The subject of civil forfeiture incorporates numerous statutory schemes on both the state and federal levels, aimed at the forfeiture of property connected with substantive ills including criminal violations, violations of regulatory regimes (such as customs, tax, and immigration) that may have both civil and criminal provisions, and even torts, such as nuisance statutes. Although there are variations, a number of federal civil forfeiture statutes share similar or identical procedural provisions. Thus, statutory as well as constitutional case law developed in regard to one forfeiture law is often instructive in cases under similar regimes.

This memorandum will use as its working example the civil forfeiture provisions associated with the federal drug laws, probably the broadest and most frequently invoked civil forfeiture regime. The first section of this memo includes a substantive overview of 21 U.S.C. § 881, indicating the types of property statutorily subject to forfeiture. The second section explains, based on the text of the statute, how and when property may be seized, and what procedures must ensue in order for the seizure to ripen into forfeiture under the two methods provided by the statute, administrative and judicial. This section is designed not to explain the possible legal challenges to these procedures, but merely to give the factual overview necessary to understand the analyses found in later sections.

After the sections that provide the factual and statutory framework, the memo discusses possible constitutional infirmities with the procedures for seizure, administrative forfeiture, and judicial forfeiture. These discussions treat such issues as the requirement of warrants, the meaning of probable cause and the evidence needed to establish it, the right to a hearing, and the burdens placed upon the claimant. Finally, the memo discusses substantive issues specific to § 881, including the nexus between property and the prohibited conduct and the meaning of the "innocent owner" defense, including the underlying notion of the obligation of owners to defend their property, exploring both statutory and constitutional challenges that may apply to other regimes with similar provisions.

I. Civil forfeiture under the drug laws: 21 U.S.C. § 881

The civil forfeiture provisions of 21 U.S.C. § 881 were expanded to their current broad sweep in the 1980s as part of the "War on Drugs" declared by the Reagan administration. A copy of the full statute is attached as an exhibit to this memorandum. In addition to permitting the forfeiture of drugs themselves⁽¹⁾ and of various generally low-value items connected with drug manufacturing, such as packaging materials, cutting ingredients, and scales,⁽²⁾ the statute authorizes the forfeiture of money or property used or intended to be used to exchange for drugs or otherwise to facilitate a drug crime;⁽³⁾ conveyances used or intended to be used in any manner to facilitate a drug crime, by transporting drugs or otherwise;⁽⁴⁾ real property used or intended to be used in any manner to facilitate a drug crime;⁽⁵⁾ and money or property traceable as the proceeds of a drug transaction.⁽⁶⁾

The statute provides some defenses for innocent owners. With regard to real property and money or other items of value, the property shall not be forfeit to "to the extent of the 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."⁽⁷⁾ With respect to conveyances, no conveyance shall be forfeit if the unlawful act was committed while the vehicle was stolen,⁽⁸⁾ or otherwise "without the knowledge, consent, or willful blindness of the owner."⁽⁹⁾ Conveyances in use as common carriers at the time they are involved in an unlawful act shall not be forfeit unless it appears that their owners consented or were privy to the violation of the law.⁽¹⁰⁾
 

II. Procedural overview of the seizure and forfeiture of items covered by § 881(a)

Sections 881(b) and (d) explain when property covered by § 881(a) may be seized and what procedures govern its forfeiture.

A. Seizure-- § 881(b)

According to 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 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; [or] *** (4) the Attorney General has probable cause to believe that the property is subject to civil forfeiture under this subchapter. n the event of seizure pursuant to paragraph . . . (4) of this subsection, proceedings under subsection (d) of this section shall instituted promptly.

