The Supreme Court/The Supreme Court.iso/pc/ascii/1992/92_1180/92_1180.zx

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SUPREME COURT OF THE UNITED STATES
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No. 92-1180
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UNITED STATES, PETITIONER v. JAMES DANIEL
GOOD REAL PROPERTY et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[December 13, 1993]

  Chief Justice Rehnquist, with whom Justice Scalia
joins, and Justice O'Connor joins in 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 fails to afford adequate due process protec-
tion to property owners who have been convicted of a
crime that renders their real property susceptible to civil
forfeiture under 21 U. S. C. 881(a)(7).  It reaches this
conclusion although no such adversary hearing is
required to deprive a criminal defendant of his liberty
before trial.  And its reasoning casts doubt upon long
settled law relating to seizure of property to enforce
income tax liability.  I dissent from this ill-considered
and disruptive decision.


                     I

  The Court applies the three-factor balancing test for
evaluating procedural due process claims set out in
Mathews v. Eldridge, 424 U. S. 319 (1976), to reach its
unprecedented holding.  I reject the majority's expansive
application of Mathews.  Mathews involved a due process
challenge to the adequacy of administrative procedures
established for the purpose of terminating Social Secu-
rity 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. ___ (1992)  (holding that the Due Process
Clause has limited operation beyond the specific guaran-
tees enumerated in the Bill of Rights).  More important-
ly, 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 warrant-
less automobile seizures).


                     A

  The Court's fixation on Mathews sharply conflicts with
both historical practice and the specific textual source of
the Fourth Amendment's -reasonableness- inquiry.  The
Fourth Amendment strikes a balance between the
people's security in their persons, houses, papers, and
effects and the public interest in effecting searches and
seizures for law enforcement purposes.  Zurcher v.
Stanford Daily, 436 U. S. 547, 559 (1978); see also
Maryland v. Buie, 494 U. S. 325, 331 (1990); and
Skinner v. Railway Labor Executives' Assn., 489 U. S.
602, 619 (1989).  Compliance with the standards and
procedures prescribed by the Fourth Amendment
constitutes all the -process- that is -due- to respondent
Good under the Fifth Amendment in the forfeiture
context.  We made this very point in Gerstein v. Pugh,
420 U. S. 103 (1975), with respect to procedures for
detaining a criminal defendant pending trial:
-The historical basis of the probable cause require-
ment is quite different from the relatively recent
application of variable procedural due process in
debtor-creditor disputes and termination of govern-
ment-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 prop-
erty 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 probable cause
determination, yet respondent Good cannot be temporar-
ily deprived of property on the same basis.  As we said
in United States v. Monsanto, 491 U. S. 600, 615-616
(1989):
-[I]t would be odd to conclude that the Government
may not restrain property, such as the home and
apartment in respondent's possession, based on a
finding of probable cause, when we have held that
(under appropriate circumstances), the Government
may restrain persons where there is a finding of
probable cause to believe that the accused has
committed a serious offense.-
   Similarly, in Graham v. Connor, 490 U. S. 386,
394-395 (1989), the Court faced the question of what
constitutional standard governs a free citizen's claim
that law enforcement officials used excessive force in the
course of making an arrest, investigatory stop, or other
-seizure- of his person.  We held that the Fourth
Amendment, rather than the Due Process Clause,
provides the source of any specific limitations on the use
of force in seizing a person: -Because the Fourth
Amendment provides an explicit textual source of
constitutional protection against this sort of physically
intrusive governmental conduct, that Amendment, not
the more generalized notion of `substantive due process'
must be the guide for analyzing these claims.-  Id., at
395.  The -explicit textual source of constitutional
protection- found in the Fourth Amendment should also
guide the analysis of respondent Good's claim of a right
to additional procedural measures in civil forfeitures.


