United States v. Leasehold Interest in 121 Nostrand Avenue

MEMORANDUM AND ORDER

TABLE OF CONTENTS

I. Introduction

II. Procedural Background

III. Facts

A. Household Members

B. Connection of Household to Drug Activity

C. Clara Smith and the Apartment

IV. Law

Public Housing Forfeiture

Preseizure Notice and Hearing Required

Procedures to Obtain Forfeiture

1. Adequate Notice

2. Claimants’ Objection

3. Scope of Preseizure Hearing

Probable Cause to Forfeit

Defenses to Forfeiture

1. Burdens of Proof

2. Innocent Ownership

3. No Unlawful Activity

4. Fifth Amendment

Forfeiture of Other Claimants’ Interests fa

Y. Conclusion

I. INTRODUCTION

The Government seeks to enforce an anti-drug forfeiture statute (21 U.S.C. § 881) against occupants of an apartment in a city-run housing project for the poor. By reducing the number of locations from which illegal narcotics are sold, the recently adopted law is expected to help alleviate the nation’s drug problem and to increase the well-being and safety of occupants of public housing.

Drugs and drug-related crime are widespread in low-income housing. Dwellers in public housing need relief from the presence of drug sellers and buyers in and near their homes. Evicting drug dealers from their apartments, it is hoped, will make housing projects safer and more decent.

This case reveals some of the limitations of apartment forfeiture as a means of eliminating drugs from public housing complexes. For the poor, the shortage of livable, low-priced housing is especially acute. Tenants — and especially their minor children — who are evicted are likely to become homeless, with whatever stability their lives afforded seriously jeopardized.

For reasons stated below, the owner of the defendant leasehold is entitled to retain her home. Her children, grandchildren and great-grandchildren, who look to her for shelter as che family’s matriarch, may not be dispossessed because one of them has sold drugs from their apartment. That person may, however, be forced from the apartment since it was illegally used by her as a base for her own illicit drug activities. An injunction against future illegal use will be granted.

II.PROCEDURAL BACKGROUND

On May 10, 1990, the United States filed this civil forfeiture action pursuant to 21 *1019 U.S.C. § 881(a)(7) against the defendant leasehold, Apartment 1-C, 121 Nostrand Avenue, Brooklyn, New York. The apartment was allegedly used to facilitate the sale or distribution of narcotics.

By order to show cause, the Government requested warrants for the arrest in rem and for interim seizure of the leasehold. It served a copy of the order to show cause, the verified complaint in rem and declarations with attached exhibits on Mrs. Clara Smith, a potential claimant to the leasehold and responsible resident of the apartment.

A hearing on the order to show cause was held on May 22nd. The court ordered pro bono counsel appointed for Mrs. Smith and her progeny. Further proceedings were postponed until appointed counsel had consulted with their clients. The court notes that these uncompensated counsel have, in the highest tradition of the bar, served their clients with great skill.

By letter of July 9th, the Government requested an expedited hearing to obtain interim seizure of the apartments. In light of the novel and complex legal issues, counsel for potential claimants requested additional time in which to file motions and to respond to the request for interim relief. On July 30th the court ordered that motions for intervention or interim relief be filed by August 22nd and be made returnable on September 7th. The stay of further proceedings was continued.

To correct a possible defect in service, the Government posted supplemental warrants for arrest in rem and a second copy of the verified complaint at the apartment on August 2nd. A “Notice of Attachment,” which provided that the apartment would remain in the custody of the United States Marshal until the claim was settled or a bond was furnished, was also posted.

By order to show cause, the potential claimants sought to have the August 2nd warrant and notice of attachment vacated. Pursuant to a stipulation dated August 6th, the notice of attachment was withdrawn, and the date for filing of motions for intervention or interim relief was extended to September 10th. The Government published legal notice of the arrest of the defendant leasehold on August 7th, 8th, and 9th in a newspaper of general circulation within this district.

Clara Smith, the leaseholder of apartment 1-C, by notice of motion dated September 10th moved to intervene in the forfeiture proceedings on behalf of herself and any minor children living in the apartment. The proposed verified intervenor complaint, while nominally brought under Rule 24(a) of the Federal Rules of Civil Procedure, was also intended to serve as a verified notice of claim under the rules governing forfeiture proceedings. The proposed claimants sought a stay of discovery and of further proceedings until their Fifth Amendment privileges were given full protection in related and threatened criminal drug prosecutions. They also requested a ruling on the scope and effect of any defenses available at the interim seizure hearing.

