FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 12/08/98 

 THOMAS K. KAHN 

 CLERK

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 95-8330

________________________

D. C. Docket No. 1:93-cv-913-RLV

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

408 PEYTON ROAD, S.W., Atlanta,

Fulton County, Georgia, including

all buildings and appurtenances

thereon, described in Exhibit A

attached,

Defendant-Appellant,

ROBERT RICHARDSON,

Claimant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(December 8, 1998)

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX,

BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS,

Circuit Judges.
2

BLACK, Circuit Judge:

At issue in the present appeal is whether

predeprivation notice and a hearing must be provided

when the Government executes a seizure warrant against

real property, but chooses not to assert physical control.

We hold that the Due Process Clause of the Fifth

Amendment mandates provision of such predeprivation

procedures even when the seizure of real property is not

physically intrusive. We further hold that in a case such

as this one, when the Government has failed to provide

predeprivation notice and a hearing but the property is

found to be subject to forfeiture after the process due has

been afforded, the proper remedy is as follows: The

Government should return any rents received or other

proceeds realized from the property during the period of

illegal seizure. 

I. BACKGROUND

On April 14, 1993, the Government secured an ex

parte warrant authorizing the seizure of 408 Peyton Road,
 1 This action originally involved two properties — the 408 Peyton Road, S.W., property and

the 451 Hope Court, S.W., property. By stipulation entered into on October 21, 1994, the property

known as 451 Hope Court, S.W., was dismissed as a defendant in the forfeiture case.

3

S.W.,1 property in which Appellant Robert Richardson

held an interest. The warrant application maintained that

Appellant Richardson had financed the acquisition and

development of the defendant property through

drug-trafficking activities. In support of these

contentions, it was stated that Richardson’s reported

income was insufficient to sustain his real estate

acquisition and development activities and that

Richardson had engaged in a series of suspect financial

transactions relative to the property. The evidence

persuaded a United States Magistrate Judge that probable

cause existed to believe the property was involved in or

traceable to money laundering proscribed by 18 U.S.C.

§ 1956. The seizure warrant was executed by posting it

on the property. No other action was taken pursuant to

the warrant.
 2 The purpose of a lis pendens is to notify prospective purchasers and encumbrancers that any

interest acquired by them in property is subject to the decision of the court in pending litigation.

Ga. Code Ann. § 44-2-143. 

4

On April 28, 1993, the Government instituted this

civil forfeiture proceeding against the defendant property

pursuant to 18 U.S.C. § 981. Upon the filing of the

verified complaint, the Clerk of Court issued a warrant

directing the United States Marshal “to arrest and take

into custody” the defendant property. On the same date,

the Government filed a notice of lis pendens in the real

property records of the Superior Court of Fulton County,

Georgia.2

 On June 3, 1993, a Deputy United States

Marshal executed the federal arrest warrant by posting a

copy at the defendant property. As the dwelling on the

property was occupied, the Government elected not to

assert immediate physical control over the premises. The

record establishes that the Government neither posted

warning signs on the property nor changed the locks.

On July 2, 1993, Appellant Richardson claimed an

ownership interest in the defendant property. On May 5,
5

1994, Appellant Richardson filed a motion to dismiss,

arguing that the Government’s failure to provide

preseizure notice and a hearing deprived him of property

without due process, in violation of the Fifth

Amendment. In an order issued on July 11, 1994, the

district court rejected Richardson’s due process claim.

Meanwhile, the Government had filed a motion for

summary judgment of forfeiture. By order dated

February 10, 1995, the district court granted the

Government’s motion for summary judgment and

ordered the defendant property forfeited to the United

States. Appellant Richardson filed a timely notice of

appeal.

On May 15, 1997, a panel of this Court concluded

that the Government violated Richardson’s due process

rights and reversed the district court’s order granting

summary judgment. Based on Circuit precedent, the

panel remanded with instructions to dismiss the

complaint without prejudice. On January 23, 1998, this
6

Court sua sponte vacated the panel opinion to reconsider

en banc the appropriate remedy for such a due process

violation. Following oral argument, the Court asked for

supplemental briefing on whether the execution of an

arrest warrant for real property without prior notice and

the opportunity to be heard violates the Fifth Amendment

due process clause when the Government refrains from

taking physical possession or otherwise exercising

dominion and control over the property.

