dissenting in part.
For the reasons stated below, I respectfully dissent from the portion of the majority opinion upholding the forfeiture of the currency.
It is unnecessary to restate the facts leading to the confiscation of the $12,390 beyond emphasizing, as the majority correctly states, that the search of the Dorsey’s residence failed to yield any drugs or drug paraphernalia. Consequently, no criminal charges were filed or arrest warrants issued, and all of the property seized during the search, with the exception of the currency, was returned.
This case presents the court with an opportunity to examine what has become a pervasive government practice: advancing the policies of criminal prosecution through civil forfeitures.6 My view is that, regrettably, the majority ignores the inherent conflicts between the current processes used in civil forfeitures and the protections that the Constitution gives to owners of private property.
Private ownership of property holds a special place in our society, see U.S. Const, amend. V., as it does in most democratic societies. In short, the Constitution states that the government may not deprive individuals of private property without due process. I cannot reconcile the ease with which title to property may be forfeited under the statute in this case with the due process guarantee of the Fifth Amendment. Accordingly, I would hold that a statute that permits an owner of noncon-traband property to be divested of title on a mere showing of probable cause for the institution of a forfeiture suit does not provide the minimum process due.
Here, the government established probable cause for the institution of the forfeiture suit by presenting testimony concerning observations made on a single day of heavy foot and car traffic at the Dorsey residence; statements by a confidential informant that drugs were being sold at the residence; statements by another confidential informant that on the day the police searched the Dorsey residence there were six kilograms of cocaine there, which the police failed to discover; testimony that the seized money was wrapped in a manner commonly used in drug dealing; and statements by a DEA agent that two months after the seizure, the agent purchased cocaine from a member of the Dorsey household. How evidence against one member of the household garnered two months after the seizure is relevant to the propriety *808of instituting the forfeiture suit is a bit of a mystery, and heightens my misgivings about the constitutionality of the current forfeiture process. Suffice it to say that most of the government’s evidence was inadmissible hearsay and highly circumstantial, and all of it was suspect.
I do not quibble with the proposition that hearsay evidence is useable for the purpose of establishing probable cause for the seizure of property and the institution of a forfeiture suit. See Ted’s Motors v. United States, 217 F.2d 777, 780 (8th Cir.1954); see also United States v. Ninety One Thousand Nine Hundred Sixty Dollars ($91,960), 897 F.2d 1457, 1462 (8th Cir.1990). But, divestiture of title should only be possible with evidence admissible at a trial. Evidence which qualitatively and quantitatively barely meets the threshold for probable cause should never be sufficient to divest title to noncontraband property. Additionally, evidence used to establish probable cause, if not admissible at trial, should not weigh against the claimant’s exculpatory evidence. See David B. Smith, Prosecution and Defense of Forfeiture Cases § 11.03[5], at 11-19 (1991).
At the forfeiture trial here, claimants testified that the seized currency derived from various legitimate sources, including wages, rent payments, savings, and social security benefits. The district court found that claimants lacked credibility and rendered a judgment of forfeiture. The district court, however, did not require the government to test any of its evidence by any of the usual standards of admissibility. The mere showing of probable cause for the institution of the forfeiture suit proved to be sufficient to divest claimants of title to the currency. See 19 U.S.C. § 1615 (1988) (placing the burden of proof on the claimant to exculpate seized property); see also United States v. Walker, 900 F.2d 1201, 1204 (8th Cir.1990) (stating that an unrebutted showing of probable cause will support a judgment of forfeiture). Because of this, and because we do not require the district court to articulate a basis for finding a forfeiture, beyond stating that it lent no credence to the claimant’s evidence, the rankest of hearsay evidence is sufficient to divest a claimant of title to his or her property. The ease with which title to property may be divested is a constitutional infirmity that cries out for closer scrutiny by this court and the imposition of stricter standards of proof when noncon-traband property is involved.
