510 U.S.

43

UNITED STATES
v.
JAMES DANIEL GOOD REAL PROPERTY ET AL.
No. 92-1180.

Supreme Court of United States.

Argued October 6, 1993.
Decided December 13, 1993.

Four and one-half years after police found drugs and drug paraphernalia 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 commission of a federal drug offense. Following
an ex parte proceeding, a Magistrate Judge issued a warrant authorizing
the property'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 Process Clause, and remanded the case for a
determination whether the action, although filed within the 5-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 requires the
Government to afford notice and a meaningful opportunity to be heard
before seizing real property subject to civil forfeiture. Pp. 48-62.
(a) The seizure of Good's property implicates two "`explicit textual
source[s] of constitutional protection,'" the Fourth Amendment and the

Fifth. Soldal v. Cook County, 506 U. S. 56, 70. 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, distinguished. 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. 48-52.
(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 probable value of additional safeguards; and the Government's
interest, including the administrative burden that additional procedural
requirements would impose, id., at 335the seizure of real property for
purposes of civil forfeiture does not justify such an exception. 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.,
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 Government's legitimate interests at the
inception of a forfeiture proceedingpreventing the property from being
sold, destroyed, or used for further illegal activity before the forfeiture
judgmentcan be secured through measures less intrusive than seizure: a
lis pendens 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 postpone 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. 52-59.
(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 property under 881(a)(7). Cf.
Phillips v. Commissioner, 283 U. S. 589. Pp. 59-61.
2. Courts may not dismiss a forfeiture action filed within the 5-year statute
of limitations for noncompliance with the timing requirements of 16021604. Congress' failure to specify a consequence for noncompliance
implies that it intended the responsible officials administering the Act to
have discretion to determine what disciplinary measures are appropriate
when their subordinates 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. 62-65.
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, post, p. 65. O'CONNOR, J.,
post, p. 73, and THOMAS, J., post, p. 80, filed opinions concurring in part
and dissenting in part.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Edwin S. Kneedler argued the cause for the United States. With him on
the brief were Solicitor General Days, Acting Solicitor General Bryson,
and Acting Assistant Attorney General Keeney.
Christopher J. Yuen argued the cause and filed a brief for respondents. *
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
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.

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.
3

* 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, 4 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 4-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.1

On August 18, 1989, in an ex parte proceeding, a United States Magistrate

Judge found that the Government 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 Government 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 proceedings. 971 F. 2d 1376 (1992). The court was
unanimous in holding that seizure of Good's property, 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. 16021604. 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 reporting rules could require dismissal of the forfeiture action as
untimely. The court remanded the case for a determination whether the
Government had satisfied its obligation to make prompt reports. Id., at 1382.

10

We granted certiorari, 507 U. S. 983 (1993), to resolve a conflict among the

Courts of Appeals on the constitutional 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
11

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 individuals 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).

12

The Government does not, and could not, dispute that the seizure of Good's
home and 4-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 forfeiture. 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.
13

* 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.

14

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. 56, 70 (1992):

15

"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."

16

Here, as in Soldal, the seizure of property implicates two "`explicit textual

source[s] of constitutional protection,'" the Fourth Amendment and the Fifth.
Ibid. The proper question is not which Amendment controls but whether either
Amendment is violated.

17

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 ordinarily ensure
compliance with due process.
18

Gerstein held that the Fourth Amendment, rather than the Due Process Clause,
determines the requisite postarrest 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." 420 U. S., 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).

19

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 generalized 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 Amendment." Id., at 394.

20

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 inconsistent 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).

21

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 provisions. See Camara v.
Municipal Court of City and County 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 Amendments.
22

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 complied with our
well-settled jurisprudence under the Due Process Clause.

B
23

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., supra, which held that the Government 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 postponement
of notice and hearing until after the seizure. Id., at 678 (quoting Fuentes, supra,
at 91).

24

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, 10 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.

25

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 encroachmentto minimize
substantively unfair or mistaken deprivations of property. . . ." Fuentes, 407 U.
S., at 80-81.

26

We tolerate some exceptions to the general rule requiring predeprivation notice

and hearing, but only in "`extraordinary situations where some valid
governmental 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
promptness 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 administrative burden that additional
procedural requirements would impose. Id., at 335.

27

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.

28

In Fuentes, we held that the loss of kitchen appliances and household furniture
was significant enough to warrant a pre-deprivation hearing. 407 U. S., at 7071. And in Connecticut v. Doehr, 501 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 circumstances,
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.

