2208

Use of Seizure Warrants on Real Property

As a general rule, warrants of arrest in rem signed by a judicial officer or seizure warrants will be used for the seizure of all real property. At the very least, the execution of the warrant of arrest in rem must be accomplished within 5 days of the seizing agency's seizure of real property pursuant to a seizure warrant. Unless exigent circumstances are present, the Due Process Clause of the Fifth Amendment requires the government to afford notice and a meaningful opportunity to be heard before seizing actual control of real property pending forfeiture. United States v. James Daniel Good Real Property, 114 S. Ct. 492 (1993). (United States v. James Daniel Good Real Property and procedures to be used in real property forfeitures are discussed under Real Property Seizures, this Manual at 2215). To establish exigent circumstances justifying an ex parte warrant for actual seizure and control of real property pending forfeiture, the government must show that less restrictive measures (e.g., a lis pendens, restraining order, or bond) would not suffice to protect the government's interests in preventing the sale, destruction, or continued unlawful use of the real property. Id. Additionally, the Good decision makes clear that the government can avoid the hearing requirement if it refrains from seizing actual control of the property but instead merely posts the property with the warrant of arrest in rem and leaves a copy of the process with the occupant in order to provide the court with the constructive control of the res required for the initiation of an in rem forfeiture. When there are exigent circumstances, affidavits submitted in support of ex parte warrants for actual seizure and control of real property pending forfeiture should set forth the relevant facts establishing the exigent circumstances, and a specific finding of the exigent circumstances justifying the government's seizure of actual control of the real property prior to notice and an opportunity for an adversary hearing should be included in the ex parte warrant. If there is a finding of exigent circumstances, the ex parte warrant should be executed promptly. [cited in USAM 9-111.130; USAM 9-112.130]