II. DISCUSSION

A. Due Process Requirements Applicable to the Seizure

of Real Property

In United States v. James Daniel Good Real Property, 510 U.S. 43,

114 S. Ct. 492 (1993), the Supreme Court addressed

whether the Fifth Amendment Due Process Clause

prohibits the Government in a civil forfeiture case from

seizing real property without first affording the owner

notice and an opportunity to be heard. In Good, the

Government filed an in rem action seeking forfeiture
3

 As part of the supplemental briefing, this Court asked the Government to supply the Court

with a copy of the August 8, 1989 arrest warrant at issue in Good. The arrest warrant in this case

is substantively the same as the one in Good.

4

 In supplemental briefing, the Government also supplied the Court with a copy of the August

18, 1989, seizure warrant issued in Good. The seizure warrant in this case is substantively the same

as the one in Good. 

7

under 21 U.S.C. § 881(a)(7). Id. at 47, 114 S. Ct. at 497.

 The district court clerk then issued an arrest warrant

commanding the United States Marshal “to arrest and

attach the said property and to detain the same in your

custody.”3

 Ten days later, in an ex parte proceeding, a

United States Magistrate Judge issued a seizure warrant

commanding the marshal “to seize the property specified,

servicing this warrant and make the seizure and leave a

copy of this warrant.”4

 At the time the marshal executed

the seizure warrant, Good was leasing the property to

tenants. Id. at 47, 114 S. Ct. at 498. The Government

allowed the tenants to remain on the property subject to

an occupancy agreement that directed payments to the

United States Marshal. Id.
8

In concluding that the Government violated Good’s

Fifth Amendment due process rights, the Supreme Court

noted that, as a general matter, the Government must

provide notice and a hearing prior to depriving an

individual of property. Id. at 48, 114 S. Ct. at 498. The

Constitution tolerates exceptions to that general rule only

in those “extraordinary situations where some valid

governmental interest is at stake that justifies postponing

the hearing until after the event.” Id. at 53, 114 S. Ct. at

501 (internal quotations and citations omitted). The

Supreme Court identified the three-part inquiry set forth

in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976), as

the appropriate analytical framework for determining

whether seizure of real property for purposes of civil

forfeiture justifies such an exception. Good, 510 U.S. at

53, 114 S. Ct. at 501. The Mathews analysis requires

consideration of (1) “the private interest affected by the

official action,” (2) “the risk of an erroneous deprivation

of that interest through the procedures used, as well as the
9

probable value of additional safeguards,” and (3) “the

Government’s interest, including the administrative

burden that additional procedural requirements would

impose.” Id. at 53, 114 S. Ct. at 501 (citing Mathews v. Eldridge,

424 U.S. at 335, 96 S. Ct. at 903).

The “importance of the private interests at risk and

the absence of countervailing Government needs”

convinced the Supreme Court that, absent exigent

circumstances, seizure of real property in a civil

forfeiture context is not one of those extraordinary

instances that justify an exception to the general rule

requiring predeprivation notice and a hearing. Id. at 62,

114 S. Ct. 505. First, the Court reaffirmed that the right

to maintain control over one’s home, and to be free from

governmental interference, stands as “a private interest of

historic and continuing importance.” Id. at 53-54, 114 S.

Ct. at 501. Second, the Supreme Court determined that

ex parte seizure involves an unacceptable risk of error,

affording little or no protection to the innocent owner. Id.
 5 Although it has no bearing upon disposition of the present controversy, we note that both

the present case and 2751 Peyton Woods Trail involve properties situated within an eight and onehalf acre tract of land known as the Hope Court subdivision. As Robert Richardson developed

Hope Court, William Richardson presumably acquired his interest in the 2751 Peyton Woods

Trail, S.W., property from him. The facts do not disclose what relation Robert and William

Richardson share beyond their common last name.

10

at 55, 114 S. Ct. at 501-02. Third, the Court found no

pressing governmental need to seize real property prior to

the forfeiture hearing. Id. at 56, 114 S. Ct. at 502.

Accordingly, the Supreme Court held that, 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. Id. at 62, 114 S. Ct. at 505.