29

The seizure of a home produces a far greater deprivation 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.
30

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 protection. 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.

31

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 affirmative 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").

32

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 commission of," a felony narcotics offense. Ibid. The Government 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. 602 (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 Comm.
v. McGrath, 341 U. S. 123, 170-172 (1951) (Frankfurter, J., concurring)
(footnotes omitted).

33

The purpose of an adversary hearing is to ensure the requisite neutrality that

must inform all governmental decision-making. That protection is of particular
importance here, where the Government has a direct pecuniary interest in the

outcome of the proceeding.2 See Harmelin v. Michigan, 501 U. S. 957, 979, n.

9 (1991) (opinion of SCALIA, J.) ("[I]t makes sense to scrutinize governmental
action more closely when the State stands to benefit"). Moreover, the
availability 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
determination, coming months after the seizure, "would not cure the temporary
deprivation that an earlier hearing might have prevented." Doehr, 501 U. S., at
15.
34

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.

35

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.

36

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. 80, 84 (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.
37

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."
Republic Nat. Bank, supra, at 87. 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:

38

"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 conspicuous 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.

39

See also United States v. TWP 17 R 4, Certain Real Property in Maine, 970 F.
2d 984, 986, and n. 4 (CA1 1992).

40

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 interests can be secured without seizing the subject property.

41

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 appropriate 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.
42

In the usual case, the Government thus has various means, short of seizure, to
protect its legitimate interests 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.

43

Requiring the Government to postpone seizure until after an adversary hearing

creates no significant administrative burden. A claimant is already entitled to an
adversary hearing before a final judgment of forfeiture. No extra hearing would
be required in the typical case, since the Government can wait until after the
forfeiture judgment to seize the property. From an administrative 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 comparison to the injury
occasioned by erroneous seizure.

C
44

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 rationalelike 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
contaminated 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").

45

A like rationale justified the ex parte seizure of tax-delinquent distilleries in the

late 19th 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 Amendment, the Federal Government relied heavily on liquor,

customs, and tobacco taxes to generate operating revenues. In 1902, for
example, nearly 75 percent of total federal revenues$479 million out of a
total of $653 millionwas raised from taxes on liquor, customs, and tobacco.
See U. S. Bureau of Census, Historical Statistics of the United States, Colonial
Times to the Present 1122 (1976).
46

The federal income tax code adopted in the first quarter 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 seizure of property. Id., at 597-599 (citing Act of Feb. 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 overridden,
but only when the Commissioner made a determination 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)").

47

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.

48

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
defraying law enforcement expenses, it does not, and we think could not, justify
the pre-hearing seizure of forfeitable real property as necessary for the
protection of its revenues.

D
49

The constitutional limitations we enforce in this case apply to real property in

general, not simply to residences. 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.

50

Finally, the suggestion that this one claimant 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 question before us is the legality of the seizure,
not the strength of the Government's case.

51

In sum, based upon the importance of the private interests at risk and the
absence of countervailing Government needs, we hold that the seizure of real
property under 881(a)(7) is not one of those extraordinary instances 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.3

52

To establish exigent circumstances, the Government must show that less

restrictive measuresi. e., a lis pendens, restraining order, or bondwould 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
53

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.

54

Title 21 U. S. C. 881(d) 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. Title 19 U. S. C. 1621 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
discovered." All agree that the Government filed its action within the statutory
period.
55

The customs laws also contain a series of internal requirements relating to the
timing of forfeitures. Title 19 U. S. C. 1602 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 customs officer "report promptly" such seizures or violations to the
United States attorney. And 1604 requires the Attorney General "forthwith to
cause the proper proceedings 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 mandates
dismissal of the forfeiture action. We disagree.

56

We have long recognized that "many statutory requisitions 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 requisitions 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, 717721 (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.).

57

In Montalvo-Murillo, for example, we considered the Bail Reform Act of 1984,

which requires an "immediat[e]" hearing upon a pretrial detainee's "first
appearance 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
"immediately." 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 contrary, 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.

58

Similarly, in Brock, supra, we considered a statute requiring that the Secretary

of Labor begin an investigation 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.
59

Under our precedents, the failure of Congress to specify 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 disciplinary measures are appropriate
when their subordinates fail to discharge their statutory duties. Examination of
the structure and history of the internal timing provisions 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 limitationsthe usual
legal protection against stale claimswe doubt Congress intended to require
dismissal of a forfeiture action for noncompliance with the internal timing
requirements of 1602-1604. Cf. United States v. $8,850, 461 U. S., at 563, n.
13.