                     B

  The Court dismisses the holdings of Gerstein and
Graham as inapposite because they concern -the arrest
or detention of criminal suspects.-  Ante at 6.  But we
have never held that the Fourth Amendment is limited
only to criminal proceedings.  In Soldal v. Cook County,
506 U. S. ___, ___ (1992), we expressly stated that the
Fourth Amendment -applies in the civil context as well.-
Our historical treatment of civil forfeiture procedures
underscores the notion that the Fourth Amendment
specifically governs the process afforded in the civil
forfeiture context, and it is too late in the day to
question its exclusive application.  As we decided in
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S.
663 (1974), there is no need to look beyond the Fourth
Amendment in civil forfeitures proceedings involving the
Government because ex parte seizures are -too firmly
fixed in the punitive and remedial jurisprudence of the
country to be now displaced.-  Id., at 686 (quoting J. W.
Goldsmith, Jr.-Grant Co. v. United States, 254 U. S.
505, 510-511 (1921) (forfeiture not a denial of procedural
due process despite the absence of preseizure notice and
opportunity for a hearing)).
  The Court acknowledges the long history of ex parte
seizures of real property through civil forfeiture, see
Phillips v. Commissioner, 283 U. S. 589 (1931); Springer
v. United States, 102 U. S. 586 (1881); Murray's Lessee
v. Hoboken Land & Improvement Co., 18 How. 272
(1856); United States v. Stowell, 133 U. S. 1 (1890); and
Dobbins's Distillery v. United States, 96 U. S. 395
(1878), and says -[w]ithout revisiting these cases,- ante,
at 16,-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 operat-
ing revenue.  Whatever the merits of this novel distinc-
tion, 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
principle 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 settled . . . [w]here, as here, adequate
opportunity is afforded for a later judicial determi-
nation of the legal rights, summary proceedings to
secure prompt performance of pecuniary obligations
to the government have been consistently sustained.-
283 U. S., 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 estab-
lished precedence regarding excise taxes, but deals at
least a glancing blow to the authority of the Govern-
ment 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, 500 U. S. ___ (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) (up-
holding 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 seizure of property to collect the internal
revenue of the United States.-  407 U. S., at 91-92
(citing Phillips v. Commissioner, supra).  Certainly the
present seizure is analogous, and it is therefore quite
inaccurate to suggest that Fuentes is authority for the
Court's holding in the present case.
  Likewise in Doehr, the Court struck down a state
statute authorizing prejudgment attachment of real
estate without prior notice or hearing due to potential
bias of the self-interested private party seeking attach-
ment.  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
___ (quoting Tulsa Professional Collection Services, Inc.
v. Pope, 485 U. S. 478, 486 (1988)).  The Court con-
cluded 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 recov-
ery.  500 U. S., at ___.  In the present case, however, it
is not a private party but the Government itself which
is seizing the property.
  The Court's effort to distinguish Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U. S. 663 (1974), is
similarly unpersuasive.  The Court says that -[c]entral
to our analysis in Calero-Toledo was the fact that a
yacht was the `sort [of property] that could be removed
to another jurisdiction, destroyed, or concealed, if
advanced warning of confiscation were given.'-  Id., at
679.  Ante, at 8.  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
and preventing continued illicit use of the property,- and
the fact that the -seizure is not initiated by self-interested
private parties; rather, Commonwealth officials deter-
mine whether seizure is appropriate . . . ,- 416 U. S., at
679, are both met in the present case.  And while not
capable of being moved or concealed, the real property
at issue here surely could be destroyed or damaged.
Several dwellings are located on the property that was
seized from respondent Good, and these buildings could
easily be destroyed or damaged to prevent them from
falling into the hands of the Government if prior notice
were required.
  The government interests found decisive in Calero-
Toledo are equally present here: the seizure of respond-
ent Good's real property serves important governmental
purposes in combatting 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 majority adopted
the Court of Appeals ruling have we held that the
Constitution demanded notice and a preseizure hearing
to satisfy due process requirements in civil forfeiture
cases.


                    III

  This is not to say that the Government's use of civil
forfeiture statutes to seize real property in drug cases
may not cause hardship to innocent individuals.  But I
have grave doubts whether the Court's decision in this
case will do much to alleviate those hardships, and I am
confident that whatever social benefits might flow from
the decision are more than offset by the damage to
settled principles of constitutional law which are in-
flicted to secure these perceived social benefits.  I would
reverse the decision of the Court of Appeals in toto.