In United States v. 2751 Peyton Woods Trail, S.W., 66 F.3d 1164

(11th Cir. 1995), the Eleventh Circuit had occasion to

apply Good in a factual setting similar to that presented by

the instant dispute. In that case, the Court addressed

whether the Government had deprived William

Richardson of due process when it seized his real

property without prior notice and a hearing.5

 2751 Peyton
11

Woods Trail, 66 F.3d at 1165. As in the present case, in 2751

Peyton Woods Trail, the Government secured ex parte seizure

warrants by convincing a magistrate judge that probable

cause existed to believe the real properties were involved

in or traceable to money laundering. Id. at 1165. After

the Government filed its forfeiture complaint, it received

warrants for arrest of the properties in rem. Id. “The

Government then executed process on the properties and

changed the locks on an uninhabited home situated on the

one developed property.” Id. Based upon our

interpretation of Good, the Court held “that the lack of

notice and a hearing prior to issuance of the warrants

seizing the properties rendered the warrants ‘invalid and

unconstitutional.’” 2751 Peyton Woods Trail, 66 F.3d at 1167.

B. The Due Process Analysis in this Case

Our resolution of this case turns in large part on the

fact that it is virtually identical to Good in that the
6 We do recognize that this case is somewhat different from

Good because in Good, the Government entered into an occupancy

agreement with the lessees of the property, under which the lessees

paid rents to the United States Marshal. 510 U.S. at 47, 114 S. Ct.

at 498. No such occupancy agreement was involved in this case.

However, the 408 Peyton Road, S.W., property was Richardson’s

marital residence. The Court does not and cannot know whether

the Government would have entered into an occupancy agreement

similar to the one in Good had 408 Peyton Road, S.W., been a rental

property. 

12

Government here, as in Good, obtained and executed both

an arrest warrant and a seizure warrant.6

 

To better understand the framework of the forfeiture

process, we note that one distinction between an arrest

warrant and a seizure warrant is the method by which the

Government obtains the warrants. The statutory

forfeiture provision relied upon by the Government in

this case provides for three methods of seizing property:

Property shall be seized under paragraph (1)

of this subsection upon process issued pursuant

to the Supplemental Rules for [C]ertain

Admiralty and Maritime Claims by any district

court of the United States having jurisdiction

over the property, except that seizure without

such process may be made when—

(A) the seizure is pursuant to a lawful

arrest or search; or 
13

(B) the Attorney General, the

Secretary of the Treasury, or the Postal

Service, as the case may be, has

obtained a warrant for such seizure

pursuant to the Federal Rules of

Criminal Procedure, in which event

proceedings under subsection (d) of this

section shall be instituted promptly.

18 U.S.C. § 981(b)(2). The statutory forfeiture provision

relied upon by the Government in Good similarly provides

for multiple methods of seizing property:

Any property subject to civil forfeiture to

the United States under this subchapter may be

seized by the Attorney General upon process

issued pursuant to the Supplemental Rules for

Certain Admiralty and Maritime Claims by any

district court of the United States having

jurisdiction over the property, except that

seizure without such process may be made

when—

(1) the seizure is incident to an

arrest or a search under a search

warrant or an inspection under an

administrative inspection warrant;

(2) the property subject to seizure

has been the subject of a prior judgment

in favor of the United States in a

criminal injunction or forfeiture

proceeding under this subchapter;

(3) the Attorney General has

probable cause to believe that the
14

property is directly or indirectly

dangerous to health or safety; or

(4) the Attorney General has

probable cause to believe that the

property is subject to civil forfeiture

under this subchapter.

In the event of seizure pursuant to paragraph (3)

or (4) of this subsection, proceedings under

subsection (d) of this section shall be instituted

promptly.

The government may request the issuance of

a warrant authorizing the seizure of property

subject to forfeiture under this section in the

same manner as provided for a search warrant

under the Federal Rules of Criminal Procedure.