60

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 obtaining 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 5-year
statute of limitations for noncompliance with the internal timing requirements
of 1602-1604. The Government filed the action in this case within the 5-year
statute of limitations, and that sufficed to make it timely. We reverse the
contrary holding of the Court of Appeals.

IV
61

The case is remanded for further proceedings consistent with this opinion.

62

It is so ordered.

Notes:

A brief ofamici curiae urging reversal was filed for the State of Kentucky et al.
by Chris Gorman, Attorney General, and David A. Sexton, Assistant Attorney
General, Malaetasi Togafau, Attorney General of American Samoa, Grant
Woods, Attorney General of Arizona, Daniel E. Lungren, Attorney General of
California, Domenick J. Galluzzo, Acting Chief State's Attorney of
Connecticut, Pamela Carter, Attorney General of Indiana, Robert T. Stephan,
Attorney General of Kansas, Richard P. Ieyoub, Attorney General of
Louisiana, J. Joseph Curran, Jr., Attorney General of Maryland, Scott
Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney
General of Michigan, Mike Moore, Attorney General of Mississippi, Joseph P.
Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of
Nebraska, Jeffrey R. Howard, Attorney General of New Hampshire, Tom Udall,
Attorney General of New Mexico, Heidi Heitkamp, Attorney General of North
Dakota, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and Joseph B.
Myer, Attorney General of Wyoming.
Briefs of amici curiae urging affirmance were filed for the American Civil
Liberties Union et al. by Steven Alan Reiss, Richard A. Rothman, Katherine
Oberlies, Steven R. Shapiro, and John A. Powell; for the Institute for Justice by
William H. Mellor III and Clint Bolick; and for the National Association of
Criminal Defense Lawyers by Richard J. Troberman and E. E. Edwards III.

Title 21 U. S. C. 881(a)(7) provides:

"(a) . . .
"The following shall be subject to forfeiture to the United States and no
property right shall exist in them:
.....
"(7) All real property, including any right, title, and interest (including any
leasehold interest) in the whole of any lot or tract of land and any appurtenances
or improvements, which is used, or intended to be used, in any manner or part,
to commit, or to facilitate the commission of, a violation of this subchapter
punishable by more than one year's imprisonment, except that no 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 extent of the Government's financial stake in drug forfeiture is apparent

from a 1990 memo, in which the Attorney General urged United States

Attorneys to increase the volume of forfeitures in order to meet the Department

of Justice's annual budget target:
"We must significantly increase production to reach our budget target.
". . . Failure to achieve the $470 million projection would expose the
Department's forfeiture program to criticism and undermine confidence in our
budget projections. Every effort must be made to increase forfeiture income
during the remaining three months of [fiscal year] 1990." Executive Office for
United States Attorneys, U. S. Dept. of Justice, 38 United States Attorney's
Bulletin 180 (1990).
3

We do not address what sort of procedures are required for preforfeiture

seizures of real property in the context of criminal forfeiture. See,e. g., 21 U. S.
C. 853; 18 U. S. C. 1963 (1988 ed. and Supp. IV).We note, however, that
the federal drug laws now permit seizure before entry of a criminal forfeiture
judgment only where the Government persuades a district court that there is
probable cause to believe that a protective order "may not be sufficient to assure
the availability of the property for forfeiture." 21 U. S. C. 853(f).

63

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA joins, and

with whom JUSTICE O'CONNOR joins as to Parts II and III, concurring in part
and dissenting in part.

64

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 protection 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 illconsidered and disruptive decision.

65

* 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
Security 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. 437 (1992)
(holding that the Due Process Clause has limited operation beyond the specific
guarantees enumerated in the Bill of Rights). More importantly, 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 warrantless
automobile seizures).
66

* 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:

67

"The historical basis of the probable cause requirement is quite different from
the relatively recent application of variable procedural due process in debtorcreditor disputes and termination of government-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 property in criminal
cases, including the detention of suspects pending trial." Id., at 125, n. 27
(emphasis added).

68

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 temporarily deprived of property on the same

basis. As we said in United States v. Monsanto, 491 U. S. 600, 615-616 (1989):
69

"[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."

70

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
71

The Court dismisses the holdings of Gerstein and Graham as inapposite

because they concern "the arrest or detention of criminal suspects." Ante, at 50.
But we have never held that the Fourth Amendment is limited only to criminal
proceedings. In Soldal v. Cook County, 506 U. S. 56, 67 (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 forfeiture 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)).

