized as equipment commonly used in an indoor marijuana grow operation, including grow lights and plant food.” (Id. at 5.) Another state search warrant appears to have been executed at Fitch's residence in Middleport, New York on November 3, 2015, yielding over 10 pounds of marijuana, drug paraphernalia, and over $70, 000 cash. (Dkt. No. 54-7 at 12-15.) New state charges resulted; Fitch has disclosed in his motion papers that a trial on the charges was to have begun in state court on May 8, 2017.

         C. The Cases Generally

         The Government filed verified complaints for the First Case on July 12, 2013 and for the Second Case on October 18, 2013. The Government's cause of action for the First Case was simple: “[T]here is cause to believe by a preponderance of the evidence that the defendant currency was furnished, or intended to be furnished in exchange for a controlled substance, and/or had otherwise been used to facilitate a violation of Title 21, United States Code, Subchapter I of Chapter 13, Section 801 et. seq. and is subject to forfeiture pursuant to Title 21, United States Code, Section 881(a)(6).” (First Case Dkt. No. 1 at 7.) Fitch filed a verified claim for the First Case on August 29, 2013 and a verified answer on September 19, 2013. (First Case Dkt. Nos. 6, 9.) In both documents, Fitch denied that the Government had an appropriate basis to make a seizure and asserted that he was an innocent owner of the defendant currency. The Government's cause of action for the Second Case was nearly identical: “[T]here is cause to believe by a preponderance of the evidence that the defendant vehicle was used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance, and/or were the proceeds traceable to such exchanges in violation of Title 21, United States Code, Subchapter I of Chapter 13, Section 801 et. seq. and is subject to forfeiture pursuant to Title 21, United States Code, Sections 881 (a)(4) and (6). The defendant currency was furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of Title 21, United States Code, Subchapter I of Chapter 13, Section 801 et. seq., and is subject to forfeiture pursuant to Title 21, United States Code, Section 881 (a)(6).” (Second Case Dkt. No. 1 at 7-8.) In his verified claim and verified answer, both filed on November 20, 2013, Fitch again asserted himself as an innocent owner of the defendant assets and denied that the Government had an appropriate basis to seize the property. (See generally Second Case Dkt. Nos. 5, 6.)

         Both cases have survived Fitch's motions to dismiss and have proceeded through discovery. Plaintiff has filed motions for summary judgment in each case. (First Case Dkt. No. 54; Second Case Dkt. No. 50.) The Court has recommended denial of the motions ...


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