On September 26th, the court heard argument on the availability of intervention and the request for interim relief. After taking judicial notice of the extreme public housing shortage in New York City and the likelihood that dispossession would lead to homelessness, the following tentative, interim rulings were issued:

1. The leaseholders have a property interest under New York law and under the statute. It gives the equivalent, for our purposes, of the real property interest of the owner of a home....

2. Other legal occupants ... have property interests equivalent to the leaseholders. That includes minors in residence.

3. An intervention right exists and the procedure used here by the intervenors is a satisfactory method of filing a proof of claim.

4. The innocent occupant defense is available to ... leaseholders and the other occupants.

5. Fifth Amendment protections are entitled to substantial consideration....

6. The following protections against self-incrimination should be provided:

*1020 A. Filed affidavits will be under seal for in camera ex parte inspection by the court.

B. If the court decides to reveal the intervenor’s affidavits, the affiants will have the power to withdraw them blocking revelation.

C. Whether or not withdrawn, the affidavit may not be used in any criminal proceeding against the affiant....

D. Exercise of Fifth Amendment rights to refuse to file any affidavit or to testify at the preliminary hearing or subsequently may lead to an inference against the occupant in construing the evidence but is not itself sufficient proof of lack of innocence....

E. A stay of the forfeiture proceeding to protect Fifth Amendment rights pending completion of all criminal matters is not desirable in this kind of case and Congress seems to have intended that the civil and criminal proceedings advance along parallel tracks with neither one slowing or inhibiting the other....

7. Pending decision, the occupants are not to be dispossessed for reasons based upon 21 U.S.C. § 881.

8. Pending decision, all occupants are enjoined from possessing any drugs or dealing with any drugs within the apartments, the buildings and the land upon which the building rests plus the curti-lage, the entire housing project....

9. This order does not limit in any way the enforcement of criminal laws as by search and seizure, arrest, jail or prison, that have the effect of dispossession.

10. This order does not limit in any way the power of the city, state, federal or other authorities or private persons to dispossess for reasons other than seizure pursuant to 21 U.S.C. § 881, such as the failure to pay rent or other violations of the leaseholders.

11. In construing the innocent owner defense, the court expects to use the actual knowledge test supplemented by the equivalence of knowledge test — i.e., deliberately avoiding knowledge by closing one’s eyes and ears to what is going on in order to claim ignorance....

Following the preliminary rulings, the Government withdrew its request for interim seizure. Instead, it requested an expedited trial.

In preparation for trial, the claimants sought discovery of police officers who conducted the undercover operations that led to the forfeiture action. The Government objected to the examination of police officers who were still engaged in undercover investigations. Discovery was denied.

In correspondence prior to trial, the United States agreed that if Clara Smith was found to be an innocent owner, it would not attempt to forfeit the interests of the minor intervenors. If Clara Smith did retain the apartment, however, the Government still desired to forfeit any occupancy rights of the apartment’s other adult occupants, Juanita Smith, Sylvia Smith and Chenelle Smith. By their action in this litigation, these occupants have effectively claimed an interest in the apartment.

III. FACTS

Apartment 1-C is a small three bedroom, one bath, one kitchen and one living room unit at the Marcy public housing project in the Williamsburg section of Brooklyn. The leaseholder of record for 32 years has been Mrs. Clara Smith.

A. Household Members

Mrs. Clara Smith, age 51, is a great-grandmother. Most of the children, grandchildren and great-grandchildren bear the surname of Smith. She has six children. Two of her daughters, Juanita Smith, age 36, and Sylvia Smith, age 32, live in the apartment with her.

Juanita Smith is a reformed heroin addict. She has a prior conviction for possession of narcotics for which she received seven days in jail. Juanita Smith’s four children reside with her in the apartment. They are Chenelle Smith, age 19; Jámele Smith, age 15; Nicole Smith, age 14; and Ramel Smith, age 11. Ramel was born drug addicted; as a result, Mrs. Clara Smith has legal custody of him. Chenelle Smith has two daughters who live in the *1021 apartment; they are Fatima Smith, age 4, and Jasmine Carr, 22 months.