Supporters of the current forfeiture regime correctly state that the standards of proof that comport with due process are on a sliding scale, with criminal cases on the high end and civil cases on the low end. See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof required before parental rights can be terminated is clear and convincing evidence); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that proof beyond a reasonable doubt is required in the adjudicatory stage of delinquency proceedings). It follows, argue supporters, that forfeiture cases, being civil in nature, and against a res, do not require strict standards. Therefore, placing the burden on the claimant/owner of the property to exculpate it after it has been seized by the government, as is currently done, does not violate due process: mere notice of seizure and the opportunity to exculpate the seized property is sufficient due process. But this leads to a grave injustice where an owner can be completely divested of property rights by no more than hearsay evidence otherwise inadmissible at a trial. This case demonstrates that, in the area of civil forfeitures, civil and criminal and res distinctions and dichotomies are inadequate legal fictions that have become overly strained. See George C. Pratt & William B. Petersen, Civil Forfeitures in the Second Circuit, 65 St. John’s L.Rev. 653, 654-55 (1991). The majority admits as much when deciding the question of jurisdiction, and I agree with the result reached there. Supra at 3-6. It is true that civil cases comport with due process with a lower standard of proof than criminal cases, but this is merely a truism. To the person who loses a house because, without his knowledge, illegal conduct occurred within its four walls, a car *809because a child borrowed it and was caught with drugs, or his life savings because the police simply suspect that it is the proceeds of drug transactions, the difference between a civil and criminal proceeding is illusory; to him, a civil forfeiture is as penal as a criminal sanction. See United States v. Halper, 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989) (stating that the criminal/civil dichotomy is too abstract and unresponsive in certain situations); see generally Mary M. Cheh, Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction 42 Hastings L.J. 1325 (1991). “[Cjivil labels and good intentions do not themselves obviate the need for criminal due process_” In re Winship, 397 U.S. at 365-66, 90 S.Ct. at 1073. This is particularly true in forfeitures cases, which, unlike civil cases between private parties, are initiated by the government, and to which the government may devote its police power and resources.
When the government, through its established agencies, interferes with the title to one’s property, or with his independent enjoyment of it, and its action is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by rules that pertain to forms of procedure merely.
Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 240, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897).
Civil forfeitures have a history in this country dating back to its founding and were well rooted in the common law. See, e.g., Act of Mar. 2, 1807, ch. 22, §§ 4, 6, 2 Stat. 426; Act of Mar. 22, 1794, ch. 11, § 1, 1 Stat. 347; Act of Aug. 4, 1790, ch. 35, §§ 13, 22, 27, 28, 67, 1 Stat. 157, 161, 163, 176; Act of July, 31, 1789, ch. 5, §§ 12, 36, 1 Stat. 39, 47; see also Avery v. Everett, 110 N.Y. 317, 18 N.E. 148 (1888) (discussing the development of forfeiture statutes in England). But, long usage alone will not shield the process used in carrying them out from due process attack. See Pacific Mutual Life Ins. v. Haslip, — U.S. -, 111 S.Ct. 1032, 1054-55, 113 L.Ed.2d 1 (1991) (Kennedy, J., concurring) (widespread adherence to a historical practice does not foreclose a due process challenge); Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 2021, 26 L.Ed.2d 586 (1970) (stating that “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”); Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969) (stating that “[t]he fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern form”). This is especially true where the process is one that has been exported outside of its traditional domain, as have been civil forfeitures, known originally only in customs and revenue actions. See, e.g., Act of Aug. 4, 1790, ch. 35, §§ 13, 22, 27, 28, 67, 1 Stat. 157, 161, 163, 176; Act of July 31, 1789, ch. 5, §§ 12, 36, 1 Stat. 39, 47. “ ‘Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances.’ ” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961)). “ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)).
