United States v. 408, Peyton Road, S.W.

United States Court of Appeals,

Eleventh Circuit.

No. 95-8330.

UNITED STATES of America, Plaintiff-Appellee,

v.

408 PEYTON ROAD, S.W., ATLANTA, FULTON COUNTY, GEORGIA, including all
buildings and appurtenances thereon, Defendant-Appellant,

Robert Richardson, Claimant-Appellant.

Dec. 8, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:93-cv-913-
RLV), Robert L. Vining, Jr., Judge.

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges.

BLACK, Circuit Judge:

At issue in the present appeal is whether predeprivation notice and a hearing must be

provided when the Government executes a seizure warrant against real property, but chooses not to

assert physical control. We hold that the Due Process Clause of the Fifth Amendment mandates

provision of such predeprivation procedures even when the seizure of real property is not physically

intrusive. We further hold that in a case such as this one, when the Government has failed to provide

predeprivation notice and a hearing but the property is found to be subject to forfeiture after the

process due has been afforded, the proper remedy is as follows: The Government should return any

rents received or other proceeds realized from the property during the period of illegal seizure.

I. BACKGROUND
 On April 14, 1993, the Government secured an ex parte warrant authorizing the seizure of

408 Peyton Road, S.W.,1 property in which Appellant Robert Richardson held an interest. The

warrant application maintained that Appellant Richardson had financed the acquisition and

development of the defendant property through drug-trafficking activities. In support of these

contentions, it was stated that Richardson's reported income was insufficient to sustain his real estate

acquisition and development activities and that Richardson had engaged in a series of suspect

financial transactions relative to the property. The evidence persuaded a United States Magistrate

Judge that probable cause existed to believe the property was involved in or traceable to money

laundering proscribed by 18 U.S.C. § 1956. The seizure warrant was executed by posting it on the

property. No other action was taken pursuant to the warrant.

On April 28, 1993, the Government instituted this civil forfeiture proceeding against the

defendant property pursuant to 18 U.S.C. § 981. Upon the filing of the verified complaint, the Clerk

of Court issued a warrant directing the United States Marshal "to arrest and take into custody" the

defendant property. On the same date, the Government filed a notice of lis pendens in the real

property records of the Superior Court of Fulton County, Georgia.2 On June 3, 1993, a Deputy

United States Marshal executed the federal arrest warrant by posting a copy at the defendant

property. As the dwelling on the property was occupied, the Government elected not to assert

1
This action originally involved two properties—the 408 Peyton Road, S.W., property and the
451 Hope Court, S.W., property. By stipulation entered into on October 21, 1994, the property
known as 451 Hope Court, S.W., was dismissed as a defendant in the forfeiture case.
2
The purpose of a lis pendens is to notify prospective purchasers and encumbrancers that any
interest acquired by them in property is subject to the decision of the court in pending litigation.
Ga.Code Ann. § 44-2-143.

2
immediate physical control over the premises. The record establishes that the Government neither

posted warning signs on the property nor changed the locks.

On July 2, 1993, Appellant Richardson claimed an ownership interest in the defendant

property. On May 5, 1994, Appellant Richardson filed a motion to dismiss, arguing that the

Government's failure to provide preseizure notice and a hearing deprived him of property without

due process, in violation of the Fifth Amendment. In an order issued on July 11, 1994, the district

court rejected Richardson's due process claim. Meanwhile, the Government had filed a motion for

summary judgment of forfeiture. By order dated February 10, 1995, the district court granted the

Government's motion for summary judgment and ordered the defendant property forfeited to the

United States. Appellant Richardson filed a timely notice of appeal.

On May 15, 1997, a panel of this Court concluded that the Government violated Richardson's

due process rights and reversed the district court's order granting summary judgment. Based on

Circuit precedent, the panel remanded with instructions to dismiss the complaint without prejudice.

On January 23, 1998, this Court sua sponte vacated the panel opinion to reconsider en banc the

appropriate remedy for such a due process violation. Following oral argument, the Court asked for

supplemental briefing on whether the execution of an arrest warrant for real property without prior

notice and the opportunity to be heard violates the Fifth Amendment due process clause when the

Government refrains from taking physical possession or otherwise exercising dominion and control

over the property.

