OCTOBER TERM, 1993
Syllabus
UNITED STATES
v. JAMES DANIEL GOOD REAL PROPERTY ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 92-1180. Argued October 6, 1993-Decided December 13,
1993
Four and one-half years after police found drugs and drug
paraphernalia in claimant Good's home and he pleaded guilty to
promoting a harmful drug in violation of Hawaii law, the United
States filed an
in rem action in the Federal District Court,
seeking forfeiture of his house and land, under 21 U. S. C. §
881(a)(7), on the ground that the property had been used to commit
or facilitate the commission of a federal drug offense. Following
an
ex parte proceeding, a Magistrate Judge issued a warrant
authorizing the property's seizure, and the Government seized the
property without prior notice to Good or an adversary proceeding.
In his claim for the property and answer to the Government's
complaint, Good asserted that he was deprived of his property
without due process of law and that the action was invalid because
it had not been timely commenced. The District Court ordered that
the property be forfeited, but the Court of Appeals reversed. It
held that the seizure without prior notice and a hearing violated
the Due Process Clause, and remanded the case for a determination
whether the action, although filed within the 5-year period
provided by 19 U. S. C. § 1621, was untimely because the Government
failed to follow the internal notification and reporting
requirements of §§ 1602-1604.
Held:
1. 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. Pp.
48-62.
(a) The seizure of Good's property implicates two" 'explicit
textual source[s] of constitutional protection,'" the Fourth
Amendment and the Fifth.
Soldal v.
Cook County,
506 U. S. 56, 70.
While the Fourth Amendment places limits on the Government's power
to seize property for purposes of forfeiture, it does not provide
the sole measure of constitutional protection that must be afforded
property owners in forfeiture proceedings.
Gerstein v.
Pugh, 420 U.
S. 103;
Graham v.
Connor, 490 U. S. 386,
distinguished. Where the Government seizes property not to preserve
evidence of criminal wrongdoing but to assert ownership and control
over the property, its action must also comply with the Due
44
Syllabus
Process Clause. See, e. g., Calero-Toledo v. Pearson Yacht
Leasing Co.,
416 U.
S. 663; Fuentes v. Shevin,
407 U. S. 67. pp.
48-52.
(b) An exception to the general rule requiring predeprivation
notice and hearing is justified only in extraordinary situations.
Id., at 82. Using the three-part inquiry set forth in
Mathews v.
Eldridge, 424 U. S.
319-consideration of the private interest affected by the
official action; the risk of an erroneous deprivation of that
interest through the procedures used, as well as the probable value
of additional safeguards; and the Government's interest, including
the administrative burden that additional procedural requirements
would impose,
id., at 335-the seizure of real property for
purposes of civil forfeiture does not justify such an exception.
Good's right to maintain control over his home, and to be free from
governmental interference, is a private interest of historic and
continuing importance, cf.,
e. g., United States v.
Karo, 468 U.
S. 705, 714-715, that weighs heavily in the
Mathews
balance. Moreover, the practice of
ex parte seizure creates
an unacceptable risk of error, since the proceeding affords little
or no protection to an innocent owner, who may not be deprived of
property under §881(a)(7). Nor does the governmental interest at
stake here present a pressing need for prompt action. Because real
property cannot abscond, a court's jurisdiction can be preserved
without prior seizure simply by posting notice on the property and
leaving a copy of the process with the occupant. In addition, the
Government's legitimate interests at the inception of a forfeiture
proceeding-preventing the property from being sold, destroyed, or
used for further illegal activity before the forfeiture
judgment-can be secured through measures less intrusive than
seizure: a
lis pendens notice to prevent the property's
sale, a restraining order to prevent its destruction, and search
and arrest warrants to forestall further illegal activity. Since a
claimant is already entitled to a hearing before final judgment,
requiring the Government to postpone seizure until after an
adversary hearing creates no significant administrative burden, and
any harm from the delay is minimal compared to the injury
occasioned by erroneous seizure. pp. 52-59.
(c) No plausible claim of executive urgency, including the
Government's reliance on forfeitures as a means of defraying law
enforcement expenses, justifies the summary seizure of real
property under §881(a)(7). Cf.
Phillips v.
Commissioner, 283 U. S. 589. Pp.
59-61.
2. Courts may not dismiss a forfeiture action filed within the
5-year statute of limitations for noncompliance with the timing
requirements of §§ 1602-1604. Congress' failure to specify a
consequence for noncompliance implies that it intended the
responsible officials administering the Act to have discretion to
determine what disciplinary measures are appropriate when their
subordinates fail to discharge their statutory
45
duties, and the federal courts should not in the ordinary course
impose their own coercive sanction, see,
e. g., United
States v.
MontalvoMurillo, 495 U. S. 711,717-721.
Pp.62-65.
971 F.2d
1376, affirmed in part, reversed in part, and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court with
respect to Parts I and III, and the opinion of the Court with
respect to Parts II and IV, in which BLACKMUN, STEVENS, SOUTER, and
GINSBURG, JJ., joined. REHNQUIST, C. J., filed an opinion
concurring in part and dissenting in part, in which SCALIA, J.,
joined, and in which O'CONNOR, J., joined as to Parts II and III,
post, p. 65. O'CONNOR, J.,
post, p. 73, and THOMAS,
J.,
post, p. 80, filed opinions concurring in part and
dissenting in part.
Edwin S.
Kneedler argued the cause for the United
States.
With him on the brief were Solicitor General Days, Acting
Solicitor General Bryson, and Acting Assistant Attorney General
Keeney.
Christopher J. Yuen argued the cause and
filed a brief for respondents. *
* A brief of
amici curiae urging reversal was filed for
the State of Kentucky et al. by
Chris Gorman, Attorney
General, and
David A. Sexton, Assistant Attorney General,
Malaetasi Togafau, Attorney General of American Samoa,
Grant Woods, Attorney General of Arizona,
Daniel E.
Lungren, Attorney General of California,
Domenick
J. Galluzzo, Acting Chief State's Attorney of
Connecticut,
Pamela Carter, Attorney General of Indiana,
Robert T. Stephan, Attorney General of Kansas,
Richard P.
Ieyoub, Attorney General of Louisiana,
J. Joseph
Curran, Jr., Attorney General of Maryland,
Scott
Harshbarger, Attorney General of Massachusetts,
Frank
J. Kelley, Attorney General of Michigan,
Mike
Moore, Attorney General of Mississippi,
Joseph P.
Mazurek, Attorney General of Montana,
Don Stenberg,
Attorney General of Nebraska,
Jeffrey R. Howard, Attorney
General of New Hampshire,
Tom Udall, Attorney General of New
Mexico,
Heidi Heitkamp, Attorney General of North Dakota,
Ernest D. Preate, Jr., Attorney General of Pennsylvania, and
Joseph B. Myer, Attorney General of Wyoming.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Steven Alan Reiss,
Richard A. Rothman, Katherine Oberlies, Steven R. Shapiro, and
John A. Powell; for the Institute for Justice by
William
H. Mellor III and
Clint Bolick; and for the National
Association of Criminal Defense Lawyers by
Richard J.
Troberman and
E. E. Edwards III.
46
JUSTICE KENNEDY delivered the opinion of the Court. The
principal question presented is whether, in the absence of exigent
circumstances, the Due Process Clause of the Fifth Amendment
prohibits the Government in a civil forfeiture case from seizing
real property without first affording the owner notice and an
opportunity to be heard. We hold that it does.
A second issue in the case concerns the timeliness of the
forfeiture action. We hold that filing suit for forfeiture within
the statute of limitations suffices to make the action timely, and
that the cause should not be dismissed for failure to comply with
certain other statutory directives for expeditious prosecution in
forfeiture cases.
I
On January 31, 1985, Hawaii police officers executed a search
warrant at the home of claimant James Daniel Good. The search
uncovered about 89 pounds of marijuana, marijuana seeds, vials
containing hashish oil, and drug paraphernalia. About six months
later, Good pleaded guilty to promoting a harmful drug in the
second degree, in violation of Hawaii law. Haw. Rev. Stat. §
712-1245(1)(b) (1985). He was sentenced to one year in jail and
five years' probation, and fined $1,000. Good was also required to
forfeit to the State $3,187 in cash found on the premises.
On August 8, 1989, 41/2 years after the drugs were found, the
United States filed an
in rem action in the United States
District Court for the District of Hawaii, seeking to forfeit
Good's house and the 4-acre parcel on which it was situated. The
United States sought forfeiture under 21 U. S. C. § 881(a)(7), on
the ground that the property had been used to commit or facilitate
the commission of a federal drug offense.1
1 Title 21 U. S. C. § 881(a)(7) provides: "(a) ...
"The following shall be subject to forfeiture to the United
States and no property right shall exist in them:
47
On August 18, 1989, in an
ex parte proceeding, a United
States Magistrate Judge found that the Government had established
probable cause to believe Good's property was subject to forfeiture
under § 881(a)(7). A warrant of arrest
in rem was issued,
authorizing seizure of the property. The warrant was based on an
affidavit recounting the fact of Good's conviction and the evidence
discovered during the January 1985 search of his home by Hawaii
police.
The Government seized the property on August 21, 1989, without
prior notice to Good or an adversary hearing. At the time of the
seizure, Good was renting his home to tenants for $900 per month.
The Government permitted the tenants to remain on the premises
subject to an occupancy agreement, but directed the payment of
future rents to the United States Marshal.
