PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 95-8330 12/08/98
________________________ THOMAS K. KAHN
D. C. Docket No. 1:93-cv-913-RLV CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
408 PEYTON ROAD, S.W., Atlanta,
Fulton County, Georgia, including
all buildings and appurtenances
thereon, described in Exhibit A
attached,
Defendant-Appellant,
ROBERT RICHARDSON,
Claimant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 8, 1998)
Before HATCHETT, Chief Judge, 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,
2
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.
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.
3
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 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,
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.
4
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
5
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
In United States v. James Daniel Good Real Property, 510 U.S. 43,
114 S. Ct. 492 (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
6
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.
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.
7
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 three-part inquiry set forth
in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (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
8
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. 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.
9
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.
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
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.
10
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
11
Government here, as in Good, obtained and executed both
an arrest warrant and a seizure warrant.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
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 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.
12
(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;
(3) the Attorney General has
probable cause to believe that the
13
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
14
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 could be read to indicate that the execution
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 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”).
15
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
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.
16
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 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
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.
17
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 (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
18
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.
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 (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
19
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.
501. Although the Government allowed Richardson to
20
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
(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 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.
21
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
22
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 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., 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
23
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 (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.
24
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 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
25
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
26
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.
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 —
27
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
28
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 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
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).
29
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:
30
! 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;
! 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;
! 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;
! the practice of ex parte seizure creates an unacceptable risk of error;
! 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,
! 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
31
is necessary, but constitutional rights, including those required by due process, can
never be sacrificed for the mere convenience of law enforcement.
32
United States v. 408 Peyton Road, S.W.
Combined Opinion