II. DISCUSSION

A. Due Process Requirements Applicable to the Seizure of Real Property

3
 In United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126

L.Ed.2d 490 (1993), the Supreme Court addressed whether the Fifth Amendment Due Process

Clause prohibits the Government in a civil forfeiture case from seizing real property without first

affording the owner notice and an opportunity to be heard. In Good, the Government filed an in rem

action seeking forfeiture under 21 U.S.C. § 881(a)(7). Id. at 47, 114 S.Ct. at 497. The district court

clerk then issued an arrest warrant commanding the United States Marshal "to arrest and attach the

said property and to detain the same in your custody."3 Ten days later, in an ex parte proceeding,

a United States Magistrate Judge issued a seizure warrant commanding the marshal "to seize the

property specified, servicing this warrant and make the seizure and leave a copy of this warrant."4

At the time the marshal executed the seizure warrant, Good was leasing the property to tenants. Id.

at 47, 114 S.Ct. at 498. The Government allowed the tenants to remain on the property subject to

an occupancy agreement that directed payments to the United States Marshal. Id.

In concluding that the Government violated Good's Fifth Amendment due process rights, the

Supreme Court noted that, as a general matter, the Government must provide notice and a hearing

prior to depriving an individual of property. Id. at 48, 114 S.Ct. at 498. The Constitution tolerates

exceptions to that general rule only in those "extraordinary situations where some valid

governmental interest is at stake that justifies postponing the hearing until after the event." Id. at

53, 114 S.Ct. at 501 (internal quotations and citations omitted). The Supreme Court identified the

3
As part of the supplemental briefing, this Court asked the Government to supply the Court
with a copy of the August 8, 1989 arrest warrant at issue in Good. The arrest warrant in this case
is substantively the same as the one in Good.
4
In supplemental briefing, the Government also supplied the Court with a copy of the August
18, 1989, seizure warrant issued in Good. The seizure warrant in this case is substantively the
same as the one in Good.

4
three-part inquiry set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976), as the appropriate analytical framework for determining whether seizure of real property for

purposes of civil forfeiture justifies such an exception. Good, 510 U.S. at 53, 114 S.Ct. at 501. The

Mathews analysis requires consideration of (1) "the private interest affected by the official action,"

(2) "the risk of an erroneous deprivation of that interest through the procedures used, as well as the

probable value of additional safeguards," and (3) "the Government's interest, including the

administrative burden that additional procedural requirements would impose." Id. at 53, 114 S.Ct.

at 501 (citing Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903).

The "importance of the private interests at risk and the absence of countervailing

Government needs" convinced the Supreme Court that, absent exigent circumstances, seizure of real

property in a civil forfeiture context is not one of those extraordinary instances that justify an

exception to the general rule requiring predeprivation notice and a hearing. Id. at 62, 114 S.Ct. at

505. First, the Court reaffirmed that the right to maintain control over one's home, and to be free

from governmental interference, stands as "a private interest of historic and continuing importance."

Id. at 53-54, 114 S.Ct. at 501. Second, the Supreme Court determined that ex parte seizure involves

an unacceptable risk of error, affording little or no protection to the innocent owner. Id. at 55, 114

S.Ct. at 501-02. Third, the Court found no pressing governmental need to seize real property prior

to the forfeiture hearing. Id. at 56, 114 S.Ct. at 502. Accordingly, the Supreme Court held that,

absent exigent circumstances, the Due Process Clause requires the Government to afford notice and

a meaningful opportunity to be heard before seizing real property subject to civil forfeiture. Id. at

62, 114 S.Ct. at 505.

5
 In United States v. 2751 Peyton Woods Trail, S.W., 66 F.3d 1164 (11th Cir.1995), the

Eleventh Circuit had occasion to apply Good in a factual setting similar to that presented by the

instant dispute. In that case, the Court addressed whether the Government had deprived William

Richardson of due process when it seized his real property without prior notice and a hearing.5 2751

Peyton Woods Trail, 66 F.3d at 1165. As in the present case, in 2751 Peyton Woods Trail, the

Government secured ex parte seizure warrants by convincing a magistrate judge that probable cause

existed to believe the real properties were involved in or traceable to money laundering. Id. at 1165.

