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April 25, 1997

47 WEST 644 ROUTE 38, MAPLE PARK, ILLINOIS, et al., Defendants.

The opinion of the court was delivered by: SHADUR

 This 21 U.S.C. §§ 881(a)(6) and 881(a)(7) *fn1" action seeks the forfeiture of 3,828 gold and silver coins ("Coins"), $ 1,336 in United States currency ("Funds") and real property at 47 West 633, Route 38, Maple Park, Illinois ("Property"). Each of Greg Accardi ("Greg") and Holly Accardi ("Holly")--collectively "Accardis"--has filed an individual claim of ownership of all of that property and contests such forfeiture.

 Now the United States has moved for summary judgment pursuant to Fed. R. Civ. P. ("Rule") 56. Both sides have complied (at least nominally) with this District Court's General Rule ("GR") 12(M) and 12(N), *fn2" and the United States' motion is fully briefed and ready for decision. For the reasons stated in this opinion, the motion is granted in part and denied in part.

 Summary Judgment Standard

 Under familiar Rule 56 principles, a party seeking summary judgment bears the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). This Court is called upon to draw inferences in the light most favorable to the non-moving party, but it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)).

 What follows in the Background section is a factual statement drawn from the parties' submissions, with any differences between them resolved in Accardis' favor. Facts that fit better into the substantive legal discussion will be set out later in this opinion.


 On the morning of September 13, 1992 Illinois State Police Sergeant James Griffith ("Griffith") flew over the Property and saw what he said "appeared to be several cannabis plants behind the residence" (U.S. 12(M) PP1-2; A. 12(N) Ex. A at 7). *fn3" He was flying at approximately 90 miles per hour at an altitude of approximately 1,000 feet (A. 12(N) Ex. A at 7-8). Griffith photographed the Property's area in question and showed the developed photographs to the Illinois State Police Task Force (A. 12(N) Supp. P4; A. 12(N) Ex. B). Police analysis of the photographs revealed what "appeared to be several potted marijuana plants growing behind a pole barn located on the defendant property" (U.S. 12(M) P7).

 On September 15, 1992, without obtaining either a search warrant or an arrest warrant, about five Illinois State Police Task Force officers approached the Property (A. Supp. 12(N) PP6-7). William Powell ("Powell"), the officer in charge of the investigation, stated that they intended "to get a consent search to search that property" (A. 12(N) Ex. C at 78). Whether the police legitimately obtained that consent is disputed by the parties. For purposes of this Rule 56 motion, however, this Court must credit the nonmovants' version of the facts: that the police fraudulently told Greg that they had a search warrant (A. 12(N) Ex. H at 36, 38), that Greg did not give consent for the search (id. at 47) and that his signature on the consent form is a forgery (A. 12(N) Exs. E at 6, F, G).

 During their complete search of the premises on September 15 the police found a variety of items: 45 marijuana plants, 500 grams (about 17.6 ounces) of dried marijuana, 22 firearms with ammunition, $ 1336. in United States currency, some 3,828 gold and silver coins, electric drying fans, plant food, an Ohaus scale, two large electric grow lights and marijuana seeds (U.S. 12(M) PP12-13). Greg was then arrested and charged with felony possession of marijuana, *fn4" and Holly was later charged with misdemeanor possession of marijuana (U.S. 12(M) PP14-16). At trial in the state Circuit Court, Accardis moved to quash the arrest and suppress all the evidence seized during the September 15 search and seizure, which they argued violated their Fourth Amendment rights (U.S. 12(M) P19). That motion was denied based on the open fields doctrine of Florida v. Riley, 488 U.S. 445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989) (to which denial the Accardis preserved an objection). After a stipulated bench trial both Accardis were convicted (U.S. 12(M) PP20-21).

