of the claimant's knowledge of the vehicle's prior ownership would have been a "waste of time," and that summary judgment was therefore proper. Id.
In sum, the evidentiary burden to which courts hold a claimant seeking to overcome the government's motion for summary judgment varies depending on the circumstances of the case. Normally, courts must view all of the evidence presented on a motion for summary judgment in the light most favorable to the non-moving party. E.g., Federal Deposit Ins. Corp. v. Nanula, 898 F.2d 545, 548 (7th Cir. 1990). However, the foregoing cases suggest that in forfeiture actions, if a court finds it reasonable to infer from the objective evidence that the claimant had or must have had actual knowledge of the drug transaction, then the claimant cannot meet his or her burden of proof in opposing summary judgment simply by asserting ignorance. In other words, although courts have maintained that an innocent ownership defense turns on a claimant's actual, and not constructive, knowledge of the illicit activity which gave rise to the forfeiture action, see $ 4,255,625.39 at 907, if the evidence supports a "reasonable inference" of actual knowledge and the claimant fails to come forward within anything more than a naked protestation that he or she really didn't know of the illicit activity, the claimant's defense of innocent ownership fails, see id. and Red Ferrari, 827 F.2d at 480. See also United States v. One Parcel of Property Located at 15 Black Ledge Drive, Marlborough, Conn., 897 F.2d 97, 102 (2d Cir. 1990) (claimant's bare denial of knowledge insufficient to preclude summary judgment; in light of overwhelming evidence tending to show that claimant was aware of husband's drug trafficking, claimant was required to supply "more detailed factual substance in support of her claim of ignorance").
This Court has carefully reviewed all of the evidence which has been submitted by the government and the claimants. As detailed above, the Serratos have submitted affidavits in which they claim they had no knowledge that their property was being used to facilitate drug transactions prior to the September 12, 1987 drug seizures and arrest of Raul Serratos. Were it to follow the foregoing case law, the Court might be inclined to find, in the face of evidence showing that there was a pattern of open and extensive narcotics-related activity occurring on the claimants' property, that the Serratos' assertions of ignorance were simply not enough to raise a triable issue of fact as to their innocent ownership defense. However, after careful review of the body of admissible evidence presently before it, the Court is compelled to conclude that the Serratos' affidavits are sufficient to establish a genuine issue of fact as to their knowledge of the drug-related activity occurring on their property.
The government strenuously argues that because it has already demonstrated to the satisfaction of the Court that probable cause exists to warrant forfeiture of the property, the Serratos must do more than simply deny knowledge of the illicit activity on their property in order for their defense of innocent ownership to survive summary judgment. The flaw in this argument is that it ignores the minimal evidentiary threshold which the government must cross in order to establish probable cause more than "mere suspicion" but less than prima facie proof of wrongdoing. See One 1985 BMW 318i, 696 F. Supp. at 339, 341-42; 3400-3410 West 16th Street, 636 F. Supp. at 146. Without question, when the government moves for summary judgment in a forfeiture proceeding and it carries its initial burden to establish probable cause, the burden rests upon a claimant invoking the innocent owner defense to come forward with some evidence showing that he or she was unaware of and did not consent to the conduct on which the forfeiture action is based. See One 1985 BMW 318i, 696 F. Supp. at 344. However, evidence which suffices only to establish probable cause to warrant the forfeiture will not by itself impose upon the claimant the duty to support his or her innocent ownership defense in the rigorous detail which the government demands in this case. Where courts have granted the government's motion for summary judgment in forfeiture cases despite the claimant's assertion of ignorance, they have done so because the government has presented so much evidence from which the claimant's actual knowledge can be inferred that the claimant's unsupported assertion of ignorance is simply implausible. See, e.g., 15 Black Ledge Drive, 897 F.2d at 102; One 1980 Red Ferrari, 827 F.2d at 480. See also One 1985 BMW 318i, 696 F. Supp. at 346 (distinguishing such cases on their facts). The government has not done so in this case. The verified complaint, though sufficient to establish probable cause, is skeletal. It reveals only that narcotics were seized from the first floor tavern and second floor residence at the defendant property on September 12, 1987, that Raul Serratos was arrested on that date, that narcotics were seized from the premises on other, unspecified occasions, and that Gerrardo Serratos, a resident of the property, had previously been arrested and found to be in the possession of marijuana. The complaint does not specify the dates of the four other narcotics seizures, nor does it further detail the circumstances of either these seizures or the one which took place on September 12, 1987.
