United States v. Parcel of Land & Residence at 28 Emery Street
Opinion of the Court
Donald A. McLaine and Catherine McLaine (the McLaines), the record owners of the property
Summary judgment is appropriate when, in the absence in the record of a “genuine issue as to any material fact,” “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also United States v. 5 Bell Rock Road, 896 F.2d 605, 611 (1st Cir. 1990) (“[Sjummary judgment is precluded if there is a dispute over facts that might affect the outcome of the suit under the governing law[.]”) (citations and quotations omitted). On a motion for summary judgment, we must examine, as we do here, the facts in the light most favorable to the appellants. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
I.
In June of 1987, the Beverly, Massachusetts, police department received information from a confidential informant that Donald McLaine was selling cocaine from his pickup truck at various places in Beverly. The informant also stated that s/he had been inside the McLaines’ home at 28 Merrimac Street and had seen large quantities of cocaine and large quantities of money inside a safe. The informant was not of proven reliability. Over a year later, the police received a tip from another informant that Donald McLaine and a friend, Glenn Spear, were selling cocaine in Beverly. Shortly after that, a police detective observed Spear make (what the officer thinks) a drug order to a telephone number registered to Mrs. McLaine. That deal, according to the officer, was to be consummated the next morning in a parking lot. Neither Donald McLaine nor any other seller showed up and the sale never occurred.
Later that day a third informant, this one of confirmed reliability, told the police that a sale would take place the next day in the same parking lot. Based on this information, the Beverly police officers and the Drug Enforcement Agency obtained a warrant to search Donald McLaine and his truck. The Merrimac police searched the McLaines’ residence pursuant to another warrant at the same time. In the search of the truck, police officers found extensive evidence of drug trafficking including cocaine, marijuana cigarettes, and what were believed to be drug sale notes. Based on this evidence, Donald McLaine was charged with trafficking in cocaine and the possession of marijuana. He pled guilty to charges of unlawful possession of marijuana, possession of a dangerous weapon (brass knuckles), and possession with intent to distribute of cocaine in connection with the search of the truck. He is now apparently serving his sentence.
The search of the house revealed less than 5 grams of a “white powder substance
II.
One of the most powerful weapons in the government’s arsenal in the continuing “war” on drugs is its ability to obtain the civil forfeiture of property that is used for or facilitates violations of the drug laws
This court and other circuit courts have consistently required that the government show some connection between the property forfeited and an illegal drug transaction in order to obtain forfeiture.
Other courts have tried to determine whether the property being forfeited was the “situs” or “nexus” of an illegal drug transaction. 3639-2nd St-N.E., 869 F.2d at 1096-97 (situs of sales means house had sufficient connection); United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1427 (11th Cir. 1983) (nexus); United States v. $22,287 U.S. Currency, 709 F.2d 442, 447 (6th Cir. 1983) (government must establish a nexus between property and criminal activity). Finally, one circuit has specifically rejected the “substantial connection” test but required that the government demonstrate a nexus that “is more than incidental or fortuitous.” United States v. 916 Douglas Ave., 903 F.2d 490, 494 (7th Cir. 1990).
III.
The controlling issue is whether, consistent with the summary judgment standard, the government has presented enough evidence to connect McLaine’s drug trafficking to the house, or to put it another way, whether the government, taking the record in the light most favorable to the nonmovants, has necessarily shown more than mere suspicion that the house facilitated the sale of drugs from McLaine’s truck.
The problem with the government’s proof is the lack of a solid evidentiary basis linking the house to the sale of drugs. Unlike a more typical forfeiture case, no direct connection has been established between drug trafficking charges stemming from the sales by McLaine from his truck and the McLaine home. For example, there is no evidence, by implication or allegation, that the McLaines sold, processed or produced the drugs at their home. Cf. United States v. 1933 Commonwealth Ave., 913 F.2d 1, 2-3 (1st Cir. 1990) (telephone calls and complaints about sale of drugs from house); United States v. 40 Moon Hill Road, 884 F.2d 41 (1st Cir. 1989) (cultivation of 130 live marijuana plants on property). There is no evidence from which an inference must be drawn that the drugs in the truck were put there after being stored in the house. There is not even evidence that Donald McLaine drove directly from the house to the meeting place as the government asked at oral argument that we infer.
The government’s case on summary judgment is based on three things:
1. A confidential informer of untested reliability who at some unspecified time more than a year before the search of the house stated that s/he had seen cocaine and large amounts of cash in the house;
2. A telephone call to the McLaine house overheard by a detective in which it sounded to him as if a drug deal were being set up;
3. Various tools of the drug trade found in the search of the house.
The government brazenly contends, in asserting that the forfeiture should be upheld even if the evidence seized from the home is ruled inadmissable, that the first two are sufficient to forfeit the house. This is unsupportable. Without the tools of the trade, there is nothing but suspicion to connect the house to the sales.