After the Government filed its forfeiture complaint, it received warrants for arrest of the properties

in rem. Id. "The Government then executed process on the properties and changed the locks on an

uninhabited home situated on the one developed property." Id. Based upon our interpretation of

Good, the Court held "that the lack of notice and a hearing prior to issuance of the warrants seizing

the properties rendered the warrants "invalid and unconstitutional.' " 2751 Peyton Woods Trail, 66

F.3d at 1167.

B. The Due Process Analysis in this Case

Our resolution of this case turns in large part on the fact that it is virtually identical to Good

in that the Government here, as in Good, obtained and executed both an arrest warrant and a seizure

warrant.6

5
Although it has no bearing upon disposition of the present controversy, we note that both the
present case and 2751 Peyton Woods Trail involve properties situated within an eight and
one-half acre tract of land known as the Hope Court subdivision. As Robert Richardson
developed Hope Court, William Richardson presumably acquired his interest in the 2751 Peyton
Woods Trail, S.W., property from him. The facts do not disclose what relation Robert and
William Richardson share beyond their common last name.
6
We do recognize that this case is somewhat different from Good because in Good, the
Government entered into an occupancy agreement with the lessees of the property, under which

6
 To better understand the framework of the forfeiture process, we note that one distinction

between an arrest warrant and a seizure warrant is the method by which the Government obtains the

warrants. The statutory forfeiture provision relied upon by the Government in this case provides for

three methods of seizing property:

Property shall be seized under paragraph (1) of this subsection upon process issued
pursuant to the Supplemental Rules for [C]ertain Admiralty and Maritime Claims by any
district court of the United States having jurisdiction over the property, except that seizure
without such process may be made when—

(A) the seizure is pursuant to a lawful arrest or search; or

(B) the Attorney General, the Secretary of the Treasury, or the Postal Service,
as the case may be, has obtained a warrant for such seizure pursuant to the Federal
Rules of Criminal Procedure, in which event proceedings under subsection (d) of this
section shall be instituted promptly.

18 U.S.C. § 981(b)(2). The statutory forfeiture provision relied upon by the Government in Good

similarly provides for multiple methods of seizing property:

Any property subject to civil forfeiture to the United States under this subchapter
may be seized by the Attorney General upon process issued pursuant to the Supplemental
Rules for Certain Admiralty and Maritime Claims by any district court of the United States
having jurisdiction over the property, except that seizure without such process may be made
when—

(1) the seizure is incident to an arrest or a search under a search warrant or
an inspection under an administrative inspection warrant;

(2) the property subject to seizure has been the subject of a prior judgment
in favor of the United States in a criminal injunction or forfeiture proceeding under
this subchapter;

the lessees paid rents to the United States Marshal. 510 U.S. at 47, 114 S.Ct. at 498. No such
occupancy agreement was involved in this case. However, the 408 Peyton Road, S.W., property
was Richardson's marital residence. The Court does not and cannot know whether the
Government would have entered into an occupancy agreement similar to the one in Good had
408 Peyton Road, S.W., been a rental property.

7
 (3) the Attorney General has probable cause to believe that the property is
directly or indirectly dangerous to health or safety; or

(4) the Attorney General has probable cause to believe that the property is
subject to civil forfeiture under this subchapter.

In the event of seizure pursuant to paragraph (3) or (4) of this subsection, proceedings under
subsection (d) of this section shall be instituted promptly.

The government may request the issuance of a warrant authorizing the seizure of
property subject to forfeiture under this section in the same manner as provided for a search
warrant under the Federal Rules of Criminal Procedure.

21 U.S.C. § 881(b). These statutes make clear that to obtain the arrest warrants in this case and in

Good, the Government simply had to file a verified forfeiture complaint—upon the Government's

filing of the verified complaint, the clerk of court issued a warrant for the arrest of the property. See

Rule C(3), Supplemental Rules for Certain Admiralty and Maritime Claims. To obtain the seizure

warrants, on the other hand, the Government had to make ex parte showings of probable cause

before a magistrate judge. See Fed.R.Crim.P. 41(c).

