United States District Court, Northern District of Illinois, E. D
October 17, 1980
UNITED STATES OF AMERICA, PLAINTIFF,
$38,394 U.S. CURRENCY, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff United States of America ("the government")
instituted this forfeiture proceeding pursuant to 21 U.S.C. § 881(a),
1. Government agents had seized $38,394 ("the
currency") from Apartment 304 at 4734 West
Washington, Chicago, Illinois, while "acting
under authority of law."
2. Alternatively, the currency was furnished or
intended to be furnished in exchange for a
controlled substance in violation of federal
law or constitutes proceeds traceable to such
an exchange, or was used or intended to be
used to facilitate a violation of Title 21,
Chapter 13 of the United States Code.
Henry White ("White") has filed a claim of ownership interest
in the currency and has moved for summary judgment, asserting
that this Court's ruling in a prior action precludes
forfeiture of the currency in this action. For the reasons
discussed below, White's motion is granted.
On March 12, 1980 White and three other persons were
arrested on drug charges and gun possession charges in a first
floor apartment at 4734 West Washington. Immediately
thereafter government agents searched Apartment 304 in the
same building, found the currency in Crown Royal bags in a
closet of that apartment and took possession of the currency.
Prior to the trial of White and his co-defendants under the
indictment charging the substantive offenses, White filed a
motion under Fed.R. Crim.P. 41(e) for the return of the
During the pre-trial hearing on that motion the parties
offered conflicting evidence as to White's consent or the lack
of consent for the search and as to the circumstances of the
search. On July 9, 1980 this Court ordered the currency
returned to White because it had been illegally seized.*fn1
This forfeiture action was promptly filed by the government.
In support of his motion for summary judgment White relies
on the transcript of the pre-trial proceeding in the criminal
case and invokes the doctrine of collateral estoppel. In
response the government asserts the inapplicability of
collateral estoppel because, in its view:
1. the issues adjudicated in the prior
proceeding are not dispositive of the present
2. the government did not have the opportunity
to litigate the forfeiture issues fully in
the prior proceeding.
Just as in the earlier proceeding, the Court views the
parties as having failed to focus, at least in part, on the
precise issues in the case. Although each party has phrased
the collateral estoppel question solely in terms of whether
"probable cause" was litigated earlier, the actual language of
the Complaint — which defines the government's burden — is
that the government's agents seized the currency "acting under
authority of law."
Were that not the case — were the narrow issue here that
relating to claimed relitigation of "probable cause" — White's
motion for summary judgment would have to be denied. There is
no question that the Court's decision in the earlier proceeding
necessarily involved a holding that the government lacked
probable cause to seize the currency as an incident to White's
arrest. But the issue sought to be litigated here, though also
expressed as a question of "probable cause," is not necessarily
limited to the same question. Like Animal Farm, in which all
animals are equal but some are more equal than others, it does
not necessarily follow that probable cause is probable cause is
probable cause.*fn2 In this forfeiture proceeding the question
characterized as "probable cause" is whether
(21 U.S.C. § 881(b)(4)) there was at the time the Complaint was filed
"probable cause to believe that the [currency] has been used or
is intended to be used in violation of" the chapter dealing
with drug offenses. That question was plainly not litigated in
the prior proceeding.
But the matter does not end with that conclusion. This Court
did specifically hold in the earlier proceeding that the
seizure was illegal. United States v. One Residence and
Attached Garage, 603 F.2d 1231, 1234 (7th Cir. 1979):
Property of private citizens simply cannot be
seized and held in an effort to compel the
possessor to "prove lawful possession."
Accordingly collateral estoppel unquestionably operates to bar
the government from reasserting that the seizure was "under
authority of law." Thus if Complaint Paragraph 2 is necessary
to the government's cause of action, the Complaint must be
dismissed and the Court's order for delivery of the currency
to White, entered in the earlier proceeding, controls.
That conclusion in turn leads to the question whether the
government is then free simply to reinstate new forfeiture
proceedings. It is a necessary element of a forfeiture action
(an in rem proceeding) that the government have possession of
the property sought to be forfeited. Here the government
presently has such possession, but only as the result of what
determined (conclusively for purposes of this proceeding, by
reason of collateral estoppel) to be its own illegal seizure,
a violation of White's Fourth Amendment rights. But for that
illegal seizure the government would not have the possession
that is a condition precedent to a forfeiture action.
This Court will not permit the government to take advantage
of its own illegal conduct to forfeit a citizen's property,
nor to bootstrap itself by the return and prompt reseizure of
the property (whose present location it would have no
knowledge of but for its own unlawful conduct in the initial
seizure). See United States v. One 1976 Cadillac Seville,
477 F. Supp. 879, 882, 884-85 (E.D.Mich. 1979).*fn3
Accordingly White's motion for summary judgment is granted,
this action is dismissed with prejudice and the government is
directed to return the currency to White forthwith.