Good filed a claim for the property and an answer to the
Government's complaint. He asserted that the seizure deprived him
of his property without due process of law and that the forfeiture
action was invalid because it had not been timely commenced under
the statute. The District Court granted the Government's motion for
summary judgment and entered an order forfeiting the property.
The Court of Appeals for the Ninth Circuit affirmed in part,
reversed in part, and remanded for further proceedings.
971 F.2d
1376 (1992). The court was unanimous in holding that the
seizure of Good's property, without prior notice and a hearing,
violated the Due Process Clause.
"(7) All real property, including any right, title, and interest
(including any leasehold interest) in the whole of any lot or tract
of land and any appurtenances or improvements, which is used, or
intended to be used, in any manner or part, to commit, or to
facilitate the commission of, a violation of this subchapter
punishable by more than one year's imprisonment, except that no
property shall be forfeited under this paragraph, to the extent of
an interest of an owner, by reason of any act or omission
established by that owner to have been committed or omitted without
the knowledge or consent of that owner."
48
In a divided decision, the Court of Appeals further held that
the District Court erred in finding the action timely. The Court of
Appeals ruled that the 5-year statute of limitations in 19 U. S. C.
§ 1621 is only an "outer limit" for filing a forfeiture action, and
that further limits are imposed by 19 U. S. C. §§ 1602-1604. 971 F.
2d, at 1378-1382. Those provisions, the court reasoned, impose a
"series of internal notification and reporting requirements," under
which "customs agents must report to customs officers, customs
officers must report to the United States attorney, and the
Attorney General must 'immediately' and 'forthwith' bring a
forfeiture action if he believes that one is warranted."
Id., at 1379 (citations omitted). The Court of Appeals ruled
that failure to comply with these internal reporting rules could
require dismissal of the forfeiture action as untimely. The court
remanded the case for a determination whether the Government had
satisfied its obligation to make prompt reports.
Id., at
1382.
We granted certiorari, 507 U. S. 983 (1993), to resolve a
conflict among the Courts of Appeals on the constitutional question
presented. Compare
United States v.
Premises and Real
Property at 4492
South Livonia Road, 889 F.2d
1258 (CA2 1989), with
United States v.
A Single
Family Residence and Real Property, 803 F.2d
625 (CAll 1986). We now affirm the due process ruling and
reverse the ruling on the timeliness question.
II
The Due Process Clause of the Fifth Amendment guarantees that
"[n]o person shall ... be deprived of life, liberty, or property,
without due process of law." Our precedents establish the general
rule that individuals must receive notice and an opportunity to be
heard before the Government deprives them of property. See
United States v.
$8,850, 461 U. S. 555, 562, n. 12
(1983);
Fuentes v.
Shevin, 407 U. S. 67, 82 (1972);
Sniadach v.
Family Finance Corp. of Bay View,
49
395 U. S. 337,
342 (1969) (Harlan, J., concurring);
Mullane v.
Central
Hanover Bank &
Trust Co., 339 U. S. 306, 313
(1950).
The Government does not, and could not, dispute that the seizure
of Good's home and 4-acre parcel deprived him of property interests
protected by the Due Process Clause. By the Government's own
submission, the seizure gave it the right to charge rent, to
condition occupancy, and even to evict the occupants. Instead, the
Government argues that it afforded Good all the process the
Constitution requires. The Government makes two separate points in
this regard. First, it contends that compliance with the Fourth
Amendment suffices when the Government seizes property for purposes
of forfeiture. In the alternative, it argues that the seizure of
real property under the drug forfeiture laws justifies an exception
to the usual due process requirement of pre seizure notice and
hearing. We turn to these issues.
A
The Government argues that because civil forfeiture serves a
"law enforcement purpos[e]," Brief for United States 13, the
Government need comply only with the Fourth Amendment when seizing
forfeitable property. We disagree. The Fourth Amendment does place
restrictions on seizures conducted for purposes of civil
forfeiture,
One 1958 Plymouth Sedan v.
Pennsylvania,
380 U. S. 693,
696 (1965) (holding that the exclusionary rule applies to civil
forfeiture), but it does not follow that the Fourth Amendment is
the sole constitutional provision in question when the Government
seizes property subject to forfeiture.
We have rejected the view that the applicability of one
constitutional amendment pre-empts the guarantees of another. As
explained in
Soldal v.
Cook County, 506 U. S. 56, 70
(1992):
"Certain wrongs affect more than a single right and,
accordingly, can implicate more than one of the Constitution's
commands. Where such multiple violations
50
are alleged, we are not in the habit of identifying as a
preliminary matter the claim's 'dominant' character. Rather, we
examine each constitutional provision in turn."
Here, as in
Soldal, the seizure of property implicates
two " 'explicit textual source[s] of constitutional protection,' "
the Fourth Amendment and the Fifth.
Ibid. The proper
question is not which Amendment controls but whether either
Amendment is violated.
Nevertheless, the Government asserts that when property is
seized for forfeiture, the Fourth Amendment provides the full
measure of process due under the Fifth. The Government relies on
Gerstein v.
Pugh, 420 U. S. 103 (1975), and
Graham v.
Connor, 490 U. S. 386 (1989), in
support of this proposition. That reliance is misplaced.
Gerstein and
Graham concerned not the seizure of
property but the arrest or detention of criminal suspects, subjects
we have considered to be governed by the provisions of the Fourth
Amendment without reference to other constitutional guarantees. In
addition, also unlike the seizure presented by this case, the
arrest or detention of a suspect occurs as part of the regular
criminal process, where other safeguards ordinarily ensure
compliance with due process.
Gerstein held that the Fourth Amendment, rather than the
Due Process Clause, determines the requisite postarrest proceedings
when individuals are detained on criminal charges. Exclusive
reliance on the Fourth Amendment is appropriate in the arrest
context, we explained, because the Amendment was "tailored
explicitly for the criminal justice system," and its "balance
between individual and public interests always has been thought to
define the 'process that is due' for seizures of person or property
in criminal cases." 420 U. S., at 125, n. 27. Furthermore, we noted
that the protections afforded during an arrest and initial
detention are "only the
first stage of an elaborate system,
unique in jurisprudence,
51
designed to safeguard the rights of those accused of criminal
conduct."
Ibid. (emphasis in original).
So too, in
Graham we held that claims of excessive force
in the course of an arrest or investigatory stop should be
evaluated under the Fourth Amendment reasonableness standard, not
under the "more generalized notion of 'substantive due process.'"
490 U. S., at 395. Because the degree of force used to effect a
seizure is one determinant of its reasonableness, and because the
Fourth Amendment guarantees citizens the right "to be secure in
their persons ... against unreasonable ... seizures," we held that
a claim of excessive force in the course of such a seizure is "most
properly characterized as one invoking the protections of the
Fourth Amendment."
Id., at 394.
Neither
Gerstein nor
Graham, however, provides
support for the proposition that the Fourth Amendment is the
beginning and end of the constitutional inquiry whenever a seizure
occurs. That proposition is inconsistent with the approach we took
in
Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.
S. 663 (1974), which examined the constitutionality of
ex
parte seizures of forfeitable property under general principles of
due process, rather than the Fourth Amendment. And it is at odds
with our reliance on the Due Process Clause to analyze prejudgment
seizure and sequestration of personal property. See,
e. g.,
Fuentes v.
Shevin, 407 U. S. 67 (1972);
Mitchell v. w:
T. Grant Co., 416 U. S. 600 (1974).
It is true, of course, that the Fourth Amendment applies to
searches and seizures in the civil context and may serve to resolve
the legality of these governmental actions without reference to
other constitutional provisions. See
Camara v.
Municipal
Court of City and County of San Francisco, 387 U. S. 523 (1967)
(holding that a warrant based on probable cause is required for
administrative search of residences for safety inspections);
Skinner v.
Railway Labor Executives' Assn., 489 U. S. 602 (1989)
(holding that federal regulations authorizing railroads to conduct
blood and urine tests of cer-
52
tain employees, without a warrant and without reasonable
suspicion, do not violate the Fourth Amendment prohibition against
unreasonable searches and seizures). But the purpose and effect of
the Government's action in the present case go beyond the
traditional meaning of search or seizure. Here the Government
seized property not to preserve evidence of wrongdoing, but to
assert ownership and control over the property itself. Our cases
establish that government action of this consequence must comply
with the Due Process Clauses of the Fifth and Fourteenth
Amendments.
Though the Fourth Amendment places limits on the Government's
power to seize property for purposes of forfeiture, it does not
provide the sole measure of constitutional protection that must be
afforded property owners in forfeiture proceedings. So even
assuming that the Fourth Amendment were satisfied in this case, it
remains for us to determine whether the seizure complied with our
well-settled jurisprudence under the Due Process Clause.
B
Whether
ex parte seizures of forfeitable property satisfy
the Due Process Clause is a question we last confronted in
Calero-Toledo v.
Pearson Yacht Leasing Co., supra,
which held that the Government could seize a yacht subject to civil
forfeiture without affording prior notice or hearing. Central to
our analysis in
Calero-Toledo was the fact that a yacht was
the "sort [of property] that could be removed to another
jurisdiction, destroyed, or concealed, if advance warning of
confiscation were given."
Id., at 679. The ease with which
an owner could frustrate the Government's interests in the
forfeitable property created a " 'special need for very prompt
action'" that justified the postponement of notice and hearing
until after the seizure.
Id., at 678 (quoting
Fuentes,
supra, at 91).
