Full opinion text
ORDER DENYING CLAIMANT UNITED MEDICAL CAREGIVERS CLINIC, INC.’S CONVERTED MOTION FOR SUMMARY JUDGMENT [42, 50] STEPHEN V. WILSON, District Judge. I. INTRODUCTION In evaluating this unusual case, the Court and the parties have encountered complicated and thorny questions at every turn. This converted motion for summary judgment is no different. The Government filed its verified complaint on September 12, 2005, against the defendant $186,416.00 in United States currency. This federal civil forfeiture action arose from the Los Angeles Police Department’s (“LAPD”) seizure, pursuant to a state search warrant, of marijuana, currency, and other items from claimant United Medical Caregivers Clinic, Inc. (“UMCC”). UMCC is, or was, a non-profit medical marijuana dispensary in Los Angeles, located at 4520 Wilshire Boulevard. The verified complaint for forfeiture was brought under 21 U.S.C. § 881(a)(6), with the Government alleging that the defendant currency was traceable to federal narcotics violations pursuant to 21 U.S.C. §§ 841, 846. On August 16, 2006, (“August 16 Order”) this Court granted UMCC’s motion to quash the search warrant and suppress the defendant currency. The Court held that the evidence seized during the search had to be suppressed because: (1) there was no probable cause to issue the state warrant for a violation of state law; and (2) even assuming that the warrant was issued in response to a violation of federal law, Federal Rule of Criminal Procedure 41(b)’s procedural requirements were not observed. UMCC asked this Court to enter judgment in its favor immediately after the August 16 Order was issued. The Court deemed this request to be premature. See United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450 (9th Cir.1983) (“[A]ny evidence which is the product of an illegal search or seizure must be excluded at trial, but ... forfeiture may proceed if the Government can satisfy the requirements for forfeiture with untainted evidence.”). Given the case’s uncertain status, the Court issued an Order on November 21, 2006. This Order stayed discovery in order to permit UMCC the opportunity to file a dispositive motion. UMCC subsequently filed a motion for judgment on the pleadings. However, the Court determined that this motion was procedurally awkward, and converted it to a summary judgment motion. Importantly, this converted motion for summary judgment involves a narrow inquiry: whether the Government had sufficient evidence to initiate the lawsuit against the defendant currency on September 12, 2005. The question is whether, as of that date, the Government had untainted probable cause connecting the defendant currency to federal narcotics violations. This motion does not consider whether the Government could meet its burden of proof of establishing forfeitability by a preponderance of the evidence at trial. For the reasons discussed below, UMCC’s converted motion for summary judgment is DENIED. 11. FACTS The Government filed its verified complaint on September 12, 2005. (Cl. MJOP Brief Ex. 1.) The complaint alleges that the defendant currency was seized while the Los Angeles Police Department (“LAPD”) conducted a search of UMCC’s premises, and that it was traceable to narcotics violations codified at 21 U.S.C. §§ 841, 846. Given the posture of this converted motion, it is imperative that the Court limit its analysis to the evidence known to the Government as of September 12, 2005. The underlying and material facts are undisputed, but the resulting implications have been vigorously argued by counsel. A Events Leading to the Seizure In January 2005, Sergeant Lopez began receiving complaints of marijuana smoking near the UMCC facility. (Lopez Decl. ¶ 3.) The complainants observed marijuana being carried in small brown paper bags. (Id.) On March 15, 2005, Lopez received another complaint that for the first time identified UMCC as the source of the marijuana activity. (Id. ¶ 4.) He drove to the area in the early evening, and found a flyer that referenced “UMCC.” (Id.) The flyer informed UMCC patrons to leave the premises after purchasing their marijuana, but did not include an address. (Id.) After asking some locals about the flyer, he eventually was led to 4520 Wilshire Boulevard. (Id.) As he approached the building’s entrance, he noticed that an individual (possibly a private security guard) with a walkie-talkie was following him and spoke the following words into his headset: “LA’s finest is here.” (Id. ¶ 5.) Inside the building, Sergeant Lopez smelled the odor of marijuana and observed a number of people leaving the building with small brown paper bags. (Id. ¶ 6.) When he ascended to the second floor, he saw a sign that advised UMCC customers to show their identification cards before entering. (Id.) He also noticed that he was being followed by the same security agent. (Id.) At approximately this time, Michael E. Bryan, a private security consultant who was then working for UMCC, states that he told Lopez that UMCC was a “legal dispenser of medical marijuana.” (Bryan Decl. ¶ 3.) Sergeant Lopez was then “buzzed” in to UMCC’s offices. Once inside, the smell of marijuana grew stronger and more individuals were seen leaving with brown paper bags. (Lopez Decl. ¶ 7.) After asking to speak with the “person in charge,” he met with Gabriella Jaramillo. (Id. ¶ 8.) Jaram-illo told Lopez that UMCC was a medical marijuana provider, had a business license, and was operating lawfully. (Id.) However, she was unable to produce a business license at that moment. Lopez states that “[ljater, in the course of the investigation, a faxed copy of a City of Los Angeles Tax Registration Certificate was produced.” (Id.) Jaramillo contacted UMCC’s owner by phone, who stated that he would fax the entity’s business license. (Id.) The owner also stated that UMCC was a legitimate medical marijuana provider, and that he had no legal problems with his other location in West Hollywood. As Lopez continued to wait for backup, he witnessed additional individuals leaving the area with small brown paper bags. (Id. ¶ 10.) Lopez’s backup arrived'within approximately 30 minutes and secured the area pending the issuance of a search warrant. (Id. ¶11.) Jaramillo also submitted a declaration as part of UMCC’s motion to quash the search warrant and to suppress the currency. She states that as of March 15, 2005, all registered patients were, required to present a UMCC ID card or a doctor’s recommendation letter before they were admitted through the locked second floor door. (Jaramillo Deck ¶ 3.) The ID card or doctor’s note would then be presented to a UMCC employee at the front desk before they could be “buzzed” into the waiting room. (Id.) After signing in on a roster sheet, the patients would be admitted to the dispensary through a third locked door. (Id.) Jaramillo claims that she was about to leave UMCC’s. premises at around 6:00 p.m. on March 15, 2005, when she was told by a security guard (Bryan) and another employee that a police officer wanted