In this lawsuit, Terry L. Madewell, pro se, brought a Bivens аction against agents of the federal Drug Enforcement Administration (DEA) and an action pursuant to 42 U.S.C. § 1983 against members of the Missouri State Highway Patrol (MSHP). Madewell alleged violation of his Fifth Amendment right to due process in the DEA’s “adoption” and administrative forfeiture, pursuant to 21 U.S.C. § 881, of currency seized by the MSHP during Madewell’s arrest on a state charge of conspiracy to distribute marijuana and methamphetamine, and violation of his Fourteenth Amendment right to due process in the MSHP’s transfer of the seized property to the DEA. Madewell sought actual and punitive damages and return of the currency. In an unpublished opinion, the United States District Court for the Western District of Missouri, 1 granted summary judgment in fa *1034 vor of all defendants, and Madewell appealed. We affirm.
I.
A Factual Background
During the winter of 1988-89, plaintiff Terry Madewell was one of the subjects of an investigation by several county sheriffs offices and police departments in southwestern Missouri concerning a major drug conspiracy operating in the area. A warrant was eventually issued by the Missouri state district court for Lawrence County for Madewell’s arrest on a charge of conspiracy to distribute marijuana and methamphetamine. On January 17, 1989, Madewell was arrested by members of the MSHP in the town of Springfield, in Greene County, Missouri, on the warrant issued by the Lawrence County district court. During the arrest, a small quantity of marijuana was found in the pocket of Madewell’s jacket. In addition, $9,400 in U.S. currency was found on the seat of Madеwell’s truck. Madewell initially denied any knowledge or ownership of either the marijuana or the money. However, he later testified that he was taking the money to his attorney. The truck and the currency were both seized by the MSHP. Additional charges for possession of the marijuana were filed against Madewell in Greene County district court.
On March 29, 1989, Madewell filed a motion pursuant to Mo.Rev.Stat. § 542.301 2 in the course of his criminal prosecution in Lawrence County for return of the seized property. The Lawrence County court held a hearing on the motion on June 7,1989, and on June 16,1989, ordered the State and “any of its officers or agents” to return the truck and the currency to Madewell. The defendants here were not parties to that proceeding. No appeal of the order entered by the Lawrence County court was ever filed, nor has any proceeding been instituted to enforce that court’s order.
During the pendency of Madewell’s motion in state court in Lawrence County, the MSHP’s seizure was “adopted” by the DEA. The details and timing of this “adoption” are of particular interest on this appeal. The suggestion that the seizure of the currency be adopted by the DEA arose in a telephone conversation between members of the MSHP, including defendant Prine, and DEA agent Mike Downs, who is also one of the defendants here. In a letter dated April 10, 1989, an Assistant United States Attorney, Richard Monroe, requested that defendant Prine “present [the property seized during Madewell’s arrest] to the DEA for adoptive administrative forfeiture” pursuant to discussions the correspondents had had with *1035 Downs. On April 18, 1989, the commanding officer of the MSHP, John H. Ford, wrote to Downs stating that the seized currency had been deposited in the MSHP’s Criminal Forfeiture Fund at a Missouri bank, and requesting that the MSHP receive 50% or more of the seized money because the MSHP had conducted that share of the investigation leading to the seizure. The money was turned over to the DEA on May 1, 1989, in the form of two cashier’s checks drawn on the Missouri bank, which show the remitter as the MSHP and the payee as the U.S. Marshal Service. The uncontradicted testimony of defendant Prine in the Lawrence County proceedings was that the checks were drawn by his supervisor, whom he identified as “Lt. Bob Asher.” There was no court order requiring or allowing the transfer from the state officials to the DEA.
William J. Snider, forfeiture counsel for the DEA, affirmed that DEA administrative forfeiture proceedings concerning the seized currency were initiated in April of 1989 pursuant to 21 U.S.C. § 881. A report on the forfeiture of the seized property was forwarded from Snider’s office to the DEA on July 13, 1989, and, finding that sufficient evidence to support administrative forfeiture had been provided by the DEA field office, thе ease was “accepted” for administrative forfeiture. On July 21,1989, the DEA sent a notice of seizure letter by certified mail to Madewell at his last known address in Springfield, Missouri. Notice to Madewell was sent to the address in Springfield, Missouri, because that was the address Made-well had given upon his arrest in Greene County. That letter was returned marked “Moved. Left no address.” Pursuant to regulations, the DEA then published the notice of seizure for three consecutive weeks in U.S.A. Today, beginning on July 26, 1989. No claims to the seized currency were ever received, and the money was administratively forfeited on December 7, 1989, pursuant to 21 U.S.C. § 881.
