In the Matter of the Application of Michael J. Kingsley for the Return of Seized Property, in Re Michael J. Kingsley, (Two Cases)

TORRUELLA, Circuit Judge

(dissenting).

This is a most troubling case. Our society is today engaged in a vital struggle against crime, generally, and the illegal distribution and use of drugs, specifically. This is a struggle which I, like any other responsible citizen, fully support. But judicial obligations, as I understand them, go beyond the popular disposition of cases. I believe it is my duty to object when the government abridges the constitutional rights of a citizen, notwithstanding the purity of its motives or its justification when viewed in the light of the final outcome.

Try as we may, we cannot wipe the slate clean. When all is said and done the record establishes a series of ex parte actions and Catch-22 situations, which are more than vaguely reminiscent of a Star Chamber proceeding.

I will not fully recount the facts stated in the majority opinion. Suffice it to say that on the basis of a secret affidavit, appellant was on May 3, 1985 dispossessed of all his worldly goods, even his dogs and cockateel, to say nothing of such daily necessities as a toothbrush, clothes, food, and his home. Seven months passed before a criminal indictment was returned on November 26, 1985. In the meantime the parade of horrors described in the majority opinion followed its course, not the least of which was the initiation of the administrative forfeiture of appellant’s residence by notifying him of the commencement of these proceedings at the very home from which he was ousted!

*581Without straining the imagination unduly it would appear that the sequence of events, as well as several of the procedural and substantive provisions used against appellant, raise facially serious constitutional questions. Appellant has attempted to raise these issues and to seek relief at every step of these proceedings, and before all levels of the federal judiciary. Despite recognition of the constitutional seriousness of these questions by the magistrate, and of several “important and disturbing issues” by the district court (a conclusion apparently agreed to by the majority, ante, at 578) every effort has been made thus far to avoid ruling upon the constitutional questions presented. The majority, unpersuasively in my view, repeats the act of judicial avoidance that has come to characterize this case. I therefore dissent.

I

My comments on this case are both procedural and substantive. As to the procedural issues, it is most important to note that neither the majority nor I condone the district court’s finding that Kingsley’s Rule 41(e) petition was “inapplicable.” Rule 41(e) provides individuals a mechanism to rectify and respond to unlawful governmental takings which are not accompanied by complaints and/or indictments. See Linn v. Chivatero, 714 F.2d 1278, 1281 (5th Cir.1983); Richey v. Smith, 515 F.2d 1239 (5th Cir.1975). More importantly, and contrary to the district court’s conclusion, preindictment or pre-civil forfeiture complaint jurisdiction over Rule 41(e) petitions is not altered by the fact that the seizure is for purposes of civil forfeiture. United States v. Eight Thousand Eight Hundred Fifty Dollars ($8,850.00) in U.S. Currency, 461 U.S. 555, 569, 103 S.Ct. 2005, 2014, 76 L.Ed.2d 145 (1982). Thus, had Kingsley appealed the denial of his Rule 41(e) petition separately (and not as part of his Rule 65 appeal), we arguably could have reviewed the district court’s jurisdictional error below and remanded for decision on the Rule 41(e) merits. Richey v. Smith, supra, at 1242-43. As things stand, however, Kingsley’s sole Rule 41 recourse would appear to be one of requesting reconsideration by the district court. See In Re Worksite Inspection of Quality Products, 592 F.2d 611, 614-16 (1st Cir.1979) (setting forth equitable criteria to be applied in deciding Rule 41(e) petitions); Hunsucker v. Phinney, 497 F.2d 29 (5th Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975) (same).

My next procedural comment relates to the district court’s treatment of the Rule 65 motion for preliminary injunction that was before it, and from which Kingsley appeals. Kingsley expressly raised Fourth and Fifth Amendment challenges to the seizure in his Rule 65 motion. The district court, however, avoided these constitutional questions as to the home by ruling against Kingsley under statutory analysis. Such an avoidance of constitutional issues is of course not permissible, especially where the result would be to insulate all such statutes, and seizures pursuant to them, from constitutional scrutiny. Thus, I agree with Kingsley that he properly raised constitutional claims below, that these constitutional merits were improperly avoided by the district court, and that they are before us today.

II

As to the substantive issues raised by this appeal, our inquiry is essentially to determine whether the district court’s rulings on Kingsley’s home and its contents amounted to an abuse of discretion.

A. The contents

The undisputed language of the warrant below authorized the seizure of a “residence and its contents.” (Emphasis supplied). This reference to “contents” could not be more general or broad. It would seem that the Fourth Amendment ban on general warrants has some relevance to such an all-encompassing seizure.1 See Lo*582Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323, 60 L.Ed.2d 920 (1978). In fact, the Magistrate who issued the warrant stated that he knew he had authorized the seizure of items not subject to forfeiture. This would seem to imply an admission of no probable cause and a concession of improper broadness. Finally, the district court found that the government’s affidavit did not “give a clue,” much less establish probable cause, for the seizure of the home’s contents. Application of Kingsley, 614 F.Supp. 219, 225 (D.Mass. 1985). I fail to see how, under such circumstances, the district court could require Kingsley to pay $25,000 to obtain relief from the government’s mistake.