All of Sylvia Smith’s children, live with her in the apartment. They are Tara Smith, age 12; Anthony Smith, age 11; Marcus Smith, age 9; Kevin Smith, age 8; Kelima Smith, age 8; and Quentay Smith, age 4.

Mrs. Clara Smith also has legal custody of another three grandchildren whose mother, Pearl Smith, another of her daughters, does not live in the apartment. They are Shawn Lindsy, age 13; Shonda Lindsy, age 9; and Melissa Smith, age 23 months.

The relationship of the family members appears in Claimant’s Exhibit Number One, set out below. The exhibit is printed with claimants’ permission; they consent to the use of their names and pictures.

*1022 [[Image here]]

All the members of the household apparently depend on public assistance for survival. The family’s monthly rent of $153.00 is paid directly by the welfare department. Except for the income from drug sales, there was no evidence of other sources of funds.

The matriarchal Smith family organization is becoming more common in this coun *1023 try. The number of female-headed households “has increased from 1.9 million in 1960 to 5.1 million in 1987.” G. Goldberg & E. Kremen, The Feminization of Poverty: Only in America? 37 (1990). Since women usually have the primary responsibility for the care of children, they frequently become the custodial or single parent when the marriage breaks up or fails to form. Roughly one in five families with children are now headed by single mothers. See G. Goldberg & E. Kremen, supra, at 37.

Such a matriarchal family is significantly more likely to live in poverty. Single-mother families constitute approximately three-fifths of all poor families with children. See, e.g., G. Goldberg & E. Kremen, supra, at 42; K. Auleta, The Underclass 68-70 (1983). This is due, in part, to the more than five-fold increase in unmarried mothers since 1960. Currently, one in four single mothers has never been married. G. Goldberg & E. Kremen, supra, at 38.

The effects of poverty are especially damaging in New York City with its high cost of living and scarcity of low-income housing. The number of single-mother families in poverty grew here from approximately 170,000 to 210,000 in the period from 1979 to 1987, an increase of 23.5%. The poverty rate within these families increased from 55.1% to 62.9% during the same period. See Community Service Society of New York, Poverty in New York City, 1985-1988: The Crisis Continues 11-12 (1989).

The majority of poor children now live with single mothers. In 1987 there were approximately 500,000 poor children living in families in New York City with only their mothers present. These children constituted 74.4% of all poor children in New York City. Id. at 36-44.

We can take judicial notice, based upon other cases in our own court as well as information generally available in the New York community, that the incidence of drug addiction and dealing among the poorer members of society, many of them living in ghetto conditions, is greater than that of the population at large. The cheap, potent and highly addictive drug, crack, has exacerbated this problem in recent years. The incidence of AIDS, largely spread from contaminated needles used by the poor, is another terrifying surrogate statistic of the drug culture in New York City.

All of the Smith family residents of apartment 1-C were well-behaved, properly groomed and neatly-dressed while they were in the courtroom. They were noticeably subject to the control and discipline of Mrs. Smith.

The evidence revealed that, on the whole, the children were far better off living with their own extended family, even in the difficult, overcrowded circumstances of Mrs. Smith’s apartment, than they would be as atomized individuals in the streets, foster homes or shelters of New York. Exclusion from their apartment risks driving the eighteen Smith family residents far below a minimum standard for civilized living. Congress does not appear to have intended such a draconian result, as indicated in Part IV.E, infra.

B. Connection of Household to Drug Activity

On January 31, 1990 an undercover police officer purchased two vials containing crack cocaine from a woman in apartment 1-C. The woman who sold the drugs was identified by the police as Chenelle Smith, Mrs. Smith’s granddaughter.

A valid search warrant for the apartment was executed on February 14, 1990. Found in a dresser in a bedroom sometimes occupied by Clara Smith was a blue cookie canister that contained a piece of tin foil with white powder believed to be used in the manufacture of crack, a clear plastic bag filled with empty crack vials, a strainer with the white powder residue, three measuring spoons, and a razor blade. In a second bedroom, the police discovered under a bed a yellow purse containing 35 vials filled with crack. In the same bedroom, a brown paper bag with 100 empty crack vials in plastic bags and a “Gucci” handbag containing more empty crack vials were found.

