HaCKeRz KrOnIcKLeZ 3/HaCKeRz_KrOnIcKLeZ.iso/drugs/us.v.good

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From: [e-mail] (Carl M. Kadie)
Newsgroups: misc.legal,talk.politics.drugs,alt.drugs,alt.society.civil-liberty
Subject: [Supreme Court] _U.S. v. James Daniel Good Real Property_
Date: 13 Dec 1993 23:13:54 -0500
Message-ID: <2ejei2$[e-mail]>

[This is the full syllabus, order, opinion, and dissents from today's
decision limiting civil forfeiture. -cmk]

EXCERPT: "The principal question presented is whether, in the absence
of exigent circumstances, the Due Process Clause of the Fifth
Amendment prohibits the Government in a civil forfeiture case from
seizing real property without first affording the owner notice and an
opportunity to be heard.  We hold that it does."


============================ 92-1180.ZS.filt =======================


NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. JAMES DANIEL GOOD REAL
PROPERTY et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 92-1180.   Argued October 6, 1993-Decided December 13, 1993

Four and one-half years after police found drugs and drug parapher-
 nalia in claimant Good's home and he pleaded guilty to promoting
 a harmful drug in violation of Hawaii law, the United States filed
 an in rem action in the Federal District Court, seeking forfeiture
 of his house and land, under 21 U. S. C. 881(a)(7), on the ground
 that the property had been used to commit or facilitate the com-
 mission of a federal drug offense.  Following an ex parte proceed-
 ing, a Magistrate Judge issued a warrant authorizing the proper-
 ty's seizure, and the Government seized the property without prior
 notice to Good or an adversary proceeding.  In his claim for the
 property and answer to the Government's complaint, Good asserted
 that he was deprived of his property without due process of law
 and that the action was invalid because it had not been timely
 commenced.  The District Court ordered that the property be
 forfeited, but the Court of Appeals reversed.  It held that the
 seizure without prior notice and a hearing violated the Due Pro-
 cess Clause, and remanded the case for a determination whether
 the action, although filed within the five-year period provided by
 19 U. S. C. 1621, was untimely because the Government failed to
 follow the internal notification and reporting requirements of
 1602-1604.
Held:
  1.  Absent exigent circumstances, the Due Process Clause re-
quires the Government to afford notice and a meaningful opportu-
nity to be heard before seizing real property subject to civil forfei-
ture.  Pp. 4-19.
    (a)  The seizure of Good's property implicates two ```explicit
textual source[s] of constitutional protection,''' the Fourth Amend-
ment and the Fifth.  Soldal v. Cook County, 506 U. S. ___, ___.
While the Fourth Amendment places limits on the Government's
power to seize property for purposes of forfeiture, it does not
provide the sole measure of constitutional protection that must be
afforded property owners in forfeiture proceedings.  Gerstein v.
Pugh, 420 U. S. 103; Graham v. Connor, 490 U. S. 386, distin-
guished.  Where the Government seizes property not to preserve
evidence of criminal wrongdoing but to assert ownership and
control over the property, its action must also comply with the
Due Process Clause.  See, e.g., Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U. S. 663; Fuentes v. Shevin, 407 U. S. 67.
Pp. 4-8.
    (b)  An exception to the general rule requiring predeprivation
notice and hearing is justified only in extraordinary situations.
Id., at 82.  Using the three-part inquiry set forth in Mathews v.
Eldridge, 424 U. S. 319-consideration of the private interest
affected by the official action; the risk of an erroneous deprivation
of that interest through the procedures used, as well as the proba-
ble value of additional safeguards; and the Government's interest,
including the administrative burden that additional procedural
requirements would impose, id., at 335-the seizure of real proper-
ty for purposes of civil forfeiture does not justify such an excep-
tion.  Good's right to maintain control over his home, and to be
free from governmental interference, is a private interest of histor-
ic and continuing importance, cf., e.g., United States v. Karo, 468
U. S. 705, 714-715, that weighs heavily in the Mathews balance.
Moreover, the practice of ex parte seizure creates an unacceptable
risk of error, since the proceeding affords little or no protection to
an innocent owner, who may not be deprived of property under
881(a)(7).  Nor does the governmental interest at stake here
present a pressing need for prompt action.  Because real property
cannot abscond, a court's jurisdiction can be preserved without
prior seizure simply by posting notice on the property and leaving
a copy of the process with the occupant.  In addition, the Govern-
ment's legitimate interests at the inception of a forfeiture proceed-
ing-preventing the property from being sold, destroyed, or used
for further illegal activity before the forfeiture judgment-can be
secured through measures less intrusive than seizure:  a lis pen-
dens notice to prevent the property's sale, a restraining order to
prevent its destruction, and search and arrest warrants to forestall
further illegal activity.  Since a claimant is already entitled to a
hearing before final judgment, requiring the Government to post-
pone seizure until after an adversary hearing creates no significant
administrative burden, and any harm from the delay is minimal
compared to the injury occasioned by erroneous seizure.  Pp. 8-16.
    (c)  No plausible claim of executive urgency, including the
Government's reliance on forfeitures as a means of defraying law
enforcement expenses, justifies the summary seizure of real proper-
ty under 881(a)(7).   Cf. Phillips v. Commissioner, 283 U. S. 589.
Pp. 16-18.
  2.  Courts may not dismiss a forfeiture action filed within the
five-year statute of limitations for noncompliance with the timing
requirements of 1602-1604.  Congress' failure to specify a conse-
quence for noncompliance implies that it intended the responsible
officials administering the Act to have discretion to determine
what disciplinary measures are appropriate when their subordi-
nates fail to discharge their statutory duties, and the federal
courts should not in the ordinary course impose their own coercive
sanction, see, e.g., United States v. Montalvo-Murillo, 495 U. S.
711, 717-721.  Pp. 19-22.
971 F. 2d 1376, affirmed in part, reversed in part, and remanded.
 Kennedy, J., delivered the opinion for a unanimous Court with
respect to Parts I and III, and the opinion of the Court with respect
to Parts II and IV, in which Blackmun, Stevens, Souter, and
Ginsburg, JJ., joined.  Rehnquist, C. J., filed an opinion concurring
in part and dissenting in part, in which Scalia, J., joined, and in
which O'Connor, J., joined as to Parts II and III.  O'Connor, J.,
and Thomas, J., filed opinions concurring in part and dissenting in
part.