With such undisputed facts and findings before us, I cannot agree with the majority that Kingsley’s likelihood of success was not “extraordinarily high.” Crowley v. Local No. 82, 679 F.2d 978, 1000 n. 25 (1st Cir.1982). Indeed, his likelihood of success on the Fourth Amendment merits is to me self-evident, as I see no question but that the Fourth Amendment applies. See United States v. One Hundred Twenty-Eight Thousand Thirty-Five Dollars ($128,-035.00) in U.S. Currency, 628 F.Supp. 668 (S.D.Ohio 1986). Therefore, I would order the bond vacated without prejudice to the government to make a showing of its forfeiture interest on remand, and hence, to justify the bond's reinstatement.

B. The house

As to the taking of Kingsley’s home, I do not regard the original seizure as lawful. Therefore, because the DEA-drafted residency agreement is a product of that seizure, because I cannot view the circumstances under which it was signed as anything but duress, and because I regard the self-executing 24-hour search clause as materially different from judicially supervised relief, I cannot agree with the majority’s conclusion of mootness.

The reason I regard the original seizure as unlawful is that I do not believe Kingsley received the preseizure hearing to which he was entitled. It has already been held that, at the least, due process requires an ex parte Magistrate probable cause determination prior to seizing real estate (not movable cars, boats and planes) under the civil forfeiture statute. See United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 612 F.Supp. 1492 (D.C.Fla.1985).

The question posed by Kingsley, however, is whether due process requires more than the ex parte Magistrate probable cause review that he received below.2

The criminal forfeiture statute authorizes pre-indictment seizures of forfeitable property, which includes seizures of real estate. 21 U.S.C. § 853(b)(1) and (f). However, the government must first make three showings, in an ex parte proceeding, before an independent judicial officer: (1) that there is probable cause to seize the property; (2) that preseizure notice would be likely to render the property unavailable for forfeiture (i.e., an “extraordinary situation”), and (3) that less restrictive means— i.e., bond, restraining order, lis pendens— will not suffice to protect the government’s interest. 21 U.S.C. § 853(e)(2) and (f).

*583I regard the Congressional weighing of due process considerations, set forth in the criminal forfeiture statute, not only as proper, but as mandated by the Constitution. Accordingly, I would hold that, where we are confronted with the preindictment seizure of an individual’s home, the government must make the same showings necessary to obtain such a seizure in the civil forfeiture context as must be made in the criminal forfeiture context. The hearing necessary prior to a deprivation of property is governed by a balancing of considerations. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Where a home is involved, I see no harm to law enforcement in requiring the government to show why a seizure is needed where, upon the filing of a civil forfeiture complaint, a lis pendens, restraining order and bond would protect the government’s interest, and could all be sought as part of the civil action. Therefore, I would reverse the denial of the preliminary injunction as to the home without prejudice to the government’s reseizing it upon a proper showing.3

There is no question in my mind that the drug problem facing our country is a serious if not a grave one. I do not read the majority or the concurrence as endorsing or condoning the government’s conduct below. Were we to do so, it would in my view amount to holding that because appellant is an alleged drug dealer, he is entitled to less process under the Constitution than is due other citizens. If history has taught us anything it is that such short cuts, although popular at their inception, are in the long run harmful to our democratic form of government. See Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed.2d 194 (1944). At the very least, this court should exercise its supervisory powers to prevent the recurrence of the injustice which this case seems to represent.

. U.S. Const., Amend. IV:

The right of the people to be secure in their persons, houses, papers, and effects, against *582unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Emphasis supplied.

. The assertion that due process does not even require an ex parte Magistrate’s review of the evidence prior to a seizure of real estate runs directly contrary to the Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) holding that waiver of the pre-seizure hearing requirement can only occur in an "extraordinary situation." Id. at 684-85, 94 S.Ct. at 2092. Accordingly, because I regard the taking of real estate as distinguishable from the "extraordinary situation” of a movable yacht present in Pearson Yacht, I do not view the amendment to the admiralty rules as constitutional when applied to real estate. See majority opinion, ante, at 575, n. 3. Regardless, given that the Government did not proceed under the admiralty rules, the constitutionality of the new admiralty rule is not before us.

. Since the government has already shown probable cause, it could only obtain seizure on remand by presenting evidence to the district court that Kingsley may encumber or transfer the property and that a restraining order, bond and the current lis pendens would not sufficiently protect the government’s interest.