B. Procedural Background
Madewell filed his federal lawsuit on December 15, 1993, to recover the seized currency and damages for violation of his Fifth Amendment due process rights. Madewell named as defendants DEA agents Mike Downs and Anthony P. Grootens, and MSHP officers John Prine and Robert Asher. Madewell never obtained service on defendant Asher, because the MSHP notified Madewell that there was no such person by that name employed by the MSHP. Made-well also named as defendants two Lawrence County prosecutors, Scott Sifferman and Robert George. Madewell claimed that defendants violated his due process rights by improperly allowing DEA adoption of the seizure of the currency when the Missouri district court was entertaining proceedings concerning disposition of the property. Madewell also claimed that the DEA violated his due process rights, because the notice of the administrative forfeiture proceedings was sent to Madewell at the wrong address when his proper address was known to state and federal agents.
On December 16, 1993, the United States District Court dismissed George and Siffer-man on the ground that they had no legal obligation to enforce the Lawrence County court’s order for return of the currency to Madewell and on the ground that as prosecuting attorneys they were immune to a suit for damages brought pursuant to 42 U.S.C. § 1983. Madewell does not appeal that ruling here.
On March 31,1994, the federal defendants, Downs and Grootens, moved to dismiss Madewell’s complaint pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56(c) on the ground that there was no factual dispute and no legal basis for liability. It is the United States District Court’s grant of this motion on June 3, 1994, that Madewell appeals here. Although defendant Prine did not join in the motion to dismiss, he had sought dismissal for failure to state a claim in his answer to Madewell’s complaint. The district court included the MSHP defendants in its grant of summary judgment against Madewell.
C. The Decision Below
After a statement of the facts to which the parties had stipulated for the purposes of the *1036 summary judgment motion, the district court’s disposition of the motion, in its entirety, was as follows:
Patrolmen Asher and Prine turned the seized currency over to the Missouri State Highway Patrol which they were obligated to do. At that point they no longer had any obligation in regard to the seized currency. The Missouri State Highway Patrol is not subject to suit under 42 U.S.C. § 1983. Aubuchon v. Missouri,631 F.2d 581 , 582 (8th Cir.1980). Based upon the cases of United States v. $12,390.00,956 F.2d 801 (8th Cir.1992) and Conrod v. Missouri State Highway Patrol,810 S.W.2d 614 (Mo.App.1991). [Sic] The Patrol had the right to transfer the seized currency to the DEA and the DEA had the right to accept it. The defendants are entitled to summary judgment in this case. The order for summary judgment shall not be a bar to plaintiffs attempt to enforce the Lawrence County judgment against the State of Missouri. It is
ORDERED that the defendants’ motion for summary judgment is granted without prejudice to plaintiff if he chooses to try to enforce the Lawrence County judgment against the State of Missouri.
A timely appeal followed.
D. The Appeal
On appeal, Madewell asserts that the grant of summary judgment was erroneous on three separate grounds. 3 First, Madewell asserts that, contrary to the district court’s conclusions, his due process rights were violated by the DEA’s adoption of the seizure and transfer of the currency by the MSHP to the DEA. Specifically, in his brief Madewell states that the adoption was improper when “(a) a state court action had been filed before the transfer, in which the Appellant sought return of the property, (b) an order was issued by that court requiring return of the property to the Appellant, and (c) at no point did the Appellees pursue a state court order permitting turnover of the property from the State to the DEA.” Second, Madewell asserts that his due process rights were violated by the failure of the DEA to send notice of the administrative forfeiture to his proper address and reliance instead on publication of notice in U.S.A. Today. Again in his brief, Madewell specifies that the notice was improper when “(a) the Appellee DEA agents knew or should have known the Appellant’s then-current location, (b) the Appellee DEA agents knew or should have known the name and address of the Appellant’s attorney, and (c) the resulting constructive notice to the Appellant was in the form of boilerplate in three issues of USA Today.” Third, Made-well contends that entry of summary judgment in favor of defendants Prine and Asher was improper, because “it was done sua sponte and without prior notice to the Appellant.” The court will consider each of these grounds for reversal seriatim below. However, the court turns first to the standards applicable to an appeal from the entry of summary judgment.