Congress has seen fit to expand the role of civil forfeitures in its fight against crime. See, e.g., 16 U.S.C. §§ 65, 117d, 128, 171 (1988) (guns or other property used unlawfully in national parks); 18 U.S.C. § 1082 (1988) (property used in connection with illegal gambling); 18 U.S.C. § 1963(a) (1988) (property used in RICO violation); 18 U.S.C. § 3666 (1988) (property used in *810connection with illegal bribes); 18 U.S.C. § 3667 (1988) (property used in connection with liquor violations); 19 U.S.C. § 1453 (1988) (property smuggled in violation of customs laws); 21 U.S.C. § 881 (1988) (property used in drug offenses); 49 U.S.C. § 782 (1988) (vessels used to transport or convey contraband). Although this expansion is completely within Congress’ prerogative, the standards of proof used to deprive individuals of their interests in property must fall within constitutional limitations. See Santosky, 455 U.S. at 757, 102 S.Ct. at 1396-97 (standards of proof must comport with procedural due process); Laurence H. Tribe, American Constitutional Law § 10-15, at 740-41 (2d ed. 1988). In Santosky, the Supreme Court declared unconstitutional a New York statute that allowed the state to deprive parents of their parental rights in their child upon finding by a fair preponderance of the evidence that the child was permanently neglected. Santosky, 455 U.S. at 747, 102 S.Ct. at 1391. In reaching its conclusion, the Court reasoned that a fundamental liberty interest was involved and held that the standard of proof imposed on the state did not provide the parents with adequate due process under the Fourteenth Amendment. Id. at 768, 102 S.Ct. at 1402. To reach its holding, the Court balanced three distinct factors first set forth in Mathews: 1) the private interest affected by the governmental action; 2) the risk of an erroneous deprivation, and the probable value, if any, of additional or substitute procedural safeguards; and 3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 902; see also Pacific Mutual Life Insur. Co., 111 S.Ct. at 1062 (O’Connor, J., dissenting) (using the Mathews test to examine a due process challenge to the constitutionality of punitive damages). Similarly, I apply the same test here.
Under the forfeiture statute used in this case, there are essentially two burdens of proof. See 19 U.S.C. § 1615 (1988). The first burden, placed on the government, requires it to show the existence of probable cause for the institution of the forfeiture suit. Once the government has accomplished this, the claimant must exculpate the property subject to forfeiture by a preponderance of the evidence. See id. Because the claimant carries a comparatively high burden, the government may divest claimant of title with a mere probable cause showing, often established through the use of inadmissible evidence. Using the Mathews test, I find this to be a denial of due process.
First, the interest at stake, private property, is one that has always had enormous importance in our society. From its inception, the Constitution recognized the importance of private property as a concomitant to liberty. The Fifth Amendment embodies the Lockean belief that liberty and the right to possess property are an interwoven whole; neither life, liberty, nor property can be arbitrarily or capriciously denied us by government. See Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 1122, 31 L.Ed.2d 424 (1972) (stating that “a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other”); John Locke, The Second Treatise on Civil Government ¶ 123-42; see also Leonard W. Levy, Original Intent and the Framers’ Constitution 276-77 (1988). “Indeed, in a free government almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen.” Chicago, Burlington & Quincy R.R., 166 U.S. at 236, 17 S.Ct. at 584; see also Charles A. Reich, The New Property, 73 Yale L.J. 733, 771-74 (1964) (recognizing that an individual’s freedom and security depend on his ability to protect property from irrational or procedurally unfair government interference). To deprive an individual of property is to deprive him of a measure of his autonomy and limits his ability to interact with and in society. As *811Justice Kennedy has stated, “any system that wishes to protect freedom has to protect property.” 6 Newsletter of the Comm’n on the Bicentennial of the U.S. Constitution No. 3, at 1 (1990). The rush of the Eastern Europeans to privatize their industries and to allow the citizens of their respective countries to acquire and create private property demonstrates the validity and vitality of Justice Kennedy’s words. The world over is realizing that private property is an indispensable thread in the fabric of a democratic and free society and that the protection of private property is an important check on governmental power.
Additionally, although civil forfeitures are punitive in nature and have all the stigma associated with punitive proceedings, many of the constitutional protections found in such proceedings are notably absent. The lack of these protections creates a situation where government deprivation of property is too easily accomplished. This situation demands that more process be incorporated into forfeiture proceedings involving noncontraband property. See, e.g., Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 1251, 14 L.Ed.2d 170 (1965) (holding that the exclusionary rule applies to forfeiture proceedings); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963) (holding that forfeiture of citizenship is penal in nature and requires all the incidents of a criminal trial).