Although courts and commentators, as well as the forfeiture statutes relied upon by the

Government here and in Good, sometimes seem to blur the distinction between arrest warrants and

seizure warrants in terms of their effects,7 some of the language used by the Supreme Court in Good

7
See 18 U.S.C. § 981 (referring to both arrest and seizure warrants as methods for "seizing"
property); 21 U.S.C. § 881 (same); United States v. Three Tracts of Property Located on
Beaver Creek, 994 F.2d 287, 289 (6th Cir.1993) (stating in recitation of facts that the district
court found probable cause to believe the property was subject to forfeiture and that "[a] warrant
of arrest was issued ordering the U.S. Marshal to seize the property and currency"); Schrob v.
Catterson, 948 F.2d 1402, 1415 n. 13 (3d Cir.1991) ("As authorized by 21 U.S.C.A. § 881(b),
the prosecutor can either seek a seizure warrant under Rule C(3) of the Supplemental Rules for
Certain Admiralty and Maritime Claims, or under Federal Rule of Criminal Procedure 41.");
United States v. One Parcel of Property Located at 15 Black Ledge Drive, 897 F.2d 97, 98 (2d
Cir.1990) (stating in recitation of facts that "pursuant to an in rem warrant for arrest of property
issued by the district court, the property was seized by the United States Marshal"); Brad A.
Chapman & Kenneth W. Pearson, Comment, The Drug War and Real Estate Forfeiture Under

8
could be read to indicate that the execution of an arrest warrant does not implicate the same due

process concerns as does the execution of a seizure warrant. Specifically, in rejecting the argument

that seizure is required to obtain jurisdiction over the res, the Supreme Court cited with approval the

simple posting of an arrest warrant issued under the Supplemental Rules for Certain Admiralty and

Maritime Claims to bring the property within the reach of the courts. Good, 510 U.S. at 58, 114

S.Ct. at 505.8 Nevertheless, we need not definitively resolve here the issue of whether the execution

of an arrest warrant implicates the same due process concerns as does the execution of a seizure

warrant because in this case, as in Good, the Government obtained and executed both an arrest

warrant and a seizure warrant.9

1. Due Process Implications of a Nonphysical Seizure of Real Property.

The Government argues that preseizure notice and a hearing was not required in this case

because it did not intend to, and did not in fact, exercise actual physical control over the property.

The Government asks the Court to create an exception to Good where the Government in fact

21 U.S.C. § 881: The "Innocent" Lienholder's Rights, 21 Tex. Tech. L.Rev. 2127, 2148 (1990)
(discussing obtaining "an in rem arrest warrant for the seizure of the real property"); Theodore
P. Sherris, Drug Related Forfeitures: Land Title Issues, Prob. & Prop., Jan.-Feb.1990 at 33, 34
(stating that "[s]imultaneously with the filing of the verified complaint, an in rem seizure
("arrest') warrant is issued").
8
On this point, the Court cited United States v. TWP 17 R 4, Certain Real Property in Maine,
970 F.2d 984 (1st Cir.1992), in which the First Circuit held that the execution of an arrest
warrant by posting did not violate the Fifth Amendment Due Process Clause. Although the
arrest warrant in TWP 17 R 4 directed the United States Marshal to "arrest the property ... and
detain the same in your custody until further order of the Court," it did not direct the United
States Marshal to actually seize the property and the United States Marshal did not do so. Id. at
986.
9
We further note, without deciding, that the title of the warrant may not be as determinative of
whether there has been a due process violation as may be the extent of the authority that the
warrant purports to grant.

9
obtains and executes an arrest warrant and a seizure warrant authorizing it to exert physical control

and dominion over the property, but then of its own will chooses not to exercise such authority.

The Supreme Court in Good never explicitly defined the term "seizure," but the Government

suggests we should infer assertion of physical control is an essential element of a seizure because

the facts of Good involved some level of physical intrusion. The Supreme Court never indicated,

however, that the Government's choice to exercise physical control over the defendant real property

should be regarded as the sine qua non of a constitutionally cognizable seizure. Moreover, in other

contexts, the Supreme Court has employed the term seizure more broadly to refer to governmental

action that more generally deprives a property owner of significant property interests. See United

States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (stating in the

Fourth Amendment context that "[a] "seizure' of property occurs when there is some meaningful

interference with an individual's possessory interests in that property" (footnote omitted)).

