preponderance of the evidence that the property is not subject to forfeiture. United States v. Brock, 241 U.S. App. D.C. 324, 747 F.2d 761, 762 (D.C. Cir. 1984) (per curiam).
It is clear that plaintiff had probable cause to believe that the defendant property was used to commit or facilitate the commission of a felony in violation of Title 21 of the United States Code.
On February 20, 1986, members of the MPD executed a search warrant on the premises of defendant property and recovered, inter alia, bags of cocaine, 43 plastic bags of heroin, one tinfoil package of heroin, 19 tablets of Preludin, and one white plastic bag containing cannabis. Similarly, on August 12, 1988, pursuant to a search warrant, the MPD recovered one clear plastic bag containing 145 rolled packets of heroin, two packets of "crack" cocaine, one clear plastic bag containing approximately 13 grams of heroin, 61 tablets of marked Darvocet, 54 tablets marked Valium, and a 12 gauge shotgun with ammunition.
In view of the government's probable cause showing, the only issue remaining is whether the claimant has proved that the illegal use was without his knowledge or consent, thus bringing him within the statutorily created exemption for "innocent" ownership. Claimant asserts in an affidavit that he "was not involved in and had no knowledge that the real property was used for the distribution of drugs." Affidavit of William Akers, attached as Exhibit to Opposition to Motion for Summary Judgment, para. 10 ("Akers Aff.").
Claimant's assertion is, however, inconsistent with the established facts. First, the claimant was present at the execution of the search warrants and, indeed, was arrested after the 1986 search. In fact, when the 1988 search was conducted, claimant was standing within 10 feet of the 145 packets of heroin "that was [sic] packaged for street sale." Affidavit of Guy L. Poirier, Investigator, Financial Investigation Unit, Metropolitan Police Department, at 3. Moreover, claimant concedes in his affidavit that he has repeatedly warned his addicted family members "to stop their drug related activities and to seek treatment." Akers Aff., para. 5. It is clear from the circumstances of the searches and claimant's own affidavit that he knew his family was using defendant property for drug related activities.
The more difficult question is whether, despite claimant's knowledge, he consented to the use of his property for illegal purposes. The government contends that the circumstances of the case also "warrant the conclusion that claimant at a minimum acquiesced in the use of defendant premises to facilitate drug violations." Plaintiff's Reply to Claimant's Opposition to Plaintiff's Motion for Summary Judgment ("Plaintiff's Reply"), at 8. Claimant asserts, however, that he has "threatened to put [his family] out and evicted one of [his] sons whose disease had progressed to the chronic stage;" encouraged his family to seek drug addiction treatment; "told them to stay away from some of their addicted friends, and not to bring them in [his] house;" and has "attempted to watch and monitor activities in the house." Akers Aff., paras. 5, 7-8.
Claimant has met his burden, albeit minimally, and succeeded in raising a genuine dispute as to whether he consented to the use of defendant property for the facilitation of drug offenses. Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment is denied; it is
FURTHER ORDERED that there shall be a status call on March 27, 1991 at 9:15 a.m. for the purpose of setting a trial date.
IT IS SO ORDERED.