We had no occasion in
Calero-Toledo to decide whether the
same considerations apply to the forfeiture of real property,
53
which, by its very nature, can be neither moved nor concealed.
In fact, when
Calero-Toledo was decided, both the Puerto
Rican statute, P. R. Laws Ann., Tit. 24, § 2512 (Supp. 1973), and
the federal forfeiture statute upon which it was modeled, 21 U. S.
C. § 881 (1970 ed.), authorized the forfeiture of personal property
only. It was not until 1984, 10 years later, that Congress amended
§ 881 to authorize the forfeiture of real property. See 21 U. S. C.
§ 881(a)(7); Pub. L. 98473, § 306, 98 Stat. 2050.
The right to prior notice and a hearing is central to the
Constitution's command of due process. "The purpose of this
requirement is not only to ensure abstract fair play to the
individual. Its purpose, more particularly, is to protect his use
and possession of property from arbitrary encroachment-to minimize
substantively unfair or mistaken deprivations of property .... "
Fuentes, 407 U. S., at 80-81.
We tolerate some exceptions to the general rule requiring
predeprivation notice and hearing, but only in "'extraordinary
situations where some valid governmental interest is at stake that
justifies postponing the hearing until after the event.'"
Id., at 82 (quoting
Boddie v.
Connecticut,
401 U. S. 371,
379 (1971));
United States v.
$8,850, 461 U. S., at
562, n. 12. Whether the seizure of real property for purposes of
civil forfeiture justifies such an exception requires an
examination of the competing interests at stake, along with the
promptness and adequacy of later proceedings. The threepart inquiry
set forth in
Mathews v.
Eldridge, 424 U. S. 319 (1976),
provides guidance in this regard. The
Mathews analysis
requires us to consider the private interest affected by the
official action; the risk of an erroneous deprivation of that
interest through the procedures used, as well as the probable value
of additional safeguards; and the Government's interest, including
the administrative burden that additional procedural requirements
would impose.
Id., at 335.
Good's right to maintain control over his home, and to be free
from governmental interference, is a private interest of
54
historic and continuing importance. Cf.
United States v.
Karo, 468 U.
S. 705, 714-715 (1984);
Payton v.
New York,
445 U. S. 573,
590 (1980). The seizure deprived Good of valuable rights of
ownership, including the right of sale, the right of occupancy, the
right to unrestricted use and enjoyment, and the right to receive
rents. All that the seizure left him, by the Government's own
submission, was the right to bring a claim for the return of title
at some unscheduled future hearing.
In
Fuentes, we held that the loss of kitchen appliances
and household furniture was significant enough to warrant a
predeprivation hearing. 407 U. S., at 70-71. And in
Connecticut v.
Doehr, 501 U. S. 1 (1991), we held
that a state statute authorizing prejudgment attachment of real
estate without prior notice or hearing was unconstitutional, in the
absence of extraordinary circumstances, even though the attachment
did not interfere with the owner's use or possession and did not
affect, as a general matter, rentals from existing leaseholds.
The seizure of a home produces a far greater deprivation than
the loss of furniture, or even attachment. It gives the Government
not only the right to prohibit sale, but also the right 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.
The Government makes much of the fact that Good was renting his
home to tenants, and contends that the tangible effect of the
seizure was limited to taking the $900 a month he was due in rent.
But even if this were the only deprivation at issue, it would not
render the loss insignificant or unworthy of due process
protection. The rent represents a significant portion of the
exploitable economic value of Good's home. It cannot be classified
as
de minimis for purposes of procedural due process. In
sum, the private
55
interests at stake in the seizure of real property weigh heavily
in the
Mathews balance.
The practice of
ex parte seizure, moreover, creates an
unacceptable risk of error. Although Congress designed the drug
forfeiture statute to be a powerful instrument in enforcement of
the drug laws, it did not intend to deprive innocent owners of
their property. The affirmative defense of innocent ownership is
allowed by statute. See 21 U. S. C. § 881(a)(7) ("[N]o property
shall be forfeited under this paragraph, to the extent of an
interest of an owner, by reason of any act or omission established
by that owner to have been committed or omitted without the
knowledge or consent of that owner").
The
ex parte pre seizure proceeding affords little or no
protection to the innocent owner. In issuing a warrant of seizure,
the magistrate judge need determine only that there is probable
cause to believe that the real property was "used, or intended to
be used, in any manner or part, to commit, or to facilitate the
commission of," a felony narcotics offense.
Ibid. The
Government is not required to offer any evidence on the question of
innocent ownership or other potential defenses a claimant might
have. See,
e. g., Austin v.
United States, 509 U. S. 602 (1993)
(holding that forfeitures under 21 U. S. C. §§881(a)(4) and (a)(7)
are subject to the limitations of the Excessive Fines Clause). Nor
would that inquiry, in the
ex parte stage, suffice to
protect the innocent owner's interests. "[F]airness can rarely be
obtained by secret, one-sided determination of facts decisive of
rights .... No 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."
Joint
Anti-Fascist Refugee Comm. v.
McGrath, 341 U. S. 123, 170-172
(1951) (Frankfurter, J., concurring) (footnotes omitted).
The purpose of an adversary hearing is to ensure the requisite
neutrality that must inform all governmental decisionmaking. That
protection is of particular importance here,
56
where the Government has a direct pecuniary interest in the
outcome of the proceeding.2 See
Harmelin v.
Michigan,
501 U. S. 957, 979, n. 9 (1991) (opinion of SCALIA, J.) ("[I]t
makes sense to scrutinize governmental action more closely when the
State stands to benefit"). Moreover, the availability of a
postseizure hearing may be no recompense for losses caused by
erroneous seizure. Given the congested civil dockets in federal
courts, a claimant may not receive an adversary hearing until many
months after the seizure. And even if the ultimate judicial
decision is that the claimant was an innocent owner, or that the
Government lacked probable cause, this determination, coming months
after the seizure, "would not cure the temporary deprivation that
an earlier hearing might have prevented."
Doehr, 501 U. S.,
at 15.
This brings us to the third consideration under
Mathews,
"the Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail." 424 U. S., at 335. The
governmental interest we consider here is not some general interest
in forfeiting property but the specific interest in seizing real
property before the forfeiture hearing. The question in the civil
forfeiture context is whether
ex parte seizure is justified
by a pressing need for prompt action. See
Fuentes, 407 U.
S., at 91. We find no pressing need here.
2 The extent of the Government's financial stake in drug
forfeiture is apparent from a 1990 memo, in which the Attorney
General urged United States Attorneys to increase the volume of
forfeitures in order to meet the Department of Justice's annual
budget target:
"We must significantly increase production to reach our budget
target. " ... Failure to achieve the $470 million projection would
expose the Department's forfeiture program to criticism and
undermine confidence in our budget projections. Every effort must
be made to increase forfeiture income during the remaining three
months of [fiscal year] 1990." Executive Office for United States
Attorneys, U. S. Dept. of Justice, 38 United States Attorney's
Bulletin 180 (1990).
57
This is apparent by comparison to
Calero-Toledo, where
the Government's interest in immediate seizure of a yacht subject
to civil forfeiture justified dispensing with the usual requirement
of prior notice and hearing. Two essential considerations informed
our ruling in that case: First, immediate seizure was necessary to
establish the court's jurisdiction over the property, 416 U. S., at
679, and second, the yacht might have disappeared had the
Government given advance warning of the forfeiture action,
ibid. See also
United States v.
Von Neumann,
474 U. S. 242,
251 (1986) (no preseizure hearing is required when customs
officials seize an automobile at the border). Neither of these
factors is present when the target of forfeiture is real
property.
Because real property cannot abscond, the court's jurisdiction
can be preserved without prior seizure. It is true that seizure of
the res has long been considered a prerequisite to the initiation
of
in rem forfeiture proceedings. See
Republic Nat. Bank
of Miami v.
United States, 506 U. S. 80, 84
(1992); United States v.
One Assortment of 89
Firearms, 465 U. S. 354, 363 (1984). This rule had its
origins in the Court's early admiralty cases, which involved the
forfeiture of vessels and other movable personal property. See
Taylor v.
Carryl, 20 How. 583, 599 (1858);
The
Brig Ann, 9 Cranch 289 (1815);
Keene v.
United
States, 5 Cranch 304, 310 (1809). Justice Story, writing for
the Court in
The Brig Ann, explained the justification for
the rule as one of fixing and preserving jurisdiction: "[B]efore
judicial cognizance can attach upon a forfeiture
in rem, ...
there must be a seizure; for until seizure it is impossible to
ascertain what is the competent forum." 9 Cranch, at 291. But when
the res is real property, rather than personal goods, the
appropriate judicial forum may be determined without actual
seizure.
As
The Brig Ann held, all that is necessary "[i]n order
to institute and perfect proceedings
in rem, [is] that the
thing should be actually or constructively within the reach of the
Court."
Ibid. And as we noted last Term, "[f]airly read,
58
The Brig Ann simply restates the rule that the court must
have actual or constructive control of the res when an
in
rem forfeiture suit is initiated."
Republic Nat. Bank,
supra, at 87. In the case 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.
In fact, the rules which govern forfeiture proceedings under § 881
already permit process to be executed on real property without
physical seizure:
"If the character or situation of the property is such that the
taking of actual possession is impracticable, the marshal or other
person executing the process shall affix a copy thereof to the
property in a conspicuous place and leave a copy of the complaint
and process with the person having possession or the person's
agent." Rule E(4)(b), Supplemental Rules for Certain Admiralty and
Maritime Claims.