72

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 59whatever 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
operating revenue. Whatever the merits of this novel distinction, 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 principal source of governmental revenue. There the
Court said:

73

"The right of the United States to collect its internal revenue by summary
administrative proceedings has long been settled. Where, as here, adequate
opportunity is afforded for a later judicial determination of the legal rights,
summary proceedings to secure prompt performance of pecuniary obligations to
the government have been consistently sustained." Id., at 595 (footnote
omitted).

74

"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.

75

Thus today's decision does not merely discard established precedents regarding
excise taxes, but deals at least a glancing blow to the authority of the
Government to collect income tax delinquencies by summary proceedings.

II
76

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, 501 U. S. 1
(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) (upholding Louisiana sequestration statute that
provided immediate postdeprivation hearing along with the option of damages).
77

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.

78

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 attachment. 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 11 (quoting Tulsa Professional Collection
Services, Inc. v. Pope, 485 U. S. 478, 486 (1988)). The Court concluded 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 recovery. 501 U. S., at 18. In
the present case, however, it is not a private party but the Government itself
which is seizing the property.

79

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 advance warning of confiscation were given.'" Ante, at 52 (quoting
Calero-Toledo, supra, at 679). 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 in preventing continued illicit use of the
property," and the fact that the "seizure is not initiated by self-interested private
parties; rather, Commonwealth officials determine whether seizure is
appropriate ...," 416 U. S., at 679are 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.

80

The government interests found decisive in Calero-Toledo are equally present

here: The seizure of respondent Good's real property serves important
governmental purposes in combating 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
81

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 inflicted to secure these perceived
social benefits. I would reverse the decision of the Court of Appeals in toto.

Notes:
*

Ironically, courts and commentators have debated whether even awarrant

should be required for civil forfeiture seizures, not whether notice and a
preseizure hearing should apply. See, e. g., Nelson, Should the Ranch Go Free
Because the Constable Blundered? Gaining Compliance with Search and
Seizure Standards in the Age of Asset Forfeiture, 80 Calif. L. Rev. 1309
(1992); Ahuja, Civil Forfeiture, Warrantless Property Seizures, and the Fourth
Amendment, 5 Yale L. & Policy Rev. 428 (1987); and Comment, Forfeiture,
Seizures and the Warrant Requirement, 48 U. Chi. L. Rev. 960 (1981). Forcing
the Government to notify the affected property owners and go through a
preseizure hearing in civil forfeiture cases must have seemed beyond the pale to
these commentators.

82

JUSTICE O'CONNOR, concurring in part and dissenting in part.

83

Today the Court declares unconstitutional an act of the Executive Branch taken
with the prior approval of a Federal Magistrate Judge 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 Congress, 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).
84

* 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.

85

I cannot agree, however, that under the circumstances of this casewhere 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 dispossessedthere 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
86

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
commonsense 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).

87

The distinction the Court tries to draw between our precedents and this case

the only distinction it can drawis 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.
88

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 crimethat it be used to commit, or
facilitate the commission of, a drug offenseis 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. 602, 619-622 (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).

89

The Court attempts to distinguish our precedents by characterizing them as

being based on "executive urgency." Ante, at 60. But this case, like all
forfeiture cases, also involves executive urgency. Indeed, the Court in CaleroToledo relied on the same cases the Court disparages:

90

"[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. Commissioner, 283 U. S. 589 (1931); or the war effort, United
States v. Pfitsch, 256 U. S. 547 (1921)." 416 U. S., at 679.

91

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 61. 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.

92

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
52. What we actually said in Calero-Toledo, however, was that "preseizure
notice and hearing might frustrate the interests served by [forfeiture] statutes,
since the property seizedas here, a yachtwill 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 dispositive
of, the due process analysis. In any event, land and buildings are subject to
damage or destruction. See ante, at 72 (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 importance of the governmental purpose and the fact that the seizure was
made by government officials rather than private partiesare without a doubt
equally present in this case, as THE CHIEF JUSTICE's opinion demonstrates.
Ante, at 71-72.

III
93

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. 437, 453 (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.

94

The private interest at issue herethe owner's right to control his propertyis
significant. Cf. Connecticut v. Doehr, 501 U. S. 1, 11 (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 forfeiturea monetary

interest identical to that of the property owner in United States v. $8,850, 461
U. S. 555 (1983), in which we stated that preseizure notice and hearing were
not required.
95

The Court emphasizes that people have a strong interest in their homes. Ante, at
53-55, 61. But that observation confuses the Fourth and the Fifth Amendments.
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 intereststhe
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.