At the same time, the government has failed to come forward with any evidence which puts flesh upon the bones of its complaint. The information set forth in the police reports offers considerable detail as to the incidents referenced in the complaint, but the reports are unauthenticated, are plainly hearsay, and have not been shown to be admissible pursuant to any exceptions to the hearsay rule. Thus, the Court cannot consider them on a motion for summary judgment. Cf. United States v. Parcel of Real Property Known as 6109 Grubb Road, MillCreek Tp., Erie County, Pa., supra, 886 F.2d at 621-23 (error for district court to consider hearsay evidence with respect to claimant's innocent ownership defense); Heritage Mutual Ins. Co. v. Smith Truck Brokerage, Inc., 1985 WL 398 (N.D.Ill. May 9, 1985) (Plunkett, J.) (even where police report had been authenticated, it would not be considered on motion for summary judgment absent more information as to source of information set forth in report).
Standing alone, the minimal allegations of the verified complaint do not suffice as objective evidence from which an inference reasonably may be drawn that the Serratos had actual knowledge of the drug-related activity which was taking place on their property. Consequently, the assertions which both Mr. and Mrs. Serratos have made in their affidavits as to their lack of knowledge are sufficient to raise a genuine issue of fact and thereby defeat the government's motion for summary judgment. Cf. United States v. All That Lot of Ground Known as 2511 E. Fairmont Ave., Baltimore, Md., 722 F. Supp. 1273, 1281 (D.Md. 1989) (deposition testimony of claimants asserting ignorance sufficient to create issue of fact for trial, despite substantial evidence tending to indicate knowledge). However summary forfeiture proceedings may be, see 3120 Banneker Drive, 691 F. Supp. at 499, they do not impose upon a claimant who invokes the innocent owner defense the onerous task of attempting to counter in detail whatever inferences of knowledge might be drawn from evidence which the government has not yet placed before the Court. See United States v. One Parcel of Real Property, Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 492 (9th Cir. 1990) ("While the forfeiture statute gives the government a very substantial procedural advantage, it does not give it a substantive advantage; where conflicting evidence is presented, the government must subject its case to the judgment of a trier of fact . . . .") (emphasis in original).
2. Evidence Concerning Consent
Having concluded that the Serratos have succeeded in demonstrating a triable issue of fact with respect to the knowledge aspect of their innocent ownership defense, the Court must consider whether they must also demonstrate a lack of consent to the narcotics-related activity, and if so what such a showing entails. Few courts have addressed the consent component of the § 881(a)(7) innocent ownership defense. However, those that have considered it have taken different positions as to what this element requires of the claimant.
A threshold question with respect to the issue of consent is whether a claimant who proves that he or she did not have knowledge of wrongful activity must also show that he or she did not consent to such activity; that is, does § 881(a)(7) require the claimant to show the lack of both knowledge and consent, or simply the lack of one or the other. On this point, the courts are divided. The Second and Third Circuits have held that the statute only requires the claimant to prove that he or she lacked either knowledge or consent, not both. United States v. 141st St. Corp., 911 F.2d 870 (collecting cases); 6109 Grubb Road, 886 F.2d at 626. These courts have relied to some degree upon the use of the disjunctive "or" in the statutory provision for the innocent ownership defense. See 886 F.2d at 626. However, the Ninth Circuit, relying upon a congressional joint committee report which suggests an intent to hold property subject to forfeiture if its owner either knew of or consented to illegal conduct, has held that the claimant must prove the lack of both knowledge and consent in order to prevail under § 881(a)(7). See United States v. One Parcel of Land, Known as Lot 111-B, Tax Map Key 4-4-03-71(4), Waipouli, Kapaa, Island and County of Kauai, State of Hawaii, 902 F.2d 1443, 1445 (9th Cir. 1990).