The process provided under the Admiralty Rules will be discussed in conjunction with the explanation of judicial forfeiture proceedings. It is notable that on its face, however, the statute provides very sizable exceptions to the requirement that Admiralty procedure be followed. In addition to allowing seizure in circumstances that may fall within recognized exceptions to the Fourth Amendment warrant requirement -- namely, seizure incident to an arrest or to the execution of a valid search warrant for other materials (presumably where their discovery would establish the grounds for subjecting the associated property to forfeiture, or where the search would yield other items in plain view) -- the statute permits seizure upon the Attorney General's own determination of probable cause. The provision permitting the government to request a warrant for seizure of forfeitable property through the same process used to secure a search warrant under the Criminal Procedure Rules was added in 1986,⁽¹²⁾ and it may be intended to provide the government with a clear manner to secure a warrant and thus stave off Fourth Amendment challenges to warrantless forfeiture seizure in non-exigent circumstances. As will be discussed below, courts are divided as to whether a warrant is required to effect a seizure for the purposes of civil forfeiture where such seizure is premised on the Attorney General's judgment of probable cause. Such seizures (and, in fact, most seizures using process other than the Admiralty procedures) are usually seizures of vehicles and money; Supreme Court case law requires the opportunity for a pre-seizure hearing, not merely an ex parte probable cause determination, in forfeiture proceedings against real property.⁽¹³⁾

B. Forfeiture Procedures

1. Administrative forfeiture

Any merchandise worth no more than $500,000, as well as any conveyance used to transport or store illegal drugs, regardless of value, and any monetary instrument (in any amount) within the meaning of 31 U.S.C. § 5312(c), may be subject to administrative forfeiture.⁽¹⁴⁾ If property is statutorily eligible for administrative disposal, by virtue of its characteristics and value, the seizing agency may simply

cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same according to law to be published for at least three successive weeks in such manner as the Secretary of the Treasury [or, for drug seizures, the Attorney General] may direct. Written notice of seizure together with information on the applicable procedures shall be sent to each party who appears to have an interest in the seized article.⁽¹⁵⁾

The statute does not provide for the waiver of the bond requirement in the case of indigence, but in the wake of two circuit court cases in the 1970s finding the lack of an in forma pauperis provision to violate Due Process, the customs service (and apparently the INS) adopted regulations to allow claimants to petition for waiver of the bond upon a showing of indigence.⁽¹⁹⁾ The DEA regulations regarding administrative forfeiture do not contain an explicit provision for petitioning for waiver of the cost bond,⁽²⁰⁾ but the notice regularly published by the DEA indicates that "[a] sworn affidavit of indigency may be filed in lieu of the cost bond." The DEA (or other seizing agency) evaluates the affidavit of indigency and makes a determination. An agency denial of an in forma pauperis ("IFP") petition can be challenged by the filing in district court of an action under the Administrative Procedure Act, challenging the agency determination as arbitrary and capricious.⁽²¹⁾

If a property owner fails to file a claim within twenty days and satisfy the bond requirement either by payment or by satisfaction of the indigency requirement, the seizing agency may simply declare the property forfeit and sell or otherwise dispose of it.⁽²²⁾ (As a practical matter, because of the difficulty of obtaining title insurance and thus of reselling the properties in the absence of a judicial decree of forfeiture, the government does not institute administrative forfeiture proceedings against real property.⁽²³⁾ The fact that the Supreme Court has held that a pre-seizure hearing is required by due process in real property forfeitures also militates against the use of the administrative procedures in such cases.⁽²⁴⁾) When property is forfeit through this administrative procedure, a claimant may not collaterally attack the forfeiture in court on the merits, although he may challenge the adequacy of the notice given of the impending forfeiture, or raise other due process claims. He may also petition the agency for remission or mitigation of the forfeiture.⁽²⁵⁾ Remission, in which the entire forfeiture would be returned, and mitigation, in which the amount of the forfeiture would be reduced, are both committed to agency discretion by law, and thus are not reviewable in court. In the case of the DEA, the procedures for these appeals to administrative grace do not provide for any type of oral hearing. A claimant must file a sworn and documented petition, in which he must explain the reasons he believes that he is entitled to relief, and the DEA will then conduct an "appropriate investigation" and make a decision.⁽²⁶⁾ It is unclear from the regulations whether the petitioner may obtain additional information from the DEA regarding the agency's determination of probable cause for the seizure, or even the specific section of the law which the DEA alleges to have been violated. Perhaps not surprisingly, anecdotal evidence from experienced forfeiture lawyers indicates that most petitions for mitigation or remission are denied.