II.
This court has identified the standards by which it decides whether to affirm or reverse the district court’s grant of summary judgment in a number of recent decisions. This court reviews a grant of summary judgment
de novo,
applying the same standards employed by the district court.
See, e.g., Nettles v. American Tel. & Tel. Co.,
III.
The court therefore turns first to the question of whether the district court properly held as a matter of law that Madewell’s due process rights were not violated by the adoption of the state seizure of the currency by the DEA and transfer by the MSHP of the funds seized to the DEA without a court order. The court turns first to the question of whether the DEA defendants, Downs and Grootens, violated Madewell’s due process rights by adopting the seizure of the currency and pursuing federal administrative forfeiture.
A. Due Process And Federal Adoption Of Seizures
The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, Title II, § 511, 84 Stat. 1276 (codified as amended at 21 U.S.C. § 881(a)), provides for the civil forfeiture of property that has been used either to facilitate illegal drug transactions or to acquire the proceeds of such criminal activity. However, to be subject to civil forfeiture under § 881, the property must fall into one of eight categories defined in § 881(a). The relevant category here, § 881(a)(6), has been described as “illicitly obtained wealth.”
Linarez v. United States Dep’t of Justice,
The civil forfeiture statute incorporates the forfeiture procedures found in the Tariff Act оf 1930, which governs customs forfeitures. 21 U.S.C. § 881(d);
5
United States v. Woodall,
A federal agency may adopt the seizure of property seized by another agency as related to illegal drug use or trafficking.
See
21 C.F.R. § 1316.91(l);
United States v. One Ford Coupe Auto.,
First, courts, including the United States Supreme Court, have held that the United States may adopt a seizure even when the person who seized the property had no authority to
seize
the property, or the initial seizure was constitutionally tainted.
United States v. One Ford Coupe Auto.,
Second, no preseizure notice or hearing is required before a federal agency may seize personal property subject to forfeiture for violation of federal drug laws.
United States v. $8,850 in United States Currency,
Third, courts have long held that a federal agency’s adoption of a seizure has the same effect as if the federal agency had originally seized the property on the date it was seized by the local authorities.
The Caledonian,
The foregoing cases establish that the due process concerns raised by a federal forfeiture are entirely separate from the adoption of the seizure of the property by federal agents. Because the DEA could adopt the seizure even if the MSHP was *1040 without authority to transfer the property seized, because due process does not require any notice prior to such an adoption, and because due process is not concerned with the identity of the sovereign seeking to forfeit the seized property, but with the forfeiture action itself, this court holds that Made-well’s due process rights were not violated by the DEA defendants when they adopted the seizure of the $9,400 in U.S. currency. The district court properly granted summary judgment in favor of the federal DEA agents, Downs and Grootens, on Madewell’s claim that those defendants violated his constitutional rights to due process by adopting the seizure.
B. Due Process And Transfer Of Seized Property From State To Federal Agencies
Although the court concludes that the DEA’s adoption of the seized currency did not violate Madewell’s due process rights, the question of whether the MSHP defendants violated Madewell’s due process rights when they transferred the currency to the DEA is a different question. In
United States v. Woodall,
At oral argument, the government asserted that the adoption procedure, by which local authorities voluntarily delivered the money to DEA, gave the agency jurisdiction to forfeit it under 21 U.S.C. § 881. That may well be true. See United States v. $12,390,956 F.2d 801 , 805 (8th Cir.1992). But it does not answer the question, by what authority under Missouri law and the Constitution did the St. Charles jailers, as bailees of an inmate’s money, surrender possession of that money to another sovereign, without notice or other due process to the inmate? That question is not before us.
Woodall,
Madewell argues that MSHP Officer Prine did not have the authority to release Made-well’s property to the DEA, because the ap-pellees failed to obtain permission from the state of Missouri to release the property and failed to acknowledge the Lawrence County court order requiring return of the property to Madewell. Madewell first attempts to distinguish the precedent cited by the court below. He argues that
United States v. $12,390,
Madewell relies heavily on the decision of the Seventh Circuit Court of Appeals in
*1041
United States v. One 1979 Chevrolet C-20 Van,
We find the law on what process attaches to the transfer of property from state officials to federal officials for the purposes of federal forfeiture somewhat unsettled. Nonetheless, some consistent strands lead us to conclude that there has been no due process violation here.
