IN THE UNITED STATES DISTRICT COURT
			    FOR THE DISTRICT OF NEW MEXICO

ELIAS GONZALES,

		Plaintiff,

vs.								CIV 03-1150 BB/WDS

THE CITY OF ALBUQUERQUE,
ROBIN BURGE and KEVIN FULLER,
City of Albuquerque Police Officers, 

		Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S  MOTION 
FOR SUMMARY JUDGMENT

I.	INTRODUCTION

	Defendants contend that there are no material facts in dispute on plaintiff’s fourth amendment and fourteenth amendment claims.  While plaintiff asserts that he has properly disputed defendants’ contention that plaintiff made a drug sale to a confidential informant, thus, necessitating a trial on his fourth amendment claim, the bulk of plaintiff’s claims against the individual defendants are amenable to a summary disposition.  Naturally, plaintiff asserts that the court’s summary disposition be in his favor.

	While plaintiff contends he never made a drug sale, there is no dispute that Defendant Burge made no showing of a nexus between the alleged drug transaction and plaintiff’s residence in the affidavit for the search warrant.  In addition, there is no dispute that the cash defendants seized from plaintiff was not subject to forfeiture under New Mexico law.  Finally, there is no dispute that defendants ignored pre-deprivation procedures when they placed the seized cash into evidence at APD.  On the distinct claims that the search warrant was defective in its showing of probable cause; that the defendants seized plaintiff’s cash without probable cause; and that defendants deprived plaintiff of his fourteenth amendment due process claims, plaintiff requests summary judgment.
II.		UNDISPUTED MATERIAL FACTS
	Much of the factual background is discussed in Plaintiff’s Response to Defendants’ Motion for Summary Judgment.  However, the undisputed material facts related to plaintiff’s current motion are as follows:
	1. 	In her affidavit for a search warrant, Defendant Burge alleged that plaintiff made a sale of crack cocaine to a confidential informant at an undisclosed location. (Exhibit “B” to Defendants’ Motion for Summary Judgment).
	2.	Defendant Burge did not allege that any sales originated from plaintiff’s home.  (Id.).
	3.	In her affidavit for a search warrant, Detective Burge did not allege any activity that was consistent with illegal drug sales occurred at plaintiff’s residence.  (Id.).  
	4.	In her affidavit for search warrant Defendant Burge stated that in her “training and experience, individuals who engage in the sell [sic] of illegal narcotics keep the illegal narcotics inside their residence.”  (Id.).
	5.	Defendant Burge made no factual showing in her affidavit for a search warrant that drugs were located at plaintiff’s house, other than to state that the vehicle plaintiff drove during the alleged sale of drugs was garaged at plaintiff’s home.  (Id.).
	6.	Defendant Burge did not provide any information in her affidavit for search warrant on the amount of cocaine allegedly sold.  (Id.).
	7.	Defendants Burge and Fuller found no drugs at plaintiff’s home.  (Exhibit “C” to Defendants’ Motion for Summary Judgment (Return and Inventory)).
	8.	Defendants Burge and Fuller did not arrest plaintiff.  (Affidavit of Plaintiff).
.	9.	Defendants Burge and Fuller did not charge plaintiff with any crime. (Affidavit of Plaintiff).
	10.	Defendants Burge and Fuller seized cash from plaintiff.  (Exhibits “A” and “D” to Defendants’ Motion for Summary Judgment).  
	11.	Defendant Burge contends she was going to offer the money to the DEA.  (Exhibit “A” to Defendants’ Motion for Summary Judgment).
	12.	Defendants Burge and Fuller placed plaintiff’s cash in Albuquerque Police Department evidence.  (Id.).
	13.	Defendants Burge and Fuller did not file or cause to be filed any forfeiture complaint against plaintiff’s cash.  (Plaintiff’s Affidavit).
	14.	Defendants Burge and Fuller failed to return plaintiff’s cash until plaintiff filed the current lawsuit.  The return via check came at least nine months after the seizure of the cash.  (Plaintiff’s Affidavit).
	15.	Plaintiff’s Counsel attempted to contact Defendant Burge for return of the cash before filing suit. (Counsel’s Affidavit).
	16.	At all times Defendant Burge had the power to return plaintiff’s cash to him.   (Letter of December 15, 2003 from Attorney Maggiore, noting that counsel “Direct[ed] [her] client to release the seized currency to Mr. Gonzales”.).
	17.	Defendants Burge and Fuller have denied plaintiff’s request to be compensated for his costs and his attorney fees related to the recovery of his money and have denied plaintiff’s request to be paid interest on his wrongfully withheld money. (Demand letter attached).  