Although the Government in this case chose not to exert physical control over the property,

the Court still must assess whether the magnitude of the private interests at stake require

predeprivation notice and a hearing. As the Supreme Court instructed in Good, we must evaluate

the due process implications of the challenged deprivation under the three-fold test enunciated in

Mathews v. Eldridge. We must determine whether some lesser procedural protection than that

required in Good will suffice for deprivations occasioned by nonphysical seizures of real property.

If lesser procedural protections fail to satisfy due process, then even nonphysical seizures of real

property will require predeprivation notice and a hearing.

2. Mathews v. Eldridge Analysis.

a. The Private Interest Affected by a Nonphysical Seizure.

10
 The first Mathews factor requires consideration of the private interest that will be affected

by the challenged official action. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47

L.Ed.2d 18 (1976). The United States essentially argues that the private interest at stake in the

present seizure is not commensurate with the interests at stake in Good and 2751 Peyton Woods

Trail because the present case does not involve the Government's exertion of physical dominion and

control over the property.

This argument misapprehends the import of the Supreme Court's decision in Good and our

decision in 2751 Peyton Woods Trail. Neither case supports the proposition that the protections of

the Due Process Clause are confined to physically-invasive seizures. Aside from the potential for

physical intrusion, the seizure of a home gives the Government "the right to prohibit sale ... to evict

occupants, to modify the property, to condition occupancy, to receive rents, and to supersede the

owner in all rights pertaining to the use, possession, and enjoyment of the property." Good, 510

U.S. at 54, 114 S.Ct. at 501. As a consequence, even when the Government chooses not to exert its

rights under a seizure warrant, it still impairs the historically significant "right to maintain control

over [one's] home, and to be free from governmental interference." Id. at 53, 114 S.Ct. at 501.

Although the Government allowed Richardson to maintain possession of his home, Good forecloses

the argument that the execution of the seizure warrant on 408 Peyton Road did not affect any

constitutionally significant interests.

Also instructive is the Supreme Court's reliance in Good on Connecticut v. Doehr, 501 U.S.

1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991). In Doehr, the Supreme Court struck down a state statute

that authorized prejudgment attachment of real estate without prior notice or hearing, even in the

absence of extraordinary circumstances. 501 U.S. at 4, 111 S.Ct. at 2109. The Court found the

11
statute failed to satisfy the Due Process Clause. Id. at 18, 111 S.Ct. at 2116. The Supreme Court

explicitly rejected the notion that only "complete, physical, or permanent deprivation[s] of real

property" trigger due process scrutiny and stated that its "cases show that even the temporary or

partial impairments to property rights that attachments, liens, and similar encumbrances entail are

sufficient to merit due process protection." Id. at 12, 111 S.Ct. at 2113. Reliance on Doehr reveals

that the Supreme Court in Good did not intend for physical control to be of paramount importance

when determining whether a constitutionally cognizable "seizure" of real property has taken place.

Nor has this Circuit suggested that Due Process Clause protection is withheld where seizures

are not physically intrusive. The 2751 Peyton Woods Trail opinion noted that the Government had

changed the locks on an uninhabited home situated on the one developed property, 66 F.3d at 1165,

but never intimated that the decision was premised upon so narrow a foundation. To the contrary,

the decision affirmatively establishes that the Court could not have placed dispositive importance

upon that factor inasmuch as the Government changed the locks on only one of the defendant

properties, but the Court reversed the forfeiture judgments as to both properties. The Court stated

that "lack of notice and a hearing prior to issuance of the warrants seizing the properties rendered

the warrants "invalid and unconstitutional.' " 66 F.3d at 1167. The 2751 Peyton Woods Trail

decision therefore supports our holding that a constitutionally cognizable seizure of real property

need not involve physical intrusion.

b. The Risk of an Erroneous Deprivation.

