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UNITED STATES v. 8215 REESE RD.

September 17, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
8215 REESE ROAD, HARVARD, ILLINOIS, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 After an ex parte presentation to the court, the United States obtained a warrant of seizure and monition, permitting it to seize and encumber the property located at 8215 Reese Road in Harvard, Illinois. 8215 Reese Road is the home of John and Maura Wangler ("Wanglers," "Claimants"). The Wanglers claim that because they were denied a pre-seizure notice and hearing, their due process rights were violated. Accordingly, they move to dismiss the government's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 II. Factual Background

 On June 11, 1992, the United States filed a verified complaint seeking forfeiture of property located at 8215 Reese Road in Harvard, Illinois. The complaint sought forfeiture pursuant to 21 U.S.C. § 881(a)(7), authorizing forfeiture of property used in the violation of federal statutes. The complaint was verified by the affidavit of Inspector Jeffery Foerster of the North Central Narcotics Task Force, Division of Criminal Investigations, of the Illinois State Police.

 According to the complaint, the Drug Enforcement Agency, together with the Illinois State Police, executed a search warrant for 8215 Reese Road. The law officers discovered twenty-six pounds of marijuana on the property along with packaging materials such as scales and plastic bags. John Wangler, one of the owners of the property, admitted that he had engaged in previous sales of marijuana, and that twenty-five pounds of the marijuana found on the property were intended for sale to other people. (Complaint at P 8). Maura Wangler, the other owner of the property, likewise admitted that she was aware that the property was used to store marijuana before it was sold to others. (Complaint at P 9).

 The government filed an ex parte motion requesting that this Court review its verified complaint and make a finding of probable cause prior to service of the warrant of seizure and monition. *fn1" That same day, the Court found that there was probable cause to believe that 8215 Reese Road was subject to forfeiture under 21 U.S.C. § 881(a)(7) and ordered seizure and monition of the property pursuant to Rule C of the Admiralty Rules.

 There is no dispute that the seizure of 8215 Reese Road complied with the relevant statutory requirements. Under 21 U.S.C. § 881(b),

 Any property subject to civil forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims . . . .

 Supplemental Rule C(3) in turn, provides that

 except in actions by the United States for forfeitures for federal statutory violation, the verified complaint and any supporting papers shall be reviewed by the court and, if the conditions for an action in rem appear to exist, an order so stating and authorizing a warrant for the arrest of the vessel or other property that is the subject of the action shall issue and be delivered to the clerk who shall prepare the warrant and deliver it to the marshal for service.

 (emphasis added). Under Supplemental Rule C(3), then, pre-seizure review is not required for forfeitures sought pursuant to § 881(a)(7). In fact, Supplemental Rule C(3) expressly exempts the government from obtaining pre-seizure judicial review. United States v. South Side Finance, Inc., 755 F. Supp. 791, 799 (N.D. Ill. 1991) (citing United States v. 124 East North Ave., Lake Forest, Ill., 651 F. Supp. 1350, 1353 (N.D. Ill. 1987)); A Parcel of Real Property Commonly Known As: 3400-3410 West 16th Street, Chicago, Illinois, 636 F. Supp. 142, 145 (N.D. Ill. 1986)). Accordingly, there has been no violation of the statutory requirements in the case at hand.

 However, a seizure whose process complies with § 881(b) and Supplemental Rule C(3) may still violate a party's due process rights. See e.g. 124 East North Ave., 651 F. Supp 1350; United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 612 F. Supp. 1492 (S.D. Fla. 1985) (vacated and remanded on other grounds Certain Real Estate Property, 838 F.2d 1558 (11th Cir. 1986)). In general, due process requires that a person receive a hearing before being deprived of liberty or property. Zinermon v. Burch, U.S. , 110 S. Ct. 975, 984, 108 L. Ed. 2d 100 (1990). However, in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d ...


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