There was a need for prompt action in that the assets of the trucking company and the semi-tractor trailers are mobile and easily concealed. Furthermore, the auto parts store was the alleged locus of criminal activity in the form of money laundering, and the government could reasonably believe that seizure was necessary to prevent further illegal activity. Finally, the proceeding was initiated by an appropriate government official. Thus, the government could have seized those items of property without any pre-seizure hearing at all since all three Fuentes requirements are met. The fact that the government sought the additional safeguard of having the warrants of arrest reviewed by a United States Magistrate in an ex parte proceeding leads this court to conclude that the claimants were afforded more than adequate due process, with respect to the trucking company, semi-tractor trailers and auto parts store.
The seizures of Bobby Surratt's farmhouse and land, Norma Surratt's real estate and home, and Norman Louisan's mobile home, however, raise more serious Constitutional concerns. These items are not easily dissipated or concealed and the government has not argued that any were likely to be used in any future criminal activity. Furthermore, the Court assumes that the claimants maintained the property as their homes. The claimants' expectations of privacy and freedom from government intrusion in their homes merit special Constitutional protection. See, e.g., United States v. Karo, 468 U.S. 705, 714, 82 L. Ed. 2d 530, 104 S. Ct. 3296 (1984). Had the government seized the claimants' homes without any semblance of due process, this Court would be inclined to summarily quash the warrants of arrest issued for those parcels. As noted previously, however, the claimants were afforded at least a modicum of process prior to seizure in that a United States Magistrate reviewed the complaint for forfeiture and the affidavit of Special Agent Larry Davis in an ex parte proceeding before issuing the arrest warrants. The narrow question thus becomes whether an ex parte probable cause determination by a disinterested judicial officer provides adequate due process to persons whose homes are seized by the government as part of a civil forfeiture proceeding.
A court cannot be guided by technical, mechanical rules of law in its determination of whether the process afforded to claimants in a particular case was adequate. Cafeteria and Restaurant Workers Union, Local 474, Et Al. v. McElroy, Et Al., 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961). Due process is a flexible concept and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Accordingly, resolution of the issue of whether the magistrate's ex parte determination of probable cause afforded the claimants' adequate due process requires analysis of the governmental and private interests affected. In conducting this analysis, courts consider three factors: (1) the private interest that will be affected by the government action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards, and (3) the government's interest in avoiding more onerous procedural safeguards. Mathews v. Eldridge, 424 U.S. 319, 334-335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). In evaluating the governmental interest at stake, courts can consider the fiscal and judicial burdens that additional procedural safeguards would entail, along with the Fuentes and Calero-Toledo factors. See, e.g., United States v. The Premises and Real Property at 4492 South Livonia Road, Livonia, New York, 889 F.2d 1258 (2d Cir. 1989).
In light of these factors, as applied to these specific circumstances, this Court finds that the claimants should have been afforded an adversarial hearing before their homes were seized. The claimants' private interests affected by the government action was great in light of their unique interests in their homes. See United States v. The Premises and Real Property at 4492 South Livonia Road, Livonia, New York, 889 F.2d 1258 (2d Cir. 1989). Furthermore, although the ex parte proceeding before the magistrate obviously reduced the risk of an erroneous deprivation, an adversarial proceeding would have further reduced the risk. Id. Most importantly, the governmental interest in providing minimal due process is, in the balance, scant when compared with the claimants' overriding interest in their homes. The broad interest in deterring drug dealing will be established whether or not the seizure occurs before or after an adversarial proceeding. The government interest in foregoing burdensome proceedings will not be advanced since the claimants can, and did, invoke adversary procedures after seizure. Id. Furthermore, the claimants' homes cannot be readily dissipated or concealed and, in any event, the governmental interest can be adequately protected by the filing of a lis pendens.2 Id. Also, the government has not demonstrated to the Court that it feared the claimants' homes would be used to further facilitate drug activity.
In light of these factors, the Court GRANTS the motion to quash with respect to the warrants issued for the arrest of Norma Surratt's, Norman Louisan's and Bobby Surratt's homes.
This ruling does not, however, require that the claimants' alternate motion for return of seized property be granted. Many courts have recognized that the illegal seizure of property, standing alone, will not immunize the property from forfeiture so long as impermissibly obtained evidence is not used in the forfeiture proceeding. See, e.g., United States v. One Mercedes Benz, Four Door Sedan, 711 F.2d 1297, 1303 (5th Cir. 1983); See also Dodge v. United States, 272 U.S. 530, 532, 71 L. Ed. 392, 47 S. Ct. 191 (1926). This Court has reviewed the complaints for forfeiture and the affidavit of Special Agent Larry Davis and finds that there is an independent basis for probable cause to issue warrants of arrest for the claimants' alleged property. The only argument that the claimants present in support of their claim that the government did not have probable cause to seize their alleged property is that such property is in the names of the claimants, not Harley Surratt. This argument is totally unavailing. One of the government's allegations, which is supported in detail by the Davis affidavit, is that Harley Surratt placed his property in his relatives' names to circumvent federal drug laws. The claimants have now been afforded an adversary hearing. The Court has reviewed the pleadings and finds that they do not begin to overcome the detailed factual allegations contained in the Davis affidavit. Accordingly, the Clerk of the Court is Ordered to Reissue the Warrants of Arrest for claimant Norma Surratt's, Norman Louisan's and Bobby Surratt's homes and connecting property. See United States v. 124 East North Ave., Lake Forest, Ill., 651 F. Supp. 1350, 1356 (N.D.Ill. 1987).
In summary, the claimants' Motion to Consolidate (Document No. 14 Case No. 89-4222) is GRANTED. Their Motion to Dismiss or Alternatively to Transfer (Document No. 21 Case No. 89-4211) is DENIED. The claimants' Motion to Quash Warrants of Arrest or Alternatively for Return of Seized Property (Document No. 8 Case No. 89-4211; Document No. 13 Case No. 89-4222) is GRANTED IN PART AND DENIED IN PART. The Clerk of Court is ORDERED TO REISSUE THE WARRANT OF ARREST FOR THE PROPERTY DESCRIBED IN THE COMPLAINT FOR FORFEITURE IN REM, CASE 89-4211, COUNT I, II, AND V.
IT IS SO ORDERED.
DATED: February 7, 1990