This court has not often encountered questions regarding a conflict between state jurisdiction over seized property and federal adoptive forfeiture of that property. However, in
$12,890,
this court considered an appeal from the district court’s award of money seized from the claimant’s home during execution of a state search warrant by local law enforcement officials to the federal government.
'$12,890,
*1042
The decision in
$12,390
therefore stands for at least two propositions. First, seizure of property pursuant to a state warrant does not establish exclusive state jurisdiction over the seized property preventing its voluntary transfer to federal authorities.
Accord United States v. Certain Real Property,
In
Scarabin v. Drug Enforcement Admin.,
Although Missouri now has a statute specifically requiring a turnover order from the court before transfer of property to federal control, 15 it did not have such a statute *1043 at the time of the events in question here. Contrary to Madewell’s assertions, the newly-enacted statute does not just make clear what had already been a requirement of Missouri law embodied in two other statutes enacted prior to 1989. Madewell asserts that the Missouri forfeiture statute, Mo.Rev.Stat. § 513.607 “stands alone” as establishing that state agencies obtain a forfeiture order for seized property. 16 That it assuredly does do, but requiring a court order for forfeiture pursuant to state law is a far cry from requiring an order for transfer of seized property to federal control for forfeiture pursuant to federal law. Here no state forfeiture, or “CAFA procedure,” pursuant to Mo.Rev. Stat. § 513.607 was ever commenced.
Madewell also asserts that Mo.Rev.Stat. § 542.301 established a turnover order requirement. Although Mo.Rev.Stat. § 542.301 did, and still does, provide that “property which comes into the custody of an officer or of a court as the result of any seizure and which has not been returned to the claimant shall be disposed of’ by court order “upon claim having been made and established, to the person who is entitled to possession,” and that such claim “shall be made by written motion filed with the court with which a motion to suppress has been, or may be, filed,” Mo.Rev.Stat. § 542.301 (emphasis added), this provision did not prevent voluntary transfer of property from state or local custody to federal custody in either $12,390 or Conrod.
Mo.Rev.Stat. § 542.301 brings us to the second proposition drawn from
$12,390
regarding the nature of the state proceeding that establishes the exclusive jurisdiction of the state over seized property. No such proceeding, which would have been pursuant to Mo.Rev.Stat. § 513.607, was ever commenced in Missouri state court concerning the property at issue here. A motion fоr return of property pursuant to Mo.Rev.Stat. § 542.301 is more analogous to a motion for return of property pursuant to
Fed. R.Crim.P.
41(e)
17
than to a state forfeiture
*1044
or other
in rem
proceeding. A number of federal courts have held, and we agree, that an action pursuant to
Fed.R.Crim.P.
41(e) does not deprive the DEA or the federal court of jurisdiction over a civil forfeiture action.
Linarez,
As a final contention, Madewell argues that “the logic and reasoning” of C-20 Van is that “fundamental due process” requires that property not be passed from local to federal agencies without a court giving its blessing. What fundamental due process requires, or more specifically, what the Fifth Amendment requires, is that persons not be deprived of property without due process of law. U.S. Const, amend. V. Adherence to the requirements of 21 U.S.C. § 881 provides the due process protections necessary to ensure that persons are not unconstitutionally deprived of property.
Having found nothing in Missouri law establishing a due process requirement of a “turnover” order before property may be transferred by state authorities to federal authorities, we confront three further issues that need detain us only briefly concerning Madewell’s first allegation of error. Made-well asserts that a further due process re
*1045
quirement prior to transfer of seized property to federal control is that there be a judicial determination that the seized property was connected with a drug transaction. We do not find such a requirement stated or suggested in the eases Madewell was attempting to distinguish from his own circumstances.