III.  	LEGAL ARGUMENT
A.	DEFENDANT BURGE’S AFFIDAVIT FOR A SEARCH WARRANT LACKED A PROBABLE CAUSE SHOWING
	A search warrant is issued only upon a probable cause showing that a legitimate object of a search is located in a particular place.  Steagald v. United States, 451 U.S. 204, 213 (1981).  In this way, the Constitution safeguards the home from “unjustified intrusions from the police”.  In United States v. Rowland, 145 F.3d 1194, 1204 (10^th Cir. 1998),  the Tenth Circuit stated that “probable cause to search a person’s residence does not arise solely upon probable cause that the person is guilty of a crime.  Instead, there must be additional evidence linking the person’s home to suspected criminal activity.”  
	Plaintiff has two fourth amendment claims: he never made a sale of cocaine, as Defendant Burge alleged in the affidavit for search warrant;  and Defendant Burge failed to show a nexus between the alleged sale and his residence.  Plaintiff’s contention that Defendant Burge lied in the affidavit is a disputed fact.  However, Defendant Burge’s failure to show that plaintiff’s residence contained any of the objects described in her affidavit is beyond dispute.   Although plaintiff bears a heavy burden to show that the warrant, on its face, shows inadequate probable cause, plaintiff contends that this is an appropriate case for the court to so hold.  In short, Defendant Burge showed  no nexus between the alleged buy in the street and plaintiff’s home. 
	The affidavit for search warrant contains no showing of a nexus between the alleged sale of drugs and plaintiff’s home.  Defendant Burge alleges that her CI bought crack cocaine from plaintiff’s vehicle.  There is no evidence offered of any illegal activity at plaintiff’s home.  Defendant Burge states simply that “Based on Affiant’s training and experience, individuals who engage in the [sale] of illegal narcotics keep the illegal narcotics inside their residence.”  There was little surveillance of plaintiff’s residence.  The only surveillance was to confirm that plaintiff’s vehicle was garaged at his residence.  There were no alleged sales at plaintiff’s residence.
	In Malley v. Briggs, 475 U.S. 335, 345-46 (1986), the United States Supreme Court acknowledged that busy magistrates will issue warrants when the showing of probable cause is inadequate.  In those instances, citizens have the right to rely on police exercising reasonable professional judgment.   Id.  In such circumstances a police officer has a duty to refrain from seeking a search warrant.  Id. Qualified immunity is unavailable to a police officer when the probable cause showing is so inadequate that no reasonable officer could rely on the warrant.  Id; United States v. Leon, 468 U.S. 897 (1984) (good faith exception to suppression of evidence); United States v. McKneely, 6 F.3d 1447, 1454 (10^th Cir. 1993) (whether affidavit is so lacking in probable cause showing to render official belief unreasonable);  Greenstreet v. County of San Bernadino, 41 F.3d 1306, 1310 (9^th Cir. 1994)(denying qualified immunity for execution of warrant when “affidavit provided almost no information about the residence to be searched”);