See also
United States v.
TWP 17
R 4,
Certain Real Property in Maine, 970 F.2d
984, 986, and n. 4 (CA1 1992).
Nor is the
ex parte seizure of real property necessary to
accomplish the statutory purpose of § 881 (a) (7). The Government's
legitimate interests at the inception of forfeiture proceedings are
to ensure that the property not be sold, destroyed, or used for
further illegal activity prior to the forfeiture judgment. These
legitimate interests can be secured 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. 28 U. S. C. § 1964; and see Haw. Rev. Stat. §
634-51 (1985)
(lis pendens provision). If there is evidence,
in a particular case, that an owner is likely to destroy his
property when advised of the pending action, the Government may
obtain an
ex parte restraining order, or other appropriate
relief, upon a proper showing in district court. See Fed. Rule Civ.
Proc. 65;
United States v.
Prem-
59
ises and Real Property at 4492
South Livonia Road,
889 F. 2d 1258, 1265 (CA2 1989). The Government's policy of
leaving occupants in possession of real property under an occupancy
agreement pending the final forfeiture ruling demonstrates that
there is no serious concern about destruction in the ordinary case.
See Brief for United States 13, n. 6 (citing Directive No. 90-10
(Oct. 9, 1990), Executive Office for Asset Forfeiture, Office of
Deputy Attorney General). Finally, the Government can forestall
further illegal activity with search and arrest warrants obtained
in the ordinary course.
In the usual case, the Government thus has various means, short
of seizure, to protect its legitimate interests in forfeitable real
property. There is no reason to take the additional step of
asserting control over the property without first affording notice
and an adversary hearing.
Requiring the Government to postpone seizure until after an
adversary hearing creates no significant administrative burden. A
claimant is already entitled to an adversary hearing before a final
judgment of forfeiture. No extra hearing would be required in the
typical case, since the Government can wait until after the
forfeiture judgment to seize the property. From an administrative
standpoint it makes little difference whether that hearing is held
before or after the seizure. And any harm that results from delay
is minimal in comparison to the injury occasioned by erroneous
seizure.
C
It is true that, in cases decided over a century ago, we
permitted the
ex parte seizure of real property when the
Government was collecting debts or revenue. See,
e.
g., Springer v.
United States, 102 U. S. 586, 593-594
(1881);
Murray's Lessee v.
Hoboken Land &
Improvement Co., 18 How. 272 (1856). Without revisiting
these cases, it suffices to say that their apparent rationale-like
that for allowing summary seizures during wartime, see
Stoehr v.
Wallace, 255
60
u. S. 239 (1921);
Bowles v.
Willingham, 321 U. S. 503 (1944), and
seizures of contaminated food, see
North American Cold Storage
Co. v.
Chicago, 211 U. S. 306 (1908)-was
one of executive urgency. "The prompt payment of taxes," we noted,
"may be vital to the existence of a government."
Springer,
supra, at 594. See also G.
M. Leasing Corp. v.
United
States, 429 U. S.
338, 352, n. 18 (1977) ("The rationale underlying [the revenue]
decisions, of course, is that the very existence of government
depends upon the prompt collection of the revenues").
A like rationale justified the
ex parte seizure of
taxdelinquent distilleries in the late 19th century, see,
e.
g., United States v.
Stowell, 133 U. S. 1 (1890);
Dobbins's Distillery v.
United States, 96 U. S. 395 (1878), since
before passage of the Sixteenth Amendment, the Federal Government
relied heavily on liquor, customs, and tobacco taxes to generate
operating revenues. In 1902, for example, nearly 75 percent of
total federal revenues-$479 million out of a total of $653
million-was raised from taxes on liquor, customs, and tobacco. See
U. S. Bureau of Census, Historical Statistics of the United States,
Colonial Times to the Present 1122 (1976).
The federal income tax code adopted in the first quarter of this
century, however, afforded the taxpayer notice and an opportunity
to be heard by the Board of Tax Appeals before the Government could
seize property for nonpayment of taxes. See Revenue Act of 1921, 42
Stat. 265-266; Revenue Act of 1924, 43 Stat. 297. In
Phillips v.
Commissioner, 283 U. S. 589 (1931), the
Court relied upon the availability, and adequacy, of these pre
seizure administrative procedures in holding that no judicial
hearing was required prior to the seizure of property.
Id.,
at 597-599 (citing Act of Feb. 26, 1926, ch. 27, §274(a), 44 Stat.
9, 55; Act of May 29, 1928, ch. 852, §§ 272(a), 601, 45 Stat. 791,
852, 872). These constraints on the Commissioner could be
overridden, but only when the Commissioner made a determination
that a jeopardy assessment was necessary. 283 U. S., at 598.
Writing for a unani-
61
mous Court, Justice Brandeis explained that under the tax laws
"[f]ormal notice of the tax liability is thus given; the
Commissioner is required to answer; and there is a complete hearing
de novo .... These provisions amply protect the [taxpayer]
against improper administrative action."
Id., at 598-599;
see also
Commissioner v.
Shapiro, 424 U. S. 614, 631 (1976)
("[In] the
Phillips case ... the taxpayer's assets could not
have been taken or frozen ... until he had either had, or waived
his right to, a full and final adjudication of his tax liability
before the Tax Court (then the Board of Tax Appeals)").
Similar provisions remain in force today. The current Internal
Revenue Code prohibits the Government from levying upon a deficient
taxpayer's property without first affording the taxpayer notice and
an opportunity for a hearing, unless exigent circumstances indicate
that delay will jeopardize the collection of taxes due. See 26 U.
S. C. §§ 6212, 6213, 6851, 6861.
Just as the urgencies that justified summary seizure of property
in the 19th century had dissipated by the time of
Phillips,
neither is there a plausible claim of urgency today to justify the
summary seizure of real property under § 881(a)(7). Although the
Government relies to some extent on forfeitures as a means of
defraying law enforcement expenses, it does not, and we think could
not, justify the prehearing seizure of forfeitable real property as
necessary for the protection of its revenues.
D
The constitutional limitations we enforce in this case apply to
real property in general, not simply to residences. That said, the
case before us well illustrates an essential principle:
Individual freedom finds tangible expression in property rights.
At stake in this and many other forfeiture cases are the security
and privacy of the home and those who take shelter within it.
62
Finally, the suggestion that this one claimant must lose because
his conviction was known at the time of seizure, and because he
raises an as applied challenge to the statute, founders on a
bedrock proposition: Fair procedures are not confined to the
innocent. The question before us is the legality of the seizure,
not the strength of the Government's case.
In sum, based upon the importance of the private interests at
risk and the absence of countervailing Government needs, we hold
that the seizure of real property under § 881(a)(7) is not one of
those extraordinary instances that justify the postponement of
notice and hearing. Unless exigent circumstances are present, 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.3
To establish exigent circumstances, the Government must show
that less restrictive measures-i.
e., a
lis pendens,
restraining order, or bond-would not suffice to protect the
Government's interests in preventing the sale, destruction, or
continued unlawful use of the real property. We agree with the
Court of Appeals that no showing of exigent circumstances has been
made in this case, and we affirm its ruling that the
ex
parte seizure of Good's real property violated due process.
III
We turn now to the question whether a court must dismiss a
forfeiture action that the Government filed within the stat-
3 We do not address what sort of procedures are required for
preforfeiture seizures of real property in the context of criminal
forfeiture. See,
e. g., 21 U. S. C. § 853; 18 U. S.
C. § 1963 (1988 ed. and Supp. IV). We note, however, that the
federal drug laws now permit seizure before entry of a criminal
forfeiture judgment only where the Government persuades a district
court that there is probable cause to believe that a protective
order "may not be sufficient to assure the availability of the
property for forfeiture." 21 U. S. C. §853(f).
63
ute of limitations, but without complying with certain other
statutory timing directives.
Title 21 U. S. C. § 881(d) incorporates the "provisions of law
relating to the seizure, summary and judicial forfeiture, and
condemnation of property for violation of the customs laws." The
customs laws in turn set forth various timing requirements. Title
19 U. S. C. § 1621 contains the statute of limitations: "No suit or
action to recover any pecuniary penalty or forfeiture of property
accruing under the customs laws shall be instituted unless such
suit or action is commenced within five years after the time when
the alleged offense was discovered." All agree that the Government
filed its action within the statutory period.
The customs laws also contain a series of internal requirements
relating to the timing of forfeitures. Title 19 U. S. C. § 1602
requires that a customs agent "report immediately" to a customs
officer every seizure for violation of the customs laws, and every
violation of the customs laws. Section 1603 requires that the
customs officer "report promptly" such seizures or violations to
the United States attorney. And § 1604 requires the Attorney
General "forthwith to cause the proper proceedings to be commenced"
if it appears probable that any fine, penalty, or forfeiture has
been incurred. The Court of Appeals held, over a dissent, that
failure to comply with these internal timing requirements mandates
dismissal of the forfeiture action. We disagree.
We have long recognized that "many statutory requisitions
intended for the guide of officers in the conduct of business
devolved upon them ... do not limit their power or render its
exercise in disregard of the requisitions ineffectual."
French v.
Edwards, 13 Wall. 506, 511 (1872). We have
held that if a statute does not specify a consequence for
noncompliance with statutory timing provisions, the federal courts
will not in the ordinary course impose their own coercive sanction.
See
United States v.
Montalvo-Murillo, 495 U. S. 711, 717-721
(1990);
Brock v.