The second Mathews factor directs judicial attention to the risk that the procedures employed

may result in an erroneous deprivation of the private interest and the probable value, if any, of

additional or substitute procedural safeguards. 424 U.S. at 335, 96 S.Ct. at 903. As the Supreme

12
Court recognized in Good, the practice of ex parte seizure creates an unacceptable risk of error.

Good, 510 U.S. at 55, 114 S.Ct. at 501. The ex parte preseizure proceeding offers little or no

protection for innocent owners. Id. at 55, 114 S.Ct. at 502. Although Congress clearly intended to

protect innocent owners from the expansive grasp of the forfeiture statutes, see 18 U.S.C. §

981(a)(2) ("No property shall be forfeited under this section to the extent of the interest of an owner

or lienholder by reason of any act or omission established by that owner or lienholder to have been

committed without the knowledge of that owner or lienholder."), the Government need not offer any

evidence on the question of innocent ownership in the ex parte preseizure hearing. Good, 510 U.S.

at 55, 114 S.Ct. at 502. In any event, ex parte presentation of such evidence would not suffice to

protect the innocent owner's interests because "fairness can rarely be obtained by secret, one-sided

determination of facts decisive of rights." Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.

123, 170, 71 S.Ct. 624, 647-48, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). As Justice

Frankfurter observed, "[n]o better instrument has been devised for arriving at truth than to give a

person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Id. at

171-72, 71 S.Ct. at 649.

c. The Governmental Interest in Ex Parte Seizures.

The third Mathews factor concerns "the Government's interest, including the function

involved and the fiscal and administrative burdens that [ ] additional or substitute procedural

requirement[s] would entail." 424 U.S. at 335, 96 S.Ct. at 903. The governmental interest

implicated by the present controversy is not some generalized interest in forfeiting property, but the

specific interest in conducting nonphysical seizures of real property prior to a hearing. Good, 510

13
U.S. at 56, 114 S.Ct. at 502. The Court must determine whether, in the civil forfeiture context, such

seizures are justified by a pressing need for prompt action. Id.

In Good, the Supreme Court concluded that there generally is no pressing need for prompt

governmental action justifying ex parte seizure of real property in the civil forfeiture context. Id.

In contrast to the situation with personal property, the Supreme Court held that jurisdiction over real

property does not depend upon prior seizure. Id. at 57, 114 S.Ct. at 503 (noting that "[b]ecause real

property cannot abscond, the court's jurisdiction can be preserved without prior seizure"). When

pursuing the forfeiture of real property, "the res may be brought within the reach of the court simply

by posting notice on the property and leaving a copy of the process with the occupant." 510 U.S.

at 58, 114 S.Ct. at 503.

Nor does forfeiture of real property involve the risk that the res will disappear if the

Government is required to provide advance warning of the forfeiture action. Id. at 57, 114 S.Ct. at

502-03. As a consequence, in the typical case, the Government may secure its legitimate interest

without seizing the subject property. "Sale of the property can be prevented by filing a notice of lis

pendens as authorized by state law when the forfeiture proceedings commence." Id. at 58, 114 S.Ct.

at 503 (citations omitted). If an owner is likely to destroy his property when advised of the forfeiture

action, "the Government may obtain an ex parte restraining order, or other appropriate relief, upon

a proper showing in district court." Id. at 58-59, 114 S.Ct. at 503 (citing Fed.R.Civ.P. 65; United

States v. Premises and Real Property at 4492 South Livonia Rd., 889 F.2d 1258, 1265 (2d

Cir.1989)). "Finally, the Government can forestall further illegal activity with search and arrest

warrants obtained in the ordinary course." Good, 510 U.S. at 59, 114 S.Ct. at 504.

14
 Based on the foregoing, we hold that the procedures employed by the Government in the

present case do not comport with the Due Process Clause of the Fifth Amendment unless the

existence of exigent circumstances justified the ex parte seizure. See id. at 62, 114 S.Ct. at 505.

3. The Existence of Exigent Circumstances.

In order to establish the existence of exigent circumstances, the Government must

demonstrate that means less restrictive than an ex parte seizure—such as the filing of a lis pendens,

restraining order, or bond—would not adequately protect the Government's interests in preventing

the sale, destruction, or continued unlawful use of the real property. Id. at 62, 114 S.Ct. at 505. In

the present case, the Government has not alleged or established the existence of any exigent

circumstances that would justify the ex parte seizure of Appellant Richardson's real property. As

explained previously, the Government can protect its legitimate interests by filing a notice of lis

pendens or taking other steps short of seizure. The Government therefore deprived Richardson of

due process when it seized 408 Peyton Road, notwithstanding its decision not to assert physical

control over the property.