	The Tenth Circuit in United States v. Danhauer, 229 F.3d 1002 (10^th Cir. 2000) and in Rowland, supra, decided that law enforcement agents failed to establish a sufficient nexus to contraband and a residence, but in both cases found that officers placed good faith reliance on the warrants.  The cases are illustrative because each reveals additional steps law enforcement took to protect against unwarranted intrusions into the resident’s privacy.
	In Rowland, law enforcement officers engaged in a controlled delivery of contraband (videotapes) to a personal post office box.  Id. at 1204.  The officers stated in their affidavit that they expected plaintiff to bring the videos to his residence for viewing.  The Tenth Circuit held that such a statement created an insufficient showing of nexus between tapes delivered to a post office box and plaintiff’s residence.  Id.    However, the Tenth Circuit found that the good faith exception applied because of the substantial factual basis for the warrant.  The Rowland court commented on the affidavit as follows:
		the affidavit as a whole was not a bare bones affidavit, containing
		only conclusory statements and completely devoid of factual support.	
Id. at 1207.
	In addition, and of some significance to the Court, law enforcement officers stated in the affidavit that they would only execute the warrant if they saw the subject bring the tapes to his residence.  Id.
	In Danhauer, the Tenth Circuit found that law enforcement made a nebulous connection between a subject’s positive test for methamphetamine in a urine test; a criminal history of drug possession and paraphernalia possession and possession of illicit drugs in their residence. Danhaurer, 229 F.3d at 1006.  However, the Court found that the officers acted in good faith reliance on the warrant based upon a tipster who stated the subjects were manufacturing methamphetamine in their garage, surveillance which revealed frequent trips from the garage to the house, the drug related criminal history of one subject, and the positive drug test of one subject just a day before the application for the warrant.  The Court stated that it looked at the affidavit for search warrant to see if it was “devoid of factual support”.  Id. at 1006.
	Thus, from the Rowland decision and the Danhauer decision, plaintiff contends that the court should examine the Burge affidavit to see if it is “devoid of factual support” for a belief that drugs were located at plaintiff’s residence.  Also, the court ought to examine the nature of the investigation and the manner of the execution of the warrant.  If the affidavit is devoid of factual support, the pre-warrant investigation is minimal and the warrant is executed in a manner that decreases the likelihood of finding drugs there should be no qualified immunity. 
	In this matter, Defendant Burge simply opines that people who sell drugs keep drugs at their home.  Defendant Burge gives no indication of the amount sold and there was no surveillance done of plaintiff’s residence for activity associated with drug dealing.  There was no factual link to plaintiff’s home.  In addition, the warrant was executed eight days after the application, making the discovery of drugs even more unlikely.  This is a case where no reasonable police officer could believe that a nexus was shown between the alleged drug deal and plaintiff’s home.  The affidavit for the search warrant simply provided no factual support for a belief that drugs would be found in plaintiff’s home. 
	 The Rowland Court’s directive that an officer must show “additional evidence” linking criminal activity to a person’s residence is a simple standard.  Rowland, supra.  Defendant Burge did not meet this standard.  Defendant Burge’s position is that any hand to hand buy on the street creates probable cause to search the seller’s home.  Anytime she sees a hand to hand buy on the street, Defendant Burge is able to get a search warrant for the seller’s home based upon her belief that people who sell drugs keep their drugs at their residences.  This is not the law.  Whether the issuing court failed to apprehend the facts as stated in the affidavit for warrant or failed to consider nexus in unclear.  However, Defendant Burge should not enjoy qualified immunity for her minimal investigation, her bare bones affidavit and her inexplicable delay in executing the warrant.  This is a case where a police officer should have exercised reasonable judgment.

