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UNITED STATES v. PROPERTY IDENTIFIED AS 1813 15TH

February 27, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
PROPERTY IDENTIFIED AS 1813 15TH STREET N.W., WASHINGTON, D.C. FURTHER DESCRIBED AS SQUARE 206, LOT 131, Defendant.



The opinion of the court was delivered by: LAMBERTH

 The plaintiff United States of America filed this claim seeking forfeiture of defendant property pursuant to Title 21 U.S.C. § 881 (a)(7). Plaintiff moves for summary judgment. For the reasons set forth herein, the court will grant plaintiff's motion and order the defendant property forfeited.

 I. FACTS

 Recently deceased claimant Rita Andrews lived as the owner of the three-story row house located at 1813 15th Street for some thirty-five years. Since 1989, a disability resulting from a car accident confined claimant to the first floor of the dwelling. The remaining rooms on the second and third floors were rented out to family members or friends.

 On September 14, 1994, Metropolitan Police Department (MPD) Officer Timothy Allman observed a man later identified as Nathaniel Walker make four drug sales in the vicinity of Block 1800 of 15th Street. Shortly thereafter, Allman watched as Walker entered the defendant property 1813 15th Street, at the time owned and controlled exclusively by claimant Andrews. Three days later, MPD Officer Philip Burton saw Walker emerge from said premises and, over the course of two hours, swap small objects with pedestrians in exchange for money. Analysis revealed that the objects were in fact small ziplock baggies containing a substance that field-tested positive for the presence of cocaine.

  Probable cause was found to search defendant property, and a valid search warrant was issued on September 19, 1994. Execution of the warrant resulted in the confiscation of numerous ziplock bags containing heroin, two guns, $ 1261 cash, hundreds of empty ziplock bags, and other drug-related paraphernalia. *fn1" Five men were arrested for drug-related offenses, two of whom, David Atkinson and claimant's son Joseph Duckett, resided at defendant property. Four of the five pled guilty to crimes ranging from attempted distribution of cocaine (Walker, stemming from the September 17 incident) to possession of drug paraphernalia.

 Claimant, confined to the first floor, was present throughout the execution of the warrant. Only one illegal item, an unregistered gun, was found on her floor. Claimant was warned by MPD officers that failure to control the drug problem that obviously existed at her residence would leave the property subject to forfeiture. In addition, two certified letters sent by the U.S. Attorney's Office informed claimant that unless action was taken to curb the illegal narcotics activity, forfeiture of the residence could result. The first of these letters contained tips on how to keep the premises drug-free. Although both letters arrived at the house, claimant asserts she received only the first. The letter was never responded to.

 Between October of 1994 and October of 1995, claimant took no formal steps to prevent the convicted drug offenders from returning to reside at her property. Neither David Atkinson nor Joseph Duckett was asked to vacate the claimant's dwelling. In addition, claimant admits to having knowledge that Duckett was a drug-user while he resided in her house.

 In her affidavit, claimant states "I did not want to incur the stress of dealing with the drug problem myself on an on-going basis." As a result, claimant requested her daughter, also a resident of the property, take steps to insure that no more illegal narcotics activity transpire on the premises. These somewhat ineffectual steps included locking the doors at night to prevent a free flow of traffic into the house, and denying strangers entrance to the dwelling. All residents, including those convicted of drug offenses, still had unlimited access, as did any individual these residents chose to allow to enter. Claimant's daughter also spoke with her brother Duckett, her son Atkinson, and her friend Walker, demanding that they not partake in drug-related activity in or near the house.

 On October 13, 1995, a MPD informant sought to purchase narcotics at defendant property. He met the seller on the front steps of the property, and was told to proceed around to the back. The seller entered the house, reappearing in the rear of the dwelling. The seller proceeded to sell the informant a substance that was later tested and proven to be cocaine.

 For the second time, a valid search warrant was issued and executed on defendant property. All told, MPD officers seized 1.529 grams of crack cocaine wrapped in eighteen small ziplocks, 2.656 grams of crack cocaine in one larger ziplock, .138 grams of heroin in two black ziplocks, hundreds of empty ziplocks, some with controlled substance residue, and $ 266 cash. Police also found examples of drug paraphernalia so numerous that they could not reasonably document it all.

 Unlike the first raid, on this occasion police found both drugs and drug paraphernalia on the first floor of the house. Said drugs were seized in plain view, located on the dining room table just outside the claimant's room. Claimant was inside her room when the warrant was executed. She claims no knowledge of the drugs found just outside her room. Her daughter stated that the illegal contraband was not present on the table when she passed through the dining room some ten minutes prior to the warrant's execution. In addition, police confiscated numerous empty ziplock bags from the claimant's room. Claimant alleges to have no knowledge of these baggies.

 The only current issues are whether the court should grant the plaintiff's motion for summary judgment, and, if so, if such a forfeiture violates the Excessive Fines Clause of the Eighth Amendment. For the following reasons, the court believes that summary judgment should be ...


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