21 U.S.C. § 881(b). These statutes make clear that to

obtain the arrest warrants in this case and in Good, the

Government simply had to file a verified forfeiture

complaint — upon the Government’s filing of the

verified complaint, the clerk of court issued a warrant for

the arrest of the property. See Rule C(3), Supplemental

Rules for Certain Admiralty and Maritime Claims. To

obtain the seizure warrants, on the other hand, the

Government had to make ex parte showings of probable
7 See 18 U.S.C. § 981 (referring to both arrest and seizure

warrants as methods for “seizing” property); 21 U.S.C. § 881

(same); United States v. Three Tracts of Property Located on Beaver Creek, 994 F.2d

287, 289 (6th Cir. 1993) (stating in recitation of facts that the

district court found probable cause to believe the property was

subject to forfeiture and that “[a] warrant of arrest was issued

ordering the U.S. Marshal to seize the property and currency”);

Schrob v. Catterson, 948 F.2d 1402, 1415 n. 13 (3d Cir. 1991) (“As

authorized by 21 U.S.C.A. § 881(b), the prosecutor can either seek

a seizure warrant under Rule C(3) of the Supplemental Rules for

Certain Admiralty and Maritime Claims, or under Federal Rule of

Criminal Procedure 41.”); United States v. One Parcel of Property Located at 15 Black

Ledge Drive, 897 F.2d 97, 98 (2d Cir. 1990) (stating in recitation of

facts that “pursuant to an in rem warrant for arrest of property

issued by the district court, the property was seized by the United

States Marshal”); Brad A. Chapman & Kenneth W. Pearson,

Comment, The Drug War and Real Estate Forfeiture Under 21 U.S.C. § 881: The “Innocent”

Lienholder’s Rights, 21 Tex. Tech. L. Rev. 2127, 2148 (1990) (discussing

obtaining “an in rem arrest warrant for the seizure of the real

property”); Theodore P. Sherris, Drug Related Forfeitures: Land Title Issues,

Prob. & Prop., Jan.-Feb. 1990 at 33, 34 (stating that

“[s]imultaneously with the filing of the verified complaint, an in

rem seizure (“arrest”) warrant is issued”).

15

cause before a magistrate judge. See Fed. R. Crim. P.

41(c). 

Although courts and commentators, as well as the

forfeiture statutes relied upon by the Government here

and in Good, sometimes seem to blur the distinction

between arrest warrants and seizure warrants in terms of

their effects,7

 some of the language used by the Supreme

Court in Good could be read to indicate that the execution
8 On this point, the Court cited United States v. TWP 17 R 4, Certain Real

Property in Maine, 970 F.2d 984 (1st Cir. 1992), in which the First

Circuit held that the execution of an arrest warrant by posting did

not violate the Fifth Amendment Due Process Clause. Although

the arrest warrant in TWP 17 R 4 directed the United States Marshal to

“arrest the property . . . and detain the same in your custody until

further order of the Court,” it did not direct the United States

Marshal to actually seize the property and the United States

Marshal did not do so. Id. at 986.

16

of an arrest warrant does not implicate the same due

process concerns as does the execution of a seizure

warrant. Specifically, in rejecting the argument that

seizure is required to obtain jurisdiction over the res, the

Supreme Court cited with approval the simple posting of

an arrest warrant issued under the Supplemental Rules for

Certain Admiralty and Maritime Claims to bring the

property within the reach of the courts. Good, 510 U.S. at

58, 114 S. Ct. at 505.8

 Nevertheless, we need not

definitively resolve here the issue of whether the

execution of an arrest warrant implicates the same due

process concerns as does the execution of a seizure

warrant because in this case, as in Good, the Government
9 We further note, without deciding, that the title of the

warrant may not be as determinative of whether there has been a

due process violation as may be the extent of the authority that the

warrant purports to grant. 

17

obtained and executed both an arrest warrant and a

seizure warrant.9

1. Due Process Implications of a Nonphysical

Seizure of Real Property.

The Government argues that preseizure notice and a

hearing was not required in this case because it did not

intend to, and did not in fact, exercise actual physical

control over the property. The Government asks the

Court to create an exception to Good where the

Government in fact obtains and executes an arrest

warrant and a seizure warrant authorizing it to exert

physical control and dominion over the property, but then

of its own will chooses not to exercise such authority.