to see UMCC’s business license. (Id. ¶ 4.) UMCC’s CEO, Scott Fell, also called Jar-amillo at this time. (Id.) He was at another location, but saw on his security monitor that a police officer was in the lobby. (Id.) Feil told Jaramillo, upon her request, that he would fax over the necessary information. (Id.) Jaramillo further asserts that at this point she began speaking with Lopez, who “asked us what kind of place this was and if we had a license to operate.” (Id. ¶ 6.) She informed him that this was a medical marijuana clinic operating under Proposition 215. (Id.) Lopez reportedly told Jar-amillo that he was not familiar with California’s medical marijuana laws. (Id.) She states that at about this time she: received the faxes from Mr. Feil which included UMCC’s corporate papers (Exhibit 6) a completed copy of its application for a City of Los Angeles Tax Registration Certificate, and a City of Los Angeles Tax Registration Certification (Exhibit 7 & 7a) which [she] handed to Officer Lopez. (Id.) The city registration certificate lists UMCC as involved in “retail sales.” (Id. Ex. 7.) The Articles of Incorporation list Scott Feil as UMCC’s agent for service of process. (Id. Ex. 6.) Jaramillo also pointed Lopez to a flyer that was reportedly in his hand. (Id. ¶ 6.) The flyer included the following language: Anyone caught smoking, distributing, sharing, selling or using by any means, any item received under the guidelines of Proposition 215 (California Compassionate Care Act of 1996) Health & Safety Code §§ 11362.5 and 11362.7 et seq. on the street or neighborhood within a five block radius of UMCC, your membership in this clinic will be immediately revoked for a period of one year from the date of violation without notification. (Id. Ex. 5a.) UMCC hired security officers to police the adjacent neighborhood in order to ensure that this rule was observed. (Id. ¶ 6.) Jaramillo claims that Lopez received a call on his phone at this time, and he said “words to the effect that he had something that looked like a license. ‘It says retail and this is supposed to be a clinic.’ ” (Id. ¶ 8.) Lopez told Jar-amillo that his supervisor would be arriving. (Id.) At this time, Jaramillo asked if she could show Lopez some paperwork on the California medical marijuana laws. (Id. ¶ 9.) She provided him with a packet of information that included the statutory language enacted by the Compassionate Use Act of 1996, as well as an article written by William Bratton indicating his support for medical marijuana. (Id. Ex. 5.) At approximately 6:45 p.m., Sergeant Bell arrived. (Jaramillo Decl. ¶ 10.) Jar-amillo was not allowed to leave; however, the officers also declined her invitation to close down the clinic. (Id.) After Lopez received another phone call, Jaramillo asked once again whether she should close the clinic, and this time was told “yes.” (Id. ¶ 11.) However, one last elderly patient from Riverside had arrived with a doctor’s recommendation, and Lopez permitted the patient to receive her “prescription.” (Id.) Jaramillo agrees that Lopez probably viewed about 50 patients receiving medical marijuana while he waited for other officers to arrive, but that Lopez never intervened. (Id. ¶ 12.) No other patients were allowed into the building after the elderly woman from Riverside left. (Id. ¶ 13.) Jaramillo and several other employees were then detained and told to stay in the waiting room. (Id. ¶ 16.) It was at this point that Jaramillo saw ten to fifteen other detectives arrive. (Id. ¶ 17.) After the other officers arrived, Lopez spoke by phone with Officer Michael Fu-kuda, who is a member of the Wilshire Narcotics Enforcement Detail. (Lopez Decl. ¶ 11; Fukuda Decl. ¶¶ 2-3.) Prior to this conversation, but at sometime after 6:00 p.m., Fukuda had already spoken with one of his superiors about UMCC. (Fuku-da Decl. ¶ 2.) This superior was Detective Orozco, and it was determined that a state search warrant would be sought. (Fukuda Depo. at 72-73.) Lopez told Fukuda about: (1) the complaints he had received regarding marijuana smoking in the UMCC area; (2) the odor of marijuana at the facility; and (3) the admissions of marijuana sales by UMCC employees. (Fuku-da Decl. 113.) Fukuda testified in his deposition that the information provided to him by Lopez was consistent with that conveyed by Detective Orozco. (Fukuda Depo at 73:11-14.) Lopez and Fukuda only talked on the phone once, and it was likely no longer than a “couple minutes” in length. (Id. at 82:7-17.) Before applying for the search warrant, Fukuda was aware of the fact that customers were bringing doctor’s notes for the marijuana purchases. (Id. at 140:22-25 to 141:1-5.) However, he did not know that Lopez had observed people purchasing marijuana in the police’s very presence. (Id. at 140:16-21.) Fukuda drafted a search warrant based on his conversation with Lopez and other officers, which was approved by his superiors. (Fukuda Decl. ¶ 3.) This probably took Fukuda two or three hours to complete. (Fukuda Depo at 76:10-12.) Before applying for the search warrant, Officer Thomas advised Fukuda that a tax registration certificate for UMCC had been located indicating that the company was involved in “retail sales.” (Id. at 133:17-25 and 134:1-4.) This occurred during the course of a phone conversation between Fukuda and Thomas. (Id. 134:13-17.) Thomas did not actually provide Fukuda with a copy of the registration form until after the search was executed. (Id. at 135:6-9.) Fukuda did not include this information in the warrant; he thought it was irrelevant because nothing on the certificate states that it was legal for UMCC to sell medical marijuana. (Id. at 135:15-24.) Fukuda was aware that “you needed one [a tax registration certificate] in order to operate legally a business....” (Id. at 136:11-12.) But he did not believe that “retail sales” included the right to engage in medical marijuana sales. (Id. at 138:7-13.) In addition, Lopez had relayed to Fukuda that various patients were coming to UMCC with doctors’ recommendations, but Fukuda omitted this fact from the affidavit because “we have no standing order that any kind of doctor’s recommendation is going to trump the Health and Safety code we go by.” (Id. at 140:22-25 to 142:1-2.) The warrant drafted by Fukuda, if approved, allowed the LAPD to search the UMCC facility located on the second floor at 4520 Wilshire Boulevard. (Fukuda Deck Ex. A at 2.) The LAPD could search for marijuana, marijuana paraphernalia, personal property tending to establishing the existence of a conspiracy to sell marijuana, and personal property tending to establish the identify of persons in control of the premises. (Id.) Fukuda also provided an affidavit, which stated the following (in part): On March 15, 2005, I was contacted by Officer Miguel Lopez # 25423, who was calling from the United Medical Caregivers Clinic at 4520 Wilshire Boulevard. Officer Lopez stated that he was contacted telephonically by a citizen, who stated he was concerned with narcotics activity