See $12,390,
Finally, we have considerable doubt that even if we had determined that due process requirements for transfer of the seized property to federal control had not been met in this ease, Madewell would have been entitled to any relief. The uncontradicted testimony of defendant Prine in the Lawrence County proceedings was that the transfer to federal control was actually made by his supervisor, whom he identified as “Lt. Bob Asher,” who drew the cashier’s checks in favor of the U.S. Marshal Service. The district court in fact found that Prine had turned over the seized property to his superiors at the MSHP and thereafter had no obligation with regard to the seized property. Defendant Asher has never been identified or served in this lawsuit. Therefore, no relief could be granted in Madewell’s favor against any of the defendants before the court at the time the district court granted summary judgment in favor of the defendants on Madewell’s claim that the transfer violated his due process rights. We therefore reject Madewell s first claim of error.
IY.
We turn next to the “fundamental due process” question of what process was due Madewell before he could be deprived of the $9,400 in federal administrative forfeiture proceedings. Madewell asserts that his due process rights were violated by the forfeiture, because the DEA faded to send notice of the administrative forfeiture to his proper address and instead relied on publication of notice in U.S.A. Today when (a) the DEA agents knew or should have known his then-current location, (b) the DEA agents knew or should have known the name and address of Madewell’s attorney, and (c) the resulting constructive notice to Madewell was in the form of boilerplate in three issues of U.S.A. Today.
This court most recently commented on the notice requirements for administrative forfeiture in Woodall:
Under this procedure, DEA must publish notice of its intent to forfeit in a newspaper of general circulation once a week for at least three successive weeks, and must send “[wjritten notice of seizure together with information on the applicable procedures ... to each party who appears to have an interest in the seized article.” 19 U.S.C. § 1607(a).
If no party files a claim asserting an interest in the property within twenty days of the first publication, DEA may declare *1046 the property forfeited. See 19 U.S.C. § 1609.... However, if a proper claim is filed, DEA must refer the proceeding “to the United States attorney for the district in which seizure was made, who shall proceed to a condemnation of the merchandise or other property in the manner prescribed by law.” 19 U.S.C. § 1608; see also 21 C.F.R. § 1316.78.
Woodall,
In Woodall, this court, examining the notice requirement for administrative forfeiture, said,
[T]he Constitution requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane [v. Central Hanover Trust Co.], 339 U.S. [306,] 314, 70 S.Ct. [652,] 657, [94 L.Ed. 865 (1950)]. Whether notice was adequate is measured at the time the notice was sent. See Sarit v. Drug Enforcement Admin.,987 F.2d 10 , 14 (1st Cir.), cert. denied, — U.S. -,114 S.Ct. 241 ,126 L.Ed.2d 195 (1993).
When the government has actual knowledge of an interested party’s whereabouts at the time forfeiture is commenced, failure to direct the statutorily required personal notice to that address cannot be considered compliance with either the statute or minimum due process standards. See Mennonite Bd. of Missions v. Adams,462 U.S. 791 , 800,103 S.Ct. 2706 , 2712,77 L.Ed.2d 180 (1983).... Moreover, if the government is incarcerating or prosecuting the property owner when it elects to impose the additional burden of defending a forfeiture proceeding, fundamental fairness surely requires that either the defendant or his counsel receive actual notice of the agency’s intent to forfeit in time to decide whether to compel the agency to proceed by judicial condemnation....
Woodall,
In this case, the DEA sent the notice of forfeiture to Madewell at the address he had given after his arrest and seizure of the property in question. Madewell was not in federal custody, was not being prosecuted for federal offenses, and no federal court had ordered Madewell’s release to an address different from the one Madewell had given after his arrest.
Compare Woodall,
When the DEA received the returned notice, they properly pursued notice by publication as authorized by 19 U.S.C. § 1607(a).
Woodall,
y.
Finally, we turn to Madewell’s assertion that the district court improрerly entered summary judgment in favor of all defendants, when the MSHP defendants had not moved for summary judgment, and Madewell asserts that he had no notice that Prine’s assertion of an affirmative defense of failure to state a claim in Prine’s answer would be treated as a motion for summary judgment, or that the court would sua sponte grant summary judgment in favor of the MSHP defendants. We find no error.
We consider first whether the court improperly converted Prine’s request for dismissal in his answer into a motion for summary judgment. Madewell assumes that *1048 the court treated the affirmative defense as a motion pursuant to Fed.R.Civ.P. 12(b)(6). 21 Federal Rule of Civil Procedure 12(b) states that
If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P.
12(b). In
Angel v. Williams,
In the present case, the lack of any affirmative notice by the court that it was considering Prine’s assertion that Madewell had failed to state a claim upon which relief can be granted as a motion for summary judgment is not fatal.