============================ 92-1180.ZO.filt =======================
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 92-1180
--------
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]

  Justice Kennedy delivered the opinion of the Court.
  The principal question presented is whether, in the
absence of exigent circumstances, the Due Process
Clause of the Fifth Amendment prohibits the Govern-
ment in a civil forfeiture case from seizing real property
without first affording the owner notice and an opportu-
nity to be heard.  We hold that it does.
  A second issue in the case concerns the timeliness of
the forfeiture action.  We hold that filing suit for
forfeiture within the statute of limitations suffices to
make the action timely, and that the cause should not
be dismissed for failure to comply with certain other
statutory directives for expeditious prosecution in
forfeiture cases.

                            I
  On January 31, 1985, Hawaii police officers executed
a search warrant at the home of claimant James Daniel
Good.  The search uncovered about 89 pounds of
marijuana, marijuana seeds, vials containing hashish oil,
and drug paraphernalia.  About six months later, Good
pleaded guilty to promoting a harmful drug in the
second degree, in violation of Hawaii law.  Haw. Rev.
Stat. 712-1245(1)(b) (1985).  He was sentenced to one
year in jail and five years' probation, and fined $1,000.
Good was also required to forfeit to the State $3,187 in
cash found on the premises.
  On August 8, 1989, four and one-half 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 four-acre parcel on which it was situated.  The
United States sought forfeiture under 21 U. S. C.
881(a)(7), on the ground that the property had been
used to commit or facilitate the commission of a federal
drug offense.
  On August 18, 1989, in an ex parte proceeding, a
United States Magistrate Judge found that the Govern-
ment had established probable cause to believe Good's
property was subject to forfeiture under 881(a)(7).  A
warrant of arrest in rem was issued, authorizing seizure
of the property.  The warrant was based on an affidavit
recounting the fact of Good's conviction and the evidence
discovered during the January 1985 search of his home
by Hawaii police.
  The Government seized the property on August 21,
1989, without prior notice to Good or an adversary
hearing.  At the time of the seizure, Good was renting
his home to tenants for $900 per month.  The Govern-
ment 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 pro-
ceedings.  971 F. 2d 1376 (1992).  The court was
unanimous in holding that the seizure of Good's proper-
ty, without prior notice and a hearing, violated the Due
Process Clause.
  In a divided decision, the Court of Appeals further
held that the District Court erred in finding the action
timely.  The Court of Appeals ruled that the 5-year
statute of limitations in 19 U. S. C. 1621 is only an
-outer limit- for filing a forfeiture action, and that
further limits are imposed by 19 U. S. C. 1602-1604.
971 F. 2d, at 1378-1382.  Those provisions, the court
reasoned, impose a -series of internal notification and
reporting requirements,- under which -customs agents
must report to customs officers, customs officers must
report to the United States attorney, and the Attorney
General must `immediately' and `forthwith' bring a
forfeiture action if he believes that one is warranted.-
Id., at 1379 (citations omitted).  The Court of Appeals
ruled that failure to comply with these internal report-
ing rules could require dismissal of the forfeiture action
as untimely.  The court remanded the case for a deter-
mination whether the Government had satisfied its
obligation to make prompt reports.  Id., at 1382.
  We granted certiorari, 507 U. S. ___ (1993), to resolve
a conflict among the Courts of Appeals on the constitu-
tional 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 Fifth Amendment
guarantees that -[n]o person shall . . . be deprived of
life, liberty, or property, without due process of law.-
Our precedents establish the general rule that individu-
als must receive notice and an opportunity to be heard
before the Government deprives them of property.  See
United States v. $8,850, 461 U. S. 555, 562, n. 12
(1983); Fuentes v. Shevin, 407 U. S. 67, 82 (1972);
Sniadach v. Family Finance Corp. of Bay View, 395
U. S. 337, 342 (1969) (Harlan, J., concurring); Mullane
v. Central Hanover Bank & Trust Co., 339 U. S. 306,
313 (1950).
  The Government does not, and could not, dispute that
the seizure of Good's home and four-acre parcel deprived
him of property interests protected by the Due Process
Clause.  By the Government's own submission, the
seizure gave it the right to charge rent, to condition
occupancy, and even to evict the occupants.  Instead, the
Government argues that it afforded Good all the process
the Constitution requires.  The Government makes two
separate points in this regard.  First, it contends that
compliance with the Fourth Amendment suffices when
the Government seizes property for purposes of forfei-
ture.  In the alternative, it argues that the seizure of
real property under the drug forfeiture laws justifies an
exception to the usual due process requirement of
preseizure notice and hearing.  We turn to these issues.

