United States of America v. Funds in the amount of Two Thousand Dollars ($2,000) et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 3/31/2015:Mailed notice(rth, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
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Plaintiff,
v.
FUNDS IN THE AMOUNT OF $574,840;
FUNDS IN THE AMOUNT OF $63,184;
FUNDS IN THE AMOUNT OF $2,000;
FUNDS IN THE AMOUNT OF $856; and
FUNDS IN THE AMOUNT OF $21,100,
Defendants.
STEPHEN UNSWORTH, and
RACHEL PILLSBURY,
Claimants.
No. 11-cv-07803
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
In this in rem action, the Government seeks forfeiture of funds in the amount of $574,840;
$63,184; $2,000; $856; and $21,000 (“Funds”) pursuant to 21 U.S.C. § 881(a)(6), alleging the funds
were “furnished and intended to be furnished in exchange for a controlled substance, are the
proceeds from the sale of a controlled substance, and was property used and intended to be used to
facilitate narcotics trafficking, in violation of 21 U.S.C. § 801 et seq.” Claimants Stephen Unsworth
and Rachel Pillsbury filed verified claims alleging ownership and possession of the Funds. On July 3,
2014, Claimants moved to suppress [103] the Funds as evidence obtained as a result of illegal
searches and seizures. Before the Court set a briefing schedule on Claimants’ motion to suppress,
the Government filed a motion to compel [115] Claimants’ responses to special interrogatories
propounded under Supplemental Rule G(6) of the Federal Rules of Civil Procedure. Based on the
foregoing, Claimants’ motion to suppress is denied without prejudice, and the Government’s motion
to compel is granted.
Background
This forfeiture in rem arises from a marijuana trafficking investigation that resulted in
Claimants Unsworth and Pillsbury being charged and prosecuted in Circuit Court of Cook County
with various drug trafficking crimes. In their drug trafficking case, Claimants’ moved to suppress
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evidence obtained as a result of warrantless searches and seizures. Officer Yandell, a police officer in
Champaign County, testified during the pre-trial suppression hearing. He explained that the
investigation into Unsworth and Pillsbury began when law enforcement received a tip from
individuals claiming to have purchased approximately 110 pounds of marijuana from Unsworth on
three separate occasions and explained that Pillsbury and Unsworth were in a romantic relationship.
Yandell found that Unsworth had a Colorado address and Pillsbury had a Chicago address. The
investigation also revealed that Unsworth had marijuana trafficking cases in Cook County, Illinois,
and in Florida. Yandell contacted Agent Healy with the DEA taskforce and learned that Healy had
an ongoing investigation of Unsworth. Two days after speaking with Healy, on June 10, 2011,
Yandell, installed a covert Global Positioning System “(GPS”) tracking unit on a Dodge minivan
with a Colorado license plate that was registered to Unsworth. The vehicle was located inside the
parking garage of Claimants’ apartment complex. (Dkt. 103, Exh. A.) Yandell asserts that he entered
the building through the unlocked west door. He did not have a warrant to install the GPS unit. The
GPS unit was battery-operated and did not take up any space in the car that would have been
reserved for passengers or packages. The GPS also did not alter the vehicle’s appearance.
The tracking data obtained from the GPS unit on June 20, 2011 indicated that the vehicle
visited a storage facility on Ogden Avenue in Cicero, Illinois, on three occasions. Yandell contacted
Healy, who obtained an administrative subpoena to search the storage unit. That same day, officers
went to the storage facility and spoke to the facility staff and learned that Pillsbury was renting a
storage unit. The officers conducted a canine search of the unit which led to the seizure of $574,840.
Healy testified during the State court suppression hearing that he was a member of the
Evergreen Park police department and a member of the Drug Enforcement Agency taskforce. He
learned during his investigation that Unsworth had previously been arrested by the Chicago Police
Department and charged in 2007 “with approximately 300 pound[s] of marijuana that was stored in
a storage unit.” 1 (Dkt. 103, Exh. 2, at 83). On June 17, 2011, Healy placed a tracking device on the
outside of Unsworth’s vehicle and he repositioned Yandell’s device, which was not working
properly. He did not have a warrant to place the device on the vehicle and testified that, at the time,
a warrant was not required in Illinois. (Dkt. 103, Exh. 2, at 86.) He spoke with an Assistant State’s
Attorney and understood that there was no law at the time requiring a search warrant to place a
tracking device on the outside of vehicles. Healy also testified that he entered the garage of
Unsworth states in his response to Special Interrogatory No. 2 that he was charged in 2007 and convicted in the Circuit
Court of Cook County in 2008 of possession of greater than 5000 grams of marijuana.
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Claimants’ apartment building through an unlocked door on the west side of building that led into
the garage.