Second, the current allocation of burdens and standards of proof requires that the claimant prove a negative, that the property was not used in or to facilitate illegal activity, while the government must prove almost nothing. This creates a great risk of an erroneous, irreversible deprivation. “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (quoting In re Winship, 397 U.S. at 370, 90 S.Ct. at 1076 (Harlan, J., concurring)). The allocation of burdens and standards of proof implicates similar concerns and is of greater importance since it decides who must go forward with evidence and who bears the risk of loss should proof not rise to the standard set. In civil forfeiture cases, where claimants are required to go forward with evidence and exculpate their property by a preponderance of the evidence, all risks are squarely on the claimant. The government, under the current approach, need not produce any admissible evidence and may deprive citizens of property based on the rankest of hearsay and the flimsiest evidence. This result clearly does not reflect the value of private property in our society, and makes the risk of an erroneous deprivation intolerable.
Finally, the third Mathews prong asks us to look at the added administrative and fiscal burden on the government of the process proposed. I recognize the importance of civil forfeitures in the government’s anticrime arsenal. However, I also recognize the importance of protecting property from erroneous deprivations by the government. Balancing the two, I find that protecting the private property interest of individuals far outweighs any added burden on the government. This is especially true here, where the government may still seize and hold the property and institute a forfeiture suit with nothing more than probable cause.
To cure the constitutional infirmity in the current allocation of the burdens and standards of proof, the government could be required to inculpate the seized property by a preponderance of the evidence. However, this would require declaring the burden of proof statute used here unconstitutional .as applied to this case. See 19 U.S.C. § 1615 (1988). A method that would avoid abrogating the statute and, I believe, pass constitutional muster is the method used in Title VII suits. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. *812248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Using the Title VII method, the claimant, after the government’s probable cause showing, would establish a rebuttable presumption of right to the property by establishing a colorable claim of title and a color-able claim that the property was acquired legitimately. In this case, the evidence produced by the Dorseys would have established this presumption. The burden would then shift to the government to rebut this presumption with evidence admissible at a trial. The government may do this by either showing claimant has no title or legitimate claim to the property or by showing that the property was derived in violation of the forfeiture statute. The government need not establish these facts by a preponderance of the evidence, but the facts adduced would have to meet the requirements of the federal rules of evidence. Once the presumption falls, the claimant would have to exculpate the property by a preponderance of the evidence to avoid its forfeiture. The burden of proof would always remain with the claimant as required by 19 U.S.C. § 1615.
Adopting either of the methods prevents a forfeiture of noncontraband property when the government’s evidence qualitatively and quantitatively does not rise above the probable cause standard. I believe that this strikes the proper balance between the government’s law enforcement needs and the rights of individuals in private property.
For the reasons stated above, I would reverse and remand this case to the district court for proceedings consistent with this dissent.
. In the fiscal year ending September 30, 1990, the Department of Justice’s Assets Forfeiture Fund held a balance of approximately $478 million. See U.S. Dep't of Justice, 1990 Annual Report of the Department of Justice Asset Forfeiture Program app. A, at 39. Approximately $375 million represented forfeited cash and $88 million represented receipts from forfeiture sales. In addition, approximately $23.5 million worth of forfeited conveyances and other tangible property was transferred to state and local law enforcement agencies through equitable sharing, and $18.1 million worth of conveyances and personal property was retained for official use. Id. at 40. Another $1.4 million in forfeited property was transferred to non-participating federal agencies by the Department of Justice. Id. The total value of forfeited cash and property represents a growth in asset forfeitures of over 1500 percent since 1985. See U.S. Dep’t of Justice, Federal Forfeiture of the Instruments and Proceeds of Crime: The Program in a Nutshell 1 (1990). Over the last six years, the government has confiscated money and goods worth approximately $1.5 billion dollars, with another $1.3 billion the fate of which is still undecided. Dick Thornburgh, Foreword to U.S. Dep’t of Justice, 1990 Annual Report of the Department of Justice Asset Forfeiture Program. This year, the government expects to confiscate $700 million worth of property for forfeiture. Stephen Chapman, A Weapon in the Drug War and its Innocent Casualties, Chi.Trib., Apr. 18, 1991, at C27. Most of these assets will be converted to dollars and used by law enforcement entities, the seizing agencies, outside of ordinary government appropriation and budgetary processes. See 28 U.S.C.A. § 524(c)(1) (West Supp. 1991). This leads some observers to question whether we are seeing fair and effective law enforcement or an insatiable appetite for a source for increased agency revenue.