 Accardis appealed their convictions on the grounds that their motion to suppress should have been granted. Finding that the Circuit Court's reliance on Riley was misplaced, the Illinois Appellate Court (see n.4 for the citation to its opinion) reversed the convictions and remanded the case to the Circuit Court for a finding of whether the warrantless search and seizure had violated Accardis' Fourth Amendment rights. On remand the Circuit Court granted Accardis' motion to quash the arrest and to suppress evidence, based on a finding that the search "was an unconstitutional and warrantless intrusion onto the Accardi property" ( People v. Accardi, Nos. 92 CF 1570, 92 CF 1838 (Ill. Cir. Ct., 16th Cir., Mar. 14, 1997).

 To return to this action, on December 3, 1992 the United States filed its verified Complaint seeking forfeiture of the assets identified in the properties (U.S. 12(M) P17). Greg and Holly, (and another couple, the Stouts, whose claims are not implicated in the current motion) filed timely verified claims to the assets (id. P18). This Court granted several stays of this action during the pendency of the state court criminal proceedings, but the parties have now participated in discovery that serves as part of the predicate for the United States' Rule 56 motion and Accardis' response.

 Standing Issues

 Two types of standing are relevant in a civil forfeiture action: Article III standing and statutory standing (United States v. $ 103,387.27, 863 F.2d 555, 560 n.10 (7th Cir. 1988) (citations omitted)):

To contest a forfeiture, a claimant first must demonstrate a sufficient interest in the property to give him Article III standing, otherwise there is no "case or controversy." With respect to statutory standing, once the procedural rules of [Fed. R. Civ. P., Supp. Rule C(6)] are met, a claimant has standing to defend the forfeiture.

 Now at issue is whether either Accardi has Article III standing as to some of the property under consideration. As the United States says, by definition that is a threshold matter, for "unless [claimants] have Article III standing, federal courts lack jurisdiction to consider their claims, including their claim that the government did not have the requisite probable cause to seize the defendant property" (United States v. $ 38,000, 816 F.2d 1538, 1543 (11th Cir. 1987) (footnotes omitted)).

 To establish Article III standing, Accardis bear the burden of establishing "a legally cognizable interest in the property that will be injured if the property is forfeited to the government" ( id. at 1543 n.12). It is not necessary that a claimant's interest be one of ownership, for possession may suffice to establish standing ( United States v. Contents of Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974, 985 (3d Cir. 1992)):

Courts generally do not deny standing to a claimant who is either the colorable owner of the res or who has any colorable possessory interest in it.... An owner or possessor of property that has been seized necessarily suffers an injury that can be redressed, at least in part, by return of the seized property.

 But "a naked claim of not enough" ( Mercado v. United States Customs Serv., 873 F.2d 641, 645 (2d Cir. 1989)). Instead (id.):

There must be some indication that the claimant is in fact a possessor, not a simple, perhaps unknowing custodian, some indicia of reliability or substance to reduce the likelihood of a false or frivolous claim.

 Greg's Standing as to the Coins

 U.S. Mem. 3 challenges Greg's Article III standing to claim the Coins. At his Dep. 15 Greg disclaimed any direct interest in that property, stating "I am not the owner of the coins" and "I believe they belong to Steve and Sue [Stout] and Holly." Both Holly and her brother Steve Stout ("Steve") concur that Greg was not the Coins' owner (Holly Dep. 14-15, Steve Dep. 16). Greg instead characterized his claim on the Coins as "through marital" (Greg Dep. 17), and A. Mem. 2 cites to the Illinois Marriage and Dissolution of Marriage Act (the "Act," 750 ILCS § 5/503(c)(1)) for that proposition. But the Act does not save Greg's claim because, as explained in Kujawinski v. Kujawinski, 71 Ill. 2d 563, 573, 376 N.E.2d 1382, 1386, 17 Ill. Dec. 801 (1978):

The Act does not purport to affect property interests during the marriage. The term "marital property" is a nomenclature devised to realize an equitable distribution of property upon termination of the marriage. Operation of the term "marital property" under the Act is not triggered until the time of dissolution.

 By his own admission, then, Greg does not have any ownership or possessory interest that would suffice for him to lay claim to the Coins. Accordingly the United States is entitled to a judgment as a matter of law on that ...

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