DEA Agent Kosmowski testified during the suppression hearing that Healy informed him of
the positive canine sniff at Unsworth’s storage locker. Kosmowski and a team of officers then went
to Unsworth and Pillsbury’s apartment complex to conduct surveillance. Kosmowski entered the
garage with two other officers. Unsworth approached and asked whether they were police and they
replied that they were. Unsworth asked if the officers were there to investigate car burglaries and
thefts. Kosmowski replied that he was conducting an investigation, but did not specify what he was
investigating. Kosmowski also asked Unsworth for identification, which Unsworth did not have, and
then Kosmowski asked if he could pat down Unsworth for the officers’ safety and Unsworth said
yes. After patting him down, Unsworth and the officers entered the apartment building lobby and
were joined by Agents Wood and Zieminski. Unsworth offered to escort the officers upstairs so he
could get his identification to show the officers.
When Unsworth led the officers into the apartment, he retrieved his identification from the
kitchen. Agent Wood told Unsworth that the officers were investigating him regarding his
involvement in trafficking marijuana and asked whether Unsworth had any drugs in the apartment.
Unsworth said he had marijuana but that it was for personal use. Unsworth showed the officers the
marijuana that he stored in three to four 10-inch glass jars in a kitchen cabinet. There appeared to be
more than 500 grams of marijuana. Kosmowski also observed large Ziploc baggies that had been
torn open, a heat sealer, and about five cell phones. In Kosmowski’s experience, such paraphernalia
are consistent with drug trafficking. Agent Wood asked Unsworth whether he consented to a search.
When Unsworth refused, the officers placed him in custody. Pillsbury appeared from another room
in the apartment and they also placed her under arrest after confirming her identity. The officers
then obtained a search warrant which led to the searches of Claimants’ apartment, vehicles, storage
lockers held in their names in Cicero, Illinois, and Denver, Colorado, and the seizures of the Funds.
Other testimony at the State court suppression hearing included that of DEA Agent Wood
who testified consistently with the other officers and Officer Howard who testified about the
positive canine sniff.
Private investigator Laskey testified at the State court suppression hearing on behalf of
Claimants. The defense hired him to investigate the door in Claimants’ garage where Yandell and
Healy testified they entered to install the GPS unit. The officers testified that the door was unlocked
when they entered. Laskey’s investigation revealed, however, that the door was actually a very heavy
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fire exit door that remained locked from the outside and could only be opened using a push-bar
from the inside. Moreover, the door had not been altered or repaired since at least the end of 2009.
The Circuit Court granted Claimants’ motion to suppress in its entirety and the criminal
charges against them were eventually dismissed. (Dkt. 103, Exh. 2, at 441-46.) On November 3,
2011, prior to the dismissal of the criminal charges, the Government brought the instant civil
forfeiture claim. Unsworth and Pillsbury both filed claims opposing forfeiture of the defendant
properties and then in January 2012, they moved to stay the civil forfeiture case until the conclusion
of the criminal case. The district court denied the motion to stay, finding that Unsworth and
Pillsbury lacked standing to contest the forfeiture. The Seventh Circuit reversed and remanded (U.S.
v. Funds in the Amount of $574,840, 719 F.3d 648, 651 (7th Cir. 2013)), and the case was reassigned to
this Court. Before the Court are two motions: Claimants’ motion to suppress and the Government’s
motion to compel responses to special interrogatories.
Discussion
1. Standing to Contest the Forfeiture
Standing is a threshold issue that the Court must resolve before reaching Claimants’ motion
to suppress [103] and the Government’s motion to compel [115]. A claimant in a civil forfeiture
proceeding must have both statutory standing and Article III constitutional standing. Establishing
standing to contest a forfeiture is not a demanding standard to achieve. See U.S. v. 5 S 351 Tuthill
Road, Naperville, Ill., 233 F.3d 1017, 1022 (7th Cir. 2000) (describing the Article III standing
requirements as “undemanding”). “[T]o have standing, a claimant need not establish that a right of
his has been infringed; that would conflate the issue of standing with the merits of the suit. Instead,
he must have a colorable claim to such a right.” (Emphasis in original.) (Internal quotes and citations
omitted.) United States v. $304,980.00, 732 F.3d 812, 818 (7th Cir. 2013).
Rule G(5)(a)(i) provides that when asserting an interest in the defendant property, the claim
must: identify the specific property claimed; identify the claimant and state the claimant’s interest in
the property; be signed by the claimant under penalty of perjury; and be served on the designated
government attorney. Supp. R. G(5)(a)(i); see also U.S. v. Funds in the Amount of $574,840, 719 F.3d
648, 651 (7th Cir. 2013). The Seventh Circuit reviewed the standing issue currently before this Court
and provided guidance for how the district court should proceed when dealing with standing issues
in forfeiture in rem actions:
“At the pleading stage Article III standing is something to be alleged, not proved. All
that must be alleged is an injury, personal to the person seeking judicial relief, that the court
can redress, an injury such as the injury inflicted by the government when it has got hold of
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money that belongs to the person and refuses to return it. This is constitutional law 101.
Rule G(5) requires more, but the more is an addition to what is required to plead Article III
standing.” Id. at 651.