In the event that a property owner does file a claim and bond or affidavit of indigence within the twenty day period, the DEA shall transfer the owner's claim and bond, as well as a description of the property seized, to the U.S. Attorney for the district in which the seizure was made.⁽²⁷⁾ The U.S. Attorney then commences a judicial forfeiture action against the property.⁽²⁸⁾

2. Forfeiture by judicial condemnation

In addition to cases transferred from administrative forfeiture because of the filing of a claim and bond, the government must pursue judicial forfeiture of property worth more than $500,000⁽²⁹⁾ and of real estate,⁽³¹⁾ and may pursue judicial forfeiture of other property as it chooses, in particular of property that it has not previously physically seized under 21 U.S.C. § 881(b)(1)-(4), the exceptions to seizure using Admiralty process.

A judicial condemnation action is a civil action in rem (that is, the property itself is the "defendant") and is governed by the Supplemental Rules for Certain Admiralty and Maritime Claims as well as by the Federal Rules of Civil Procedure, even where the action does not fall within ordinary admiralty jurisdiction.⁽³²⁾ Complaints seeking forfeiture in rem must be verified by oath or affirmation, and must set forth in some detail both the property subject to forfeiture and the circumstances from which the claim arises.⁽³³⁾ Although the in rem complaint has some characteristics in common with the materials that the government would present to a magistrate in order to obtain an ordinary search warrant, the complaint is not subjected to any judicial evaluation. Rather, the admiralty rules specifically exempt a statutory forfeiture action brought by the government from the general requirement that a plaintiff either certify that exigent circumstances preclude judicial review of the complaint prior to the issuance of a warrant for the arrest of the property in question, in which case there shall be a post-arrest hearing to verify such circumstances, or be subject to prior judicial evaluation of his allegations. Instead, "[i]n actions by the United States for forfeitures for federal statutory violations, the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances."⁽³⁴⁾ This arrest warrant may then be executed either by taking the property physically into custody or, where property cannot practically be physically impounded, by posting a copy of the warrant on the property and leaving a copy of both the warrant and complaint with the person in possession.⁽³⁵⁾ This, then, is the process for seizure under the Admiralty rules, authorized in 21 U.S.C. § 881(b).

Within 10 days of the execution of the in rem arrest warrant, the property owner must file a verified claim with the court, indicating his interest in the property. On its face, this rule does not require that the claimant have actual notice of the execution of the arrest warrant, or even that notice be published. Nor does the previous filing of a claim in the administrative forfeiture action satisfy the claim requirement. Once a verified claim is filed, the claimant has 20 additional days to answer the government's complaint.⁽³⁶⁾ He may generally demand a jury trial.⁽³⁷⁾ After filing of an answer, the action proceeds with discovery and other ordinary pre-trial preparations.

The substantive provisions of 21 U.S.C. § 881(a) delineate what subjects will be in issue in a drug-related civil forfeiture trial. However, the burden of proof in such an action is derived from the customs laws, specifically 19 U.S.C. § 1615. This statute, which has been on the books since 1930, states that in a statutory forfeiture action, the burden of proof shall lie on the claimant, "Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court," subject to three specific additional rules of evidence, which concern circumstances unique to customs operations. Thus, if the government establishes probable cause to believe that the property was used or intended for use to facilitate a drug crime or to purchase drugs, or is the proceeds of a drug transaction, the claimant must establish by a preponderance of the evidence that the property was not used or intended for use to facilitate a drug crime or to purchase drugs, and was not the proceeds of a drug transaction, or must establish by a preponderance of the evidence one of the innocent owner defenses.

III. Possible constitutional challenges to civil forfeiture under the drug laws
 

Having described the basic framework within which civil forfeiture actions are brought, this section explores possible constitutional infirmities in the civil forfeiture procedure.

A. Section 881(b) and the Fourth Amendment

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

1. Does the Fourth Amendment require a judicial determination of probable cause prior to the issuance of an in rem arrest warrant under the Admiralty Rules?

