2215

Real Property Seizures

In United States v. James Daniel Good Real Property, 114 S. Ct. 492 (1993), the United States Supreme Court held that no real property may be seized, except in exigent circumstances, without giving a property owner notice of the proposed seizure and an opportunity for an adversarial hearing. This hearing is referred to as a "pre-seizure hearing." Good applies to all real property. "The constitutional limitations . . . in this case apply to real property in general, not simply to residences." Id. at 505. In light of the Good decision, the United States now generally commences forfeiture actions against real property through "posting" rather than seizure. The Court also addressed a number of issues in the context of this ruling that, taken together, significantly change the way in which the government conducts civil forfeiture proceedings. First, in addition to its ruling that any seizure of real property must first be accompanied by notice and an opportunity to be heard, the Court endorsed a method, previously approved by the First Circuit (United States v. TWP 17 R 4, Certain Real Property in Maine, 970 F.2d 984 (1st Cir. 1992)), in which a civil in rem proceeding is initiated by "posting" the property under the Admiralty Rules. (Rule E(4)(b) states: "(b) Tangible Property. ...If the character or situation of the property is such that the taking of actual possession is impracticable, the marshal shall execute the process by affixing a copy thereof to the property in a conspicuous place and by leaving a copy of the complaint and process with the person having possession or the person's agent....") Under this method, the actual "seizure" of the property takes place upon or after forfeiture. Second, the Court addressed procedures for preserving property during the pendency of the forfeiture case. If, for example, there is evidence that an owner is likely to destroy his or her property when advised of the pending action, the Court stated that the government may obtain an ex parte restraining order. Third, the Court determined that the government may seize real property without a hearing upon a showing of exigent circumstances. Such a showing requires that the government demonstrate that a less restrictive measure will not be sufficient to protect the government's interest in preventing the sale, destruction, or continued unlawful use of the real property. Prior to the Good decision, the government "seized" property in every instance. Now, as a result of Good, the determination of whether to initiate civil forfeiture through a "seizure," or a "posting," requires an exercise of discretion by the attorney for the government taking into account the circumstances and facts of each case. The purpose of this policy is to describe some of the alternatives available to the government to effect civil forfeitures and still protect real property during the pendency of the forfeiture action. The policy is divided into three sections: 1) posting; 2) seizure with notice and an opportunity to be heard; and 3) exigent circumstances, or seizures without a hearing. Each of the three alternatives has different consequences that should be addressed at the pre-seizure planning stage and the decision should be made in consultation with the U.S. Marshals Service. [cited in Criminal Resource Manual 2208; USAM 9-111.130]