United States District Court, Central District of Illinois, Peoria Division
February 5, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
ONE PARCEL OF REAL ESTATE LOCATED AT 343 EAST 12TH AVENUE, MILAN, ILLINOIS, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON, DEFENDANT.
The opinion of the court was delivered by: Mihm, District Judge.
Before the Court is a Motion by the United States of America
for summary judgment (# 47) against claimants Randall Sorrells
and Cathy Sorrells. The Court denies this Motion.
The United States of America seeks judicial forfeiture of the
above-described real estate owned by Randall and Cathy Sorrells
which is subject to a note and mortgage to Investors
Residential Mortgage Corporation. It is the government's
contention that the Defendant property was used by Randall
Sorrells to store and distribute marijuana. The government
seeks forfeiture of the real estate pursuant to the civil
forfeiture provisions of 21 U.S.C. § 881(a)(7).
On September 13, 1989, the United States Magistrate was
presented with an application for a seizure warrant which was
supported by the accompanying affidavit of Special Agent Doreen
Moore, who appeared before the Magistrate. After reviewing the
documents submitted by the government, the Magistrate concluded
that probable caused existed for the issuance of a seizure
warrant. The seizure warrant was issued pursuant to the
authority provided in 21 U.S.C. § 881(b).
The United States Marshal Service executed the seizure warrant
on September 21, 1989, and took control over the property.
The claimants deny that the government had probable cause to
believe that the property was subject to forfeiture due to the
real estate being used to facilitate the commission of a
violation of 21 U.S.C. § 801. The claimants also deny that the
property was purchased with proceeds traceable to the exchange
of controlled substances.
In addition, claimant Cathy Sorrells asserts that she is an
The initial question in this case is whether or not a district
court must review the Magistrate's finding of probable cause
de novo, or review the Magistrate's finding on the existence
of probable cause in the same way that review would occur in
the case of a search warrant, i.e., the abuse of discretion
standard. By virtue of 21 U.S.C. § 881(d), the burden of proof
in these cases is controlled by 19 U.S.C. § 1615. United
States v. All That Tract (Riverdale), 696 F. Supp. 631, 634
(N.D.Ga. 1988). Under § 1615, the government must first
demonstrate probable cause. Once the government has shown
probable cause the burden of proof shifts to the claimant.
After the burden has shifted to the claimant:
A claimant may defend against a forfeiture either by refuting
the government's showing of probable cause, or by coming
forward with affirmative evidence tending to prove that the
property was not derived from drug proceeds or used in
furtherance of drug activities. (Citations omitted).
Based upon the relevant statutes and case law, this Court finds
that there is no basis for claimant's asserted requirement that
the Court must consider the issues of probable cause de novo.
Further, contrary to claimant's assertion, the court in United
States v. 13,000 in U.S. Currency, 733 F.2d 581 (8th Cir.
1984), did not indicate that it considered evidence submitted
by the claimants in determining whether or not the government
had met its initial burden of showing that probable cause
As the government notes, it is authorized to request a seizure
warrant for the seizure of property subject to forfeiture in
the same manner as it may request a search warrant under the
Federal Rules of Criminal Procedure (see, 21 U.S.C. § 881(b)),
which is not subject to de novo review. In criminal
cases the magistrate's determination of probable cause is
treated with deference and is only reviewed for clear error.
United States v. McQuisten, 795 F.2d 858, 861 (9th Cir.
1986); United States v. Hernandez-Escarsega,
886 F.2d 1560, 1563 (9th Cir. 1989). In criminal cases a
finding that, under the totality of the circumstances, the
magistrate had a substantial basis for concluding that probable
cause existed is sufficient to uphold the warrant. Jones v.
United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d
697 (1960); Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct.
2317, 2331, 76 L.Ed.2d 527 (1983); United States v. McNeese,
901 F.2d 585, 592-593 (7th Cir. 1990).
This Court can see no reason to apply a different standard for
review of a magistrate's finding of probable cause in a civil
forfeiture case, as opposed to a criminal case. Thus, this
Court believes that if the magistrate had a substantial basis
for concluding that probable cause existed, this Court must
uphold the warrant and find that the government has carried its
initial burden of showing probable cause. The cases cited by
the claimants are not to the contrary. The court in United
States v. $13,000 in U.S. Currency stated:
Our review of the record leads us to conclude that the
magistrate's probable cause determination was not clearly
erroneous. . . .
United States v. $13,000 in U.S. Cúrrency, 733 F.2d at 585.
The case of United States v. 15824 West 143rd Street,
Lockport, Illinois, 736 F. Supp. 882 (N.D.Ill. 1990) also
supports this Court's conclusion. In that case, the claimant
argued that the government should be required to establish
probable cause during the forfeiture trial and that the
government could not rely on the previous finding of probable
cause. Id. at 886-887. The court ruled that, where the
affidavit in support of a seizure warrant establishes probable
cause, that finding is sufficient to shift the burden of proof
to the claimant without the need for the United States to make
a de novo showing of probable cause during the forfeiture
trial. Id. at 887. More specifically, the court stated:
Essentially, the government has two opportunities to establish
probable cause. First, the government may demonstrate probable
cause for purposes of seizure and if that determination proves
improper, the government may submit new evidence pursuant to
the forfeiture proceeding.
Id. at 887. In other words, if the government establishes
probable cause through the seizure warrant, the burden shifts
to the claimant to defend the property. If the government has
failed to establish probable cause as part of the seizure
process, then it would be required to establish probable cause
at the trial.
After examining the affidavit of Doreen Moore, this Court
believes that the government has made a sufficient initial
showing that there was probable cause for the issuance of the
forfeiture warrant in this case.
Next, the government asserts that it is entitled to summary
judgment because the claimants Randall Sorrells and Cathy
Sorrells have failed to produce enough evidence to create a
dispute of material fact as to whether the property was
purchased with drug proceeds or used to facilitate the
commission of a prohibited act. Thus, the government assets
that the claimants have not met their burden.
The claimants in this case need to show that there is a genuine
issue of material fact to avoid summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). A genuine dispute of material fact
exists if the evidence is such that a reasonable trier of fact
could return a verdict for the non-moving party. Anderson,
477 U.S. at 249, 106 S.Ct. at 2510.
After examining the depositions and the exhibits submitted by
the parties, the Court concludes that the claimants have
established that disputed issues of material fact do exist in
this case. Therefore, the government's Motion for Summary
Judgment is DENIED.
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