[ DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 14476 Non

- Argument Calendar

________________________ D.C. Docket No. 2:16

- cv - 00985

- ECM
UNITED STATES OF AMERICA , Plaintiff

- Appell ee ,

versus $389,820.00 IN UNITED STATES CURRENCY , et al. , Defendant s - Appell ant s .

________________________ Appeal from the United States District Court for the Middle District of Alabama

________________________ (October 7, 2020) Before WILSON , MARTIN, and ANDERSON , Circuit Judges.
PER CURIAM: Ruby Barton appeals the district court’s order denying her motion to dismiss for lack of jurisdiction in this forfeiture action . Barton argues that the district court

USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 1 of 82 lacked in rem jurisdic tion over the defendant property. We agree , and therefore reverse the ruling of the district court.
I. On May 13, 2016, the Millbrook Police Department in Alabama responded to a 911 call stating that a person had been shot. The police officers and medical personnel located Rodriguez Garth at a local Sonic Drive

- In restaurant. After Garth was transferred to a hospital in Montgomery, officers seized $4,550.00 from Garth’s vehicle and his person. Garth died about one month after the shooting.
An in vestigation revealed that Garth had been shot at his residence in
Millbrook , after which he drove himself to the restaurant. On May 14, 2016,

o fficers obtained a warrant , issued by an Alabama state court, to search Garth’s residence for evidence related t o the shooting . When executing the warrant that same day , officers noticed illegal narcotics, and the Alabama state court issued a second search warrant permitting officers to search Garth’s residence and any vehicles on the property for evidence related to the narcotics. During the search,
officers found and seized several hundred thousand dollars in U.S. currency, assorted jewelry, and a Chevrolet Chevelle. On December 20 , 2016, the United States filed a verified complaint in
federal district court , s eeking forfeiture of the currency, jewelry, and Chevrolet as defendants in rem (the “defendant property”)

. The district court issued warrants of

USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 2 of 83 arrest in rem for the defendant property on December 21, 2016 , which were executed shortly thereafter. Ruby Barton, as personal representative and executor of Garth’s estate, soon after filed a claim for the defendant property in the district

court. Barton then filed a motion to dismiss the government’s complaint for lack of jurisdiction in the district court. Relevant to this appeal, Barton argued that the

state court had in rem jurisdiction over the defendant property at the time the district court issued the warrants of arrest in rem , and thus the district court lacked in rem jurisdictio n over the defendant property

. On May 3, 2017, before the
district court decided Barton’s motion to dismiss , the state court entered an order turning over the defendant property to the government for purposes of the federal forfeiture proceeding. The district court rejected Barton’s argument that it lacked jurisdiction and denied her motion to dismiss. Specifically, looking to the May 3, 2017 turn

- over order, the district court held that “any lack of jurisdiction over the property that was within the constructive control of the state at the time of the Government’s original filing[] does not affect the court’s jurisdiction over the property now that it has been properly turned over to the federal authorities for forfeiture. ” Barton later filed a motion to suppress , arguing that the initial search warrant was not supported by probable cause . T he district court denied her motion . The

USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 3 of 84 district court also granted the government’s motion for summary judgment and entered its decree of forfeiture of th e defendant property. Barton appealed, arguing again here that the district court lacked in rem jurisdiction over the defendant property and that any evidence obtained pursuant to the initial search warrant should be suppressed

. 1
II. We review de novo a district court’s ruling on questions of jurisdiction , Fastcase, Inc. v. Lawriter, LLC , 907 F.3d 1335, 1339 (11th Cir. 2018) , which include w hether a court has in rem jurisdiction to proceed against defendant property, see United States v. Four Parce ls of Real Prop

. in Greene & Tuscaloosa Ctys. , 941 F.2d 1428, 1435 (11th Cir. 1991) (en banc)

. Federal courts have jurisdiction over “any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incu rred under any Act of Congress.” 28 U.S.C. § 1355(a). “ All moneys

. . . furnished or intended to be furnished by any person in exchange for a controlled
substance ” and “ all proceeds traceable to such an exchange ” are “ subject to

1 Because we conclude the district court lacked jurisdiction, we do not consider the district court’s decision on the motion to suppress. See Burr & Forman v. Blair , 470 F.3d 1019, 1035 (11th Cir. 2006) (“Without jurisdiction the court cannot proceed at all in any cause.” (quoting Ex parte McCardle , 74 U.S. 506, 514, 7 Wall. 506, 514 (1868) )).

USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 4 of 85 forfeiture to the United States and no property right shall exist in them .” 21 U.S.C. § 881(a)(6). These statutes give federal courts jurisdiction over certain forfeiture actions

. However, in these actions, a federal court must also have in rem jurisdiction over the defendant pr operty. See Four Parcels of Real Prop

. , 941 F.2d at 1435. Important here, a “state court and a federal court cannot simultaneously exercise in rem jurisdiction over the same property.” United States v. $270,000.00 in U.S. Currency, Plus Interest , 1 F.3d 1146, 1147 (11th Cir. 1993) (per curiam) . Instead, “the court first assumi ng jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other.” Id. at 1148 (quotation marks omitted) ; see also Key v. Wise , 629 F.2d 1049, 1059 (5th Cir. 1980) (“ The assumption of jurisdiction over an action in rem establishes a bar to any other action in rem or quasi in rem respecting the same property until the first court ’ s jurisdiction is properly terminated. ”). 2 For the purposes of this appeal, the government agrees that the state court first assumed in rem jurisdiction over the defendant property when the property was seized pursuant to the state court warrant on May 14, 2016. See Little v.
Gaston , 232 So. 3d 231, 235 (Ala. Civ. App. 2017) (“[A] court issuin g a search

2 In Bonner v. City of Prichard , 661 F.2d 1206 (11th Cir

. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981

. Id. at 1209. USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 5 of 86 warrant .

. . assumes constructive control over the seized property” and, “[a]s such, the in rem jurisdiction of the trial court attache[s] upon the moment of seizure.”)

. The government also acknowledges that the district court could not acquire in rem jurisdiction over the defendant property until at least May 3, 2017 when the state court entered the turn

- over order.
T hus, t he district court lacked in rem jurisdiction over the defendant property when it first proceeded against the property in December 2016

. No one here disputes that the state court had in rem jurisdiction over the defendant property between May 14, 2016 and at least May 3, 2017. The government filed
the complaint in the district court on December 20, 2016, and the district court issued the warrant s of arrest in rem against the defendant property on December
2 1 , 2016. Because a “state court and a federal court cannot simultaneously exercise in rem jurisdiction over the same property,” $270,000.00 , 1 F.3d at 1147,

t he district court undeniably lacked jurisdiction in December 2016. The government argues it is “of no matter” that the “forfeiture complaint was filed prior to the turnover order .” Instead, it says t he state court ’s May 3, 2017

turn

- over order “relinquish[ed] its control of the Defendants to federal authorities and thus the D istrict C ourt , ” such that the district court now has jurisdiction over the defendant property

.

USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 6 of 87 For support, t he government cites an unpublished district court case from Indiana

. In th e Indiana case, the court held that “ the fact that the complaint for forfeiture prec eded the turnover order in this case does not prohibit [the district court’s] jurisdiction over the property .” United States v. $99,000 U.S. Currency , 2011 WL 2470665, at *5 (S.D. Ind. June 17, 2011) (un published ) . The court
reasoned that “ the state court subsequently issued a valid turnover order and thereby properly gave [the district court] jurisdiction over the defendant res .” Id.
We reject the position of the government as well as that of the Indiana district court

. It may be that a s a result of the state court’s turn

- over order, the
district court could now exercise jurisdiction over the defendant propert y . But here the undisputed fact remains that the district court lacked jurisdiction when it first proceeded against the defendant property in December 2016

. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Burr &
Forman , 470 F.3d at 1035 (quoting Ex parte McCardle , 74 U.S. at 514, 7 Wall. at 514). We therefore reverse the district court’s decision denying Barton’s motion to dismiss for lack of jurisdiction. We recognize that this decision is not necessarily the end of the government’s forfeiture action. Given the state court’s turn

- over order, the district court may be able to exercise jurisdiction over the defendant

USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 7 of 88 property. We remand this case to the district court so that it may consider that issue in the first instance. REVERSED AND REMANDED. USCA11 Case: 19-14476 Date Filed: 10/07/2020 Page: 8 of 8