The Supreme Court in Good never explicitly defined

the term “seizure,” but the Government suggests we

should infer assertion of physical control is an essential

element of a seizure because the facts of Good involved
18

some level of physical intrusion. The Supreme Court

never indicated, however, that the Government’s choice

to exercise physical control over the defendant real

property should be regarded as the sine qua non of a

constitutionally cognizable seizure. Moreover, in other

contexts, the Supreme Court has employed the term

seizure more broadly to refer to governmental action that

more generally deprives a property owner of significant

property interests. See United States v. Jacobsen, 466 U.S. 109,

113, 104 S. Ct. 1652, 1656 (1984) (stating in the Fourth

Amendment context that “[a] ‘seizure’ of property occurs

when there is some meaningful interference with an

individual’s possessory interests in that property”

(footnote omitted)). 

Although the Government in this case chose not to

exert physical control over the property, the Court still

must assess whether the magnitude of the private

interests at stake require predeprivation notice and a

hearing. As the Supreme Court instructed in Good, we
19

must evaluate the due process implications of the

challenged deprivation under the three-fold test

enunciated in Mathews v. Eldridge. We must determine

whether some lesser procedural protection than that

required in Good will suffice for deprivations occasioned

by nonphysical seizures of real property. If lesser

procedural protections fail to satisfy due process, then

even nonphysical seizures of real property will require

predeprivation notice and a hearing.

2. Mathews v. Eldridge Analysis.

a. The Private Interest Affected by a

Nonphysical Seizure.

The first Mathews factor requires consideration of the

private interest that will be affected by the challenged

official action. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.

Ct. 893, 903 (1976). The United States essentially argues

that the private interest at stake in the present seizure is

not commensurate with the interests at stake in Good and

2751 Peyton Woods Trail because the present case does not
20

involve the Government’s exertion of physical dominion

and control over the property.

This argument misapprehends the import of the

Supreme Court’s decision in Good and our decision in 2751

Peyton Woods Trail. Neither case supports the proposition that

the protections of the Due Process Clause are confined to

physically-invasive seizures. Aside from the potential for

physical intrusion, the seizure of a home gives the

Government “the right to prohibit sale . . . 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.” Good, 510 U.S. at 54, 114 S.

Ct. at 501. As a consequence, even when the

Government chooses not to exert its rights under a

seizure warrant, it still impairs the historically significant

“right to maintain control over [one’s] home, and to be

free from governmental interference.” Id. at 53, 114 S. Ct.

501. Although the Government allowed Richardson to
21

maintain possession of his home, Good forecloses the

argument that the execution of the seizure warrant on 408

Peyton Road did not affect any constitutionally

significant interests.

Also instructive is the Supreme Court’s reliance in

Good on Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105

(1991). In Doehr, the Supreme Court struck down a state

statute that authorized prejudgment attachment of real

estate without prior notice or hearing, even in the absence

of extraordinary circumstances. 501 U.S. at 4, 111 S. Ct.

at 2109. The Court found the statute failed to satisfy the

Due Process Clause. Id. at 18, 111 S. Ct. at 2116. The

Supreme Court explicitly rejected the notion that only

“complete, physical, or permanent deprivation[s] of real

property” trigger due process scrutiny and stated that its

“cases show that even the temporary or partial

impairments to property rights that attachments, liens,

and similar encumbrances entail are sufficient to merit

due process protection.” Id. at 12, 111 S. Ct. at 2113.
22

Reliance on Doehr reveals that the Supreme Court in Good

did not intend for physical control to be of paramount

importance when determining whether a constitutionally

cognizable “seizure” of real property has taken place.

Nor has this Circuit suggested that Due Process

Clause protection is withheld where seizures are not

physically intrusive. The 2751 Peyton Woods Trail opinion noted

that the Government had changed the locks on an

uninhabited home situated on the one developed

property, 66 F.3d at 1165, but never intimated that the

decision was premised upon so narrow a foundation. To

the contrary, the decision affirmatively establishes that

the Court could not have placed dispositive importance

upon that factor inasmuch as the Government changed

the locks on only one of the defendant properties, but the

Court reversed the forfeiture judgments as to both

properties. The Court stated that “lack of notice and a

hearing prior to issuance of the warrants seizing the

properties rendered the warrants ‘invalid and
23

unconstitutional.’” 66 F.3d at 1167. The 2751 Peyton Woods

Trail decision therefore supports our holding that a

constitutionally cognizable seizure of real property need

not involve physical intrusion.

b. The Risk of an Erroneous Deprivation.