Angel,
Apparently arguing in the alternative that there was no motion by Prine that could be converted into a motion for summary judgment, Madewell asserts that the court was without power to grant summary judgment in favor of Prine
sua sponte.
This court has often held that such a grant of summary judgment is proper only where the “ ‘party against whom judgment will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgment should not be granted.’ ”
Shur-Value Stamps, Inc. v. Phillips Petroleum Co.,
MSHP defendant Prine directs us to two decisions in which this court determined that the district court had properly granted summary judgment
sua sponte
in favor of non-moving parties based on the motions for summary judgment filed by other parties.
See McNees v. Mountain Home, Ark.,
In
Cathey,
the district court properly granted summary judgment
sua sponte
in favor of non-moving cross-claimant defendants where the losing party had sufficient notice in the form of the summary judgment motion by the plaintiff, and both cross-claimant defendants’ and plaintiff’s right to summary judgment turned on the same issue.
Cathey,
In the present ease, Madewell was certainly on notice that summary disposition was sought on the asserted inadequacy of the factual and legal bases for his claims. All defendants had asserted, either in answer to
*1050
Madewell’s complaint, or by motion for summary judgment, that they were entitled to judgment as a matter of law. It was not necessary that the court identify the issues upon which summary disposition was asserted, because the parties had.
Demerath Land Co.,
48 F.Sd at 355. Madewell had availed himself of opportunities to address the legal and factual arguments of the defendants in his response to Prine’s answer and his resistance to the DEA defendants’ motion.
See, e.g., Shur-Value Stamps, Inc.,
Although Prine’s liability was not “derivative” of any liability of the DEA defendants,
compare McNees
at 1361-62, it was founded on the same body of undisputed facts, and the facts and law related to claims against all defendants were fully argued by the parties.
Id.
Although this court has distinguished between the questions of whether the adoption, on the one hand, and the transfer, on the other, were proper, the liability of all of the defendants depended on the issue of whether Madewell’s due process rights had been violated in the circumstances leading to federal administrative forfeiture of property seized by state officials.
Compare Cathey,
CONCLUSION
We hold that there was no due process violation in either the DEA’s adoption of the seized property at issue here or in the MSHP’s transfer of the seized property to the DEA without a turnover order. We hold further that the DEA provided adequate notice of the administrative forfeiture of the seized property by sending notice to the last address known to them and that there was no basis for them to know of or discover Madewell’s residence at a different address. Finally, we hold that the district court properly entered summary judgment in favor of all defendants although only the DEA defendants had specifically moved for summary judgment. The district court’s grant of summary judgment was therefore proper on all grounds Madewell has claimed as error here. Finding no error, the judgment of the district court is affirmed.
Notes
. The HONORABLE RUSSELL G. CLARK, United States District Judge.
. In 1989, Mo.Rev.Stat. § 542.301 provided in pertinent part as follows:
1. Unless the statute authorizing seizure provides otherwise, property which comes into the custody of an officer or of a court as the result of any seizure and which has not been returned to the claimant shall be disposed of as follows:
(1) Stolen property, or property acquired in any other manner declared an offense by chapters 569 and 570, RSMo, but not including any of the property referred to in subsection 2 of this section [i.e., property not including weapons, tools, devices, and substances used by the owner or with the owner’s consent as a means for committing felonies other than possessing burglary tools], shall be delivered by order of court upon claim having been made and established, to the person who is entitled to possession;
(2) The claim shall be made by written motion filed with the court with which a motion to suppress has been, or may be, filed. The claim shall be barred if not made within one year from the date of the seizure;
(3) Upon the filing of such motion, the judge shall order notice to be given to all persons interested in the property, including other claimants and the person from whose possession the property was seized, of the time, place and nature of the hearing to be held on the motion. The notice shall be given in a manner reasonably calculated to reach the attention of all interested persons. Notice may be given to unknown persons and to persons whose address is unknown by publication in a newspaper of general circulation in the county. No property shall be delivered to any claimant unless all interested persons have been given a reasonable opportunity to appear and to be heard;
(4) After a hearing, the judge shall order the property delivered to the person or persons entitled to possession, if any. The judge may direct that delivery of property required as evidence in a criminal proceeding shall be postponed until the need no longer exists....
Mo.Rev.Stat. § 542.301 has not been amended since 1989.