occurring in the area of Wilshire Boulevard and Muirfield Avenue. The Citizen stated that on numerous occasions he had observed people smoking marijuana joints in the area of Wilshire Boulevard and Muirfield Avenue. The citizen inquired with them as to where they had obtained their marijuana, and was handed a flyer that made reference to marijuana usage, and the letters “UMCC.” On March 15, 2005, Officer Lopez was in the area of Wilshire Boulevard and Muirfield Avenue, and observed a citizen holding a flyer that made reference to marijuana usage, and the letters “UMCC.” Officer Lopez inquired as to where the citizen had obtained the flyer, and was advised by the citizen that “UMCC” stood for the United Medical Caregivers Clinic, was located inside 4520 Wilshire Boulevard, and that the clinic was well known for marijuana sales. Officer Lopez conducted a follow up to 4520 Wilshire Boulevard and observed a hanging sign on a metal stand that had inscribed, “UMCC parking in rear.” Upon entering the lobby of 4520 Wilshire Boulevard, Officer Lopez immediately detected a strong odor of marijuana. He further observed a piece of paper taped to the wall that had inscribed, “UMCC” and listed business hours. An arrow was also inscribed on the same paper that pointed up the stairs to the second floor. Officer Lopez walked up the stairs to the second floor and located a door that had a sign posted east of the front door that stated, “Please show your UMCC photo ID card.” Upon entry, Officer Lopez detected a strong odor inside the clinic. Officer Lopez recognized this as an odor commonly associated with Marijuana. Officer Lopez then spoke with clinic employees who readily admitted that there was marijuana in the clinic and that they sold marijuana at the location. Between 8 p.m. and 10 p.m. that evening, Officer Fukuda called the Los Ange-les Superior Court and asked to speak with a judge regarding a search warrant. (Id. ¶4.) He was ultimately connected to Judge Melvin Sandvig, who told Fukuda to explain “what we had” concerning UMCC. (Id.) As conceded by Officer Fukuda, he omitted any reference to UMCC’s claim that it was a medical marijuana provider, instead only mentioning its name and noting that it was a “clinic.” (Id.) This conversation only lasted a “couple of minutes.” (Id.) Judge Sandvig called Officer Fukuda back shortly thereafter and informed him that the warrant had been approved. (Id.) Judge Sandvig signed the warrant at 10:20 p.m. (Id.) At that time, Fukuda called the officers at UMCC, informing them that a search warrant had been signed and that he was en route with the written document. (Id. ¶ 5.) Fukuda then “went to UMCC and met with Wilshire Narcotics Enforcement Detail officers who had begun a search of UMCC.” (Id.) It appears to be undisputed that the search began before Fukuda actually arrived with a physical copy of the warrant. As stated by Officer Thomas, “[ajfter receiving Fukuda’s call, we began a systematic search of the location.” (Thomas Decl. ¶ 5.) Jaramillo and Bryan assert that the officers engaged in searches prior to this time. There is no implication, however, that any currency was found prior to 10:20 p.m. Bryan, who was a security agent for UMCC, claims that detectives began searching UMCC’s files as early as 7:00 p.m. (Bryan Decl. ¶ 4.) He also asserts that these non-consensual searches of the facilities were recorded in real time by UMCC’s video surveillance system. (Id. ¶ 7.) At some point between 8:30 and 10:00 p.m., Jaramillo claims that she received further calls from Feil. (Jaramillo Decl. ¶¶ 19, 24.) Feil reported seeing detectives searching the dispensary on his security video monitor. (Id. ¶ 19.) Officer Keith Thomas found several rooms designed for the sale and storage of marijuana-related products. (Thomas Decl. ¶ 6.) He was assigned the task of collecting money believed to be the fruit of UMCC’s marijuana sales. (Id. ¶ 7.) Currency and ATM receipts were recovered from a cash register. (Id.) Thomas entered a security room that contained a money counter, two safes, and various ledgers. (Id. ¶ 8.) Thomas asked a UMCC security guard about the ledgers, who in turn responded that they contained a history of money generated by UMCC that had been placed into the safes. (Id.) A special safe cracking unit arrived, and ultimately retrieved large amounts of currency from UMCC’s safe. (Id.) $186,416.00 in U.S. Currency was seized in total from the UMCC search that evening. (Id. ¶ 9.) After searching the premises, LAPD also seized 209 pounds of marijuana, 21 pounds of hashish, and approximately 12 pounds of marijuana oil. (Fukuda Decl. f 5.) Two UMCC employees, Gabriella Jaramillo and Carmen Flores, were arrested for marijuana possession. (Id. ¶ 6.) Fukuda also states in his declaration that “[djuring the course of the search, a faxed copy of a City of Los Angeles Tax Registration Certificate was produced.” (Id.) While the LAPD were still in the process of removing UMCC’s marijuana, Jaramillo was given a copy of the first page of the search warrant. (Jaramillo Decl. ¶ 30.) One of UMCC’s lawyers claims that he spoke with LAPD Captain Fletcher, Command Officers of the Narcotics Division, on March 28, 2005. (Lindner Decl. ¶ 2.) Captain Fletcher stated that he was unaware of any officer training addressing California’s medical marijuana law(s), although he agreed that such training would be “appropriate.” (Id.) This attorney also states that a deputy district attorney is “on call” if law enforcement officials have any legal questions about the issuance of search warrants. (Id. ¶ 3.) B. The LAPD’S Understanding of Narcotics Law Lopez states in his declaration that the LAPD had not provided him or his colleagues with any training regarding California’s medical marijuana laws. (Lopez Decl. ¶ 9.) He knew that such laws had been passed, but believed that possession and sale was still illegal under federal law. (Id.) Lopez asserts that he has a duty to enforce all laws within California, including federal laws. (Id.) In his deposition, Lopez also states that he had received no training on medical marijuana laws as of March 15, 2005, and that he had never read them. (Lopez Depo. at 27-28.) He further claimed that, at that time, it was his understanding that marijuana could never be sold legally in the state. (Id. at 73.) Fukuda asserts that as of the search date he “had received no orders from LAPD command staff that we were not to enforce marijuana sales laws.” (Fukuda Decl. ¶ 3.) In his deposition, Fukuda at first admitted some awareness, as of March 15, 2005, of California’s medical marijuana laws. (Fukuda Depo. at 38:6— 8.) Fukuda “knew that it had been a recent hot topic in the news, especially for the State of California. So [he] knew it through just newspapers and watching the news.” (Id. at 38:10-12.) Furthermore, Fukuda may have had discussions with other officers about the law, as well as “incidents that involved medical marijuana.” (Id. at 38:21-23.) Yet, he had not received any training regarding these laws. (Id. at 