Case Information
*1 Before BIRCH and BARKETT, Circuit Judges, and SMITH [*] , Senior Circuit Judge.
BARKETT, Circuit Judge:
William Richardson appeals from a final judgment of civil forfeiture entered in favor of the government. He argues that the government's failure to afford him notice and a hearing before seizing his properties violated due process and that the district court should have dismissed the forfeiture complaint. Based on United States v. James Daniel Good Real Property, --- U.S. ----, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), we conclude that the government's ex parte seizure of the properties violated Richardson's right to due process and that the forfeiture complaint *2 therefore must be dismissed. Accordingly, we reverse the district court's denial of Richardson's motion to dismiss and the final judgment of forfeiture. [1]
BACKGROUND
In 1993, the government received ex parte warrants authorizing seizure of the defendant properties after convincing a U.S. magistrate that probable cause existed to believe they were involved in or traceable to money laundering proscribed by 18 U.S.C. §§ 1956 & 1957. Thereafter, the government filed a verified complaint for forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A) and received warrants for arrest of the properties in rem. The government then executed process on the properties and changed the locks on an uninhabited home situated on the one developed property.
Richardson subsequently filed a claim asserting an ownership interest in the properties. He also moved to dismiss the seizure warrants and the forfeiture complaint, arguing that he was not given pre-seizure notice or a hearing. The district court denied the motion to dismiss and granted the government's motion for summary judgment.
DISCUSSION
In United States v. James Daniel Good Real Property, --- U.S.
----, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), the Supreme Court
established that absent exigent circumstances, the seizure of real
property for civil forfeiture violates fifth amendment due process
*3
if the property owner is not afforded notice and a hearing prior to
the seizure. Id. at ----,
based upon the importance of the private interests at risk and the absence of countervailing Government needs, ... 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.
Good, --- U.S. at ----,
In our case, it is undisputed that Richardson received
neither notice nor a hearing before issuance of the warrants
seizing his properties. It also is undisputed that the government
neither alleged nor established the existence of exigent
circumstances that might have allowed ex parte seizure of the
properties under Good.
[3]
Thus, there is no question that the
warrants were invalid and that seizure of the properties therefore
violated Richardson's fifth amendment right to due process. See
id.; United States v. Real Property Located at 20832 Big Rock
*4
Drive, Malibu, CA, 51 F.3d 1402, 1406 (9th Cir.1995); United
States v. One Parcel of Real Property, Located at 9638 Chicago
Heights, St. Louis, MO,
Relying on an Eighth Circuit case, Richardson contends that
the government's Good violation requires dismissal of the
forfeiture action, with leave to file a new action if the statute
of limitations has not run. See One Parcel of Real Property,
Located at 9638 Chicago Heights,
We are not persuaded by the government's argument, which focuses on the admissibility of evidence obtained from an unlawfully seized property. A forfeiture case presents an entirely different issue than a search and seizure case. The issue in a *5 civil forfeiture case is not the admissibility of evidence under the fourth amendment, but the validity of the government's seizure of real property under the fifth amendment. As the Court noted in Good,
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 [due process].
Good, --- U.S. at ----,
As in Good, the government here did not invade the defendant properties to seize evidence for a future prosecution; it seized the properties to acquire ownership. As the Eighth Circuit has explained, "suppression of seized evidence provides no remedy at all when the purpose of the seizure is not to acquire evidence but to assert a possessory interest over the property." One Parcel of Real Property, Located at 9638 Chicago Heights, 27 F.3d at 330. Moreover, any remedy short of dismissal would vitiate the purpose of Good, as the government could continue the unlawful practice of seizing property without first providing notice or a hearing, just as it could do before Good.
Accordingly, we hold that the lack of notice and a hearing
prior to issuance of the warrants seizing the properties rendered
the warrants "invalid and unconstitutional," and that because the
resulting seizure violated Richardson's due process rights, the
forfeiture action must be dismissed. One Parcel of Real Property,
Located at 9638 Chicago Heights, 27 F.3d at 330.
[5]
If statutory
*6
time constraints permit, however, the government may seek valid
seizure warrants after an adversarial hearing and recommence
the forfeiture proceedings. One Parcel of Real Property, Located
at 9638 Chicago Heights,
CONCLUSION
In light of the foregoing, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
REVERSED and REMANDED. unlawful seizure and requiring the government to compensate the claimant for profits he was deprived of during the unlawful seizure—are unavailable where appropriate.
Notes
[*] Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
[1] In light of this ruling, we need not and do not address Richardson's argument that the district court erroneously granted summary judgment to the government.
[2] Although was decided after the warrants were issued in
this case, we apply its holding retroactively, as did the Good
Court in finding that Good's due process rights had been violated
by the ex parte seizure. See James B. Beam Distilling Co. v.
Georgia,
[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." Good, --- U.S. at
----,
[4] The Second Circuit, in a pre- case, has similarly held
that an unlawful seizure "would only preclude the government from
introducing any evidence gained by its improper seizure of the
premises." United States v. Premises and Real Property at 4492
South Livonia Road, Livonia, NY,
[5] We do not mean to suggest that the additional remedies—i.e., suppressing evidence obtained as a result of the