96

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. of Bay View, 395 U. S. 337,
343 (1969) (Harlan, J., concurring). The Court's concern with innocent owners
(see ante, at 55-56) 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.

97

At any hearingadversary or notthe 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 property owners
have a due process right to a prompt postseizure hearing, which is sufficient to
protect the owner's interests. See $8,850, supra, at 564-565; Von Neumann, 474
U. S., at 249.

98

The Government's interest in the property is substantial. 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. Parcel of Rumson, N. J., Land, 507
U. S. 111, 125-127 (1993) (plurality opinion); cf. Doehr, supra, at 16 (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).
99

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:

100 "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).
101 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.
102 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.

80, 84 (1992).
103 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.
104 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.
105 JUSTICE THOMAS, concurring in part and dissenting in part.
106 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.
107 Like the majority, I believe that "[i]ndividual freedom finds tangible expression
in property rights." Ante, at 61. In my view, as the Court has increasingly
emphasized 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 rightsrights
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").
108 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.1 As JUSTICE O'CONNOR points out,

ante, at 74-76, 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 differs 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 occurred," Brief for Respondents 20, are
subject to forfeiture. 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 caseto reevaluate our generally deferential approach to
legislative judgments in this area of civil forfeiture.2
109 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 69-72, and JUSTICE O'CONNOR, ante, at 74-76,
persuasively demonstrate, the Court's opinion is predicated in large part upon
misreadings of important civil forfeiture precedents, especially Calero-Toledo
v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974). 3 I will not repeat the
critiques 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 century. First, it is somewhat
odd that the Court suggests that the Government's financial concerns might
justifiably control the due process analysis, see ante, at 59-60, and second, it is
difficult to believe that the prompt collection of funds was more essential to the
Government a century ago than it is today.
110 I agree with the other dissenters that a fair application of the relevant precedents
to this case would indicate 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 casefacts that are disregarded by the

Court in its well-intentioned effort to protect "innocent owners" from mistaken

Government seizures. Ante, at 55. The Court forgets that "this case is an as
applied challenge to the seizure of Good's property." Ante, at 77 (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 59, 62, 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 reaching
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., concurring). The
Court's overreaching is particularly unfortunate in this case because the Court's
solicitude is so clearly misplaced: Good is not an "innocent owner"; he is a
convicted drug offender.
111 Like JUSTICE O'CONNOR, I cannot agree with the Court that "under the
circumstances of this casewhere 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 73-74 (O'CONNOR, J., concurring in
part and dissenting in part). Wherever the due process line properly should be
drawn, in circumstances 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 property without more formalized notice and an opportunity to be
heard is simply one of the many unpleasant collateral 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").
112 It might be argued that this fact-specific inquiry is too narrow. Narrow, too,
however, was the first question presented to us for review.4 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 analysis. Accordingly, I respectfully
dissent.

Notes:
1

Other courts have suggested that Government agents, and the statutes under
which they operate, have gone too far in the civil forfeiture context. See,e.
g.,United States v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 905
(CA2 1992) ("We continue to be enormously troubled by the government's
increasing and virtually unchecked use of the civil forfeiture statutes and the
disregard for due process that is buried in those statutes"); United States v. One
Parcel of Property, 964 F. 2d 814, 818 (CA8 1992) ("[W]e are troubled by the
government's view that any property, whether it be a hobo's hovel or the
Empire State Building, can be seized by the government because the owner,
regardless of his or her past criminal record, engages in a single drug
transaction"), rev'd sub nom. Austin v. United States, 509 U. S. 602 (1993).

Such a case may arise in the excessive fines context. SeeAustin v. United
States, 509 U. S., at 628 (SCALIA, J., concurring in part and concurring in
judgment) (suggesting that "[t]he relevant inquiry for an excessive forfeiture
under [21 U. S. C.] 881 is the relationship of the property to the offense: Was
it close enough to render the property, under traditional standards, `guilty' and
hence forfeitable?").

With scant support, the Court also dispenses with the ancient jurisdictional rule
that "a valid seizure of the res is a prerequisite to theinitiation of an in rem civil
forfeiture proceeding," Republic Nat. Bank of Miami v. United States, 506 U. S.
80, 84 (1992), at least in the case of real property. See ante, at 57-58.

"Whether the seizure of the respondent real property for forfeiture, pursuant to
a warrant issued by a magistrate judge based on a finding of probable cause,
violated the Due Process Clause of the Fifth Amendment because the owner
(who did not reside on the premises) was not given notice and an opportunity
for a hearing prior to the seizure." Pet. for Cert. I