37:23-25 to 38:1-5.) Fukuda’s initial concession of knowledge regarding California’s medical marijuana laws arguably contradicts his statements given elsewhere in his deposition. Toward the end, Fukuda asserts that the sale of marijuana was prohibited under all circumstances as of March 15, 2005. (Id. at 138:16-19, 139:12-15.) Shortly thereafter, Fukuda once again shifts his position, implying that the medical marijuana law might only apply if the city and county of Los Angeles took certain required steps: Like I said before, it was just bits and pieces I heard through the news, especially up in Northern California that there were, in fact, medical marijuana clinics. However, because there were very specific standards that needed to be met for that to become legal, that in other areas of California and other states whether the Compassionate Care Act had been talked about, that it was a gray area and that we were still to operate by our current practice. Just as we were guided by the Health and Safety Code, which was basically when we had a crime, a law that was broken, we would enforce it. (Id. at 142:13-25.) Fukuda only read the relevant portions of the law after the search was executed, when discussing the case with a deputy district attorney in the following week. (Id. at 148:4-25.) Finally, Thomas states that he was only “generally familiar” with California’s medical marijuana laws but was aware that the ID card program had not yet been instituted. (Thomas Deck ¶ 5.) C. Other Information Known to the Government Presumably after March 15, 2005, but before September 12, 2005, the federal Government learned of certain additional information pertaining to the defendant currency. First, UMCC was incorporated in California on March 16, 2004. (Biczo Deck ¶ 2.) Second, a criminal history check of UMCC’s President, Scott Feil, revealed that he had been arrested in 2000 for cultivating marijuana. (Id. ¶ 3.) Additionally, on August 4, 2005, Charles Lindner (an attorney representing UMCC), filed a motion in Los Angeles Superior Court entitled, “Motion for Order to Show Cause why the Court’s ‘Order for Release of Property Pursuant to Search Warrant for Federal Forfeiture Proceedings’ Should Not be Set Aside.” In this motion, Mr. Lindner attached the contents of a prior motion for the “return of property illegally seized,” which had been filed on May 17, 2005. In this earlier motion, UMCC submitted the declaration of Scott Feil, the “Chief Executive Officer” of UMCC. (Biczo Deck Ex. E at 91.) Feil explained that “[a]ll cannabis products obtained or produced by UMCC are derived form marijuana grown exclusively by patient-members of UMCC. UMCC has never obtained marijuana or cannabis products from any source other than marijuana cultivated by its patient members.” (Id.) Feil further declared that on “March 15, 2005, the Los Angeles Police Department seized numerous cannabis products, approximately $200,000 in currency, and other items including security equipment. The materials seized were all, to the best of my knowledge and belief, legitimately used in the course of UMCC’s activities as described above.” (Id. at 92.) These “activities,” as detailed in the Feil declaration, were UMCC’s sale of marijuana. Finally, on August 26, 2005, Judge Sand-vig signed a one-page order releasing the defendant currency for federal forfeiture proceedings. The entire order reads as follows: Agents of the Los Angeles Police Department have examined the facts in the above-entitled action and have determined that there exists probable cause to believe the assets described below are forfeitable under Title 21, U.S.C. 881. Therefore, it is hereby ordered that the property listed below taken from the possession of Gabriela Jaramillo of United Medical Caregivers Clinic, at the premises located at 4520 Wilshire Boulevard, Los Angeles, California, on or about the date of March 15th, 2005, pursuant to search warrant # 51779, be released from the jurisdiction of the court under authority of 1536 of the California Penal Code. As prescribed by federal law, said property will be retained by the United States Marshals Service pending the disposition of forfeiture proceedings pursuant to Title 21, U.S.C. 881. Description of Property: $186,416.00 in U.S. Currency. (Id. Ex. F.) DEA Task Force Officer Joseph Biczo presented this Order to Judge Sandvig. III. ANALYSIS A. Legal Standard Governing Summary Judgment Rule 56(c) requires the Court to grant summary judgment for the moving party when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify specific facts that show a genuine issue for trial. See id. at 323-34, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). Only genuine disputes — where the evidence is such that a reasonable jury could return a verdict for the nonmoving party— over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) (holding the nonmoving party must provide specific evidence from which a reasonable jury could return a verdict in its favor). B. The Probable Cause Standard 1. CAFRA and Section 1615 Prior to the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), the Customs law of Title 19 governed efforts to forfeit property allegedly related to drug transactions. See 21 U.S.C. § 881(d). Under 19 U.S.C. § 1615, the Government was only required to have probable cause in order to initiate a forfeiture action. Once this was established, the claimant had to prove by a preponderance of the evidence at trial that the defendant property was not forfeitable. As to the probable cause requirement, the Ninth Circuit held in $191,910.00 that “[t]he plain language of the statute makes clear that the government must have probable cause at the time it institutes the forfeiture proceedings.” 16 F.3d at 1066. Therefore, the Government could not make up for its lack of probable cause after the lawsuit began through the use of discovery, or other independent investigation. See id. at 1066-67. There is no dispute that CAFRA superseded Section 1615 as to the ultimate trial burden of proof, which now requires the Government to demonstrate forfeitability by a preponderance of the evidence. “Enacted in 2000, the Civil Asset Forfeiture Reform Act (‘CAFRA’) sets forth the procedures used in all civil forfeitures under federal law unless the particular forfeiture statute is specifically exempted in 18 U.S.C. § 983(i)(2).” United States v. 144,-774 pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.2005). The trouble with CAFRA is that its text is oddly mute as to whether the Government must still bear the initial burden of demonstrating probable cause to begin the lawsuit. For this reason, the Court previously expressed some skepticism regarding whether the probable cause requirement of Section 1615 survived CAFRA. Into CAFRA’s apparent silence, the opposing sides have declared victory. One Department of Justice attorney wrote that “[f|rom the outset of the debate over CAF-RA, the Department of Justice assigned a high priority to” repealing this portion of Section 1615, “and ultimately Congress agreed.” Stefan D. Cassella, The Civil Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and Strict Deadlines Imposed on All Parties, 27 J. Legis. 