*

Honorable Edward S. Smith, Senior U.S. Circuit Judge for

the Federal Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8931.

UNITED STATES of America, Plaintiff-Appellee,

v.

2751 PEYTON WOODS TRAIL, S.W., Atlanta, Fulton County, Georgia,

Including all buildings and appurtenances thereon, described in

Exhibit A, attached, Defendant,

Approximately 4.37 Acres of Land, Lying in Land Lot 213 of the

14th District of Fulton County, Georgia, Being lots 2, 3, 5, 6 & 7

of the Hope Court Subdivision, Including all buildings and

appurtenances thereon, described in Exhibit B, attached, Defendant,

Danielle Richardson and William Richardson, Claimants-Appellants.

Oct. 17, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-CV-912-RLV), Robert L. Vining, Jr.,

Judge.

Before BIRCH and BARKETT, Circuit Judges, and SMITH*

, Senior

Circuit Judge.

BARKETT, Circuit Judge:

William Richardson appeals from a final judgment of civil

forfeiture entered in favor of the government. He argues that the

government's failure to afford him notice and a hearing before

seizing his properties violated due process and that the district

court should have dismissed the forfeiture complaint. Based on

United States v. James Daniel Good Real Property, --- U.S. ----,

114 S.Ct. 492, 126 L.Ed.2d 490 (1993), we conclude that the

government's ex parte seizure of the properties violated

Richardson's right to due process and that the forfeiture complaint
 1

In light of this ruling, we need not and do not address

Richardson's argument that the district court erroneously granted

summary judgment to the government. 

therefore must be dismissed. Accordingly, we reverse the district

court's denial of Richardson's motion to dismiss and the final

judgment of forfeiture.1

BACKGROUND

In 1993, the government received ex parte warrants authorizing

seizure of the defendant properties after convincing a U.S.

magistrate that probable cause existed to believe they were

involved in or traceable to money laundering proscribed by 18

U.S.C. §§ 1956 & 1957. Thereafter, the government filed a verified

complaint for forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A) and

received warrants for arrest of the properties in rem. The

government then executed process on the properties and changed the

locks on an uninhabited home situated on the one developed

property.

Richardson subsequently filed a claim asserting an ownership

interest in the properties. He also moved to dismiss the seizure

warrants and the forfeiture complaint, arguing that he was not

given pre-seizure notice or a hearing. The district court denied

the motion to dismiss and granted the government's motion for

summary judgment.

DISCUSSION

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

----, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), the Supreme Court

established that absent exigent circumstances, the seizure of real

property for civil forfeiture violates fifth amendment due process
 2

Although Good was decided after the warrants were issued in

this case, we apply its holding retroactively, as did the Good

Court in finding that Good's due process rights had been violated

by the ex parte seizure. See James B. Beam Distilling Co. v.

Georgia, 501 U.S. 529, 540-41, 111 S.Ct. 2439, 2446, 115 L.Ed.2d

481 (1991) (explaining that when case announcing federal rule

applies rule retroactively, lower federal courts must also apply

rule retroactively); United States v. All Assets and Equipment

of West Side Building Corp., 58 F.3d 1181, 1191 (7th Cir.1995). 

 3"To establish exigent circumstances, the Government must

show that less restrictive measures—i.e., a lis pendens,

restraining order, or bond—would not suffice to protect the

Government's interests in preventing the sale, destruction, or

continued unlawful use of the real property." Good, --- U.S. at

----, 114 S.Ct. at 505. 

if the property owner is not afforded notice and a hearing prior to

the seizure. Id. at ----, 114 S.Ct. at 505.2 The Court rejected

the argument that due process is satisfied by a post-seizure

hearing, concluding that:

based upon the importance of the private interests at risk and

the absence of countervailing Government needs, ... 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.

Good, --- U.S. at ----, 114 S.Ct. at 505 (emphasis added).