B.	DEFENDANTS’ SEIZURE OF PLAINTIFF’S CASH WAS UNSUPPORTED BY THE SEARCH WARRANT AND UNSUPPORTED BY PROBABLE CAUSE
	Items police seize must have a nexus to criminal behavior.  Warden v. Hayden, 387 U.S. 294 (1967).  In the normal case an officer must have probable cause of the incriminating nature of a seized item and the seized item must aid in a particular “apprehension or conviction.”  Id. At 307.  The proper objects of warrants are “fruits, instrumentalities, or evidence of a crime.”  Zurches v. Stanford Daily, 436 U.S. 547, 554 (1978).  In addition, a warrant must describe the items to be seized with particularity.  Maryland v. Garrison, 480 U.S. 79, 84 (1987).  The particularity requirement ensures that law enforcement officers seize only “particularly described evidence relating to a specific crime for which there is demonstrable probable cause”.  United States v. Janus Industries, 48 F.3d 1548, 1553-54 (10^th Cir. 1995).   In United States v. Foster, 100 F. 3d 846, 849-50 (10^th Cir. 1996), the Tenth Circuit stated that when a search warrant is executed in flagrant disregard for its terms, (when officers grossly exceed the terms of a search warrant in seizing property not described in the warrant),  a valid warrant is transformed into a general warrant, which is an illegal warrant.
	In addition, the particularity required of a warrant allows the seizure of cash only if it is connected with the alleged drug activity.  United States v. Harris, 903 F. 2d 770, 775 (10^th Cir. 1990); citing United States v. Morisse, 660 F.2d 132, 136 (5^th Cir. 1981)(approving of listing money to be seized because “the warrant limited the search and seizure to . . . money connected with the alleged drug related crimes”).  See also, United States v. Wicks, 995 F.2d 973, 974 n.6 (1993) (approving general description of items when warrant is directed to seizure of items related to drug trafficking).
	In their brief in support of their motion for summary, defendant’s lawyers argue that the cash incriminated plaintiff and that Defendants seized plaintiff’s cash pursuant to the warrant.  The obvious question is, incriminated him of what crime?  Defendants did not arrest plaintiff and did not refer him to the district attorney.  Defendants did not refer plaintiff to his probation officer. The argument that the warrant provided for the seizure of cash despite the discovery of no drugs and the discovery of no evidence of drug dealing is untenable.  
	Not only is the argument untenable but it conflicts with Defendant Burge’s claim, in her affidavit to her lawyer’s memorandum, that she seized the cash to offer it to the DEA.  In paragraph twenty-seven (27) of her affidavit in support of Defendants’ Motion for Summary Judgment, Defendant Burge makes an oblique reference to her motivation for seizing the cash:
		I told him that he should call me in about a week, by which time
		I would know whether the DEA would take the case.  I told Mr.
		Gonzales that, if the DEA did not accept the case, his cash would 
		be released to him.

	Defendant Burge knew the cash was not incriminating.  In her mind, the money would be released to plaintiff, if the DEA did not want it.  She knew that there was going to be no criminal prosecution.  If a criminal prosecution of plaintiff was contemplated, she would not release his cash.  In her mind, she was going to offer the money to the federal government for forfeiture - a civil proceeding.  The plan to offer the money to the DEA despite state court jurisdiction over the money is unlawful.  Scarabin v. DEA, 9 66 F. 2d 989, 991 (5^th Cir. 1992) (Louisiana statutes gave state court jurisdiction over property seized pursuant to a warrant).  However, Defendant Burge did not offer the money to the DEA, instead, Defendant Burge tagged the money into APD evidence with “State of New Mexico” as the complainant.  Thus, the argument that Defendants seized the money pursuant to the search warrant as incriminating evidence is specious at best.  Defendant Burge refutes that by saying she is going to offer the money to the DEA.  Defendants’ lawyers are making an argument for Defendants.  Defendants understood that the seizure of cash was not pursuant to the search warrant.  Otherwise, there is no reason to state that it would be returned if the DEA declined the forfeiture action.    
	Neither of the proffered justifications for the seizure of the cash provides a lawful basis.  In the affidavit for search warrant Defendant Burge describes the object of the search as follows:
		Crack cocaine or other controlled substances in unknown
		quantities, narcotics related paraphernalia.  Documentation
		showing ownership or control of the described premises and 
		described vehicle, and documentation of illegal transactions. 
		U.S. Currency, firearms, ammunitions or any equipments used 
		to facilitate drug transactions (such as manufacturing or 
		preparation for distribution).
	