*1024 Such substantial quantities of drugs and drug paraphernalia support the conclusion that the apartment was used to store drugs. It would allow an inference that there had been some packaging of crack there. Certainly there were more drugs and empty vials than would be needed for routine, personal consumption by any users in the apartment.

Following the search, Clara Smith, Che-nelle Smith, Juanita Smith, and Sylvia Smith were arrested and indicted. Sylvia Smith and Juanita Smith were convicted of possession of cocaine and sentenced to three years probation. Chenelle Smith was convicted of attempted sale of cocaine and sentenced to five years probation. While in the plea allocution Chenelle Smith only admitted to selling drugs in the building, the circumstances surrounding the sale lead to the conclusion that it occurred from the apartment. The charges against Mrs. Smith were dismissed.

In February 1990 the New York City Housing Authority received a single envelope containing twenty anonymous written complaints. The complaints alleged that a “female black” was selling drugs from apartment 1-C. The complaints also asserted that look-outs and children were involved in the drug sales.

Handwriting and other analysis suggest that the complaints came from one or a few sources. Mrs. Smith attributes them to another family with whom her daughter, Juanita, had a dispute. Apparently, two of Juanita Smith’s children, Kayson and Shini-qua, are currently living outside the Smith household with their paternal grandparents who also reside in the Marcy project. The children receive Social Security payments as a result of the death of their natural father. Juanita has requested that the children be returned to her, and a custody battle between her and the grandparents has ensued. In straightened and desperate circumstances disputes over any source of income may result in what would seem to the outsider, a demeaning feud. Compassion and graciousness are not attributes easily afforded where living conditions are barely above those necessary for survival.

At trial the claimants conceded “that there is probable cause to believe that a sufficient nexus to render the property for-feitable exists between the defendant property and criminal activity punishable by more than one year’s imprisonment.” During the Government’s rebuttal, however, Chenelle Smith denied selling crack from the apartment on January 31, 1990. When asked whether she had seen crack in the apartment or whether crack was kept in the apartment, she invoked her Fifth Amendment privilege against self-incrimination.

Her denials are not credible. For the purposes of this litigation, it must be assumed that Chenelle Smith did sell crack from apartment 1-C as alleged.

C. Clara Smith and the Apartment

The credible evidence showed that Mrs. Smith was almost overwhelmed by the problems of her household. Her day began early in the morning. She took care of the minor children, seeing that they were bathed, dressed and fed before being sent off to school, and trying to supervise them upon their return. She was responsible for all the cooking and cleaning. She rarely left the apartment — usually only when the food stamps arrived to do the grocery shopping for the entire family.

Because of the severe overcrowding, Mrs. Smith has been attempting to obtain a larger apartment for several years. The largest apartment in the Marcy project has four bedrooms and even it would be too small for the household. Sylvia Smith, Juanita Smith and Chenelle Smith are also trying to obtain apartments for their families. It does not appear, however, that they will be successful in the near future.

There is an overwhelming demand for low-income housing in New York City. The Housing Authority owns and operates 318 developments with 179,000 apartments and 600,000 residents. It has a zero vacancy rate. It estimates that in excess of 175,000 families are on a waiting list for housing. See New York City Housing Authority, 55th Annual Report 6 (1990) (for *1025 the fiscal year ended December 1989) (hereinafter Housing Report).

The families are ranked in order of priority. Individuals in overcrowded apartments are next to last in line to receive an apartment. It is estimated that, at present rates, it will take 18 years to place the families on the waiting list in public housing. See J. Kozul, Rachel and Her Children 17 (1985).

From all indications, it appears that the housing crisis is worsening. The demand for affordable housing is dramatically increasing while its availability is just as sharply decreasing. In New York City federal funding produced an average of 3,000 new apartments a year during the 1950s, 1960s and 1970s. During the entire decade of the 80s, the Housing Authority only received 1,548 new public housing units. See Housing Report, supra, at 7. With the growth in the number of families living below the poverty line, the current housing shortage will reach even more critical proportions.