The government must prove by a preponderance of the evidence that the property is subject
to forfeiture. 18 U.S.C. § 983(c)(1); see also Funds in the Amount of $574,840, 719 F.3d at 653. “The
government can move to strike a claim to property on the ground that the claimant has no interest
in it, but it cannot just say to him: prove it’s your property.” Funds in the Amount of $574,840, 719
F.3d at 653. If the claimant complies with Rule G(5)(a)(i), signing the claim under penalty of perjury,
identifying the claimant and the nature of the claimant’s interest, then the burden shifts to the
government to produce evidence that the claim is invalid. Id. The government may file special
interrogatories, which the government did in this case, in order to obtain discovery to determine
whether the claimants have valid claims. Id. In concluding that Claimants’ motion to stay should
have been granted, the Seventh Circuit also concluded that Claimants have established Article III
standing at the pleading stage. This case is still in the pleading stage.
2. Suppression
Now that the Court has concluded that Claimants have Article III standing, the Court turns
to the suppression issue. Claimants filed a joint motion to suppress and/or to quash search warrant
pursuant to the Fourth Amendment and Supplemental Rule G(8)(a). Supplement Rule G (8)(a)
states:
If 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. Suppression does not affect
forfeiture of the property based on independently derived evidence.
In order to bring their motion to suppress, Claimants must first establish standing by showing that
they had a reasonable expectation of privacy in the places searched and items seized. A reasonable
expectation of privacy includes two elements: (1) whether the individual has “exhibited an actual
(subjective) expectation of privacy,” and (2) whether the individual's subjective expectation of
privacy is one that society recognizes as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing
Katz v. United States, 389 U.S. 247, 361 (1967) (Harlan J., concurring)); Mendoza, 438 F.3d at 795.
In Unsworth’s Second Amended Verified Claim to the funds, he claims an ownership and
possessory interest and the right to exercise dominion and control over the $574,840, $63,184, and
$2,000 defendant properties. According to his response to the Government’s Special Interrogatory
Number 3, Unsworth was the owner and possessor of the $2,000 seized from his vehicle, so he
“possessed the property immediately prior to seizure on that date [June 20, 2011] and otherwise
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regularly exercised dominion and control over” the property until it was seized. He also claims to
own the $63,184 seized from his residence because he similarly possessed the funds and exercised
dominion and control of the property. Finally, Unsworth claims to be the owner and possessor of
the $574,840 seized from the Cicero storage unit. He exercised dominion and control over the
property immediately prior to its seizure because he accessed the storage unit on June 19 and June
20 before law enforcement seized the property. (Dkt. 115, Exh. 4.)
In response to Special Interrogatory Number 3, Pillsbury claims only a possessory interest in
the $574,840 defendant property because she rented the storage unit in her own name where the
funds were found. (Dkt. 115, Exh. 5.) She claims that Unsworth owned the funds. Unsworth had
unrestricted access to the storage unit and also maintained his own possessions in the unit. Pillsbury
claims both ownership and possessory interests in the $63,184 defendant property that was seized
from the apartment she shared with Unsworth, approximately $30,000 of which was seized from the
blue backpack that she carried into the apartment immediately prior to its seizure. Pillsbury claims an
ownership and possessory interest in the $21,100 seized from the storage unit she rented in her own
name in Denver, Colorado. She claims an ownership and possessory interest in the $856 seized from
her car, which she possessed immediately prior to the property’s seizure. She also claims the right to
exercise dominion and control over all of the defendant properties except the $2,000 seized from
Unsworth’s vehicle.
Claimants do not provide any evidence of, nor does the record show, how they came to
possess or own the funds or any other evidence that would allow this Court to ascertain whether
their subjective privacy interest in the funds was objectively reasonable. Claimants merely respond to
the locations of where the Funds were seized. The Court simply does not have sufficient evidence at
this time to conclude that Claimants have standing to bring their motion to suppress. Therefore,
Claimants’ motion to suppress is premature and is denied without prejudice.
3. Motion to Compel
Supplemental Rule (6)(a) permits the Government to serve special interrogatories aimed at
Claimants’ identities and relationships to the defendant property. The Government is entitled to
responses. Claimants offered lengthy objections to all of the Special Interrogatories and only
provided conclusory responses regarding their ownership and possessory interests that added
nothing new or different to their claims than what they provided in their second amended verified
claims to the funds. (Dkt. 115, Exhs. 4 and 5; see Funds in the Amount of $574,840, 719 F.3d at 653
(after reviewing this case, the Seventh Circuit concluded that, due to the lack of evidence of
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Unsworth and Pillsbury’s claims, the Government needed discovery in order to determine whether
the claimants have valid claims (Posner, J.)). Therefore, the Government’s motion to compel
responses to its Special Interrogatories is granted.
Conclusion
Claimants’ motion to suppress [103] is denied without prejudice. The Government’s motion
to compel [115] is granted. The parties are referred to Magistrate Judge Cole who will supervise the
resolution of any further disputes the parties may have regarding the Special Interrogatories.
Claimants have 45 days to respond to the Government’s Special Interrogatories, including resolving
any disputes. The Court will entertain no further delays related to this discovery issue. After the
expiration of the 45-day deadline, this matter will proceed to the dispositive motion phase, and if
Claimants so choose, the Court will also address their motion to suppress again at that time.
IT IS SO ORDERED.
Date: March 31, 2015
Entered: ____________________________
SHARON JOHNSON COLEMAN
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