FORFEITURE; SEARCHES AND SEIZURES: The issuance of warrants to seize a landowner's property without first giving proper notice and hearing, and in the absence of exigent circumstances, violates the landowner's rights to due process. U.S. v. 2751 Peyton Woods Trail, 66 F.3d 1164 (11th Cir. 1995).

The U.S. government obtained warrants to seize real property (an uninhabited house) after establishing ex parte that probable cause existed to believe the property was involved in money laundering. The government then filed a complaint for forfeiture, received warrants for arrest of the properties, and executed process on the properties. All of this happened without prior notice and hearing to the owner of the property.

Later, the owner appeared in the forfeiture action and challenged the validity of the seizure. There seemed to be little question that the seizure was unlawful. The U.S. Supreme Court has held that, absent exigent circumstances, Due Process entitles property owners to prior notice and hearing before seizure of property pursuant to civil forfeiture statutes. United States v. James Daniel Good, Real Property, 1114 US. Ct. 492 (1993). An unresolved question following Good, however, is the extent of the property owner's remedy for the Due Process violation.

The government argued that, assuming that it in fact ultimately established the relationship of the property to criminal proceeds, the remedy was suppression of any evidence seized pursuant to the unlawful seizure and rents from the property prior to the final forfeiture. It asserted that authority in the Ninth and Tenth circuits had so held. . Real Property Located at 20832 Big Rock Drive, Malibu, CA., 51 F.3d 1402 (9th Cir. 1995); United States of America, Plaintiff-appellee, v. 51 Pieces of Real Property, Roswell, New Mexico, 17 F.3d 1306 (10th Cir. 1994) (dicta) ; and that the Second Circuit had so held prior to Good. United States v. Premises and Real Property at 4492 South Livonia Road, 889 F.2d 1258, 1265-66 (2d Cir. 1989).

The Eleventh Circuit disagreed. The court dismissed the forfeiture action, leaving open the possibility that the government may later seek valid seizure warrants after a new hearing and forfeiture proceedings. This is consistent, apparently, with the Eighth Circuit view. One Parcel of Real Property, Located at 9638 Chicago Heights, 27 F.3d 327 (8th Cir. 1994)

Comment: Whatever we think about the legitimacy of seizure of real property due to its "criminal involvement," we must recognize that some property owners will be wrongly accused. If the government seizes their property without prior notice and hearing, in many cases such seizure will affect profoundly their ability to muster an effective defense and may endanger their ability to maintain the value and condition of their property in a number of other ways.

Consequently, the subsequent proof that the property really is subject to forfeiture may itself by tainted by the government's tactics in seizing it. Remember that here we start with the proposition that there are no exigent circumstances dealing with the government's law enforcement function justifying ex parte seizure here. The government is just being a brute.

Remember that in a number of cases the property owner in question will not in fact be the perpetrator of a crime, but merely the owner of property acquired with criminal proceeds. There is an "innocent owner" defense, but of course the facts establishing such defense must be proven, and some who cannot fit within this defense may in fact be morally blameless. So we're not just talking about seizing the property of worthless criminals.

The case is correct.

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