At one point, to relieve the cramped conditions, Mrs. Smith ordered Juanita Smith, Chenelle Smith and their children out of the apartment. They were placed in an emergency shelter. Mrs. Smith relented, however, when it became apparent that the condition of the shelters for the homeless were, in her estimation, horrendous. Compassion required that they be permitted to again join the Smith family in their lodging.

Mrs. Smith, the court finds, firmly opposed drug activities by her extended family. She did not tolerate such activities in the apartment since the well-being of the other family members would be jeopardized. She stated repeatedly that she had no knowledge of the presence of any drugs or of any illegal drug activity in her apartment.

When informed by the Housing Authority of anonymous charges of drug sales from her apartment, she confronted the members of her household and satisfied herself that the allegations were not true. As a precaution, she prohibited members of the household from having guests while she was away. She also insisted that only members of her family answer the door. Her testimony is accepted as true.

IV. LAW

The civil drug forfeiture statute, 21 U.S.C. § 881 (1988), creates an in rem cause of action for violations of the narcotics laws. The formal defendant in this forfeiture proceeding is apartment 1-C. The statute operates on the legal fiction that “ ‘[i]t is the property which is proceeded against, and ... held guilty and condemned as though it were conscious instead of inanimate and insentient.’ ” United States v. United States Currency in the Amount of $228,536.00, 895 F.2d 908, 916 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 2564, 109 L.Ed.2d 747 (1990) (quoting Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 283-84, 75 L.Ed. 558 (1931)). If the Government succeeds in a forfeiture proceeding, “all right, title, and interest in the property used to facilitate a drug transaction shall vest in the United States.... ” 21 U.S.C. § 881(h).

A. Public Housing Forfeiture

Forfeiture is a powerful weapon in the war on drugs. It allows the Government to “seize the profits and proceeds of illegal drug trafficking, as well as the currency and property used in connection with money laundering and drug violations.” United States Department of Justice, Drug Trafficking: A Report to the President of the United States 49 (1989).

The forfeiture provision under which the Government is proceeding provides:

The following shall be subject to forfeiture to the United States and no property right shall exist in them: ....

(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited *1026 under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

21 U.S.C. § 881(a).

Section 5105 of the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181 (1988), amended section 881(a)(7) to add leasehold interests to the description of property subject to forfeiture. The amendment represented a codification of “guidelines granting public housing agencies authority to evict tenants if they, their families, or their guests engage in drug-related criminal activity.” 134 Cong.Rec. S. 17,360 (daily ed. Nov. 10, 1988). By including public housing leases, Congress made clear that the United States assumed the power “to seize housing units from tenants who violate drug laws.... ” Id. Congress also amended the public housing statute to require that leases must prohibit drug related criminal activity and that such activity is grounds for eviction. Anti-Drug Abuse Act § 5101.

The high concentration of poverty has made public housing developments especially vulnerable to drugs and drug dealing. Low-income housing has been transformed from a place to live to “a staging area for the distribution of drugs and the violence related to drug trafficking and consumption.” Office of National Drug Control Policy, National Drug Control Strategy 64 (Feb. 1991).

Frustrated in its efforts to curtail the proliferation of illegal drugs in public housing, Congress sought to create a mechanism by which tenants who violate the narcotics laws could be removed. The problems surrounding existing state and federal eviction proceedings necessitated the creation of an efficient and effective method to remove drug dealers and return the housing projects to law-abiding tenants.

Safe, drug-free public housing has become one of the top priorities of the National Drug Control Strategy. Several programs have been implemented to achieve this objective. In June of 1990, the Departments of Justice and Housing and Urban Development (HUD) announced a joint program, the Public Housing Asset Forfeiture Demonstration to identify drug dealers and remove them from public housing. State public housing agencies and local police gathered evidence and presented it to the appropriate United States Attorney. The Government, in turn, obtained an ex parte seizure warrant to be promptly executed by the United States Marshal.

HUD and Justice developed the following guidelines for Public Housing Authorities and United States Attorneys to use in selecting cases:

(1) The violator should be the leaseholder of the property. (The term “violator” refers to the person whose actions give rise to the forfeiture.)

(2) Compelling evidence should be developed that the violator participated in at least two felony drug offenses.

(Drug purchases by undercover law enforcement officials from individual notorious drug dealers or evidence obtained pursuant to a search warrant would satisfy this criteria.)

