UNITED STATES v. JAMES DANIEL GOOD REAL PROPERTY ET AL.
No. 92-1180
SUPREME COURT OF THE UNITED STATES
Argued October 6, 1993-Decided December 13, 1993
510 U. S. 43
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.
The principal question presented is whether, in the absence of exigent circumstances, the Due Process Clause of the
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 еxecuted 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.
On August 8, 1989, 4 1/2 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
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 wаs 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.
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 (CA11 1986). We now affirm the due process ruling and reverse the ruling on the timeliness question.
II
The Due Process Clause of the
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 procеss the Constitution requires. The Government makes two separate points in this regard. First, it contends that compliance with the
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
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
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
Nevertheless, the Government asserts that when property is seized for forfeiture, the
Gerstein held that the
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
Neither Gerstein nor Graham, however, provides support for the proposition that the
It is true, of course, that the
Though the
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,
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 three-part 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
In Fuentes, we held that the loss of kitchen appliances and household furniture was significant enough to wаrrant 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
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
The ex parte preseizure 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.
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,
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 сivil 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.
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,
“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
Sale of the property can be prevented by filing a notice of lis pendens as authorized by state law when the forfeiture proceedings commence.
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 significаnt 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
A like rationale justified the ex parte seizure of tax-delinquent 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
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
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
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
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.
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
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-
The customs laws also contain a series of internal requirements relating to the timing of forfeitures.
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, 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.”
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 sрecified 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
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 colleсtion 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
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
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 reаch 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).
The Court‘s fixation on Mathews sharply conflicts with both historical practice and the specific textual source of the
“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
“[I]t would be odd to conclude that the Government may not restrain рroperty, 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
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
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
long been settlеd. 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
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 self-interested 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 anothеr 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
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 preseizure 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 self-interested 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 majоrity 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
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
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
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:
“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 personаl 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
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 Calero-Toledo 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.
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 “preseizure 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
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., Payton 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
Moreover, it is difficult to see what advantage a preseizure 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
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 Unitеd 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, 37-39, 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.
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
Like the majority, I bеlieve 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
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
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
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
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 dispossessed—there was a due process violation simply because Good did not receive preseizure 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 preseizure hearing is not required as a matter of constitutional law. 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. Narrow, too, however, was the first quеstion pre-