There is no dispute that the seizure of 8215 Reese Road complied with the relevant statutory requirements. Under 21 U.S.C. § 881(b),
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 . . . .
Supplemental Rule C(3) in turn, provides that
except in actions by the United States for forfeitures for federal statutory violation, the verified complaint and any supporting papers shall be reviewed by the court and, if the conditions for an action in rem appear to exist, an order so stating and authorizing a warrant for the arrest of the vessel or other property that is the subject of the action shall issue and be delivered to the clerk who shall prepare the warrant and deliver it to the marshal for service.
(emphasis added). Under Supplemental Rule C(3), then, pre-seizure review is not required for forfeitures sought pursuant to § 881(a)(7). In fact, Supplemental Rule C(3) expressly exempts the government from obtaining pre-seizure judicial review. United States v. South Side Finance, Inc., 755 F. Supp. 791, 799 (N.D. Ill. 1991) (citing United States v. 124 East North Ave., Lake Forest, Ill., 651 F. Supp. 1350, 1353 (N.D. Ill. 1987)); A Parcel of Real Property Commonly Known As: 3400-3410 West 16th Street, Chicago, Illinois, 636 F. Supp. 142, 145 (N.D. Ill. 1986)). Accordingly, there has been no violation of the statutory requirements in the case at hand.
However, a seizure whose process complies with § 881(b) and Supplemental Rule C(3) may still violate a party's due process rights. See e.g. 124 East North Ave., 651 F. Supp 1350; United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 612 F. Supp. 1492 (S.D. Fla. 1985) (vacated and remanded on other grounds Certain Real Estate Property, 838 F.2d 1558 (11th Cir. 1986)). In general, due process requires that a person receive a hearing before being deprived of liberty or property. Zinermon v. Burch, U.S. , 110 S. Ct. 975, 984, 108 L. Ed. 2d 100 (1990). However, in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), the Supreme Court outlined three conditions under which a pre-seizure hearing is unnecessary to satisfy due process. The three conditions are as follows:
First, . . . the seizure [must be] directly necessary to secure an important governmental or general public interest. Second, there [must be] a special need for very prompt action. Third, the State [must keep] strict control over its monopoly of legitimate force; the person initiating the seizure [must be] a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.
Id. at 91.
In light of Fuentes, several lower courts have held that where the three conditions are not met, even compliance with § 881(b) and Supplemental Rule C(3) may not save a seizure from violating due process. See e.g. Certain Real Estate Property, 612 F. Supp. 1492; 124 East North Ave., 651 F. Supp. at 1356 (court ruled that process comporting with § 881(b) and Supplemental Rule C(3) nonetheless violated due process where Fuentes' conditions were not met). Despite the government's compliance with § 881(b) and Supplemental Rule C(3), then, we face the question of whether, under the facts of this case, the Claimants' due process rights were violated.
In analyzing whether the combination of circumstances and process provided in a given case satisfy due process, courts faced with challenges to the seizure of business property have generally found that an ex parte hearing, on its own, satisfies due process. See e.g. South Side Finance, 755 F. Supp. at 799-800; A Parcel of Real Property, 636 F. Supp. 142; United States v. Single Family Residence & Real Property, 803 F.2d 625 (11th Cir. 1986).
These courts have tended to find that the provision of some pre-seizure process, namely an ex parte hearing, combined with the clear public interest in seizing property used to violate narcotics laws and the fact that the forfeiture was officially initiated satisfies due process. Nor have these courts been troubled by the immovability of the property. Id. In cases involving immovable property, courts have simply noted that special concerns arise when the government moves for forfeiture. Specifically, pre-seizure judicial notice and hearing could prejudice the government in parallel criminal proceedings by allowing claimants to misuse discovery material gained during the hearing. Notes of Advisory Committee on Rules, Supplemental Rule C(3), note (1985). Moreover, pre-seizure notice and hearing might frustrate the objectives of § 881(b) by risking the exposure of government informants and undercover agents. See South Side Finance, 755 F. Supp. at 800-01; Certain Real Estate, 612 F. Supp. at 1496-97. Accordingly, these courts have noted that the use of ex parte proceedings, rather than full-blown judicial hearings, is peculiarly appropriate in civil forfeiture actions under § 881. Id.
Nevertheless, other courts faced with challenges to the seizure of homes, based solely on ex parte hearings, have found that the lack of pre-seizure notice and hearing violates due process. See U.S. v. Parcel I, Beginning at a Stake, 731 F. Supp. 1348, 1353 (S.D. Ill. 1990); U.S. v. Premises & Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1264 (2d Cir. 1989). See also In re Application of Kingsley, 802 F.2d 571, 582-83 (1st Cir. 1986) (J. Torruella dissenting). These courts have recognized that they should not mechanically follow rules of law in determining the adequacy of the process received in a given case. See Parcel I, 731 F. Supp. at 1353 (citing Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961)). Due process is a flexible notion that demands different procedural protections in different situations. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). Accordingly, these courts went beyond Fuentes, which focuses exclusively on governmental interests and needs, and instead relied primarily on Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18 (1976).
In Mathews, the Court balanced the governmental interests with the private interests at stake. See Parcel I, 731 F. Supp. at 1353 (citing); Livonia, 889 F.2d at 1264.
We agree that the Mathews' balancing test is particularly appropriate where a person's home is at stake. Accordingly, in determining whether the ex parte hearing provided sufficient due process protection in the instant case, we must look to the private and governmental interests involved. Specifically, we will consider 1) the private interests affected, 2) the risk of an erroneous deprivation of that interest, and 3) the government's interest in avoiding additional procedural safeguards. See Mathews, 424 U.S. at 335.
Since the property at issue is the Claimants' home, the private interests at stake here are very high. A person's "expectations of privacy and freedom from government intrusion in their homes merit speical Constitutional protection." Parcel I, 731 F. Supp. at 1353 (citing United States v. Karo, 468 U.S. 705, 714, 104 S. Ct. 3296, 3303, 82 L. Ed. 2d 530 (1984)). On the other hand, the governmental interests, as alleged, do not appear particularly compelling. While the United States certainly has an interest in seizing property that has been used to violate federal narcotics laws, that interest is achieved whether the seizure comes before or after a judicial hearing. Moreover, the government fails to allege any exigent circumstances requiring prompt seizure. That is, the government does not allege that the property is movable,
nor that it is likely to be used in further narcotics violations. See Calero, 416 U.S. at 679 (Court indicates that these factors are relevant in determining whether prompt action is necessary). Furthermore, neither the complaint nor the motion for an ex parte finding of probable cause alleges the need to protect the identities of informants or undercover agents or the need to protect information the claimant might obtain through pre-seizure hearing discovery. Accordingly, we find that while an ex parte determination of probable cause reduces the likelihood of erroneous deprivation, the Claimants in this case should have received the higher protection afforded by an adversarial judicial hearing.
For the foregoing reasons, Claimants motion to dismiss the government's complaint against 8215 Reese Road is granted.
It is so ordered.
MARVIN E. ASPEN
United States District Judge