(3) Where appropriate, the violator should be prosecuted by local, state or federal authorities for drug activities.

(4) The property should be an open and notorious site of drug distribution.

(5) Careful consideration should be given to factors involving family members of the violator and other registered occupants of the property. Those involved in this effort will seek to minimize the impact of the Government’s actions on minors and/or the elderly, should they be [ajffected by the action. Appropriate human resource services support (i.e. child welfare, emergency shelter, etc.) should be prearranged where minors or the elderly are [ajffected.

HUD has modified the grounds for denial or termination of housing assistance to emphasize that drug-related criminal activity by members of the household, guests or other persons under a tenant’s control will result in a loss of assistance. See 55 Fed. Reg. 28,538 (1990) (to be codified at 24 C.F.R. §§ 882.118, 882.210, & 882.413). It *1027 has also proposed revisions in the standard lease to provide that the same drug-related activity is a sufficient basis for eviction. See 56 Fed.Reg. 6,248 (1991) (to be codified at 24 C.F.R. § 966) (proposed February 14, 1991).

States have been encouraged to take legislative initiatives to eliminate drug dealing from housing projects. Several states have passed laws that mandate a tenant’s eviction from public housing if he or she is convicted of a drug offense on the premises. See Office of National Drug Control Policy, State Drug Control Status Report 11 (Nov.1990) (Arizona, Arkansas, California, Massachusetts, Missouri, Nevada & New Jersey).

New York has developed such a program. It evicts drug dealers under the Bawdy House Law, N.Y. Real Prop. Acts § 715, and private landlords bring nuisance-holdover proceedings to remove the drug dealers. See, e.g., Kings County District Attorney’s Office v. Underwood, 143 Misc.2d 965, 543 N.Y.S.2d 247 (N.Y.Civ.Ct.1989). The landlords face a $5000.00 fine if they refuse to bring the nuisance action. This program has resulted in 220 evictions. See Report and Recommendation to the Mayor on Drug Abuse in New York City 39 (May 1990).

B. Preseizure Notice and Hearing Required

The federal public housing demonstration has been the subject of legal challenge in the federal courts. Three days after its initiation, a federal judge entered a preliminary injunction prohibiting seizure of apartments without prior notice or an opportunity to be heard. A permanent injunction was entered on December 19, 1990. See Richmond Tenants Org., Inc. v. Kemp, 753 F.Supp. 607, 610 (E.D.Va.1990). The Department of Justice and HUD are in the process of revising the case criteria to provide for preseizure notice and hearing.

The court in Richmond Tenants Organization relied on the decision of the Court of Appeals for the Second Circuit in United States v. Premises and Real Property at 4492 S. Livonia Rd., Livonia, New York, 889 F.2d 1258 (2d Cir.1989), reh’g denied, 897 F.2d 659 (2d Cir.1990). There, the Court of Appeals held that the forfeiture of an individual’s home without prior notice and hearing would be unconstitutional. Id. at 1262-66.

The common law has long recognized the special significance of an individual’s home. Maintaining the sanctity and privacy of the home was one of the primary purposes of the Fourth Amendment. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2096-97, 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573, 578, 100 S.Ct. 1371, 1376, 63 L.Ed.2d 639 (1980). The expectation of privacy and freedom from Government intrusion in one’s home merits the additional protections of presei-zure notice and hearing. See 4492 S. Livonia Rd., 889 F.2d at 1264.

There is persuasive reason to extend the procedural safeguards of 4492 S. Livonia Rd. to apartment forfeitures. A public housing tenant’s interest in his apartment is a property interest protected by the Constitution. Escalera v. New York City Housing Authority, 425 F.2d 853, 861 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970). The expectation of uninterrupted occupation and privacy exist whether the home is held in fee or by lease. A leasehold is subject to constitutional protections against arbitrary forfeiture to the Government. Cf. Alamo Land and Cattle Co. v. Arizona, 424 U.S. 295, 303, 96 S.Ct. 910, 916, 47 L.Ed.2d 1 (1976) (leasehold is form of property protected against uncompensated taking). To be constitutional, apartment forfeiture proceedings require prior notice and hearing. See Richmond Tenants Org., Inc., 753 F.Supp. at 610; United States v. Leasehold Interest in Property Located at 850 S. Maple, Ann Arbor, Michigan, 743 F.Supp. 505, 508-09 (E.D.Mich.1990).