                            A
  The Government argues that because civil forfeiture
serves a -law enforcement purpos[e],- Brief for United
States 13, the Government need comply only with the
Fourth Amendment when seizing forfeitable property.
We disagree.  The Fourth Amendment does place
restrictions on seizures conducted for purposes of civil
forfeiture, One 1958 Plymouth Sedan v. Pennsylvania,
380 U. S. 693, 696 (1965) (holding that the exclusionary
rule applies to civil forfeiture), but it does not follow
that the Fourth Amendment is the sole constitutional
provision in question when the Government seizes
property subject to forfeiture.
  We have rejected the view that the applicability of one
constitutional amendment pre-empts the guarantees of
another.  As explained in Soldal v. Cook County, 506
U. S. __, __ (1992) (slip op., at 14):
-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 protec-
tion,'- the Fourth Amendment and the Fifth.  Ibid.  The
proper question is not which Amendment controls but
whether either Amendment is violated.
  Nevertheless, the Government asserts that when
property is seized for forfeiture, the Fourth Amendment
provides the full measure of process due under the Fifth.
The Government relies on Gerstein v. Pugh, 420 U. S.
103 (1975), and Graham v. Connor, 490 U. S. 386
(1989), in support of this proposition.  That reliance is
misplaced.  Gerstein and Graham concerned not the
seizure of property but the arrest or detention of
criminal suspects, subjects we have considered to be
governed by the provisions of the Fourth Amendment
without reference to other constitutional guarantees.  In
addition, also unlike the seizure presented by this case,
the arrest or detention of a suspect occurs as part of the
regular criminal process, where other safeguards ordi-
narily ensure compliance with due process.
  Gerstein held that the Fourth Amendment, rather than
the Due Process Clause, determines the requisite post-
arrest proceedings when individuals are detained on
criminal charges.  Exclusive reliance on the Fourth
Amendment is appropriate in the arrest context, we
explained, because the Amendment was -tailored
explicitly for the criminal justice system,- and its
-balance between individual and public interests always
has been thought to define the `process that is due' for
seizures of person or property in criminal cases.-
Gerstein, supra, at 125, n. 27.  Furthermore, we noted
that the protections afforded during an arrest and initial
detention are -only the first stage of an elaborate
system, unique in jurisprudence, designed to safeguard
the rights of those accused of criminal conduct.-  Ibid.
(emphasis in original).
  So too, in Graham we held that claims of excessive
force in the course of an arrest or investigatory stop
should be evaluated under the Fourth Amendment
reasonableness standard, not under the -more general-
ized notion of `substantive due process.'-  490 U. S., at
395.  Because the degree of force used to effect a seizure
is one determinant of its reasonableness, and because
the Fourth Amendment guarantees citizens the right -to
be secure in their persons . . . against unreasonable . . .
seizures,- we held that a claim of excessive force in the
course of such a seizure is -most properly characterized
as one invoking the protections of the Fourth Amend-
ment.-  490 U. S., at 394.
  Neither Gerstein nor Graham, however, provides
support for the proposition that the Fourth Amendment
is the beginning and end of the constitutional inquiry
whenever a seizure occurs.  That proposition is inconsis-
tent with the approach we took in Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U. S. 663 (1974), which
examined the constitutionality of ex parte seizures of
forfeitable property under general principles of due
process, rather than the Fourth Amendment.  And it is
at odds with our reliance on the Due Process Clause to
analyze prejudgment seizure and sequestration of
personal property.  See, e. g., Fuentes v. Shevin, 407
U. S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U. S.
600 (1974).
  It is true, of course, that the Fourth Amendment
applies to searches and seizures in the civil context and
may serve to resolve the legality of these governmental
actions without reference to other constitutional provi-
sions.  See Camara v. Municipal Court of San Francisco,
387 U. S. 523 (1967) (holding that a warrant based on
probable cause is required for administrative search of
residences for safety inspections); Skinner v. Railway
Labor Executives' Assn., 489 U. S. 602 (1989) (holding
that federal regulations authorizing railroads to conduct
blood and urine tests of certain employees, without a
warrant and without reasonable suspicion, do not violate
the Fourth Amendment prohibition against unreasonable
searches and seizures).  But the purpose and effect of
the Government's action in the present case go beyond
the traditional meaning of search or seizure.  Here the
Government seized property not to preserve evidence of
wrongdoing, but to assert ownership and control over the
property itself.  Our cases establish that government
action of this consequence must comply with the Due
Process Clauses of the Fifth and Fourteenth Amend-
ments.
  Though the Fourth Amendment places limits on the
Government's power to seize property for purposes of
forfeiture, it does not provide the sole measure of
constitutional protection that must be afforded property
owners in forfeiture proceedings.  So even assuming that
the Fourth Amendment were satisfied in this case, it
remains for us to determine whether the seizure com-
plied with our well-settled jurisprudence under the Due
Process Clause.