Pierce County, 476 U. S. 253,
64
259-262 (1986); see also
St. Regis Mohawk Tribe v.
Brock, 769 F.2d
37, 41 (CA2 1985) (Friendly, J.).
In
Montalvo-Murillo, for example, we considered the Bail
Reform Act of 1984, which requires an "immediat[e]" hearing upon a
pretrial detainee's "first appearance before the judicial officer."
18 U. S. C. § 3142(f). Because "[n]either the timing requirements
nor any other part of the Act [could] be read to require, or even
suggest, that a timing error must result in release of a person who
should otherwise be detained," we held that the federal courts
could not release a person pending trial solely because the hearing
had not been held "immediately." 495 U. S., at 716-717. We stated
that "[t]here is no presumption or general rule that for every duty
imposed upon the court or the Government and its prosecutors there
must exist some corollary punitive sanction for departures or
omissions, even if negligent."
Id., at 717 (citing
French, supra, at 511). To the contrary, we stated that
"[w]e do not agree that we should, or can, invent a remedy to
satisfy some perceived need to coerce the courts and the Government
into complying with the statutory time limits." 495 U. S., at
721.
Similarly, in
Brock, supra, we considered a statute
requiring that the Secretary of Labor begin an investigation within
120 days of receiving information about the misuse of federal
funds. The respondent there argued that failure to act within the
specified time period divested the Secretary of authority to
investigate a claim after the time limit had passed. We rejected
that contention, relying on the fact that the statute did not
specify a consequence for a failure to comply with the timing
provision.
Id., at 258-262.
Under our precedents, the failure of Congress to specify a
consequence for noncompliance with the timing requirements of 19 U.
S. C. §§ 1602-1604 implies that Congress intended the responsible
officials administering the Act to have discretion to determine
what disciplinary measures are appropriate when their subordinates
fail to discharge their statu-
65
tory duties. Examination of the structure and history of the
internal timing provisions at issue in this case supports the
conclusion that the courts should not dismiss a forfeiture action
for noncompliance. Because § 1621 contains a statute of
limitations-the usual legal protection against stale claimswe doubt
Congress intended to require dismissal of a forfeiture action for
noncompliance with the internal timing requirements of §§
1602-1604. Cf.
United States v.
$8,850, 461 U. S., at
563, n. 13.
Statutes requiring customs officials to proceed with dispatch
have existed at least since 1799. See Act of Mar. 2, 1799, § 89, 1
Stat. 695-696. These directives help to ensure that the Government
is prompt in obtaining revenue from forfeited property. It would
make little sense to interpret directives designed to ensure the
expeditious collection of revenues in a way that renders the
Government unable, in certain circumstances, to obtain its revenues
at all.
We hold that courts may not dismiss a forfeiture action filed
within the 5-year statute of limitations for noncompliance with the
internal timing requirements of §§ 1602-1604. The Government filed
the action in this case within the 5year statute of limitations,
and that sufficed to make it timely. We reverse the contrary
holding of the Court of Appeals.
IV
The case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA joins, and
with whom JUSTICE O'CONNOR joins as to Parts II and III, concurring
in part and dissenting in part.
I concur in Parts I and III of the Court's opinion and dissent
with respect to Part II. The Court today departs from longstanding
historical precedent and concludes that the
ex parte warrant
requirement under the Fourth Amendment
66
Opinion of REHNQUIST, C. J.
fails to afford adequate due process protection to property
owners who have been convicted of a crime that renders their real
property susceptible to civil forfeiture under 21 U. S. C. §
881(a)(7). It reaches this conclusion although no such adversary
hearing is required to deprive a criminal defendant of his liberty
before trial. And its reasoning casts doubt upon long settled law
relating to seizure of property to enforce income tax liability. I
dissent from this illconsidered and disruptive decision.
I
The Court applies the three-factor balancing test for evaluating
procedural due process claims set out in
Mathews v.
Eldridge, 424
U. S. 319 (1976), to reach its unprecedented holding. I reject
the majority's expansive application of
Mathews. Mathews
involved a due process challenge to the adequacy of administrative
procedures established for the purpose of terminating Social
Security disability benefits, and the
Mathews balancing test
was first conceived to address due process claims arising in the
context of modern administrative law. No historical practices
existed in this context for the Court to consider. The Court has
expressly rejected the notion that the
Mathews balancing
test constitutes a "one-size-fits-all" formula for deciding every
due process claim that comes before the Court. See
Medina v.
California, 505 U. S. 437 (1992)
(holding that the Due Process Clause has limited operation beyond
the specific guarantees enumerated in the Bill of Rights). More
importantly, the Court does not work on a clean slate in the civil
forfeiture context involved here. It has long sanctioned summary
proceedings in civil forfeitures. See,
e. g., Dobbins's
Distillery v.
United States, 96 U. S. 395 (1878)
(upholding seizure of a distillery by executive officers based on
ex parte warrant); and G.
M. Leasing Corp. v.
United States, 429 U. S. 338 (1977)
(upholding warrantless automobile seizures).
67
A
The Court's fixation on
Mathews sharply conflicts with
both historical practice and the specific textual source of the
Fourth Amendment's "reasonableness" inquiry. The Fourth Amendment
strikes a balance between the people's security in their persons,
houses, papers, and effects and the public interest in effecting
searches and seizures for law enforcement purposes.
Zurcher
v.
Stanford Daily, 436 U. S. 547, 559
(1978); see also
Maryland v.
Buie, 494 U. S. 325, 331
(1990); and
Skinner v.
Railway Labor Executives' Assn.,
489 U. S. 602, 619 (1989). Compliance with the standards and
procedures prescribed by the Fourth Amendment constitutes all the
"process" that is "due" to respondent Good under the Fifth
Amendment in the forfeiture context. We made this very point in
Gerstein v.
Pugh, 420 U. S. 103 (1975),
with respect to procedures for detaining a criminal defendant
pending trial:
"The historical basis of the probable cause requirement is quite
different from the relatively recent application of variable
procedural due process in debtor-creditor disputes and termination
of government-created benefits. The Fourth Amendment was tailored
explicitly for the criminal justice system, and its balance between
individual and public interests always has been thought to define
the 'process that is due' for seizures of person or property
in criminal cases, including the detention of suspects pending
trial." Id., at 125, n. 27 (emphasis added).
The
Gerstein Court went on to decide that while there
must be a determination of probable cause by a neutral magistrate
in order to detain an arrested suspect prior to trial, such a
determination could be made in a nonadversarial proceeding, based
on hearsay and written testimony.
Id., at 120. It is
paradoxical indeed to hold that a criminal defendant can be
temporarily deprived of liberty on the basis of an
ex
parte
68
Opinion of REHNQUIST, C. J.
probable-cause determination, yet respondent Good cannot be
temporarily deprived of property on the same basis. As we said in
United States v.
Monsanto, 491 U. S. 600, 615616
(1989):
"[I]t would be odd to conclude that the Government may not
restrain property, such as the home and apartment in respondent's
possession, based on a finding of probable cause, when we have held
that (under appropriate circumstances), the Government may restrain
persons where there is a finding of probable cause to
believe that the accused has committed a serious offense."
Similarly, in
Graham v.
Connor, 490 U. S. 386, 394-395
(1989), the Court faced the question of what constitutional
standard governs a free citizen's claim that law enforcement
officials used excessive force in the course of making an arrest,
investigatory stop, or other "seizure" of his person. We held that
the Fourth Amendment, rather than the Due Process Clause, provides
the source of any specific limitations on the use of force in
seizing a person: "Because the Fourth Amendment provides an
explicit textual source of constitutional protection against this
sort of physically intrusive governmental conduct, that Amendment,
not the more generalized notion of 'substantive due process' must
be the guide for analyzing these claims."
Id., at 395. The
"explicit textual source of constitutional protection" found in the
Fourth Amendment should also guide the analysis of respondent
Good's claim of a right to additional procedural measures in civil
forfeitures.
B
The Court dismisses the holdings of
Gerstein and
Graham as inapposite because they concern "the arrest or
detention of criminal suspects."
Ante, at 50. But we have
never held that the Fourth Amendment is limited only to criminal
proceedings. In
Soldal v.
Cook County, 506 U. S. 56, 67
(1992),
69
we expressly stated that the Fourth Amendment "applies in the
civil context as well." Our historical treatment of civil
forfeiture procedures underscores the notion that the Fourth
Amendment specifically governs the process afforded in the civil
forfeiture context, and it is too late in the day to question its
exclusive application. As we decided in
CaleroToledo v.
Pearson Yacht Leasing Co., 416 U. S. 663 (1974),
there is no need to look beyond the Fourth Amendment in civil
forfeiture proceedings involving the Government because
ex
parte seizures are" 'too firmly fixed in the punitive and
remedial jurisprudence of the country to be now displaced.'"
Id., at 686 (quoting
J. W Goldsmith, Jr.-Grant
Co. v.
United States, 254 U. S. 505, 510-511
(1921) (forfeiture not a denial of procedural due process despite
the absence of pre seizure notice and opportunity for a
hearing)).
The Court acknowledges the long history of
ex parte
seizures of real property through civil forfeiture, see
Phillips v.
Commissioner, 283 U. S. 589 (1931);
Springer v.
United States, 102 U. S. 586 (1881);
Murray's Lessee v.
Hoboken Land &
Improvement
Co., 18 How. 272 (1856);
United States v.
Stowell, 133 U.