C. Procedures to Obtain Forfeiture

Section 881 incorporates by reference the rules and procedures governing forfeitures for customs violations and admiralty and maritime claims. See 21 U.S.C. § 881(b), (d). Section 881(b) allows for the seizure of *1028 property under a variety of procedures which do not provide for prior notice or an opportunity to be heard.

The requirements of 4492 S. Livonia Rd. alter the summary procedures typically employed by the Government when seizing personal property under the drug forfeiture laws. The Second Circuit has not yet offered guidance on the nature of the pre-seizure hearing or the appropriate method of notifying potential claimants. See United States v. Premises and Real Property at 4492 S. Livonia Rd., Livonia, New York, 897 F.2d 659 (2d Cir.1990) (on petition for rehearing). It found such instruction unnecessary since only the interim forfeiture was held to be unconstitutional. The final forfeiture of the home was upheld after a trial with evidence not derived from the unconstitutional seizure.

1.Adequate Notice

Notice here was more than sufficient to apprise any potential claimant to the apartment of the initiation of forfeiture proceedings. The Government began this forfeiture proceeding by filing a verified complaint in rem pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims and 21 U.S.C. § 881(b). It served on the leaseholder of the apartment or a responsible family member residing in the apartment a copy of the order to show cause, the verified complaint in rem, and attached declarations. Subsequently, a supplemental warrant for arrest in rem was affixed in a conspicuous location and served on someone in the apartment. This method of service is authorized by admiralty and maritime rules. See Supplemental Rule E(4)(b). In addition, the Government published notice of the arrest of the defendant premises for three consecutive days in a newspaper of general circulation within this district. Cf. 21 C.F.R. § 1316.75 (providing for publication notice where amount forfeited is less than $100,-000.00). Every resident in the apartment was fully aware of the Government’s position.

2.Claimants’ Objection

Once forfeiture proceedings are initiated, persons who wish to contest forfeiture must file claims within 10 days, or longer if the court allows. See Supplemental Rule C(6). Potential claimants must file a verified claim “on oath or solemn affirmation” and must “state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action.” Supplemental Rule C(6); see Mercado v. United States Customs Serv., 873 F.2d 641, 645 (2d Cir.1989).

Instead of filing a verified claim, Clara Smith sought to intervene in the forfeiture proceeding by filing a verified complaint on behalf of herself and the minors residing in the apartment. While not styled as a typical proof of claim, the complaint plainly states that it is to serve as a proof of claim under Supplemental Rule C(6).

The filing of a verified intervenor complaint meets the requirements of Supplemental Rule C(6). Clara Smith has sworn to the verified complaint which states she is the leaseholder of record and that she asserts the “innocent owner” defense for all intervenors. This is sufficient to give her standing to contest the forfeiture action. Since the court on July 30, 1990 stayed further proceedings until the complaints were filed, there is no question that the filing of the claim was timely.

3.Scope of Preseizure Hearing

Since, at first, the Government sought interim seizure of the apartment, a preseizure hearing became necessary. See United States v. Premises and Real Property at 4492 S. Livonia Rd., Livonia, New York, 889 F.2d 1258, 1265 (2d Cir.1989), reh’g denied, 897 F.2d 659 (2d Cir.1990). The Government maintains that the only issue at such a hearing is whether there is “probable cause to believe that the property is subject to civil forfeiture....” 21 U.S.C. § 881(b). It concedes that such a limiting of the issues at the hearing will preclude the claimants from asserting defenses to forfeiture. To allow the claimants to assert defenses at the preseizure hearing, the Government argues, would be unnecessarily burdensome on prosecutors and would be contrary to Congress’ desire *1029 to create an efficient mechanism to evict drug dealers.

While 4492 S. Livonia Rd. does not provide instruction on the scope of the presei-zure hearing, the requirement of a hearing implies that the hearing be meaningful. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) (hearing must be at meaningful time and in meaningful manner); cf. Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970) (pre-termi-nation hearing should protect a welfare recipient against erroneous termination of benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring) (“[D]ue process is afforded only by the kinds of ‘notice’ and ‘hearing’ which are aimed at establishing the validity, or at least the probable va