The second Mathews factor directs judicial attention to

the risk that the procedures employed may result in an

erroneous deprivation of the private interest and the

probable value, if any, of additional or substitute

procedural safeguards. 424 U.S. at 335, 96 S. Ct. at 903.

As the Supreme Court recognized in Good, the practice of

ex parte seizure creates an unacceptable risk of error.

Good, 510 U.S. at 55, 114 S. Ct. at 501. The ex parte

preseizure proceeding offers little or no protection for

innocent owners. Id., 114 S. Ct. at 502. Although

Congress clearly intended to protect innocent owners

from the expansive grasp of the forfeiture statutes, see 18

U.S.C. § 981(a)(2) (“No property shall be forfeited under

this section to the extent of the interest of an owner or
24

lienholder by reason of any act or omission established

by that owner or lienholder to have been committed

without the knowledge of that owner or lienholder.”), the

Government need not offer any evidence on the question

of innocent ownership in the ex parte preseizure hearing.

Good, 510 U.S. at 55, 114 S. Ct. at 502. In any event, ex

parte presentation of such evidence would not suffice to

protect the innocent owner’s interests because “fairness

can rarely be obtained by secret, one-sided determination

of facts decisive of rights.” Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123, 170, 71 S. Ct. 624, 647-48 (1951)

(Frankfurter, J., concurring). As Justice Frankfurter

observed, “[n]o 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.” Id. at 171-72, 71 S. Ct. at 649.
25

c. The Governmental Interest in Ex Parte

Seizures.

The third Mathews factor concerns “the Government’s

interest, including the function involved and the fiscal

and administrative burdens that [] additional or substitute

procedural requirement[s] would entail.” 424 U.S. at

335, 96 S. Ct. at 903. The governmental interest

implicated by the present controversy is not some

generalized interest in forfeiting property, but the specific

interest in conducting nonphysical seizures of real

property prior to a hearing. Good, 510 U.S. at 56, 114 S.

Ct. at 502. The Court must determine whether, in the

civil forfeiture context, such seizures are justified by a

pressing need for prompt action. Id.

In Good, the Supreme Court concluded that there

generally is no pressing need for prompt governmental

action justifying ex parte seizure of real property in the

civil forfeiture context. Id. In contrast to the situation

with personal property, the Supreme Court held that
26

jurisdiction over real property does not depend upon prior

seizure. Id. at 57, 114 S. Ct. at 503 (noting that “[b]ecause

real property cannot abscond, the court’s jurisdiction can

be preserved without prior seizure”). When pursuing the

forfeiture 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.” 510 U.S. at 58, 114 S. Ct. at 503.

Nor does forfeiture of real property involve the risk

that the res will disappear if the Government is required

to provide advance warning of the forfeiture action. Id. at

57, 114 S. Ct. at 502-03. As a consequence, in the typical

case, the Government may secure its legitimate interest

without seizing the subject property. “Sale of the

property can be prevented by filing a notice of lis pendens as

authorized by state law when the forfeiture proceedings

commence.” Id. at 58, 114 S. Ct. at 503 (citations

omitted). If an owner is likely to destroy his property

when advised of the forfeiture action, “the Government
27

may obtain an ex parte restraining order, or other

appropriate relief, upon a proper showing in district

court.” Id. at 58-59, 114 S. Ct. at 503 (citing Fed. R. Civ.

P. 65; United States v. Premises and Real Property at 4492 South Livonia Rd.,

889 F.2d 1258, 1265 (2d Cir. 1989)). “Finally, the

Government can forestall further illegal activity with

search and arrest warrants obtained in the ordinary

course.” Good, 510 U.S. at 59, 114 S. Ct. at 504.

Based on the foregoing, we hold that the procedures

employed by the Government in the present case do not

comport with the Due Process Clause of the Fifth

Amendment unless the existence of exigent

circumstances justified the ex parte seizure. See id. at 62,

114 S. Ct. at 505. 

3. The Existence of Exigent Circumstances.

In order to establish the existence of exigent

circumstances, the Government must demonstrate that

means less restrictive than an ex parte seizure — such as

the filing of a lis pendens, restraining order, or bond —
28

would not adequately protect the Government’s interests

in preventing the sale, destruction, or continued unlawful

use of the real property. Id. at 62, 114 S. Ct. at 505. In

the present case, the Government has not alleged or

established the existence of any exigent circumstances

that would justify the ex parte seizure of Appellant

Richardson’s real property. As explained previously, the

Government can protect its legitimate interests by filing

a notice of lis pendens or taking other steps short of

seizure. The Government therefore deprived Richardson

of due process when it seized 408 Peyton Road,

notwithstanding its decision not to assert physical control

over the property.