	Defendants’ lawyer’s argument is that since Defendant Burge listed “U.S. Currency” as an item to be seized, defendants seizure of the cash was pursuant to warrant and, thus, lawful.  However, there is nothing illegal about “U.S. Currency” or for that matter “firearms” or “ammunitions” which Defendant Burge mentions in the warrant.   The plain meaning of the warrant is currency that is connected to drug activity.  Having found no evidence of drug activity, there was no reason to believe the cash was contraband or was evidence of illegal activity.  
	It is unlawful for a state officer to seize cash in New Mexico unless it is connected to a criminal prosecution.  Since there was no intent to prosecute plaintiff, there is no basis to seize the cash.  It is not evidence of a crime.  Defendant Burge admits in her affidavit that there was going to be no state action.  Her statement that plaintiff could get the money back if the DEA did not want it shows no state interest.  If the money was truly incriminating no police officer would make such a statement.  She claims she wanted to offer the money to the DEA.  However, there is no evidence she offered the money to the DEA.  In fact, she placed the cash in APD evidence.
	The cash was not contraband under state law.  A state officer may only seize cash from a person when he has probable cause to believe that the property is subject to forfeiture.  NMSA 31-27-4.  Property is forfeited under New Mexico law if the owner suffers a criminal conviction.  NMSA 31-27-6.  Since the defendants never charged plaintiff with a crime they could have no reason to believe he would be convicted of a crime.  
	In New Mexico cash may be forfeited only when the district court finds by clear and convincing evidence that a criminal prosecution has resulted in a conviction.  NMSA § 31-27-6 (E).  Since there was no criminal prosecution of plaintiff, there can be no basis to believe the cash was subject to forfeiture.  In addition, the New Mexico legislature evinced an intent that state courts have exclusive jurisdiction over seized cash by requiring its deposit in the state district court.  NMSA 31-27-8 (A).  Thus, local law enforcement seizure of cash on behalf of a federal agency is unlawful.  Scarabin, supra; United States v. One 1979 Cherolet C-20 Van, 924 F. 2d 120, 122-23 (7^th Cir. 1991) (local enforcement may not ignore state statutory directives which exercise state court jurisdiction over seized property).
	A warrantless seizure of cash requires probable cause.  See United States v. Baro, 15 F.3d 563, (6^th Cir. 1994)(seizure of cash was unconstitutional where officer recovered currency from luggage in an airport to take it for a canine sniff test).  New Mexico law of forfeiture makes cash contraband only if criminal charges are brought against the property owner.  Defendant Burge filed no criminal charges, thus Defendant Burge had no probable cause to believe the cash was contraband under New Mexico law. 		

C.	PLAINTIFF’S DUE PROCESS CLAIM
	Defendants seized plaintiff’s cash to offer it to the DEA for possible forfeiture.  Even if this was a lawful seizure, the seizure of property not held for criminal prosecution triggers due process requirements.  Defendants appear to be unaware of any duties under the due process clause.  There is no evidence defendants offered the cash to the DEA.  The evidence shows they simply submitted the cash to APD evidence.  Defendants had pre-deprivation responsibilities under state law.  Defendants are state actors.  Their actions are subject to review under the due process clause.  Clark v. City of Denver, 168 F.3d 1185, 1187 (10^th Cir. 1999).  Due process looks to the process the state guarantees a citizen to determine whether it is an appropriate level of process given the property interest.  Id. at 1189.    If state law provides a pre-deprivation procedure, this is the standard the officers must follow under the fourteenth amendment.  When officers take property, assuming their acts are not random and unauthorized, due process requires that the state officers follow state procedures.  In this case, the state process is adequate; defendants simply ignored it.
	Under state law, seized money must be deposited with the district court clerk. NMSA § 31-27-8 (A).   
		Seized currency alleged to be subject to forfeiture shall be 
		deposited with the clerk of the district court in an interest-bearing
		account.