S. 1 (1890); and
Dobbins's Distillery v.
United
States, 96 U. S.
395 (1878), and says "[w]ithout revisiting these cases,"
ante, at 59-whatever that means-that they appear to depend
on the need for prompt payment of taxes. The Court goes on to note
that the passage of the Sixteenth Amendment alleviated the
Government's reliance on liquor, customs, and tobacco taxes as
sources of operating revenue. Whatever the merits of this novel
distinction, it fails entirely to distinguish the leading case in
the field,
Phillips v.
Commissioner, supra, a
unanimous opinion authored by Justice Brandeis. That case dealt
with the enforcement of income tax liability, which the Court says
has replaced earlier forms of taxation as the principal source of
governmental revenue. There the Court said:
"The right of the United States to collect its internal revenue
by summary administrative proceedings has
70
Opinion of REHNQUIST, C. J.
long been settled. Where, as here, adequate opportunity is
afforded for a later judicial determination of the legal rights,
summary proceedings to secure prompt performance of pecuniary
obligations to the government have been consistently sustained."
Id., at 595 (footnote omitted).
"Where only property rights are involved, mere postponement of
the judicial enquiry is not a denial of due process, if the
opportunity given for the ultimate judicial determination of the
liability is adequate." Id., at 596-597.
Thus today's decision does not merely discard established
precedents regarding excise taxes, but deals at least a glancing
blow to the authority of the Government to collect income tax
delinquencies by summary proceedings.
II
The Court attempts to justify the result it reaches by expansive
readings of
Fuentes v.
Shevin, 407 U. S. 67 (1972), and
Connecticut v.
Doehr, 501 U. S. 1 (1991). In
Fuentes, the Court struck down state replevin procedures,
finding that they served no important state interest that might
justify the summary proceedings. 407 U. S., at 96. Specifically,
the Court noted that the tension between the private buyer's use of
the property pending final judgment and the private seller's
interest in preventing further use and deterioration of his
security tipped the balance in favor of a prior hearing in certain
replevin situations. "[The provisions] allow summary seizure of a
person's possessions when no more than private gain is directly at
stake."
Id., at 92. Cf.
Mitchell v.
W T. Grant
Co., 416 U. S.
600 (1974) (upholding Louisiana sequestration statute that
provided immediate postdeprivation hearing along with the option of
damages).
The Court in
Fuentes also was careful to point out the
limited situations in which seizure before hearing was
constitutionally permissible, and included among them "summary
71
seizure of property to collect the internal revenue of the
United States." 407 U. S., at 91-92 (citing
Phillips v.
Commissioner, supra). Certainly the present seizure is
analogous, and it is therefore quite inaccurate to suggest that
Fuentes is authority for the Court's holding in the
present case.
Likewise in
Doehr, the Court struck down a state statute
authorizing prejudgment attachment of real estate without prior
notice or hearing due to potential bias of the selfinterested
private party seeking attachment. The Court noted that the statute
enables one of the private parties to "'make use of state
procedures with the overt, significant assistance of state
officials,'" that involve state action" 'substantial enough to
implicate the Due Process Clause.'"
Connecticut v.
Doehr,
supra, at 11 (quoting
Tulsa Professional Collection
Services, Inc. v.
Pope, 485 U. S. 478, 486
(1988)). The Court concluded that, absent exigent circumstances,
the private party's interest in attaching the property did not
justify the burdening of the private property owner's rights
without a hearing to determine the likelihood of recovery. 501 U.
S., at 18. In the present case, however, it is not a private party
but the Government itself which is seizing the property.
The Court's effort to distinguish
Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U. S. 663 (1974), is
similarly unpersuasive. The Court says that "[c]entral to our
analysis in
Calero-Toledo was the fact that a yacht was the
'sort [of property] that could be removed to another jurisdiction,
destroyed, or concealed, if advance warning of confiscation were
given.'"
Ante, at 52 (quoting
Calero-Toledo, supra,
at 679). But this is one of the
three reasons given by the
Court for upholding the summary forfeiture in that case: The other
two-"fostering the public interest in preventing continued illicit
use of the property," and the fact that the "seizure is not
initiated by self-interested private parties; rather, Commonwealth
officials determine whether seizure is appropriate ... ," 416 U.
S., at 679-are both met in the present
72
Opinion of REHNQUIST, C. J.
case. And while not capable of being moved or concealed, the
real property at issue here surely could be destroyed or damaged.
Several dwellings are located on the property that was seized from
respondent Good, and these buildings could easily be destroyed or
damaged to prevent them from falling into the hands of the
Government if prior notice were required.
The government interests found decisive in
Calero-Toledo
are equally present here: The seizure of respondent Good's real
property serves important governmental purposes in combating
illegal drugs; a pre seizure notice might frustrate this statutory
purpose by permitting respondent Good to destroy or otherwise
damage the buildings on the property; and Government officials made
the seizure rather than selfinterested private parties seeking to
gain from the seizure. Although the Court has found some owners
entitled to an immediate postseizure administrative hearing, see,
e. g., Mitchell v.
W T. Grant Co.,
supra, not until the majority adopted the Court of Appeals
ruling have we held that the Constitution demanded notice and a
preseizure hearing to satisfy due process requirements in
civil forfeiture cases. *
III
This is not to say that the Government's use of civil forfeiture
statutes to seize real property in drug cases may not cause
hardship to innocent individuals. But I have grave
*Ironically, courts and commentators have debated whether even a
warrant should be required for civil forfeiture seizures,
not whether
notice and a
preseizure hearing should
apply. See,
e. g., Nelson, Should the Ranch Go Free Because
the Constable Blundered? Gaining Compliance with Search and Seizure
Standards in the Age of Asset Forfeiture, 80 Calif. L. Rev. 1309
(1992); Ahuja, Civil Forfeiture, Warrantless Property Seizures, and
the Fourth Amendment, 5 Yale L. & Policy Rev. 428 (1987); and
Comment, Forfeiture, Seizures and the Warrant Requirement, 48 U.
Chi. L. Rev. 960 (1981). Forcing the Government to notify the
affected property owners and go through a pre seizure hearing in
civil forfeiture cases must have seemed beyond the pale to these
commentators.
73
doubts whether the Court's decision in this case will do much to
alleviate those hardships, and I am confident that whatever social
benefits might flow from the decision are more than offset by the
damage to settled principles of constitutionallaw which are
inflicted to secure these perceived social benefits. I would
reverse the decision of the Court of Appeals
in toto.
JUSTICE O'CONNOR, concurring in part and dissenting in part.
Today the Court declares unconstitutional an act of the
Executive Branch taken with the prior approval of a Federal
Magistrate Judge in full compliance with the laws enacted by
Congress. On the facts of this case, however, I am unable to
conclude that the seizure of Good's property did not afford him due
process. I agree with the Court's observation in an analogous case
more than a century ago: "If the laws here in question involved any
wrong or unnecessary harshness, it was for Congress, or the people
who make congresses, to see that the evil was corrected. The remedy
does not lie with the judicial branch of the government."
Springer v.
United States, 102 U. S. 586, 594
(1881).
I
With respect to whether 19 U. S. C. §§ 1602-1604 impose a
timeliness requirement over and above the statute of limitations, I
agree with the dissenting judge below that the Ninth Circuit
improperly "converted a set of housekeeping rules for the
government into statutory protection for the property of
malefactors."
971 F.2d
1376, 1384 (1992). I therefore join Parts I and III of the
Court's opinion.
I cannot agree, however, that under the circumstances of this
case-where the property owner was previously convicted of a drug
offense involving the property, the Government obtained a warrant
before seizing it, and the residents were not dispossessed-there
was a due process violation
74
Opinion of O'CONNOR, J.
simply because Good did not receive pre seizure notice and an
opportunity to be heard. I therefore respectfully dissent from Part
II of the Court's opinion; I also join Parts II and III of the
opinion of THE CHIEF JUSTICE.
II
My first disagreement is with the Court's holding that the
Government must give notice and a hearing before seizing
any
real property prior to forfeiting it. That conclusion is
inconsistent with over a hundred years of our case law. We have
already held that seizure for purpose of forfeiture is one of those
"extraordinary situations,"
Fuentes v.
Shevin,
407 U. S. 67, 82
(1972) (internal quotation marks omitted), in which the Due Process
Clause does not require predeprivation notice and an opportunity to
be heard.
Calero-Toledo v.
Pearson Yacht Leasing Co.,
416 U. S. 663,
676-680 (1974). As we have recognized,
Calero-Toledo
"clearly indicates that due process does not require federal
[agents] to conduct a hearing before seizing items subject to
forfeiture."
United States v.
$8,850, 461 U. S. 555, 562, n. 12
(1983); see also
United States v.
Von Neumann,
474 U. S. 242,
249, n. 7 (1986). Those cases reflect the commonsense notion that
the property owner receives all the process that is due at the
forfeiture hearing itself. See
id., at 251 ("[The
claimant's] right to a [timely] forfeiture proceeding ... satisfies
any due process right with respect to the [forfeited property]");
Windsor v.
McVeigh, 93 U. S. 274, 279
(1876).
The distinction the Court tries to draw between our precedents
and this case-the only distinction it
can draw-is that real
property is somehow different than personal property for due
process purposes. But that distinction has never been considered
constitutionally relevant in our forfeiture cases. Indeed, this
Court rejected precisely the same distinction in a case in which we
were presented with a due process challenge to the forfeiture of
real property for back taxes:
75
"The power to distrain personal property for the payment of
taxes is almost as old as the common law .... Why is it not
competent for Congress to apply to realty as well as personalty the
power to distrain and sell when necessary to enforce the payment of
a tax? It is only the further legitimate exercise of the same power
for the same purpose." Springer, supra, at 593-594.