                            B
  Whether ex parte seizures of forfeitable property
satisfy the Due Process Clause is a question we last
confronted in Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U. S. 663 (1974), which held that the Govern-
ment 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 postpone-
ment of notice and hearing until after the seizure.  Id.,
at 678 (quoting Fuentes, 407 U. S., at 91).
  We had no occasion in Calero-Toledo to decide whether
the same considerations apply to the forfeiture of real
property, which, by its very nature, can be neither
moved nor concealed.  In fact, when Calero-Toledo was
decided, both the Puerto Rican statute, P. R. Laws Ann.,
Tit. 24, 2512 (Supp. 1973), and the federal forfeiture
statute upon which it was modeled, 21 U. S. C. 881
(1970 ed.), authorized the forfeiture of personal property
only.  It was not until 1984, ten years later, that
Congress amended 881 to authorize the forfeiture of
real property.  See 21 U. S. C. 881(a)(7); Pub. L.
98-473, 306, 98 Stat. 2050.
  The right to prior notice and a hearing is central to
the Constitution's command of due process.  -The
purpose of this requirement is not only to ensure
abstract fair play to the individual.  Its purpose, more
particularly, is to protect his use and possession of
property from arbitrary encroachment-to minimize
substantively unfair or mistaken deprivations of prop-
erty . . . .-  Fuentes v. Shevin, 407 U. S., at 80-81.
  We tolerate some exceptions to the general rule requir-
ing predeprivation notice and hearing, but only in
-`extraordinary situations where some valid governmen-
tal 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 prompt-
ness 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 administra-
tive 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 historic and continuing importance.  Cf.
United States v. Karo, 468 U. S. 705, 714-715 (1984);
Payton v. New York, 445 U. S. 573, 590 (1980).  The
seizure deprived Good of valuable rights of ownership,
including the right of sale, the right of occupancy, the
right to unrestricted use and enjoyment, and the right
to receive rents.  All that the seizure left him, by the
Government's own submission, was the right to bring a
claim for the return of title at some unscheduled future
hearing.
  In Fuentes, we held that the loss of kitchen appliances
and household furniture was significant enough to
warrant a predeprivation hearing.  407 U. S., at 70-71.
And in Connecticut v. Doehr, 500 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 circum-
stances, 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 depriva-
tion 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 protec-
tion.  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 interests at stake in the
seizure of real property weigh heavily in the Mathews
balance.
  The practice of ex parte seizure, moreover, creates an
unacceptable risk of error.  Although Congress designed
the drug forfeiture statute to be a powerful instrument
in enforcement of the drug laws, it did not intend to
deprive innocent owners of their property.  The affirma-
tive defense of innocent ownership is allowed by statute.
See 21 U. S. C. 881(a)(7) (-[N]o property shall be
forfeited under this paragraph, to the extent of an
interest of an owner, by reason of any act or omission
established by that owner to have been committed or
omitted without the knowledge or consent of that
owner-).
  The ex parte 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 commis-
sion of- a felony narcotics offense.  Ibid.  The Govern-
ment is not required to offer any evidence on the
question of innocent ownership or other potential
defenses a claimant might have.  See, e.g., Austin v.
United States, 509 U. S. ___ (1993) (holding that
forfeitures under 21 U. S. C. 881(a)(4) and (a)(7) are
subject to the limitations of the Excessive Fines Clause).
Nor would that inquiry, in the ex parte stage, suffice to
protect the innocent owner's interests.  -[F]airness can
rarely be obtained by secret, one-sided determination of
facts decisive of rights. . . . No better instrument has
been devised for arriving at truth than to give a person
in jeopardy of serious loss notice of the case against him
and opportunity to meet it.-  Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U. S. 123, 170-172 (1951)
(Frankfurter, J., concurring) (footnotes omitted).
  The purpose of an adversary hearing is to ensure the
requisite neutrality that must inform all governmental
decisionmaking.  That protection is of particular impor-
tance here, where the Government has a direct pecuni-
ary interest in the outcome of the proceeding.  See
Harmelin v. Michigan, 501 U. S. ___, ___, n. 9 (1991)
(opinion of Scalia, J.) (slip op., at 19, n. 9) (-[I]t makes
sense to scrutinize governmental action more closely
when the State stands to benefit-).  Moreover, the avail-
ability of a postseizure hearing may be no recompense
for losses caused by erroneous seizure.  Given the
congested civil dockets in federal courts, a claimant may
not receive an adversary hearing until many months
after the seizure.  And even if the ultimate judicial
decision is that the claimant was an innocent owner, or
that the Government lacked probable cause, this deter-
mination, coming months after the seizure, -would not
cure the temporary deprivation that an earlier hearing
might have prevented.-  Doehr, supra, at ___ (slip op.,
at 12).
  This brings us to the third consideration under
Mathews, -the Government's interest, including the
function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement would entail.-  424 U. S., at 335.  The
governmental interest we consider here is not some
general interest in forfeiting property but the specific
interest in seizing real property before the forfeiture
hearing.  The question in the civil forfeiture context is
whether ex parte seizure is justified by a pressing need
for prompt action.  See Fuentes, 407 U. S., at 91.  We
find no pressing need here.
  This is apparent by comparison to Calero-Toledo,
where the Government's interest in immediate seizure of
a yacht subject to civil forfeiture justified dispensing
with the usual requirement of prior notice and hearing.
Two essential considerations informed our ruling in that
case: first, immediate seizure was necessary to establish
the court's jurisdiction over the property, 416 U. S., at
679, and second, the yacht might have disappeared had
the Government given advance warning of the forfeiture
action.  Ibid.  See also United States v. Von Neumann,
474 U. S. 242, 251 (1986) (no preseizure hearing is
required when customs officials seize an automobile at
the border).  Neither of these factors is present when
the target of forfeiture is real property.
  Because real property cannot abscond, the court's
jurisdiction can be preserved without prior seizure.  It
is true that seizure of the res has long been considered
a prerequisite to the initiation of in rem forfeiture
proceedings.  See Republic Nat. Bank of Miami v. United
States, 506 U. S. ___, ___ (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, The Brig Ann simply restates the rule that
the court must have actual or constructive control of the
res when an in rem forfeiture suit is initiated.-  Repub-
lic Nat. Bank, supra, at ___ (slip op., at 7).  In the case
of real property, the res may be brought within the
reach of the court simply by posting notice on the
property and leaving a copy of the process with the
occupant.  In fact, the rules which govern forfeiture
proceedings under 881 already permit process to be
executed on real property without physical seizure:
-If the character or situation of the property is such
that the taking of actual possession is impracticable,
the marshal or other person executing the process
shall affix a copy thereof to the property in a con-
spicuous place and leave a copy of the complaint
and process with the person having possession or
the person's agent.-  Rule E(4)(b), Supplemental
Rules for Certain Admiralty and Maritime Claims.
See also United States v. TWP 17 R 4, Certain Real
Property in Maine, 970 F. 2d 984, 986, and n. 4 (CA1
1992).
  Nor is the ex parte seizure of real property necessary
to accomplish the statutory purpose of 881(a)(7).  The
Government's legitimate interests at the inception of
forfeiture proceedings are to ensure that the property
not be sold, destroyed, or used for further illegal activity
prior to the forfeiture judgment.  These legitimate inter-
ests can be secured without seizing the subject property.
  Sale of the property can be prevented by filing a
notice of lis pendens as authorized by state law when
the forfeiture proceedings commence.  28 U. S. C. 1964;
and see Haw. Rev. Stat. 634-51 (1985) (lis pendens
provision).  If there is evidence, in a particular case,
that an owner is likely to destroy his property when
advised of the pending action, the Government may
obtain an ex parte restraining order, or other appropri-
ate relief, upon a proper showing in district court.  See
Fed. Rule Civ. Proc. 65; United States v. Premises and
Real Property at 4492 South Livonia Road, 889 F. 2d
1258, 1265 (CA2 1989).  The Government's policy of
leaving occupants in possession of real property under
an occupancy agreement pending the final forfeiture
ruling demonstrates that there is no serious concern
about destruction in the ordinary case.  See Brief for
United States 13, n. 6 (citing Directive No. 90-10 (Oct.
9, 1990), Executive Office for Asset Forfeiture, Office of
Deputy Attorney General).  Finally, the Government can
forestall further illegal activity with search and arrest
warrants obtained in the ordinary course.
  In the usual case, the Government thus has various
means, short of seizure, to protect its legitimate inter-
ests in forfeitable real property.  There is no reason to
take the additional step of asserting control over the
property without first affording notice and an adversary
hearing.
  Requiring the Government to postpone seizure until
after an adversary hearing creates no significant ad-
ministrative burden.  A claimant is already entitled to
an adversary hearing before a final judgment of forfei-
ture.  No extra hearing would be required in the typical
case, since the Government can wait until after the for-
feiture judgment to seize the property.  From an admin-
istrative 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 compar-
ison 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 U. S. 239 (1921); Bowles v.
Willingham, 321 U. S. 503 (1944), and seizures of con-
taminated food, see North American Cold Storage Co. v.
Chicago, 211 U. S. 306 (1908)-was one of executive
urgency.  -The prompt payment of taxes,- we noted,
-may be vital to the existence of a government.-
Springer, supra, at 594.  See also G. M. Leasing Corp.
v. United States, 429 U. S. 338, 352, n. 18 (1977) (-The
rationale underlying [the revenue] decisions, of course,
is that the very existence of government depends upon
the prompt collection of the revenues-).
  A like rationale justified the ex parte seizure of tax-
delinquent distilleries in the late nineteenth century,
see, e.g., United States v. Stowell, 133 U. S. 1 (1890);
Dobbins's Distillery v. United States, 96 U. S. 395
(1878), since before passage of the Sixteenth Amend-
ment, the Federal Government relied heavily on liquor,
customs, and tobacco taxes to generate operating reve-
nues.  In 1902, for example, nearly 75 percent of total
federal revenues-$479 million out of a total of $653
million-was raised from taxes on liquor, customs, and
tobacco.  See U. S. Bureau of Census, Historical Statis-
tics of the United States, Colonial Times to the Present
1122 (1976).
  The federal income tax code adopted in the first quar-
ter of this century, however, afforded the taxpayer
notice and an opportunity to be heard by the Board of
Tax Appeals before the Government could seize property
for nonpayment of taxes.  See Revenue Act of 1921, 42
Stat. 265-266; Revenue Act of 1924, 43 Stat. 297.  In
Phillips v. Commissioner, 283 U. S. 589 (1931), the
Court relied upon the availability, and adequacy, of
these preseizure administrative procedures in holding
that no judicial hearing was required prior to the sei-
zure of property.  Id., at 597-599 (citing Act of Febru-
ary 26, 1926, ch. 27, 274(a), 44 Stat. 9, 55; Act of May
29, 1928, ch. 852, 272(a), 601, 45 Stat. 791, 852, 872).
These constraints on the Commissioner could be overrid-
den, but only when the Commissioner made a deter-
mination that a jeopardy assessment was necessary.
283 U. S., at 598.  Writing for a unanimous Court,
Justice Brandeis explained that under the tax laws
-[f]ormal notice of the tax liability is thus given; the
Commissioner is required to answer; and there is a
complete hearing de novo . . . .  These provisions amply
protect the [taxpayer] against improper administrative
action.-  Id., at 598-599; see also Commissioner v.
Shapiro, 424 U. S. 614, 631 (1976) (-[In] the Phillips
case . . . the taxpayer's assets could not have been
taken or frozen . . . until he had either had, or waived
his right to, a full and final adjudication of his tax
liability before the Tax Court (then the Board of Tax
Appeals)-).
  Similar provisions remain in force today.  The current
Internal Revenue Code prohibits the Government from
levying upon a deficient taxpayer's property without
first affording the taxpayer notice and an opportunity
for a hearing, unless exigent circumstances indicate that
delay will jeopardize the collection of taxes due.  See 26
U. S. C. 6212, 6213, 6851, 6861.
  Just as the urgencies that justified summary seizure
of property in the 19th century had dissipated by the
time of Phillips, neither is there a plausible claim of
urgency today to justify the summary seizure of real
property under 881(a)(7).  Although the Government
relies to some extent on forfeitures as a means of de-
fraying law enforcement expenses, it does not, and we
think could not, justify the prehearing seizure of forfeit-
able real property as necessary for the protection of its
revenues.