Defendants must file a forfeiture action within thirty (30) days or return the cash.  NMSA § 31-27-5 (A).  
		Within thirty days of making seizure, the state shall file a 
		complaint of forfeiture or return the property to the person 
		from whom it was seized.  
	Defendants did neither.  There was no criminal case related to the seizure of the money.  Plaintiff was not charged with any crime.  Plaintiff was on probation for an unrelated crime.  No one contacted his probation officer about the alleged sale.
	Post-deprivation remedies have nothing to do with plaintiff’s claims.  Hudson v. Palmer, 468 U.S. 517 (1984) and Parratt v. Taylor, 451 U.S. 527 (1981), apply only in cases where the property deprivation is “random and unauthorized .”  As defendants have ably argued, their deprivation of plaintiff’s property was not “random and unauthorized.”  As they stated in their undisputed facts 24 and 25, they did not keep the money for themselves.  Defendants deprived plaintiff of his property under the supervision of their superior.   Sergeant Hudson identified himself as a supervisor.  (Exhibit “E” to  Defendants’ Motion for Summary Judgment).  He found cash and gave the cash to Defendant Burge.
	In Winters v. Board of County Commissioners, 4 F. 3d 848 (10^th Cir. 1993), sheriff’s officers seized a stolen ring at a pawn shop.  After the prosecution of the case, the Sheriff’s Department returned the ring to the putative owner without notice or hearing to the pawn shop owner.  Id. at 851.  State law provided for notice and hearing for a pawn shop owner in the plaintiff’s situation.  Id. at 856.  Plaintiff brought suit alleging a due process violation.  The Sheriff’s Department attempted to use the reasoning in Hudson and Parratt to defeat plaintiff’s due process claims.  However, in declining to adopt the Sheriff’s Department’s reasoning, the Winters’ Court re-stated the holdings in Hudson and Parratt:
		an adequate post-deprivation remedy relieves due 
		process concerns only for random and unauthorized 
		deprivations of property.

Id. at 857, citing Hudson, 468 U.S. at 531-33 and Parratt, 451 U.S. at 541-44.
	The Winters court explained that the defense of an adequate post-deprivation remedy is available for employees’ random and unauthorized acts because the unpredictability of the alleged activity renders a pre-deprivation hearing impossible.  Id. at 857.  The state is in no position to provide a pre-deprivation hearing when acts are random or unauthorized.  Id. at 857.  Thus, adequate post-deprivation procedures satisfy due process requirements.  
	In Winters, the Sheriff simply ignored pre-deprivation procedures.  The Tenth Circuit stated plainly that the state may not ignore state procedural requirements then say there is no due process violation because plaintiff has adequate post-deprivation remedies.  In other words, “[a]vailable post deprivation procedures are insufficient to neutralize a due process violation when the action is planned and authorized.”  Id. 
	In the case at bar, defendants’ supervisor asserts that the seizure and retention of plaintiff’s money was  “planned and authorized .”  State law provides plaintiff with pre-deprivation process.  Pursuant to state law, defendants were required to deposit the money in state district court and were required to file a forfeiture complaint within thirty (30) days of seizing plaintiff’s money.  See NMSA § 31-27-8 (A) and 31-27-4 (A).  The forfeiture complaint may only be filed with associated criminal charges.  Defendants ignored the required  pre-deprivation procedures. 

	None of the proposed remedies Defendants suggest are available to plaintiff.  First, defendants suggest filing “a tort claims notice”.  The City of Albuquerque does not settle claims against the police.  Filing a tort claims notice would be a waste of paper and work.  (See Provisional Discovery Plan in which City defendants decline settlement conference).   In addition, the availability of a state remedy does not require an aggrieved citizen to use the state remedy.  Neither the internal affairs nor the police oversight commission provide for any remedy to a citizen.  By way of example plaintiff attaches a copy of a letter recently received from the police oversight commission in which Mr. Rowland stated:
		Please remember that complaints involving APD personnel are
		administrative investigations to determine whether or not any
		Standard Operating Procedures have be violated. Such violations 
		may result in discipline to the officer.  If you desire other relief, 
		please seek additional information on how to proceed.	