There is relatively little law regarding the constitutionality of the Admiralty procedure described above, which appears to allow warrants to issue without ascertaining that the strictures of the Fourth Amendment are fully complied with.⁽⁴²⁾

In several cases, courts have indicated that the in rem arrest warrant, despite its name, is not really a warrant in the constitutional sense and is not subject to the clear and explicit requirements of the Warrant clause of the Fourth Amendment. Rather, these courts state that the in rem arrest warrant is merely a form of service of process, indicating to the claimant to come and defend a suit, or otherwise fulfilling technical or jurisdictional requirements.⁽⁴³⁾

This notion that despite its name, the in rem warrant is not subject to the requirements of the Fourth Amendment's warrant clause is problematic because, by its execution, such a warrant clearly can permit the government to gain physical control of someone else's property. Although the courts speak of creating an attachment, the language of the Admiralty Rules authorizes the physical taking into custody of the res upon execution of the warrant. ⁽⁴⁴⁾ To suggest that a "warrant" permitting such an exercise of power by the government is not really a "warrant" seems to be a hollow semantic stretch, and seems particularly unjust because the process permitted the government is not actually the same as that permitted to private litigants seeking to commence an in rem suit by attachment, but is less demanding, excusing the government from the normal requirements of exigency or prior judicial evaluation of cause. Some of the circuit cases sidestep this problematic issue on their facts, indicating that the execution of the warrant did not effect a seizure, either because the property was already in custody prior to the issuance of the warrant⁽⁴⁵⁾ or because the claimant failed to prove that the government actually took possession of the property.⁽⁴⁶⁾

Most courts that indicate that the Warrant clause of the Fourth Amendment is inapplicable to forfeiture seizure pursuant to the Admiralty Rules would concede that the more general requirements of the Fourth Amendment will apply in some way.⁽⁴⁷⁾ Thus, in the end, those cases still require that, even if examined only after the fact, the government must have in reality had probable cause at the time of seizure, whether that seizure preceded or occurred simultaneously with the execution of the warrant. The Fourth Circuit clearly has expressed doubt as to whether the physical seizure of property on the authority on an in rem arrest warrant alone would be constitutional, and several district courts have found such seizures to be unconstitutional.⁽⁴⁸⁾

By contrast, in rejecting the argument that the issuance of an in rem arrest warrant under the Admiralty Rules must fulfill the strictures of the Warrant Clause, the Fifth Circuit appears to have ignored all constitutional and statutory requirements of probable cause. Having adopted the notion that the warrant issuance under the Admiralty Rules merely constitutes the origination of a forfeiture action by attachment, the court stated, that "[i]f [the attorney general] lacks probable cause, but believes the vehicle may be forfeitable, he may file a verified complaint pursuant to the maritime rules and effect the seizure pursuant to that process."⁽⁴⁹⁾ Thus, the Fifth Circuit appears to approve the commencement of an action authorizing impoundment of the property without even probable cause, ignoring not only the possible constitutional problems with authorizing government impoundment upon less than probable cause but also the statutory mandate of 19 U.S.C. § 1615 that the government be able to show probable cause for "the institution of the action." These statements appear in a case challenging a warrantless seizure under § 881(b)(4), however, and thus might be characterized as dicta, although they do play a part in the court's explanation of why § 881(b)(4) is not redundant of the general provision of § 881(b).

If the Warrant Clause were enforced in civil forfeiture actions, the proceedings would likely be ex parte, all that is required to obtain other warrants. Once the government established probable cause, prior to seizure, the only remaining issues for trial would be those on which the claimant bears the burden of proof. Absent the extension of Good's requirement of a full pre-seizure hearing to forfeitures of personal property, it is still clearly preferable to take the chance on an ex parte proceeding to keep property entirely out of government hands rather than rely entirely on post-seizure process.⁽⁵⁰⁾ Even where a forfeiture is eventually defeated, there is no real compensation for the wrongful, if temporary, seizure, or for any depreciation or damage while in custody, because governmental immunity defeats a damages action unless the court finds the government's probable cause showing to be so lacking as to be unreasonable.

If the government's initial showing of probable cause is made prior to seizure, one nagging procedural question might be resolved: The claimant, who bears the burden of proof, would presumably then present his case at trial first and would also, consequently, have the chance to present his rehabilitation evidence last, after the government's rebuttal case. This would ensure the claimant the type of presentation usually given to a person who bears the burden of proof.⁽⁵¹⁾

In a few courts today, the claimant, despite bearing the burden of proof, has been relegated to the single, middle presentation at trial, because the government is given the first right to proceed in order to make out its probable cause case.