                            D
  The constitutional limitations we enforce in this case
apply to real property in general, not simply to resi-
dences.  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.
  Finally, the suggestion that this one petitioner must
lose because his conviction was known at the time of
seizure, and because he raises an as applied challenge
to the statute, founders on a bedrock proposition: fair
procedures are not confined to the innocent.  The ques-
tion before us is the legality of the seizure, not the
strength of the Government's case.
   In sum, based upon the importance of the private
interests at risk and the absence of countervailing Gov-
ernment needs, we hold that the seizure of real property
under 881(a)(7) is not one of those extraordinary in-
stances 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.
  To establish exigent circumstances, the Government
must show that less restrictive measures-i.e., a lis pen-
dens, 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 statute of limitations, but without complying
with certain other statutory timing directives.
  Section 881(d) of Title 21 incorporates the -provisions
of law relating to the seizure, summary and judicial
forfeiture, and condemnation of property for violation of
the customs laws.-  The customs laws in turn set forth
various timing requirements.  Section 1621 of Title 19
contains the statute of limitations: -No suit or action to
recover any pecuniary penalty or forfeiture of property
accruing under the customs laws shall be instituted
unless such suit or action is commenced within five
years after the time when the alleged offense was dis-
covered.-  All agree that the Government filed its action
within the statutory period.
  The customs laws also contain a series of internal
requirements relating to the timing of forfeitures.
Section 1602 of Title 19 requires that a customs agent
-report immediately- to a customs officer every seizure
for violation of the customs laws, and every violation of
the customs laws.  Section 1603 requires that the cus-
toms officer -report promptly- such seizures or violations
to the United States attorney.  And 1604 requires the
Attorney General -forthwith to cause the proper proceed-
ings to be commenced- if it appears probable that any
fine, penalty, or forfeiture has been incurred.  The
Court of Appeals held, over a dissent, that failure to
comply with these internal timing requirements man-
dates dismissal of the forfeiture action.  We disagree.
  We have long recognized that -many statutory requisi-
tions 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 requisi-
tions 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 -immedi-
at[e]- hearing upon a pretrial detainee's -first appear-
ance before the judicial officer.-  18 U. S. C. 3142(f).
Because -[n]either the timing requirements nor any
other part of the Act [could] be read to require, or even
suggest, that a timing error must result in release of a
person who should otherwise be detained,- we held that
the federal courts could not release a person pending
trial solely because the hearing had not been held -im-
mediately.-  495 U. S., at 716-717.  We stated that
-[t]here is no presumption or general rule that for every
duty imposed upon the court or the Government and its
prosecutors there must exist some corollary punitive
sanction for departures or omissions, even if negligent.-
Id., at 717 (citing French, supra, at 511).  To the con-
trary, we stated that -[w]e do not agree that we should,
or can, invent a remedy to satisfy some perceived need
to coerce the courts and the Government into complying
with the statutory time limits.-  495 U. S., at 721.
  Similarly, in Brock, supra, we considered a statute
requiring that the Secretary of Labor begin an investi-
gation within 120 days of receiving information about
the misuse of federal funds.  The respondent there
argued that failure to act within the specified time
period divested the Secretary of authority to investigate
a claim after the time limit had passed.  We rejected
that contention, relying on the fact that the statute did
not specify a consequence for a failure to comply with
the timing provision.  Id., at 258-262.
  Under our precedents, the failure of Congress to speci-
fy a consequence for noncompliance with the timing
requirements of 19 U. S. C. 1602-1604 implies that
Congress intended the responsible officials administering
the Act to have discretion to determine what disciplin-
ary measures are appropriate when their subordinates
fail to discharge their statutory duties.  Examination of
the structure and history of the internal timing provi-
sions at issue in this case supports the conclusion that
the courts should not dismiss a forfeiture action for
noncompliance.  Because 1621 contains a statute of
limitations-the usual legal protection against stale
claims-we doubt Congress intended to require dismissal
of a forfeiture action for noncompliance with the inter-
nal timing requirements of 1602-1604.  Cf. United
States v. $8,850, 461 U. S., at 563, n. 13.
  Statutes requiring customs officials to proceed with
dispatch have existed at least since 1799.  See Act of
Mar. 2, 1799, 89, 1 Stat. 695-696.  These directives
help to ensure that the Government is prompt in ob-
taining revenue from forfeited property.  It would make
little sense to interpret directives designed to ensure the
expeditious collection of revenues in a way that renders
the Government unable, in certain circumstances, to
obtain its revenues at all.
  We hold that courts may not dismiss a forfeiture
action filed within the five-year statute of limitations for
noncompliance with the internal timing requirements of
1602-1604.  The Government filed the action in this
case within the five-year statute of limitations, and that
sufficed to make it timely.  We reverse the contrary
holding of the Court of Appeals.

