The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
Opinion No. 2012 DNH 170 100 Counterfeit CISCO
The United States brings a forfeiture action under 18 U.S.C. § 2323(a)(1) and 19 U.S.C. § 1526(b) against counterfeit computer parts that were seized during an investigation by Immigration and Customs Enforcement ("ICE"). In March and August of 2011, ICE agents detained and searched packages containing computer parts that arrived at the Dover, New Hampshire, Post Office and were addressed to Direct Wholesale International, Inc. ("Direct Wholesale"). After the computer parts were determined to be counterfeit, the United States seized them and filed a forfeiture complaint against the parts as defendants in rem.
Direct Wholesale filed a claim for the computer parts in the forfeiture proceeding. Direct Wholesale now moves to suppress the use of the computer parts as evidence in the proceeding, arguing that the warrantless detention and search of the packages and seizure of the parts by ICE was done in violation of the Fourth Amendment. The United States responds, arguing that Direct Wholesale's motion is procedurally deficient and that the search of the packages and seizure of the parts was authorized by statute.
The United States contends that Direct Wholesale improperly relied on the forfeiture complaint as the basis for the motion to suppress, arguing that Local Rule 7.1(a)(2) requires affidavits or other documents to support the facts that are the basis of a motion and that the complaint cannot support a motion to suppress. The United States further contends that because Direct Wholesale relied on the complaint, without providing additional factual support, the motion to suppress must be denied. Direct Wholesale points out that it relied on the facts provided in the United States's verified complaint and states that additional facts were unnecessary for it to support the motion.
Local Rule 7.1(a)(2) provides, in pertinent part: "Every motion and objection which require consideration of facts not in the record shall be accompanied by affidavits or other documents showing those facts." As such, the rule requires affidavits and other documents only when the facts necessary for considering the motion are not in the record. Direct Wholesale asserts that the necessary facts are in the complaint.
The United States contends, however, that because the government is not required to plead facts in the complaint to support the search for and seizure of forfeited property, a forfeiture complaint cannot serve as the basis for a motion to suppress. In support, the United States cites United States v. $78,850.00 in U.S. Currency, 444 F. Supp. 2d 630, 636 (D.S.C. 2006). There the court distinguished between motions to dismiss and motions to suppress in a forfeiture proceeding and explained that a motion to suppress "does not address the validity of the face of the complaint, but rather it addresses whether particular evidence should be excluded because it was illegally acquired." Id.
In this case, Direct Wholesale relied on the facts pleaded in the verified complaint to support the motion to suppress. The motion does not challenge the sufficiency of the complaint but instead argues that the search for and seizure of the parts, as described in the complaint, violated the Fourth Amendment. In response, the United States provided the declaration of the ICE agent involved in the search and seizure, Special Agent Donald A. Lenzie, and other documents to support its objection to the motion.
Because the United States provided additional factual materials to support its objection, the motion to suppress will not be decided based on the complaint alone. To the extent the United States's objection is based on a theory that the motion to suppress must be denied because Direct Wholesale relied on the verified complaint, that theory is not persuasive.*fn1
II. Validity of Search and Seizure
Rule G of the Supplemental Rules for Admiralty, Maritime, and Asset Forfeiture Actions provides the procedures for forfeiture actions in rem. Supplemental Rule G(8)(a) states that "[i]f the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence." If the motion is granted and use of the defendant property as evidence in the proceeding is suppressed, forfeiture of the property nevertheless may proceed "based on independently derived evidence." Id.
The Fourth Amendment applies to searches and seizures conducted for purposes of civil forfeiture. United States v. James Daniel Good Real Prop., 510 U.S. 43, 50 (1993). Fourth Amendment protections are codified for purposes of forfeiture actions at 18 U.S.C. § 981(b)(2)(B). Because the exclusionary rule also applies in forfeiture proceedings, claimants may challenge the legality of a search and seizure of defendant property. See One 1958 Plymouth Sedan v. Commonwealth of Penn., 380 U.S. 693, 702 (1965).
It is undisputed in this case that the detention and search of the packages and seizure of the computer parts was not done pursuant to a warrant. Under the Fourth Amendment, warrantless searches and seizures are illegal unless a specific exception applies. United States v. Camacho, 661 F.3d 718, 724 (1st Cir. 2011). The United States relies on the ...