. Counsel was appointed to represent Madewell on this appeal. This court appreciates the able and conscientious representation counsel has provided Madewell.
. Section 881(a)(6) provides for forfeiture to the United States of the following:
All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this sub-chapter, except that no property shall be forfeited under this paragraph, to the extent of the 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.
21 U.S.C. § 881(a)(6).
. Title 21 U.S.C. § 881(d) provides as follows:
The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchaptеr by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.
The text of this provision was the same in 1989 as it is now, having last been amended in 1984 to add "any of” following "incurred, under.” Pub.L. 98-473, § 306(d).
. In
One 1977 Mercedes Benz,
the Ninth Circuit Court of Appeals held that any unconstitutional conduct by local officials in seizing drug-related property is "iiTelevant" to the power of the federal government to forfeit the property where the government can establish the requirements for forfeiture with evidence untainted by any constitutional violation by the local officials who initially seized the property.
One 1977 Mercedes Benz,
. In
Winston-Salem/Forsyth County Bd. of Educ.,
the Fourth Circuit Court of Appeals came to the conclusion that the DEA’s adoption of a seizure .of cash was proper despite a North Carolina statute that provided that "property seized by a law enforcement officer must be kept ‘under the direction of the court or magistrate as long as necessary to assure that the property will be produced at and may be used as evidence at any trial.' ”
Winston-Salem/Forsyth County Bd. of Educ.,
. The Supreme Court recently established, however, that pre-seizure notice is required for the pre-forfeiture seizure of real property in
United States v. James Daniel Good Real Property,
- U.S. -, -,
. This court’s conclusion on the import of the "adoption principle” on state court actions prior to the actual adoption must be contrasted with the effect given the principle by some district courts.
See, e.g., Certain Real Property Known as Lot B,
.We will return to the due process concerns involved in the forfeiture itself when we turn to Madewell’s notice arguments.
. Madewell's arguments are summarized as follows:
The bottom line in this action is that the Appellees never had authority to transfer Mr. Madewell's property from the Missouri State Highway Patrol to the DEA. The property apparently was simply handed over to the DEA in May of 1989 on the authority of a phone call, even though the DEA had not yet decided to accept the case for administrative forfeiture. See DR 9(a) at 62-64; DR 8 (Snider Declaration § 4(a)). Moreover, the same state court before which Appellee Prine testified affirmatively ordered that the property be returned to Terry Madewell, and still the Appellees did not act to return the properly. They did not even send their initial notice of forfeiture proceedings until July 21, 1989, over a month after the Lawrence County Circuit Court directed that the property be returned.
Appellant's Brief, p. 17.
. Madewell then attacks the sufficiency of the evidence of a connection between the money and a drug transaction, a matter that is plainly not before the court here.
. It was, and is, well-settled law that only one court may have jurisdiction over the
res
in an
in rem
proceeding, and therefore the first court to obtain
in rem
jurisdiction maintains it to the exclusion of all others, whether that court be state or federal.
$12,390,
. In
$12,390,
this court made no distinction between control of the actual currency seized and control of the funds representing that currency.
$12,390,
. Missouri recently passed Mo.Rev.Stat. § 513.647, which states as follows:
513.647. Transfer of property seized by state or local agency to federal agency — ex parte proceeding
1. No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal agency for forfeiture under federal law until the prosecuting attorney and the circuit judge of the county in which the property was seized first review the seizure and approve the transfer to a federal agеncy. The prosecuting attorney and the circuit judge shall not approve any transfer unless it reasonably appears the activity giving rise to the investigation or seizure would be better pursued under federal forfeiture statutes. No transfer shall be made to a federal agency unless the violation would be a felony under Missouri or federal law.
2. Prior to transfer, in an ex parte proceeding, the prosecuting attorney shall file with the *1043 court a statement setting forth the facts and circumstances of the event or occurrence which led'to the seizure of the property and the parties involved, if known. The court shall certify the filing, and notify by mailing to the last known address of the property owner that his property is subject to being transferred to the federal government and further notifying the property owner of his right to file a petition stating legitimate grounds for challenging the transfer. If within ninety-six hours after the filing of the statement by the prosecuting attorney, the property owner by petition shows by a preponderance of the evidence that the property should not be transferred to the federal government for forfeiture, the court shall delay such transfer until a hearing may be held. If the court orders a delay in transfer, no later than ten days after the filing of a petition under this section and sections 513.649 and 513.651, a hearing shall be held unless the court deems, for good cause shown, that a continuance should be granted. At the hearing, if the prosecutor has proved by a preponderance of the evidence that the investigation or seizure would be better pursued under the federal forfeiture statutes, the court shall order that the transfer shall be made.