                           IV
  The case is remanded for further proceedings consis-
tent with this opinion.

                                      It is so ordered.

============================ 92-1180.ZX.filt =======================
SUPREME COURT OF THE UNITED STATES
--------
No. 92-1180
--------
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.

============================ 92-1180.ZX1.filt =======================
SUPREME COURT OF THE UNITED STATES
--------
No. 92-1180
--------
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]

  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 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 Con-
gress, or the people who make congresses, to see that
the evil was corrected.  The remedy does not lie with
the judicial branch of the government.-  Springer v.
United States, 102 U. S. 586, 594 (1881).

                      I
  With respect to whether 19 U. S. C. 1602-1604
impose a timeliness requirement over and above the
statute of limitations, I agree with the dissenting judge
below that the Ninth Circuit improperly -converted a set
of housekeeping rules for the government into statutory
protection for the property of malefactors.-  971 F. 2d
1376, 1384 (1992).  I therefore join Parts I and III of
the Court's opinion.
  I cannot agree, however, that under the circumstances
of this case-where the property owner was previously
convicted of a drug offense involving the property, the
Government obtained a warrant before seizing it, and
the residents were not dispossessed-there was a due
process violation simply because Good did not receive
preseizure notice and an opportunity to be heard.  I
therefore respectfully dissent from Part II of the Court's
opinion; I also join Parts II and III of the opinion of
The Chief Justice.

                     II
  My first disagreement is with the Court's holding that
the Government must give notice and a hearing before
seizing any real property prior to forfeiting it.  That
conclusion is inconsistent with over a hundred years of
our case law.  We have already held that seizure for
purpose of forfeiture is one of those -extraordinary
situations,- Fuentes v. Shevin, 407 U. S. 67, 82 (1972)
(internal quotation marks omitted), in which the Due
Process Clause does not require predeprivation notice
and an opportunity to be heard.  Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U. S. 663, 676-680
(1974).  As we have recognized, Calero-Toledo -clearly
indicates that due process does not require federal
[agents] to conduct a hearing before seizing items
subject to forfeiture.-  United States v. $8,850, 461 U. S.
555, 562, n. 12 (1983); see also United States v. Von
Neumann, 474 U. S. 242, 249, n. 7 (1986).  Those cases
reflect the common-sense 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 personal property in the context of forfeiture of
property used for criminal purposes.  The required nexus
between the property and the crime-that it be used to
commit, or facilitate the commission of, a drug
offense-is the same for forfeiture of real and personal
property.  Compare 21 U. S. C. 881(a)(4) with
881(a)(7); see Austin v. United States, 509 U. S. ___,
___ (1993) (construing the two provisions equivalently).
Forfeiture of real property under similar circumstances
has long been recognized.  Dobbins's Distillery v. United
States, 96 U. S. 395, 399 (1878) (upholding forfeiture of
-the real estate used to facilitate the [illegal] operation
of distilling-); see also United States v. Stowell, 133
U. S. 1 (1890) (upholding forfeiture of land and buildings
used in connection with illegal brewery).
  The Court attempts to distinguish our precedents by
characterizing them as being based on -executive
urgency.-  Ante, at 16.  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. Commis-
sioner, 283 U. S. 589 (1931); or the war effort,
United States v. Pfitsch, 256 U. S. 547 (1921).-  416
U. S., at 679.
The Court says that there is no -plausible claim of
urgency today to justify the summary seizure of real
property under 881(a)(7).-  Ante, at 17-18.  But we
said precisely the opposite in Calero-Toledo:  -The
considerations that justified postponement of notice and
hearing in those cases are present here.-  416 U. S., at
679.  The only distinction between this case and Calero-
Toledo is that the property forfeited here was realty,
whereas the yacht in Calero-Toledo was personalty.
  It is entirely spurious to say, as the Court does, that
executive urgency depends on the nature of the property
sought to be forfeited.  The Court reaches its anomalous
result by mischaracterizing Calero-Toledo, stating that
the movability of the yacht there at issue was -[c]entral
to our analysis.-  Ante, at 8.  What we actually said in
Calero-Toledo, however, was that -preseizure notice and
hearing might frustrate the interests served by [forfeit-
ure] 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 disposi-
tive of, the due process analysis.  In any event, land and
buildings are subject to damage or destruction.  See
ante, at 8 (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 impor-
tance 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 7-8.