There is likewise no basis for distinguishing between real and
personal property in the context of forfeiture of property used for
criminal purposes. The required nexus between the property and the
crime-that it be used to commit, or facilitate the commission of, a
drug offense-is the same for forfeiture of real and personal
property. Compare 21 U. S. C. §881(a)(4) with §881(a)(7); see
Austin v.
United States, 509 U. S. 602, 619-622
(1993) (construing the two provisions equivalently). Forfeiture of
real property under similar circumstances has long been recognized.
Dobbins's Distillery v.
United States, 96 U. S. 395, 399 (1878)
(upholding forfeiture of "the real estate used to facilitate the
[illegal] operation of distilling"); see also
United States
v.
Stowell, 133
U. S. 1 (1890) (upholding forfeiture of land and buildings used
in connection with illegal brewery).
The Court attempts to distinguish our precedents by
characterizing them as being based on "executive urgency."
Ante, at 60. But this case, like all forfeiture cases, also
involves executive urgency. Indeed, the Court in
CaleroTo
ledo relied on the same cases the Court disparages:
"[D]ue process is not denied when postponement of notice and
hearing is necessary to protect the public from contaminated food,
North American [Cold] Storage Co. v. Chicago,
211 U. S. 306
(1908); ... or to aid the collection of taxes, Phillips v.
Commissioner, 283 U. S. 589 (1931); or
the war effort, United States v. Pfitsch, 256 U. S.
547 (1921)." 416 U. S., at 679.
76
Opinion of O'CONNOR, J.
The Court says that there is no "plausible claim of urgency
today to justify the summary seizure of real property under §
881(a)(7)."
Ante, at 61. But we said precisely the opposite
in
Calero-Toledo: "The considerations that justified
postponement of notice and hearing in those cases are present
here." 416 U. S., at 679. The
only distinction between this
case and
Calero-Toledo is that the property forfeited here
was realty, whereas the yacht in
Calero-Toledo was
personalty.
It is entirely spurious to say, as the Court does, that
executive urgency depends on the nature of the property sought to
be forfeited. The Court reaches its anomalous result by
mischaracterizing
Calero-Toledo, stating that the movability
of the yacht there at issue was "[c]entral to our analysis."
Ante, at 52. What we actually said in
Calero-Toledo,
however, was that "pre seizure notice and hearing might frustrate
the interests served by [forfeiture] statutes, since the property
seized-as here, a yacht-will
often be of a sort that could
be removed to another jurisdiction, destroyed, or concealed, if
advance warning of confiscation were given." 416 U. S., at 679
(emphasis added). The fact that the yacht could be sunk or sailed
away was relevant to, but hardly dispositive of, the due process
analysis. In any event, land and buildings
are subject to
damage or destruction. See
ante, at 72 (REHNQUIST, C. J.,
concurring in part and dissenting in part). Moreover, that was just
one of the three justifications on which we relied in upholding the
forfeiture in
Calero-Toledo. The other two-the importance of
the governmental purpose and the fact that the seizure was made by
government officials rather than private parties-are without a
doubt equally present in this case, as THE CHIEF JUSTICE'S opinion
demonstrates.
Ante, at 71-72.
III
My second disagreement is with the Court's holding that the
Government acted unconstitutionally in seizing
this real
77
property for forfeiture without giving Good prior notice and an
opportunity to be heard. I agree that the due process inquiry
outlined in
Mathews v.
Eldridge, 424 U. S. 319, 335
(1976)-which requires a consideration of the private interest
affected, the risk of erroneous deprivation and the value of
additional safeguards, and the Government's interestprovides an
appropriate analytical framework for evaluating whether a
governmental practice violates the Due Process Clause
notwithstanding its historical pedigree. Cf.
Medina v.
California, 505 U. S. 437, 453 (1992)
(O'CONNOR, J., concurring in judgment). But this case is an
as
applied challenge to the seizure of Good's property; on these
facts, I cannot conclude that there was a constitutional
violation.
The private interest at issue here-the owner's right to control
his property-is significant. Cf.
Connecticut v.
Doehr, 501 U. S.
1, 11 (1991) ("[T]he property interests that attachment affects
are significant"). Yet the preforfeiture intrusion in this case was
minimal. Good was not living on the property at the time, and there
is no indication that his possessory interests were in any way
infringed. Moreover, Good's tenants were allowed to remain on the
property. The property interest of which Good was deprived was the
value of the rent during the period between seizure and the entry
of the judgment of forfeiture-a monetary interest identical to that
of the property owner in
United States v.
$8,850,
461 U. S. 555
(1983), in which we stated that preseizure notice and hearing were
not required.
The Court emphasizes that people have a strong interest in their
homes.
Ante, at 53-55, 61. But that observation confuses the
Fourth and the Fifth Amendments. The "sanctity of the home"
recognized by this Court's cases,
e. g.,
Pay
ton v.
New York, 445 U. S. 573, 601
(1980), is founded on a concern with governmental
intrusion
into the owner's possessory or privacy interests-the domain of the
Fourth Amendment. Where, as here, the Government obtains a warrant
supported by probable cause, that concern is allayed. The
78
Opinion of O'CONNOR, J.
Fifth Amendment, on the other hand, is concerned with
deprivations of property interests; for due process
analysis, it should not matter whether the property to be seized is
real or personal, home or not. The relevant inquiry is into the
governmental interference with the owner's interest in whatever
property is at issue, an intrusion that is minimal here.
Moreover, it is difficult to see what advantage a pre seizure
adversary hearing would have had in this case. There was already an
ex parte hearing before a magistrate to determine whether
there was probable cause to believe that Good's property had been
used in connection with a drug trafficking offense. That hearing
ensured that the probable validity of the claim had been
established. Cf.
Sniadach v.
Family Finance Corp. of Bay
View, 395 U. S.
337, 343 (1969) (Harlan, J., concurring). The Court's concern
with innocent owners (see
ante, at 55-56) is completely
misplaced here, where the warrant affidavit indicated that the
property owner had already been convicted of a drug offense
involving the property. See App. 29-31.
At any hearing-adversary or not-the Government need only show
probable cause that the property has been used to facilitate a drug
offense in order to seize it; it will be unlikely that giving the
property owner an opportunity to respond will affect the
probable-cause determination. Cf.
Gerstein v.
Pugh,
420 U. S. 103,
121-122 (1975). And we have already held that property owners have
a due process right to a prompt postseizure hearing, which is
sufficient to protect the owner's interests. See
$8,850,
supra, at 564-565;
Von Neumann, 474 U. S., at 249.
The Government's interest in the property is substantial.
Good's use of the property to commit a drug offense conveyed all
right and title to the United States, although a judicial decree of
forfeiture was necessary to perfect the Government's interest. See
United States v.
Parcel of Rumson, N.
J.,
Land, 507 U.
S. 111, 125-127 (1993) (plurality opinion); cf.
Doehr,
supra, at 16 (noting that the plaintiff
79
"had no existing interest in Doehr's real estate when he sought
the attachment"). Seizure allowed the Government to protect its
inchoate interest in the property itself. Cf.
Mitchell v. w:
T. Grant Co., 416 U. S. 600, 608-609
(1974).
Seizure also permitted the Government "to assert
in rem
jurisdiction over the property in order to conduct forfeiture
proceedings, thereby fostering the public interest in preventing
continued illicit use of the property and in enforcing criminal
sanctions."
Calero-Toledo, 416 U. S., at 679 (footnote
omitted); see also
Fuentes, 407 U. S., at 91, n. 23, citing
Ownbey v.
Morgan, 256 U. S. 94 (1921). In
another case in which the forfeited property was land and
buildings, this Court stated:
"Judicial proceedings in rem, to enforce a forfeiture,
cannot in general be properly instituted until the property
inculpated is previously seized by the executive authority, as it
is the preliminary seizure of the property that brings the same
within the reach of such legal process." Dobbins's
Distillery, 96 U. S., at 396, citing The Brig Ann, 9
Cranch 289 (1815).
The Government in
Dobbins's Distillery proceeded almost
exactly as it did here: The United States Attorney swore out an
affidavit alleging that the premises were being used as an illegal
distillery, and thus were subject to forfeiture; a federal judge
issued a seizure warrant; a deputy United States marshal seized the
property by posting notices thereon admonishing anyone with an
interest in it to appear before the court on a stated date; and the
court, after a hearing at which Dobbins claimed his interest,
ordered the property forfeited to the United States. See Record in
Dobbins's Distillery v.
United States, No. 145, O. T.
1877, pp. 2-8, 3739, 46-48. The Court noted that "[d]ue executive
seizure was made in this case of the distillery and of the real and
personal property used in connection with the same." 96 U. S., at
396.
80
Opinion of THOMAS, J.
The Court objects that the rule has its origins in admiralty
cases, and has no applicability when the object of the forfeiture
is real property. But Congress has specifically made the customs
laws applicable to drug forfeitures, regardless of whether the
Government seeks to forfeit real or personal property. 21 U. S. C.
§881(d); cf.
Tyler v.