A second question arises as to what exactly the consent prong of the § 881(a)(7) innocent ownership defense requires the innocent owner to prove. As the Court has observed at note 10, supra, when a claimant's innocent ownership defense is grounded not in a statutory provision like § 881(a)(7) but in the Supreme Court's dicta in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90, 94 S. Ct. 2080, 2094-95, 40 L. Ed. 2d 452 (1974), courts have required the claimant to show not only a lack of knowledge of the wrongful conduct, but also reasonable steps to prevent such conduct from taking place on the property. Courts applying § 881(a)(7) have disagreed as to whether the reasonable efforts requirement of Calero-Toledo should be imported into the consent component of the statutory innocent ownership defense. The Court of Appeals for the Sixth Circuit has concluded that it should not. See United States v. Lots 12, 13, 14, and 15, Keeton Heights Subdivision, Morgan County, Ky., 869 F.2d 942, 947 (6th Cir. 1989). It appears that the 11th Circuit may be in agreement with this position. See United States v. $ 4,255,625.39, supra, 762 F.2d at 906 n. 24 ("Because Calero-Toledo did not involve the statutory 'innocent owner' defense contained in 21 U.S.C. § 881(a)(6), we question the government's invocation of the Calero-Toledo dicta in this case."); see also United States v. One Parcel of Real Estate Consisting of Approximately 4,657 Acres, Located in Martin County, Fla., supra, 730 F. Supp. at 427-28. The Second Circuit has taken a contrary position, however, reasoning that Congress' failure to expressly incorporate a reasonable efforts requirement into § 881(a)(7) does not preclude the courts from nonetheless reading such a requirement into the consent provision of the statute. 141st St. Corp., The court explained:
We find the Calero-Toledo standard appropriate for section 881(a)(7) forfeiture cases because, when combined with our construction of the phrase "knowledge or consent," it provides a balance between the two congressional purposes of making drug trafficking prohibitively expensive for the property owner and preserving the property of an innocent owner. A claimant with knowledge of the illegal use to which his property is put may defend on the basis of lack of consent, but consent in this situation must be something more than a state of mind. The illicit sale and use of drugs is taking an ever increasing toll on our nation. These activities affect almost every aspect of modern existence, particularly in large urban centers like New York City. Given the present circumstances, defining "consent" in section 881(a)(7) as the failure to take all reasonable steps to prevent illicit use of premises once one acquires knowledge of that use is entirely appropriate.
Id. The Third Circuit has reserved opinion as to the applicability of Calero-Toledo in § 881(a)(7) forfeiture cases. See 6109 Grubb Road, 886 F.2d at 627.
Neither of these issues appears to have been addressed by courts in this circuit. Moreover, although each has a significant bearing upon the Serratos' defense in this case, for the most part they have not been addressed by the parties. As to the first of the two matters, the Serratos have urged the Court to adopt the position that they need only prove the lack of knowledge or consent, rather than the lack of both. (Claimants' Mem. at 2-3.) However, the government has not responded to this argument. With respect to the second issue, the parties appear to assume that the consent provision of the statute requires the Serratos to show that they took all reasonable steps to prevent narcotics-related activity from occurring on their property (see Claimants' Supp. Mem. at 2; Gov't Reply Mem. at 3), but this question has not been confronted directly in the briefing.
Both questions will have to be resolved prior to trial; however, neither affects the outcome of the government's motion for summary judgment. Even if the Court assumes that the Serratos must prove their lack of consent to the drug-related activity as well as their lack of knowledge, and that this requires them in turn to show that they took all reasonable steps to prevent such activity from taking place on their property, the evidence which the Serratos have presented is sufficient to preserve their innocent ownership defense. The claimants' affidavits describe the efforts which they took to prevent the storage, use, or sale of narcotics on the premises, and these have been summarized above. The government has cited no particular shortcoming in the claimants' efforts, and given the present lack of admissible, non-hearsay evidence in the record as reflecting the nature and extent of narcotics-related activity which occurred on the defendant property, the Court finds the claimants' showing sufficient to raise a triable issue of fact as to their lack of consent to this activity.
For the reasons set forth above, the government's motion for summary judgment is denied. The Court will conduct a status hearing in this matter on October 2, 1990 at 9:30 a.m. in order to ascertain how the parties plan to proceed in light of the Court's ruling.