                     III
  My second disagreement is with the Court's holding
that the Government acted unconstitutionally in seizing
this real property for forfeiture without giving Good
prior notice and an opportunity to be heard.  I agree
that the due process inquiry outlined in Mathews v.
Eldridge, 424 U. S. 319, 335 (1976)-which requires a
consideration of the private interest affected, the risk of
erroneous deprivation and the value of additional
safeguards, and the Government's interest-provides an
appropriate analytical framework for evaluating whether
a governmental practice violates the Due Process Clause
notwithstanding its historical pedigree.  Cf. Medina v.
California, 505 U. S. ___, ___ (1992) (O'Connor, J.,
concurring in judgment).  But this case is an as applied
challenge to the seizure of Good's property; on these
facts, I cannot conclude that there was a constitutional
violation.
  The private interest at issue here-the owner's right
to control his property-is significant.  Cf. Connecticut
v. Doehr, 500 U. S. ___, ___ (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 $8,850, supra,
in which we stated that preseizure notice and hearing
was not required.
  The Court emphasizes that people have a strong
interest in their homes.  Ante, at 9, 18.  But that
observation confuses the Fourth and the Fifth Amend-
ments.  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 inter-
ests-the domain of the Fourth Amendment.  Where, as
here, the Government obtains a warrant supported by
probable cause, that concern is allayed.  The Fifth
Amendment, on the other hand, is concerned with
deprivations of property interests; for due process
analysis, it should not matter whether the property to
be seized is real or personal, home or not.  The relevant
inquiry is into the governmental interference with the
owner's interest in whatever property is at issue, an
intrusion that is minimal here.
  Moreover, it is difficult to see what advantage a
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., 395
U. S. 337, 343 (1969) (Harlan, J., concurring).  The
Court's concern with innocent owners (see ante, at
10-11) 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 prop-
erty owners have a due process right to a prompt
postseizure hearing, which is sufficient to protect the
owner's interests.  See $8,850, 461 U. S., at 564-565;
Von Neumann, 474 U. S., at 249.
  The Government's interest in the property is substan-
tial.  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.
A Parcel of Rumson, N. J., Land, 507 U. S. ___, ___
(1993) (plurality opinion); compare Doehr, supra, at ___
(noting that the plaintiff -had no existing interest in
Doehr's real estate when he sought the attachment-).
Seizure allowed the Government to protect its inchoate
interest in the property itself.  Cf. Mitchell v. W. T.
Grant Co., 416 U. S. 600, 608-609 (1974).
  Seizure also permitted the Government -to assert in
rem jurisdiction over the property in order to conduct
forfeiture proceedings, thereby fostering the public
interest in preventing continued illicit use of the
property and in enforcing criminal sanctions.-  Calero-
Toledo, 416 U. S., at 679 (footnote omitted); see also
Fuentes, 407 U. S., at 91, n. 23, citing Ownbey v.
Morgan, 256 U. S. 94 (1921).  In another case in which
the forfeited property was land and buildings, this Court
stated:
-Judicial proceedings in rem, to enforce a forfeiture,
cannot in general be properly instituted until the
property inculpated is previously seized by the
executive authority, as it is the preliminary seizure
of the property that brings the same within the
reach of such legal process.-  Dobbins's Distillery, 96
U. S., at 396, citing The Brig Ann, 9 Cranch 289
(1815).
The Government in Dobbins's Distillery proceeded almost
exactly as it did here:  The United States Attorney
swore out an affidavit alleging that the premises were
being used as an illegal distillery, and thus were subject
to forfeiture; a federal judge issued a seizure warrant;
a deputy United States Marshal seized the property by
posting notices thereon admonishing anyone with an
interest in it to appear before the court on a stated
date; and the court, after a hearing at which Dobbins
claimed his interest, ordered the property forfeited to the
United States.  See Record in Dobbins's Distillery v.
United States, No. 145, O. T. 1877, pp. 2-8, 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.
  The Court objects that the rule has its origins in
admiralty cases, and has no applicability when the
object of the forfeiture is real property.  But Congress
has specifically made the customs laws applicable to
drug forfeitures, regardless of whether the Government
seeks to forfeit real or personal property.  21 U. S. C.
881(d); cf. Tyler v. Defrees, 11 Wall. 331, 346 (1871)
(-Unquestionably, it was within the power of Congress
to provide a full code of procedure for these cases
[involving the forfeiture of real property belonging to
rebels], but it chose to [adopt], as a general rule, a well-
established system of administering the law of capture-).
Indeed, just last Term, we recognized in a case involving
the seizure and forfeiture of real property that -it long
has been understood that a valid seizure of the res is a
prerequisite to the initiation of an in rem civil forfeiture
proceeding.-  Republic Nat. Bank of Miami v. United
States, 506 U. S. ___, ___ (1992).
  Finally, the burden on the Government of the Court's
decision will be substantial.  The practical effect of
requiring an adversary hearing before seizure will be
that the Government will conduct the full forfeiture
hearing on the merits before it can claim its interest in
the property.  In the meantime, the Government can
protect the important federal interests at stake only
through the vagaries of state laws.  And while under the
current system only a few property owners contest the
forfeiture, the Court's opinion creates an incentive and
an opportunity to do so, thus increasing the workload of
federal prosecutors and courts.
  For all these reasons, I would reverse the judgment of
the Court of Appeals.  I therefore respectfully dissent
from Part II of the opinion of the Court.