97, 149 (2001). In contrast, one of UMCC’s lawyers edits an oft-cited treatise on asset forfeiture law, and offered the following retort: The DoJ argues that Congress spoke to this issue in the CAFRA and overruled the line of cases holding that the government must have probable cause at the time it files the complaint. To the contrary, Congress implicitly approved this line of cases in 18 U.S.C. § 983(c), which provides that the “government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture.” By using the [underlined] phrase, Congress clearly meant to relieve the government of the need to establish the forfeitability of the property by the new burden of a preponderance of the evidence without using evidence acquired after the complaint was filed. Congress thought it was enough that the government have probable cause at the time it commenced the forfeiture action, as under the old law. Section 983(a)(3)(D) says the same thing: “No complaint may be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.” Of course, under the CAFRA, the forfeita-bility of the property must be shown by a preponderance of the evidence. Had Congress wished to enact DoJ’s proposal, it would have substituted the words “probable cause” for “adequate evidence ... to establish the forfeitability of the property.” 1 David B. Smith, Prosecution and Defense of Forfeiture Cases, ¶ 11.03[6]. The Ninth Circuit has upheld the constitutionality of Section 1615. United States v. One 1970 Pontiac GTO, 2-Door Hardtop, 529 F.2d 65, 66 (9th Cir.1976). However, the Ninth Circuit has not decided whether CAFRA would be constitutional if it were construed as allowing a lawsuit to proceed despite the lack of any untainted probable cause for its initiation. Thus, $191,910.00’s fate was not neatly addressed by CAFRA, and Section 1615’s continuing application to narcotics cases appears to be a question of first impression. The better view is that the probable cause requirement survives. There are several reasons for this conclusion. First, 18 U.S.C. § 981(d) provides that “the provisions of the customs laws relating to the seizure, summary and judicial forfeiture ... insofar as they are applicable and not inconsistent with the provisions of this section, shall apply to seizures and forfeitures! incurred, or alleged to have been incurred, under this section.” It is true that Section 1615 is at least partially inconsistent with Section 983(c)(1) — the former places the trial burden of proof on the claimant, while the latter imposes it on the Government. Obviously, Section 1615 is inapplicable in this regard. However, Section 983(c)(1), and every other CAFRA section, fail to address explicitly the probable cause aspect of Section 1615. The Government responds by arguing that Section 983(c)(1) and Section 1615 are “materially inconsistent” because both set forth completely different standards of proof to be established in different types of forfeiture proceedings. (Gov’t Opp. at 13.) By definition, the Government asserts, Section 983(c)(1) completely displaces Section 1615 for purposes of drug forfeiture cases. If true, then CAFRA would represent something of a “wash” for the Government. While CAFRA assigned to the Government the ultimate burden of proof at trial for the first time, it would no longer even need probable cause to institute a forfeiture action. In contrast, UMCC believes that since Section 983(c)(1) only discusses the trial burden of proof, which it imposed on the Government rather than the claimant, Congress lacked any intent to eliminate the probable cause requirement for simply filing a forfeiture action. According to UMCC, if Congress had wanted to eliminate the probable cause threshold for instituting an action, it would have included a provision stating as much. UMCC claims that CAFRA represented a total victory for reformers, and that the Government’s position is inconsistent with this reality. Thus, one’s opinion of Section 1615’s relationship with Section 983(c)(1) depends on whether he/she takes a “macro” or “micro” perspective of the two provisions. The Government looks broadly at the two sections, observes that the burdens are “different,” and concludes that Section 1615 has been entirely superseded in narcotics actions due to CAFRA. UMCC looks closely at the actual issues addressed by Section 983(c)(1), notes that Section 983(c)(1) only makes express reference to a party’s trial burden of proof, and concludes that the probable cause requirement of Section 1615 is not inconsistent with CAFRA. Either interpretation is facially reasonable, but the Court agrees with UMCC. Section 981(d) necessarily incorporates Section 1615 to the extent (if at all) that it is not inconsistent with CAF-RA’s substantive provisions. Section 1615’s probable cause requirement is not wholly inconsistent with Section 983(c)(1) because it is literally feasible for both requirements to coexist together in a sensible fashion: there is nothing intrinsically inconsistent with requiring the Government to have probable cause to file a lawsuit (Section 1615) and to have the ultimate burden of proving forfeitability by a preponderance of the evidence at trial (Section 983(c)(1)). This analysis is equally applicable with respect to Section 983(c)(2) and Section 983(a)(3)(D). Section 983(c)(2) provides that “the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture.” Again, this provision does not contradict Section 1615’s probable cause provision. It only states that the Government may use after-acquired evidence to prove forfeitability at trial by a preponderance. It does not detail whether such evidence may be used to demonstrate probable cause for filing the action. Section ' 983(a)(3)(D) similarly states “[n]o complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.” As explained by Mr. Smith, the Government establishes “forfeitability” with proof by a preponderance of the evidence. The probable cause standard involves a lesser threshold, and by itself is insufficient for the Government to achieve a successful forfeiture. This statutory language does not indicate, as explained by Mr. Smith above, that the Government can proceed with a forfeiture action if it lacks probable cause to initiate it. See Smith, supra, ¶ 11.03[6] (“Had Congress wished to enact DoJ’s proposal, it would have substituted the words ‘probable cause’ for ‘adequate evidence ... to establish the forfeitability of the property.’ ”) Rather, this provision simply allows the Government the opportunity to conduct discovery to meet its preponderance burden, assuming it at least has the minimal untainted probable cause necessary to commence the lawsuit. Because the Section 1615 probable cause provision has not been contradicted by CAFRA, the Court hereby holds that it has been incorporated into the new civil asset forfeiture regime via Section 981(d). This view is further supported by reference to a proposed reform bill that was submitted in 1997, but never enacted. At Section 2, this bill similarly shifted the preponderance of the evidence burden from the claimant to the Government. Importantly, Section 13 would have amended Section 981(d) and expressly repealed the Section 1615’s probable cause proviso as follows: Title 18, United States Code.