C. Remedy for Due Process Violation

Having concluded that the Government violated Richardson's rights under the Fifth

Amendment Due Process Clause, we must now determine the remedy for such a violation. In 2751

Peyton Woods Trail, a panel of this Court held that dismissal of the complaint is the appropriate

remedy when the Government improperly seizes property without predeprivation notice and a

hearing. 66 F.3d at 1167. Upon further consideration, we now conclude that when the Government

fails to provide predeprivation notice and a hearing, but the property is found to be subject to

forfeiture after the process due has been afforded, the proper remedy for a seizure in violation of the

15
Fifth Amendment Due Process Clause is the return of any rents received or other proceeds realized

from the property during the period of illegal seizure.10 We need not define here the contours of the

remedy because the property seized in this case was Richardson's marital residence and there was

no loss of rents. As there is no evidence to be suppressed in this case, we need not address whether

suppression of evidence is an appropriate remedy for the Fifth Amendment due process violation.

III. CONCLUSION

We hold that the Government's seizure of 408 Peyton Road without prior notice and a

hearing violated Richardson's Fifth Amendment due process rights. Nevertheless, Richardson was

not deprived of any rents received or other proceeds realized from the property during the period of

illegal seizure, and as there has now been a hearing and determination on the merits, the district

court's judgment in favor of the Government should remain intact.

AFFIRMED.

BIRCH, Circuit Judge, concurring in part and dissenting in part in which BARKETT, Circuit
Judge, joins:

I concur in most of that said in the majority opinion; most particularly with the following:

10
We note that our conclusion is consistent with the view of a majority of the other circuits
that have considered this issue. See United States v. Marsh, 105 F.3d 927, 931 (4th Cir.1997);
United States v. All Assets and Equip. of West Side Bldg. Corp., 58 F.3d 1181, 1193 (7th
Cir.1995); see also United States v. Real Property Located at 20832 Big Rock Drive, 51 F.3d
1402, 1406 (9th Cir.1995) (proper remedy is "exclusion of the illegally seized evidence at trial"
and the "Government is held responsible for any rents accrued during the illegal seizure"
(internal quotations and citation omitted)); United States v. 51 Pieces of Real Property, 17 F.3d
1306, 1316 (10th Cir.1994) (proper remedy is that the "impermissibly obtained evidence [may]
not [be] used in the forfeiture proceeding" and the Government must return "rents that accrued
during the illegal seizure" (internal quotations and citations omitted)); but see United States v.
One Parcel of Real Property Located at 9638 Chicago Heights, 27 F.3d 327, 330 (8th Cir.1994)
(holding dismissal of the complaint to be the proper remedy).

16
M the Due Process Clause of the Fifth Amendment mandates predeprivation notice and a hearing
when the Government executes a seizure warrant against real property, even when such
seizure is not physically intrusive;

M the right to maintain control over one's home, and to be free from governmental interference,
stands as a private interest of historic and continuing importance;

M even when the Government chooses not to exert its rights under a seizure warrant, it still impairs
the owner's historically significant right to maintain control over one's home, free of
governmental interference;

M the practice of ex parte seizure creates an unacceptable risk of error;

M the ex parte preseizure proceeding advocated by the Government offers little or no protection for
innocent owners because fairness can rarely be obtained by secret, one-sided determination
of facts determinative of rights; and,

M advance notice by the Government will not risk disappearance of the res.

I respectfully dissent from the majority's formulation of a "remedy" for such conduct by the

Government. The return of rents, if any, generated by the property during the period of illegal

seizure to the rightful owner is a sorry sanction that denigrates the fundamental right declared to be

infringed and deemed worthy of protection. The deterrent effect of this phantom penalty is as

ephemeral as is the Government's ability to restrain overzealous prosecutors. Anti-drug law

enforcement is necessary, but constitutional rights, including those required by due process, can

never be sacrificed for the mere convenience of law enforcement.

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