============================ 92-1180.ZX2.filt =======================
SUPREME COURT OF THE UNITED STATES
--------
No. 92-1180
--------
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]

  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
rights incident to the ownership of real property,
especially residences, and second, a more implicitly
expressed distrust of the Government's aggressive use of
broad civil forfeiture statutes.  Although I concur with
both of these sentiments, I cannot agree that Good was
deprived of due process of law under the facts of this
case.  Therefore, while I join Parts I and III of the
Court's opinion, I dissent from Part II.
  Like the majority, I believe that -[i]ndividual freedom
finds tangible expression in property rights.-  Ante, at
18.  In my view, as the Court has increasingly empha-
sized the creation and delineation of entitlements in
recent years, it has not always placed sufficient stress
upon the protection of individuals' traditional rights in
real property.  Although I disagree with the outcome
reached by the Court, I am sympathetic to its focus on
the protection of property rights-rights that are central
to our heritage.  Cf. Payton v. New York, 445 U. S. 573,
601 (1980) (-[R]espect for the sanctity of the home . . .
has been embedded in our traditions since the origins of
the Republic-); Entick v. Carrington, 19 How. St. Tr.
1029, 1066 (C. P. 1765) (-The great end, for which men
entered into society, was to secure their property-).
  And like the majority, I am disturbed by the breadth
of new civil forfeiture statutes such as 21 U. S. C.
881(a)(7), which subjects to forfeiture all real property
that is used, or intended to be used, in the commission,
or even the facilitation, of a federal drug offense.  As
Justice O'Connor points out, ante, at 2-4, since the
Civil War we have upheld statutes allowing for the civil
forfeiture of real property.  A strong argument can be
made, however, that 881(a)(7) is so broad that it dif-
fers not only in degree, but in kind, from its historical
antecedents.  See, e.g., Brief for Respondents 19-21.
Indeed, it is unclear whether the central theory behind
in rem forfeiture, the fiction -that the thing is primarily
considered the offender,- J. W. Goldsmith, Jr.-Grant Co.
v. United States, 254 U. S. 505, 511 (1921), can fully
justify the immense scope of 881(a)(7).  Under this
provision, -large tracts of land [and any improvements
thereon] which have no connection with crime other
than being the location where a drug transaction oc-
curred,- Brief for Respondents 20, are subject to forfeit-
ure.  It is difficult to see how such real property is
necessarily in any sense -guilty- of an offense, as could
reasonably be argued of, for example, the distillery in
Dobbins's Distillery v. United States, 96 U. S. 395
(1878), or the pirate vessel in Harmony v. United
States, 2 How. 210 (1844).  Given that current practice
under 881(a)(7) appears to be far removed from the
legal fiction upon which the civil forfeiture doctrine is
based, it may be necessary-in an appropriate case-to
reevaluate our generally deferential approach to legisla-
tive judgments in this area of civil forfeiture.
 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 the critical facts of the case before it.
As the opinions of The Chief Justice, ante, at 5-8, and
Justice O'Connor, ante, at 2-5, persuasively demon-
strate, the Court's opinion is predicated in large part
upon misreadings of important civil forfeiture prece-
dents, especially Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U. S. 663 (1974).  I will not repeat the cri-
tiques found in the other dissents, but will add that it
is twice-puzzling for the majority to explain cases such
as Springer v. United States, 102 U. S. 586 (1881), and
Dobbins's Distillery, supra, as depending on the Federal
Government's urgent need for revenue in the 19th cen-
tury.  First, it is somewhat odd that the Court suggests
that the Government's financial concerns might justifi-
ably control the due process analysis, see ante, at 16,
and second, it is difficult to believe that the prompt
collection of funds was more essential to the Govern-
ment a century ago than it is today.
 I agree with the other dissenters that a fair applica-
tion of the relevant precedents to this case would indi-
cate 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 10.  The
Court forgets that -this case is an as applied challenge
to the seizure of Good's property.-  Ante, at 5
(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 15, 18, the Court effectively
declares that many of the customs laws are facially
unconstitutional as they apply under 21 U. S. C. 881(d)
to forfeiture actions brought pursuant to 881(a)(7).
See, e.g., 19 U. S. C. 1602, 1605 (authorizing seizure
prior to adversary proceedings).  We should avoid reach-
ing beyond the question presented in order to fashion a
broad constitutional rule when doing so is unnecessary
for resolution of the case before us.  Cf. Ashwander v.
TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concur-
ring).  The Court's overreaching is particularly unfortu-
nate in this case because the Court's solicitude is so
clearly misplaced: Good is not an -innocent owner-; he
is a convicted drug offender.
 Like Justice O'Connor, I cannot agree with the
Court that -under the circumstances of this case-where
the property owner was previously convicted of a drug
offense involving the property, the Government obtained
a warrant before seizing it, and the residents were not
dispossessed-there was a due process violation simply
because Good did not receive preseizure notice and an
opportunity to be heard.-  Ante, at 2 (O'Connor, J.,
concurring in part and dissenting in part).  Wherever
the due process line properly should be drawn, in cir-
cumstances 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 prop-
erty without more formalized notice and an opportunity
to be heard is simply one of the many unpleasant collat-
eral 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 question
presented to us for review.  Moreover, when, as here,
ambitious modern statutes and prosecutorial practices
have all but detached themselves from the ancient
notion of civil forfeiture, I prefer to go slowly.  While I
sympathize with the impulses motivating the Court's
decision, I disagree with the Court's due process analy-
sis.  Accordingly, I respectfully dissent.

--
Carl Kadie -- I do not represent EFF; this is just me.
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