C. Remedy for Due Process Violation

Having concluded that the Government violated

Richardson’s rights under the Fifth Amendment Due

Process Clause, we must now determine the remedy for

such a violation. In 2751 Peyton Woods Trail, a panel of this

Court held that dismissal of the complaint is the
10 We note that our conclusion is consistent with the view of a majority of the other circuits

that have considered this issue. See United States v. Marsh, 105 F.3d 927, 931 (4th Cir. 1997);

United States v. All Assets and Equip. of West Side Bldg. Corp., 58 F.3d 1181, 1193 (7th Cir. 1995);

see also United States v. Real Property Located at 20832 Big Rock Drive, 51 F.3d 1402, 1406 (9th

Cir. 1995) (proper remedy is “exclusion of the illegally seized evidence at trial” and the

“Government is held responsible for any rents accrued during the illegal seizure” (internal

quotations and citation omitted)); United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1316

(10th Cir. 1994) (proper remedy is that the “impermissibly obtained evidence [may] not [be] used

in the forfeiture proceeding” and the Government must return “rents that accrued during the illegal

seizure” (internal quotations and citations omitted)); but see United States v. One Parcel of Real

Property Located at 9638 Chicago Heights, 27 F.3d 327, 330 (8th Cir. 1994) (holding dismissal of

the complaint to be the proper remedy). 

29

appropriate remedy when the Government improperly

seizes property without predeprivation notice and a

hearing. 66 F.3d at 1167. Upon further consideration,

we now conclude that when the Government fails to

provide predeprivation notice and a hearing, but the

property is found to be subject to forfeiture after the

process due has been afforded, the proper remedy for a

seizure in violation of the Fifth Amendment Due Process

Clause is the return of any rents received or other

proceeds realized from the property during the period of

illegal seizure.10 We need not define here the contours of

the remedy because the property seized in this case was

Richardson’s marital residence and there was no loss of
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rents. As there is no evidence to be suppressed in this

case, we need not address whether suppression of

evidence is an appropriate remedy for the Fifth

Amendment due process violation.

III. CONCLUSION

 We hold that the Government’s seizure of 408

Peyton Road without prior notice and a hearing violated

Richardson’s Fifth Amendment due process rights.

Nevertheless, Richardson was not deprived of any rents

received or other proceeds realized from the property

during the period of illegal seizure, and as there has now

been a hearing and determination on the merits, the

district court’s judgment in favor of the Government

should remain intact.

AFFIRMED.

BIRCH, Circuit Judge, concurring in part and dissenting in part in which BARKETT,

Circuit Judge, joins:

I concur in most of that said in the majority opinion; most particularly with the

following:
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! the Due Process Clause of the Fifth Amendment mandates predeprivation

notice and a hearing when the Government executes a seizure warrant against

real property, even when such seizure is not physically intrusive;

! the right to maintain control over one’s home, and to be free from governmental

interference, stands as a private interest of historic and continuing importance;

! even when the Government chooses not to exert its rights under a seizure

warrant, it still impairs the owner’s historically significant right to maintain

control over one’s home, free of governmental interference;

! the practice of ex parte seizure creates an unacceptable risk of error;

! the ex parte preseizure proceeding advocated by the Government offers little

or no protection for innocent owners because fairness can rarely be obtained by

secret, one-sided determination of facts determinative of rights; and,

! advance notice by the Government will not risk disappearance of the res.

I respectfully dissent from the majority’s formulation of a “remedy” for such

conduct by the Government. The return of rents, if any, generated by the property

during the period of illegal seizure to the rightful owner is a sorry sanction that

denigrates the fundamental right declared to be infringed and deemed worthy of

protection. The deterrent effect of this phantom penalty is as ephemeral as is the

Government’s ability to restrain overzealous prosecutors. Anti-drug law enforcement
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is necessary, but constitutional rights, including those required by due process, can

never be sacrificed for the mere convenience of law enforcement.