It is reasonable to argue that the strictures of the Warrant Clause must be followed in the issuance of warrants for actual seizure under the Admiralty procedure. However, considering the ease with which most personal property can be seized through the exceptions to following Admiralty procedure, the topic of the next section of this memo, and the fact that seizures of real property already require more than an ex parte proceeding prior to seizure, it may be rare for this issue to arise.

2. Does the Fourth Amendment require that the Attorney General obtain a warrant to seize property when she has probable cause to believe that the property is subject to forfeiture but there are no exigent circumstances or other exceptions to the warrant requirement such as have been recognized in the ordinary criminal context?

Most of the cases considering whether § 881(b)(4) allows a warrantless seizure in nonexigent circumstances involve seizure of cars. A minority of courts⁽⁵³⁾ has held that where not excused by exigent circumstances, the government must obtain a warrant in order to seize an automobile for forfeiture purposes, even if the car is seized from property not owned by the car owner.⁽⁵⁴⁾ Because they focussed on the narrow question of whether a warrant was required to seize a car in nonexigent circumstances, these courts never really confronted the question of whether the police did indeed have probable cause at the time of seizure to believe that the cars were subject to forfeiture. The majority of courts,⁽⁵⁵⁾ however, have concluded that a warrant is not required for the seizure of a car from a public place when the police had probable cause to believe it subject to forfeiture, even where no circumstances made it impractical for police to obtain a warrant. Rather than arguing about some inherent exigency engendered by the mobility of the car, most of these courts focused on the notion that no privacy interest of the owner was violated by seizing the car from a public location, and because the defendants rarely challenged the government's underlying claim to the car on the merits, ended the inquiry there. The courts did not consider the privacy interest which the person may have had in the interior of the car itself; once finding that the car had been legally seized, the courts had no qualms about a warrantless "inventory" search of the interior, even though this often permitted a search not independently justified by probable cause. Some courts also analogized the seizure to the arrest of a person on the street without a warrant.⁽⁵⁶⁾ They thus indicated that they might reach a different conclusion if the car were seized from the owner's garage without a warrant, not because his interest in the car would be any different, but because his interest in the security of the surrounding space--his own garage as opposed to the public street--would be different.

This privacy focus is common to modern Fourth Amendment jurisprudence. As the Supreme Court has stated, "Rather than property rights, the primary object of the Fourth Amendment was determined to be the protection of privacy."⁽⁵⁷⁾ Privacy clearly motivated the analysis in G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), in which the Court considered whether the I.R.S.'s warrantless seizure of cars to satisfy an administrative assessment of tax deficiency against their owner violated the Fourth Amendment. The G.M. Leasing claimants did not challenge the existence of facts establishing probable cause for the I.R.S. to believe that the cars were subject to seizure to satisfy the debt. The Court therefore stated the issue: "There being probable cause for the . . . seizures, the only question[] before the Court [is] whether warrants were required to make 'reasonable' . . . the seizure of the cars . . . ."⁽⁵⁸⁾ The Court concluded not:

The seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy. In Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272 (1856), this Court held that a judicial warrant is not required for the seizure of a debtor's land in satisfaction of a claim of the United States. The seizure in Murray's Lessee was made though a transfer of title which did not involve an invasion of privacy. The warrantless seizures of the automobiles in this case are governed by the same principles and therefore are not unconstitutional. See also Hester v. United States, 265 U.S. 57 (1924)(liquor seized in an open field).⁽⁵⁹⁾

The Court's clear focus on privacy rights, to the virtual exclusion of property interests, may mean that property that can be seized out in the open will be fair game. True, seizures may still be invalidated after the fact, but the government once again gains the general advantage of seizing first and answering questions later, and the procedural and practical hurdles make the chances of any challenge slim. If courts that assume that nearly any seizure that does not implicate privacy rights is reasonable, it will be tough to convince them that property rights, like privacy rights, are not adequately protected by post seizure procedures.