While it is settled that hearsay may be considered by a court in evaluating probable cause to forfeit, there must be a substantial basis for crediting the hearsay. United States v. One 1974 Porsche 911-S, 682 F.2d 283, 286 (1st Cir. 1982). The totality of the circumstances here does not provide enough evidence to credit the unnamed and unverified informant. Although some minor information s/he provided was corroborated, such as the color and kind of truck that McLaine drove, more significant items that the informant claimed to have seen never materialized. For example, there is no evidence that the most obvious examples of drug trafficking that the informant claims to have seen in the house (drugs, large amounts of unexplained cash or a .357 pistol) were found in the house.
The addition of the one overheard telephone call, even if it was exactly what the police officer thought it was, adds little to the government’s case. We think one phone call overheard by a police officer that never resulted in a sale is insufficient on summary judgment for forfeiture. See, e.g., Various Parcels of Real Property, 650 F.Supp. 62, 65 (N.D.Ind. 1986). The only case that might be called close to the facts of this case is easily distinguishable. In 916 Douglas Ave., the Seventh Circuit upheld the forfeiture of a house based on telephone calls that arranged drug transactions. But there are a number of impor
We assume, without deciding, that the evidence seized from the house can be considered in this proceeding. It is undisputed that tools of the drug trade were seized in the house.
We therefore reverse the granting of summary judgment and remand for a trial on the merits.
. The Economy Cooperative Bank of Merrimac, Massachusetts, also claimed an interest in the property. The government did not seek forfeiture of this interest, and the district court ordered forfeiture of the property to the government subject to the bank's interest.
. Because we decide that summary judgment should not be granted for the government even with evidence seized from the house, we do not decide the issue of the validity of the warrant.
. At no time was the substance positively identified as cocaine.
. Although there were two affidavits, it must be noted that Sergeant Desmond’s brief affidavit only attests to the truthfulness of Agent Sawyer’s affidavit. The government also filed a supplemental statement setting forth Donald McLaine’s plea of guilty in connection with the drugs found in the search of the truck. As far as we can tell from the record, there were no pleas or convictions stemming from the search of the house.
. In this case the government alleges violations of 21 U.S.C. § 841 and 21 U.S.C. § 846.
21 U.S.C. § 841(a) provides in relevant part that "it shall be unlawful for any person knowingly or intentionally—(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance-”
21 U.S.C. § 841(b) makes a violation of § 841(a) a crime punishable by more than one year’s imprisonment.
21 U.S.C. § 846 provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”
. 21 U.S.C. § 881(a)(7) provides in relevant part that:
“The following shall be subject to forfeiture to the United States and no property right shall exist in them: ... (7) All real property, including any right, title and interest ... in the whole of any lot or tract of land, and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited under this paragraph to the extent of an interest of any owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.”
. We have also adhered with stringency to the particularity requirement because of the drastic nature of these forfeiture proceedings. See, e.g., United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 638 (1st Cir. 1988).
. In affirming the forfeiture of the property after a jury trial, the Seventh Circuit noted that in practice the differences between these tests is "blurry at best.” Id. at 494.
. This omission is significant because the government seems to have been in a position to determine whether this indeed was the case. The application for the search warrant, for example, states that, on the day that the drug sale was initially going to take place, the house at 28 Emery was under police surveillance.
. The government relies heavily on United States v. Butler, 763 F.2d 11 (1st Cir. 1985) for the proposition that there was more than enough evidence for probable cause in this situation. We are unpersuaded by Butler for a number of reasons. First, the factual connection to the house was much closer in Butler. The police observed Butler's friend leave the house. They pulled her over and found drugs. Then they applied for a warrant to search the house. Here, although the police had the opportunity to see McLaine leave the house (if that is what he did), they did not so state. Thus the key fact in Butler, the connection between the car and the house is missing here. Second, the totality of the circumstances about drugs in the house in Butler was much more compelling. There was no staleness problem. Moreover, the informant had more specific information about the amount of drugs that Butler was believed to have in the house. Finally, the government seems to confuse probable cause to forfeit and probable cause to seize. See generally, United
. We do not think that the collection of Indian head nickels and various coin books that were found in the search can justifiably be the cash that was referred to, nor do we think them valuable enough to indicate substantial drug sales.
. Appellants claim that the firearms were a collection, not weapons.
Reference
- Full Case Name
- United States v. PARCEL OF LAND AND RESIDENCE AT 28 EMERY STREET, MERRIMAC, MASSACHUSETTS, (Two Cases). Appeal of Donald A. McLAINE, Appeal of Catherine McLAINE
- Cited By
- 25 cases
- Status
- Published