	Defendants cite a New Mexico Criminal Procedure Rule as an avenue for return of his property.  NMRA 5-212(A).  There was no criminal case against plaintiff.  Thus, plaintiff had no action in which he could file a motion.  The procedure was not available to him.
	As for making phone calls, plaintiff’s counsel called twice for Defendant Burge.  (Affidavit attached).  She was not available.  Counsel did speak to a sergeant in her division.  Counsel believes it was Sergeant Hudson, but is not sure.  The sergeant told counsel that the District Attorney’s office had plaintiff’s cash and that it was up to the District Attorney whether to return the cash.  The sergeant told plaintiff’s counsel that Defendant Burge had no control over the cash.  
 	Due process requires that the state follow the process afforded to its citizens.  The “ mere promulgation of laws and regulations, which . . . preserve the most fundamental rights” is only the starting point.  Id. quoting Wolfenbarger I, 774 F.2d at 364.  The state must follow its procedures.  Id. 
	Defendants attempt to distinguish the Winters decision from Defendant Burge’s mishandling of cash by claiming that the cash was never given to someone else.  However, Defendants destroyed plaintiff’s right to possess his cash for seven months.  The money found its way into a bank account, where the City or the police department presumably earned interest on the money.  The defendants wrongfully deprived from plaintiff the right to use his cash.  The common measure of damages in such a situation includes interest on the wrongfully withheld money.  Certainly, the New Mexico legislature recognized this possessory right when it mandated that seized cash be placed in an interest-bearing account.  See also, Coleman v. Watt, 40 F. 3d 255, 260 (8^th Cir. 1994) (possesory interest in car extends to its uninterrupted use); Scofield v. City of Hillsboro, 862 F. 2d 759, 762 (9^th Cir. 1988) (same).  Defendants non-chalance is astounding.  When citizens fail to pay taxes and fees in a timely matter our government assesses interest and penalties.  Yet when our government wrongfully withholds our cash, our citizens are supposed to be grateful that it was returned- without interest or payment of costs or payment of attorney fees needed for recovery?  Some government officials are beyond shame.  
	City of West Covina v. Perkins, 525 U.S. 234, 240 (1999), involved the seizure of property held for criminal prosecutions.  The case did not arise from a claim that the state did not follow its process but was a claim that the government was obligated to communicate its process.  The holding of the case is limited to evidence held for criminal prosecutions.  Again, plaintiff’s cash was not seized or held pursuant to a criminal prosecution.  The cash was seized for forfeiture.  Instead of following due process, the government actors deposited the money in their own account.

	The more analogous cases involve law enforcement’s administrative seizures of property and failure to follow state procedures for forfeiture or destruction of property.  Alexander v. Ieyoub, 62 F. 3d 709 (5^th Cir. 1995) (finding procedural due process for failure to file forfeiture procedures after seizure of car); Coleman v. Watt, 40 F. 3d 255 (8^th Cir. 1994) (eight week seizure of car violated due process).
CONCLUSION	
	Much of the facts surrounding the execution of the search warrant are undisputed.  Since the seizure of plaintiff’s cash was unlawful and the Defendants ignored pre-deprivation process, plaintiff requests summary judgment on his claims of deprivation of his fourth and fourteenth amendment rights.  
                                                                                   	Respectfully submitted,

							_____________________________
							KENNEDY & OLIVER, P.C.
							Joseph P. Kennedy
							Shannon L. Oliver
							1000 Second Street NW
							Albuquerque, New Mexico 87102
							
I HEREBY CERTIFY that a true and correct
copy of the foregoing was mailed to opposing 
counsel this 31^th day of March, 2004.

___________________________________
Joseph P. Kennedy/Shannon L. Oliver

Ann Maggiore
Butt, Thornton & Baehr, P.C.
P.O. Box 3170
Albuquerque, New Mexico 87190-3170

Stephanie Griffin
Assistant City Attorney
P.O. Box 2248
Albuquerque, New Mexico 87103-2248