Another hurdle of which we must be aware is the fact that even proving a seizure to have been wrongful may ultimately be of marginal help to a person who is contesting forfeiture. As noted previously, the usual remedy for a wrongful seizure is exclusion of evidence. As the Second Circuit has stated, there are in fact two probable cause inquiries demanded in a civil forfeiture--one at the time of seizure, mandated by the Fourth Amendment, and one at the time of the filing of the complaint, mandated by statute. If probable cause to seize is lacking, forfeiture is not automatically precluded. "Absence of probable cause at the time of seizure may result in the suppression of evidence in later proceedings, but the defendant property itself cannot be suppressed from the forfeiture action."⁽⁶⁰⁾ Even if an initial seizure is found to be illegal, the government may nonetheless establish its right to forfeiture if it can establish probable cause for forfeiture on the basis of evidence which is independent of, and untainted by, the illegal seizure.

Nonetheless, the importance of a warrant requirement is ultimately in reducing the amount of property that falls into the hands of the government in the first place. There is already a circuit split on the question of whether warrants are required for forfeiture seizures in nonexigent circumstances, at least as applied to the seizure of cars, although not all circuits have weighed in on the question, and a state recent decision⁽⁶¹⁾ indicates that courts can be convinced that a warrant is required for seizures for purposes of forfeiture. If being forced to obtain a warrant would dissuade the police from pursuing seizure when they believe their probable cause showing to be shaky, and would result in other warrants being denied and thus forfeitures avoided, property owners would benefit. By keeping property to which the police have the least meritorious claims out of their hands, a warrant requirement would save some property owners the cost of challenging the seizures, costs that are often so great today that challenges are not economically efficient and the police are able to keep property without ever having to test their showings of probable cause. Thus, even if not making a radical difference in the outcome of many cases, a warrant requirement could only help to curb the excesses of law enforcement.

The underlying assumption of most of the cases upholding a nonexigent but warrantless seizure of a car for forfeiture is that, although it may not have been confirmed by a neutral evaluator prior to seizure, there was in fact probable cause for the seizure. Once a piece of property has been seized, however, under most federal forfeiture laws, the government may invoke administrative forfeiture proceedings, the subject of the next section of this memo. In such administrative proceedings, there is also no evaluation of probable cause. The most compelling argument that the seizure of property requires a warrant, an effective pre-seizure protection, would emphasize that when a procedure that allows seizure without prior objective evaluation of probable cause is combined with a regime in which possession of the property permits the government to invoke summary administrative procedures for the ultimate forfeiture, the risk of erroneous deprivation of property is too great to be tolerated. (This argument combines strands of Fourth Amendment and due process jurisprudence.) Such an argument would be most compellingly illustrated where the police did not in fact have probable cause for the seizure, but succeeded in administratively forfeiting it (a fact situation which is likely quite common). Unfortunately, it is not clear procedurally how such a case would be brought, as courts would likely fault the claimant for not invoking the judicial condemnation procedures, where probable cause would be tested. This challenge may in effect require a challenge to the cumulative effect of the forfeiture regime. Thus, the best course for an individual forfeiture claimant is to indicate both that the police lacked probable cause for the seizure and that their failure to obtain a warrant violated the Fourth Amendment because the weaker their case appears to be, the more sympathetic a court may be to the notion that law enforcement cannot constitutionally be permitted to evaluate the strength of its own justification for seizure.

B. Administrative forfeiture procedures

The procedural hurdles and harshness of the summary administrative forfeiture procedures evoke strong gut feelings of inequity. The following section analyzes three broad topics relating to these procedures.