. Section 513.607 is a provision of the Missouri Criminal Activity Forfeiture Act (CAFA), and provides, in pertinent part, as follows:
1.All property of every kind used or intended for use in the course of, derived from, or realized through criminal activity is subject to civil forfeiture. Civil forfeiture shall be Had by a civil procedure known as a CAFA forfeiture proceeding.
2. A CAFA forfeiture proceeding shall be governed by the Missouri rules of court, rules of civil procedure, except to the extent that special rules of procedure are stated herein.
3. An in rem CAFA forfeiture proceeding may be instituted by petition by the prosecuting attorney of the county in which the property is located or seized by the attorney general’s office. The proceeding may be commenced before or after seizure of the property.
4. In lieu of, or in addition to, an in rem proceeding under subsection 3 of this section, the prosecuting attorney or attorney general may bring an in personam action for the forfeiture of proрerty, which may be commenced by petition before or after the seizure of the property.
In addition, in subsection 5(2), the CAFA establishes that the investigative agency bears the burden to prove all of the allegations in its petition for forfeiture.
. Federal Rule of Criminal Procedure 41(e) provides as follows:
(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court *1044 shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.
. The court observes that the questions asked in a Rule 41(e) proceeding and a federal forfeiture proceeding are fundamentally different. In a Rule 41(e) proceeding, the claimant’s right to return of the property depends upon whether the claimant has been “aggrieved by an unlawful search and seizure or by the deprivation of property,”
Fed.R.Crim.P.
41(e), but in a forfeiture action pursuant to 21 U.S.C. § 881, the question is whether there is probable cause to connect the property to illegal drug activity.
See, e.g., United States
v.
$87,060.00,
. In contrast to Madewell’s attempts to establish a due process requirement that seized property not be turned over to federal authority without a court's blessing, there may be an affirmative duty imposed upon state and local officials who seize property that may be forfeitable under federal drug laws to turn over such property to federal authorities. This duty stems from the incorporation into the civil forfeiture statute of the customs forfeiture provisions. Provisions of the Tariff Act, specifically 19 U.S.C. § 1602, impose a duty to report and to turn over property seized in violation of the custоms laws of the United States.
State of Ohio v. Wright,
[i]t shall be the duty of any officer, agent, or other person authorized by law to make seizures of merchandise or baggage subject to seizure for violation of the customs laws to report every such seizure immediately to the appropriate customs officer ... and to turn over and deliver to such customs officer any ... merchandise or baggage seized by him_
19 U.S.C. § 1602. In
Wright,
the Sixth Circuit Court of Appeals found the authority for the transfer of property seized by local officials to federal agents in this Tariff Act provision incorporated into the civil forfeiture statute by § 881(d).
Wright,
. Although Madewell admits living at the Springfield address in January of 1989, Made-well states that his “address” since 1982 has been in Pierce Ci1y, Missouri, and that he gave the Pierce City address in the Lawrence County proceedings. Madewell asserts that he was living at the Pierce City address at the time the seizure notice was sent, and that this address was known to his attorney in the Lawrence County case, and also known to state officials involved in that case.
. Pursuant to Fed.R.Civ.P. 12(b), the defense of failure to state a claim upon which relief can be granted may be asserted, at the option of the pleader, either in the pleader’s answеr or in a pre-answer motion. We will assume for purposes of this appeal, as has Madewell, that the effect of Prine's assertion of the affirmative defense was the same as filing a motion pursuant to Fed.R.Civ.P. 12(b)(6), and that such motion could be converted, in proper circumstances, into a motion for summary judgment pursuant to Fed. R.Civ.P. 56.
. In
Shur-Value Stamps, Inc.,
this court found that it could not reach the issue of whether the district court had improperly granted summary judgment
sua sponte,
because the complaining party had not challenged the adequacy of notice of the district court's intention to grant summary judgment
sua sponte
before the district court.
*1049
Shur-Value Stamps, Inc.,