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 ...