-Section 981(d) of Title 18, United States Code, is amended by inserting after the first sentence the following: “However, the Cost Bond Provision of Section 608 of the Tariff Act of 1930 (19 U.S.C. 1608) and the burden of proof provision of Section 615 of the Tariff Act of 1930 (19 U.S.C. 1615) shall not apply to any forfeiture governed by the procedures set forth in this chapter.” 1997 H.R.1965; 105 H.R.1965 (Lexis citation). In contrast, CAFRA left Section 981(d) untouched, and with no reference to Section 1615. This omission buttresses the conclusion that the Government must still have untainted probable cause to file a forfeiture complaint. Second, Congress’ intent is further reflected in its legislative history. Chairman Henry J. Hyde made the following crucial statement regarding CAFRA: “while the government may use evidence obtained after the forfeiture complaint is filed to establish the forfeitability of the property by a preponderance of the evidence, the government must still have had enough evidence to establish probable cause at the time of filing (or seizure, if earlier).” 146 Cong. Rec. H 2050 (Apr. 11, 2000). Third, to the extent that there is any uncertainty regarding Section 981(d)’s incorporation of the probable cause standard, the $191,910.00 Court requires that the issue be resolved in favor of the claimant. In $191,910.00, the Ninth Circuit held that “forfeiture statutes are strictly construed against the government. There are good reasons for this rule. Government confiscation of private property is disfavored in our constitutional system.” 16 F.3d at 1068 (citing United States v. One 1936 Model Ford V-8 DeLuxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 83 L.Ed. 1249 (1939)). Fourth, the Court believes that this interpretation is necessary to avoid substantial constitutional concerns that would emerge if Section 1615’s probable cause requirement is eviscerated. See United States v. $734,578.82 in U.S. Currency, 286 F.3d 641, 655 n. 16 (3d Cir.2002) (“This view avoids the obvious questions of fundamental fairness that would rise from the government attempting to have a court order forfeiture without first having an adequate factual basis to support the request.”). If the Government’s theory is correct, it would have the power to do the following on a systematic scale: (1) engage in searches and seizures without probable cause, (2) institute forfeiture actions, and (3) use the discovery processes of federal court to identify evidence of forfeitability that it utterly lacked in the first place. See $191,910.00, 16 F.3d at 1067 (“Without such a rule, government agents might be tempted to bring proceedings (and thereby seize property) on the basis of mere suspicion or even enmity and then engage in a fishing expedition to discover whether probable cause exists.”). The Court recognizes that a claimant could still move to suppress the fruits of an illegal search, as UMCC successfully did in this case. However, the Government’s position would permit it to subsequently obtain other evidence of forfeitability through civil discovery in the federal courts despite the absence of probable cause. CAFRA should be interpreted, as reasonably permitted, in order to avoid any threat of constitutional invalidation. Gray v. First Winthrop Corp., 989 F.2d 1564, 1568 (9th Cir.1993) (“[Cjourts are obliged to impose a saving interpretation of an otherwise unconstitutional statute so long as it is ‘fairly possible to interpret the statute in a manner that renders it constitutionally valid.’ ”) (quoting Communications Workers of Am. v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)). Therefore, Section 1615’s probable cause requirement has survived CAF-RA’s enactment. 2. Pleading Civil Forfeiture Actions The Government’s opposition brief appears to confuse rules of pleading, as evaluated on a motion to dismiss, with eviden-tiary showings required on a motion for summary judgment. It would therefore be useful to harmonize the forfeiture pleading rules with the continuing vitality of Section 1615 on a motion for summary judgment. Civil asset forfeiture cases are governed by special pleading rules. Supplemental Rule G, which became effective December 1, 2006, “governs a forfeiture action in rem arising from a federal statute. To' the extent that this rule does not address an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply.” Admiralty and Maritime Claims Supp. R. G(l). Prior to this date, Supplemental Rule E(2)(a) provided that “[ijn actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” As of this date, Supplemental Rule G(2)(f) is operative, which requires that the Government “state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.” Rule G(2)(f) codifies the same pleading requirement that has been divined from Rule E(2)(a), except with different language. The Advisory Committee Note offers the following clarification: Rule E(2)(a) requires that the complaint in an admiralty action “state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” Application of this standard to civil forfeiture actions has evolved to the standard stated in subdivision (2)(f). The complaint must state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial. See U.S. v. Mondra-gon, 313 F.3d 862 (4th Cir.2002). Subdivision (2)(f) carries this forfeiture ease law forward without change. The Court concurs with the Government that regardless of the applicable supplemental rule (Rule E(2)(a) or G(2)(f)), they “do[ ] not require the government to meet, at the pleading stage, its ultimate trial burden....” United States v. $150,660.00 in U.S. Currency, 980 F.2d 1200, 1204-05 (8th Cir.1992) (discussing Rule E(2)(a)). Yet, this is not the end of the story. While CAFRA changed the Government’s burden of proof, it did not address the rules of pleadings (as governed by the Supplemental Rules). The Government argues that notice pleading is all that is required of it under either Rule E(2)(a) or G(2)(f). This is incorrect. Posfr-CAF-RA, the Fourth Circuit has considered CAFRA’s impact on the Government’s pleading responsibilities. In Mondragon, the Court noted that “[t]he pleading requirement of a ‘reasonable belief that probable cause can be shown at trial’ was apparently keyed to the government’s burden of proof at the time (prior to 2000).” 