 In our case, it is undisputed that Richardson received

neither notice nor a hearing before issuance of the warrants

seizing his properties. It also is undisputed that the government

neither alleged nor established the existence of exigent

circumstances that might have allowed ex parte seizure of the

properties under Good.3

 Thus, there is no question that the

warrants were invalid and that seizure of the properties therefore

violated Richardson's fifth amendment right to due process. See

id.; United States v. Real Property Located at 20832 Big Rock
 4

The Second Circuit, in a pre-Good case, has similarly held

that an unlawful seizure "would only preclude the government from

introducing any evidence gained by its improper seizure of the

premises." United States v. Premises and Real Property at 4492

South Livonia Road, Livonia, NY, 889 F.2d 1258, 1266 (2d

Cir.1989). 

Drive, Malibu, CA, 51 F.3d 1402, 1406 (9th Cir.1995); United

States v. One Parcel of Real Property, Located at 9638 Chicago

Heights, St. Louis, MO, 27 F.3d 327, 330 (8th Cir.1994); United

States v. 51 Pieces of Real Property, Roswell, NM, 17 F.3d 1306,

1315 (10th Cir.1994).

 Relying on an Eighth Circuit case, Richardson contends that

the government's Good violation requires dismissal of the

forfeiture action, with leave to file a new action if the statute

of limitations has not run. See One Parcel of Real Property,

Located at 9638 Chicago Heights, 27 F.3d at 330. The government

responds that notwithstanding the illegality of the seizure, the

forfeiture complaint should not be dismissed. The government

relies on cases from the Ninth and Tenth Circuits holding that the

fifth amendment "only requires the exclusion of the illegally

seized evidence at trial, with one additional twist: The

Government is held responsible for any rents accrued during the

illegal seizure." Real Property Located at 20832 Big Rock Drive,

Malibu, CA, 51 F.3d at 1406 (quotation omitted); 51 Pieces of Real

Property, Roswell, NM, 17 F.3d at 1315-16.4

We are not persuaded by the government's argument, which

focuses on the admissibility of evidence obtained from an

unlawfully seized property. A forfeiture case presents an entirely

different issue than a search and seizure case. The issue in a
 5

We do not mean to suggest that the additional

remedies—i.e., suppressing evidence obtained as a result of the

civil forfeiture case is not the admissibility of evidence under

the fourth amendment, but the validity of the government's seizure

of real property under the fifth amendment. As the Court noted in

Good,

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 [due process].

Good, --- U.S. at ----, 114 S.Ct. at 500.

As in Good, the government here did not invade the defendant

properties to seize evidence for a future prosecution; it seized

the properties to acquire ownership. As the Eighth Circuit has

explained, "suppression of seized evidence provides no remedy at

all when the purpose of the seizure is not to acquire evidence but

to assert a possessory interest over the property." One Parcel of

Real Property, Located at 9638 Chicago Heights, 27 F.3d at 330.

Moreover, any remedy short of dismissal would vitiate the purpose

of Good, as the government could continue the unlawful practice of

seizing property without first providing notice or a hearing, just

as it could do before Good.

Accordingly, we hold that the lack of notice and a hearing

prior to issuance of the warrants seizing the properties rendered

the warrants "invalid and unconstitutional," and that because the

resulting seizure violated Richardson's due process rights, the

forfeiture action must be dismissed. One Parcel of Real Property,

Located at 9638 Chicago Heights, 27 F.3d at 330.5 If statutory
unlawful seizure and requiring the government to compensate the

claimant for profits he was deprived of during the unlawful

seizure—are unavailable where appropriate. 

time constraints permit, however, the government may seek valid

seizure warrants after an adversarial Good hearing and recommence

the forfeiture proceedings. One Parcel of Real Property, Located

at 9638 Chicago Heights, 27 F.3d at 330.

CONCLUSION

In light of the foregoing, we reverse the judgment of the

district court and remand the case for further proceedings

consistent with this opinion.

REVERSED and REMANDED.