Defrees, 11 Wall. 331, 346
(1871) ("Unquestionably, it was within the power of Congress to
provide a full code of procedure for these cases [involving the
forfeiture of real property belonging to rebels], but it chose to
[adopt], as a general rule, a wellestablished system of
administering the law of capture"). Indeed, just last Term, we
recognized in a case involving the seizure and forfeiture of real
property that "it long has been understood that a valid seizure of
the res is a prerequisite to the
initiation of an
in
rem civil forfeiture proceeding."
Republic Nat. Bank of
Miami v.
United States, 506 U. S. 80, 84
(1992).
Finally, the burden on the Government of the Court's decision
will be substantial. The practical effect of requiring an adversary
hearing before seizure will be that the Government will conduct the
full forfeiture hearing on the merits before it can claim its
interest in the property. In the meantime, the Government can
protect the important
federal interests at stake only
through the vagaries of state laws. And while under the current
system only a few property owners contest the forfeiture, the
Court's opinion creates an incentive and an opportunity to do so,
thus increasing the workload of federal prosecutors and courts.
For all these reasons, I would reverse the judgment of the Court
of Appeals. I therefore respectfully dissent from Part II of the
opinion of the Court.
JUSTICE THOMAS, concurring in part and dissenting in part.
Two fundamental considerations seem to motivate the Court's due
process ruling: first, a desire to protect the
81
rights incident to the ownership of real property, especially
residences, and second, a more implicitly expressed distrust of the
Government's aggressive use of broad civil forfeiture statutes.
Although I concur with both of these sentiments, I cannot agree
that Good was deprived of due process of law under the facts of
this case. Therefore, while I join Parts I and III of the Court's
opinion, I dissent from Part II.
Like the majority, I believe that "[i]ndividual freedom finds
tangible expression in property rights."
Ante, at 61. In my
view, as the Court has increasingly emphasized the creation and
delineation of entitlements in recent years, it has not always
placed sufficient stress upon the protection of individuals'
traditional rights in real property. Although I disagree with the
outcome reached by the Court, I am sympathetic to its focus on the
protection of property rights-rights that are central to our
heritage. Cf.
Payton v.
New York, 445 U. S. 573, 601 (1980)
("[R]espect for the sanctity of the home ... has been embedded in
our traditions since the origins of the Republic");
Entick
v.
Carrington, 19 How. St. Tr. 1029, 1066 (C. P. 1765) ("The
great end, for which men entered into society, was to secure their
property").
And like the majority, I am disturbed by the breadth of new
civil forfeiture statutes such as 21 U. S. C. § 881(a)(7), which
subjects to forfeiture
all real property that is used, or
intended to be used, in the commission, or even the
facilitation, of a federal drug offense. 1 As JUSTICE
O'CONNOR
1 Other courts have suggested that Government agents, and the
statutes under which they operate, have gone too far in the civil
forfeiture context. See,
e. g., United States v.
All
Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 905
(CA2 1992) ("We continue to be enormously troubled by the
government's increasing and virtually unchecked use of the civil
forfeiture statutes and the disregard for due process that is
buried in those statutes");
United States v.
One Parcel
of Property, 964 F.2d
814, 818
(CA8 1992) ("[W]e are troubled by the
government's view that
any property,
82
Opinion of THOMAS, J.
points out,
ante, at 74-76, since the Civil War we have
upheld statutes allowing for the civil forfeiture of real property.
A strong argument can be made, however, that § 881(a)(7) is so
broad that it differs not only in degree, but in kind, from its
historical antecedents. See,
e. g., Brief for
Respondents 19-21. Indeed, it is unclear whether the central theory
behind
in rem forfeiture, the fiction "that the thing is
primarily considered the offender,"
J. W Goldsmith,
Jr.-Grant Co. v.
United States, 254 U. S. 505, 511
(1921), can fully justify the immense scope of § 881(a)(7). Under
this provision, "large tracts of land [and any improvements
thereon] which have no connection with crime other than being the
location where a drug transaction occurred," Brief for Respondents
20, are subject to forfeiture. It is difficult to see how such real
property is necessarily in any sense "guilty" of an offense, as
could reasonably be argued of, for example, the distillery in
Dobbins's Distillery v.
United States, 96 U. S. 395 (1878), or
the pirate vessel in
Harmony v.
United States, 2 How.
210 (1844). Given that current practice under § 881(a)(7) appears
to be far removed from the legal fiction upon which the civil
forfeiture doctrine is based, it may be necessary-in an appropriate
case-to reevaluate our generally deferential approach to
legislative judgments in this area of civil forfeiture.2
In my view, however, Good's due process claim does not present
that "appropriate" case. In its haste to serve laudable goals, the
majority disregards our case law and ignores
whether it be a hobo's hovel or the Empire State Building, can
be seized by the government because the owner, regardless of his or
her past criminal record, engages in a single drug transaction"),
rev'd
sub nom. Austin
2 Such a case may arise in the excessive fines context. See
Austin v.
United States, 509 U. S., at 628 (SCALIA, J., concurring
in part and concurring in judgment) (suggesting that "[t]he
relevant inquiry for an excessive forfeiture under [21 U. S.
C.] § 881 is the relationship of the property to the
offense: Was it close enough to render the property, under
traditional standards, 'guilty' and hence forfeitable?").
83
the critical facts of the case before it. As the opinions of THE
CHIEF JUSTICE,
ante, at 69-72, and JUSTICE O'CONNOR,
ante, at 74-76, persuasively demonstrate, the Court's
opinion is predicated in large part upon misreadings of important
civil forfeiture precedents, especially
Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U. S. 663 (1974).3 I
will not repeat the critiques found in the other dissents, but will
add that it is twice puzzling for the majority to explain cases
such as
Springer v.
United States, 102 U. S. 586 (1881), and
Dobbins's Distillery, supra, as depending on the Federal
Government's urgent need for revenue in the 19th century. First, it
is somewhat odd that the Court suggests that the Government's
financial concerns might justifiably control the due process
analysis, see
ante, at 59-60, and second, it is difficult to
believe that the prompt collection of funds was more essential to
the Government a century ago than it is today.
I agree with the other dissenters that a fair application of the
relevant precedents to this case would indicate that no due process
violation occurred. But my concerns regarding the legitimacy of the
current scope of the Government's real property forfeiture
operations lead me to consider these cases as only helpful to the
analysis, not dispositive. What convinces me that Good's due
process rights were not violated are the facts of this case-facts
that are disregarded by the Court in its well-intentioned effort to
protect "innocent owners" from mistaken Government seizures.
Ante, at 55. The Court forgets that "this case is an
as
applied challenge to the seizure of Good's property."
Ante, at 77 (O'CONNOR, J., concurring in part and dissenting
in part). In holding that the Government generally may not seize
real property prior to a final judgment of forfeiture, see
ante, at 59, 62, the
3 With scant support, the Court also dispenses with the ancient
jurisdictional rule that "a valid seizure of the res is a
prerequisite to the
initiation of an
in rem civil
forfeiture proceeding,"
Republic Nat. Bank of Miami v.
United States, 506 U. S. 80, 84 (1992),
at least in the case of real property. See
ante, at
57-58.
84
Opinion of THOMAS, J.
Court effectively declares that many of the customs laws are
facially unconstitutional as they apply under 21 U. S. C. § 881(d)
to forfeiture actions brought pursuant to § 881(a)(7). See,
e. g., 19 U. S. C. §§ 1602, 1605 (authorizing seizure
prior to adversary proceedings). We should avoid reaching beyond
the question presented in order to fashion a broad constitutional
rule when doing so is unnecessary for resolution of the case before
us. Cf.
Ashwander v.
TV A, 297 U. S. 288, 347 (1936)
(Brandeis, J., concurring). The Court's overreaching is
particularly unfortunate in this case because the Court's
solicitude is so clearly misplaced: Good is not an "innocent
owner"; he is a convicted drug offender.
Like JUSTICE O'CONNOR, I cannot agree with the Court that "under
the circumstances of this case-where the property owner was
previously convicted of a drug offense involving the property, the
Government obtained a warrant before seizing it, and the residents
were not dispossessedthere was a due process violation simply
because Good did not receive pre seizure notice and an opportunity
to be heard."
Ante, at 73-74 (O'CONNOR, J., concurring in
part and dissenting in part). Wherever the due process line
properly should be drawn, in circumstances such as these, a pre
seizure hearing is not required as a matter of constitutionallaw.
Moreover, such a hearing would be unhelpful to the property owner.
As a practical matter, it is difficult to see what purpose it would
serve. Notice, of course, is provided by the conviction itself. In
my view, seizure of the property without more formalized notice and
an opportunity to be heard is simply one of the many unpleasant
collateral consequences that follows from conviction of a serious
drug offense. Cf.
Price v.
Johnston, 334 U. S. 266, 285 (1948)
("Lawful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights").
It might be argued that this fact-specific inquiry is too
narrow. N arrow, too, however, was the first question pre-
85
sented to US for review.4 Moreover, when, as here, ambitious
modern statutes and prosecutorial practices have all but detached
themselves from the ancient notion of civil forfeiture, I prefer to
go slowly. While I sympathize with the impulses motivating the
Court's decision, I disagree with the Court's due process analysis.
Accordingly, I respectfully dissent.
4 "Whether the seizure of the respondent real property for
forfeiture, pursuant to a warrant issued by a magistrate judge
based on a finding of probable cause, violated the Due Process
Clause of the Fifth Amendment because the owner (who did not reside
on the premises) was not given notice and an opportunity for a
hearing prior to the seizure." Pet. for Cert. I.
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