313 F.3d at 865 (quoting United States v. Daccarett, 6 F.3d 37, 47 (2d Cir.1993)). The Court explained that “[i]n light of CAFRA’s change in the burden of proof, it is a bit awkward to say now that Rule E(2)(a) requires the complaint to allege facts sufficient to support a reasonable belief that the government can establish probable cause for forfeiture at trial.” Id. Thus, Rule E(2)(a) was interpreted to require the Government to “allege facts sufficient to support a reasonable belief that the property is subject to forfeiture.” Id. at 865-66. Since Mondragon’s standard for Rule E(2)(a) has been incorporated expressly into Rule G(2)(f), the Court cannot agree with the Government’s assertion that the latter formulation somehow requires less of the Government than the former. These historical developments have been detailed for a purpose. Mondragon’s interpretation of Rule E(2)(a), and the subsequently enacted Rule G(2)(f), require that the Government allege facts that would “support a reasonable belief that the government will be able to meet its burden of proof at trial.” As has been discussed at length, the Government’s “burden of proof at trial” post-CAFRA is to establish forfeitabihty by a preponderance of the evidence. The fact that the Government must no longer specifically plead in the language of “probable cause” does not mean either that: (1) the pleading requirements have lessened since CAFRA, or (2) the Section 1615 evidentiary requirement of initiating a lawsuit with probable cause has vanished. The Government’s pleading of probable cause is not relevant to whether, on a motion for summary judgment, it actually had probable cause to file the forfeiture action. See $191,910.00, 16 F.3d at 1068 (“Under section 1615, the government must have probable cause at the time it institutes forfeiture proceedings, not merely plead probable cause.”). An analogy to the statute of limitations defense in a common law contracts case is illustrative. In such a case, the plaintiff need only plead sufficient facts to demonstrate that it is entitled to prevail based on the prima facie elements of the claim (e.g., was there a valid contract?; did plaintiff perform?; did defendant breach?; were there damages?). The plaintiff is generally under no obligation to plead around every affirmative defense that might potentially be lurking in the background. Although the plaintiff is not required to plead that his/her lawsuit has been brought within the statute of limitations, the defendant may still ultimately prove by evidence on summary judgment that the lawsuit was untimely. The same applies to this case. Even assuming arguendo that the Government has been “alleviated” of the burden of pleading probable cause to initiate the lawsuit, this does not bar UMCC from prevailing with evidence on a motion for summary judgment that the Government actually lacked untainted probable cause. It is not the rules of pleading that decide the elements of a cause of action and available defenses, but the statutory provisions themselves. Ultimately, Mondragon and Rule G(2)(f) have instituted a semantic, as opposed to a substantive, change to the pre-CAFRA pleading standards. These rules do not constrain UMCC’s ability to prevail on a motion for summary judgment based on Section 1615. C. Whether the Government had Probable Cause on the Filing Date Since the material facts are undisputed, this Court must decide whether the federal Government had “probable cause” to initiate the lawsuit on September 12, 2005. As detailed in criminal procedure cases, the Court must answer this question with reference to any untainted evidence in the Government’s possession. See United States v. Driver, 776 F.2d 807, 812 (9th Cir.1985) (“We need only determine that the search warrant was issued upon probable cause as supported by the facts ‘untainted’ by the prior illegality.”); see also United States v. Giordano, 416 U.S. 505, 555, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring & dissenting) (“The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause.”). To establish probable cause, “[t]he government must show that it had reasonable grounds to believe a connection existed between the property and drug activities, supported by more than mere suspicion but less than prima facie proof.” United States v. $42,500.00 in U.S. Currency, 283 F.3d 977, 980 (9th Cir.2002); see also United States v. $506,231, 125 F.3d 442, 451 (7th Cir.1997) (noting that there must be some “nexus between the seized property and illegal narcotics activity”). Since the search warrant was suppressed, the Government cannot rely on the evidence it seized on March 15, 2005, including the currency itself, to establish the currency’s alleged connection to federal narcotics violations. The Government states that “there is no evidence whatsoever suggesting that the defendant currency is tied to anything other than UMCC’s marijuana sales activity.” (Gov’t Opp. at 18.) Yet, this observation misses the mark because it is the Government that must proffer untainted evidence connecting the currency to the illegal activity. It is not UMCC’s burden to demonstrate the absence of a connection. The remaining Government “evidence” can be categorized as follows: (1) observations of the LAPD officers and voluntary statements made by UMCC employees prior to the search, (2) Judge Sandvig’s August 26, 2005, order releasing the defendant currency to the United States Marshals, and (3) Scott Feil’s state court declaration (as well as statements made in the related motions and briefs filed by UMCC’s attorneys in that venue). First, the LAPD observations of the UMCC facility, including the individuals leaving with brown paper bags and statements from Jaramillo, all confirm that UMCC was in the business of selling marijuana. However, these statements make no reference to the defendant currency, and thus do not create the requisite “connection” between the defendant and drug activity. Second, Judge Sandvig signed a one-page order on August 26, 2005, presented to him by a DEA agent, which released the defendant currency to the federal Government. (Bic-zo Deck ¶ 5 & Ex. F.) The Order only makes two “factual” statements: (1) that the LAPD believed there was “probable cause” to forfeit the currency under federal law, and (2) the currency was obtained via the state court search warrant on March 15, 2005. This order also fails to assist the Government. The fact that the LAPD subjectively believed that there was probable cause is irrelevant to whether such probable cause actually existed. Therefore, UMCC’s motion will rise or fall depending on the admissibility or “taint” relating to the Feil state court declaration filed in support of the “motion for return of property illegally seized.” If the declaration is untainted and otherwise admissible, the Government would have probable cause for filing the lawsuit. Fed admits in his declaration that the defendant currency was connected to UMCC’s medical marijuana sales, for which there is no exception under federal law. UMCC offers several arguments as to why Feil’s declaration cannot be considered by this Court. 1. Judicial Estoppel UMCC argues that the Government is judicially estopped from relying on the Feil declaration. Since judicial estoppel “is intended to protect the integrity of the judicial process, it is an equitable doctrine invoked by a court at its discretion.” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). “ ‘Equitable’ in this context refers more to fairness and discretion than to the technical distinction between law and equity.” In re An-Tze Cheng, 308 B.R. 448, 459 (9th Cir.BAP 2004). The Ninth Circuit has detailed judicial estoppel’s purpose: “[t]he doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.” Russell, 893 F.2d at 1037 (quoting Religious Tech. Ctr. v. Scott, 869 F.2d 1306, 1311 (9th Cir.1989) (Hall, J., dissenting)); see also Stevens Tech. Servs., Inc. v. S.S. Brooklyn, 885 F.2d 584, 588 (9th Cir.1989) (“Judicial estoppel precludes a party from asserting a position in a current legal proceeding which is contrary to the position that party previously asserted in another.”). The Supreme Court has recently established the basic parameters of judicial es-toppel. See New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). There are three factors that the Court explicitly delineated as relevant in New Hampshire: 1) whether Plaintiffs prior position was “clearly inconsistent” with its current position, 2) “whether the party has succeeded in persuading a court to accept that party’s earlier position,” and 3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not es-topped.” Id. at 750-51, 121 S.Ct. 1808. UMCC asserts that judicial estoppel should apply to the Feil declaration because the LAPD concealed the fact that the forfeiture would proceed in federal court as opposed to state court. Based on this misunderstanding, the Government in this case is now trying to obtain the benefit of a futile declaration, which UMCC filed despite the fact that the currency had apparently been transferred to the DEA at an earlier date. Therefore, UMCC concludes that the Government should not have the benefit of the Feil declaration. The Court disagrees. Judicial estoppel generally applies only where a court relies on and accepts a party’s past position. UMCC’s reply brief focuses nearly exclusively on its own reliance, which is not pertinent to the analysis. UMCC has not provided: (1) any communication by state government actors (e.g., the LAPD) that they intended to proceed in state court, or (2) how any such statement was accepted by the state court. For example, it does not appear that state civil forfeiture proceedings had been initiated, but were thwarted by the currency’s release to the federal government. The motion for the return of illegally seized property does not list a case number in its caption. (Biczo Decl. Ex. E at 76.) UMCC may have merely assumed that the forfeiture would proceed in state court because the currency was originally held in that jurisdiction, and consequently filed the motion for the return of property in that venue. UMCC’s argument also fails because the plaintiff in this case is the federal Government, while the actions complained of were committed by state government officials. Although there appears to be some unity of economic interest in the outcome of this forfeiture action, the Court cannot accept without greater support that the Government should be judicially estopped by the LAPD’s actions. In its discretion, the . Court declines to apply the doctrine of judicial estoppel to the Feil declaration. UMCC has failed to demonstrate that the Government’s prior position is “clearly inconsistent,” or how any state or federal court was persuaded by and relied on it. 2. Simmons UMCC next argues that the Feil declaration is immune from Government exploitation. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court fashioned a doctrine that is sometimes referred to as “judicial use immunity.” Its application usually arises in the context of a criminal case, where the defendant desires to have certain evidence suppressed prior to trial as a result of a Fourth Amendment transgression. The problem that such a defendant encounters is that in order to establish standing for purposes of arguing that the disputed evidence should be suppressed, he/she may risk waiving the Fifth Amendment right against self-incrimination. The Supreme Court attempted to resolve this tension between constitutional rights: [I]n this case [defendant] was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Id. at 394, 88 S.Ct. 967. UMCC argues that Feil’s state court declaration, made to establish “standing” for purposes of having its property returned, should be afforded Simmons immunity in this action. Although the Simmons doctrine has been discussed repeatedly, the parties have not explained in any depth why the Self-Incrimination Clause can be invoked at all. Clearly, the “intolerable choice” between the Self-Incrimination Clause and some other constitutional right can only be a concern if the Self-Incrimination Clause is applicable to this lawsuit. This Court can identify two possible focal points to which the Self-Incrimination Clause could theoretically attach: (1) this civil forfeiture proceeding, or (2) the state court motion for the return of illegally seized property. If the Fifth Amendment’s reach is absent from both, then the Simmons policy rationale vanishes. a. The Civil Forfeiture Proceeding In United States v. Cretacci 62 F.3d 307 (9th Cir.1995), the Ninth Circuit held that: A defendant’s claim of ownership at a pre-trial suppression hearing of property that he contends was unlawfully seized may not be used to prove the defendant’s guilt. For the same reason, a defendant’s claim of ownership of property that was subject to forfeiture may not be used for that purpose. Id. at 311. While this language might support UMCC’s position, Cretacci’s reach is unclear. First, a subsequent decision in the Ninth Circuit has taken pains to point out that this discussion regarding forfeiture claims constitutes dicta. See United States v. Scrivner, 189 F.3d 825, 828 (9th Cir.1999) (“The discussion about the admissibility of the claim of ownership was in response to a hypothetical argument and was therefore dicta.”). Second, although Cretacci could allow a criminal defendant to avoid the impact of an admission of ownership made in a related civil forfeiture ease, it is not at all clear why a similar benefit should accrue to a claimant in a civil forfeiture proceeding. Cf. 6 Wayne R. LaFave, Search and Seizure, § 11.2 n. 171 (“Simmons has no application at a hearing on a motion for return of seized property, as that is a civil proceeding.”). For the sake of argument, the Court will proceed with the analysis on the basis that it is at least possible for a claimant to invoke “judicial use immunity” in response to prior statements of ownership made in non-criminal proceedings (e.g., the state court Feil declaration). The Court must therefore determine whether the Self-Incrimination Clause applies to this forfeiture action. If it does not apply, as stated before, Simmons ’ feared “intolerable choice” of selecting between constitutional rights would be absent. Two Ninth Circuit cases from the early 1990s might suggest