1. Notice requirements

Another aspect of notice that might be litigated is whether the content of the notice that is given is sufficient. The publication notice, which appears in USA Today, states generally that the properties listed were seized for violation of 21 U.S.C. § 881, and gives the required information regarding deadlines to be met and amounts to be paid to stop the administrative forfeiture and challenge the action in District Court. It also declares the availability of mitigation or remission, and cites the applicable regulations, although it does not give the deadlines applicable to those petitions.⁽⁶⁴⁾ It groups the items by first, second, and third notice, listing the last date to file a claim for each group. For each individual item, it lists the date and place of seizure, the identity of the item, the name of the person from whom it was seized, and the amount of the cost bond required. Nowhere, however, does it list under which subsection of § 881(a) the government asserts that the item is subject to seizure, or any detail of probable cause. Although this information should be supplied in the complaint, if and when judicial condemnation proceedings are invoked, it is unclear how a claimant who does not invoke judicial condemnation but pursues only administrative mitigation or remission will have enough information to explain the grounds for his claim. Furthermore, the property owner may lack adequate information on which to base his election between the judicial and administrative procedures in the first place. Based on the notice in the paper, he can only guess whether the government claims to have probable cause to believe that the bank account it has seized contains proceeds of a drug transaction, or money intended to buy drugs, or both, and thus may have difficulty evaluating whether it is worth risking the additional money of the cost bond in order to defend his case in court. A similar lack of detail in the notice provided by the INS in administrative forfeitures of vehicles led the Ninth Circuit, last year, to declare that notice inadequate and violative of Due Process.⁽⁶⁵⁾ Of course, if the claimant receives more detailed individual notice, such a challenge may be foreclosed.

2. Hearing

The second basic requisite of due process is the opportunity to be heard. Under the DEA process, if an individual does not file a claim and post the cost bond, he is not entitled to any hearing; the property is automatically forfeit, even though there may have been no testing whatsoever of the government's probable cause showing (since, as noted above, the seizure may occur without a warrant). If the property owner files for mitigation or remission, there is also no oral hearing associated with this process.

Despite the absence of an administrative hearing, in United States v. Deninno,⁽⁶⁶⁾ the 10th Circuit held that the administrative forfeiture procedures authorized by reference in 21 U.S.C. § 881(d) met the requirements for Due Process because they provided notice and a procedure for contesting the forfeiture.⁽⁶⁷⁾ In evaluating whether the administrative forfeiture provided due process, the court did not require that the administrative forfeiture procedure stand on its own; the fact that it permitted access to a procedure where a hearing and contest on the merits were available was sufficient. It seems likely that most courts will evaluate the propriety of the procedure in this way.

However, in Gete v. INS,⁽⁶⁸⁾ the Ninth Circuit characterized the decision between taking steps to invoke judicial forfeiture and permitting the administrative forfeiture to go forward⁽⁶⁹⁾ as an election of remedies, clearly separating the two procedures as opposed to considering them part of a single, interrelated whole. The court explicitly stated that "the government cannot justify unconstitutional administrative forfeiture procedures merely by pointing to the fact that it provides a lawful judicial forfeiture option."⁽⁷⁰⁾ In the court's view, such an approach would mean that "as long as a lawful judicial procedure was provided as an option, an agency would be free to adopt and apply any administrative procedures it wished, no matter how flagrantly unconstitutional."⁽⁷¹⁾ Although the court acknowledged that by choosing the administrative forum, the claimant should know that he is giving up some rights, and that the administrative forum need not provide the same elaborateness of procedures as the judicial forum, it concluded that

the fact that some of the most significant features of a judicial proceeding are presumed to be absent in the administrative process in no way suggests to a property owner that in electing to pursue administrative rather than judicial remedies he forgoes all of his rights under the constitution and subjects himself to a decision-making procedure that need not be even minimally fair.⁽⁷²⁾

Consequently, the decision to pursue administrative forfeiture could not be said to constitute a knowing and voluntary waiver of basic due process rights. Because the issue before the court had to do with the adequacy of the notice provided, the court

reserve[d] judgment as to what process, in addition to reasonable notice, is due in an administrative forfeiture context. To the extent, however, that out-of-circuit cases suggest that notice of the forfeiture proceedings prescribed by the statute is a property owner's only due process interest in an administrative forfeiture proceeding, that argument is clearly inconsistent with Goldberg v. Kelly, 397 U.S. 254, 267 (1970), and we decline to follow such cases (holding that due process requires, at a minimum, an opportunity to be heard at a meaningful time and in a meaningful manner).⁽⁷³⁾

Even assuming that the availability of a judicial hearing satisfies due process, the requirements for obtaining that judicial hearing may bear scrutiny. Probably the most unusual aspect of the administrative forfeiture action is its requirement that a person post a bond in order to defend an action. The few cases that consider the cost bond requirement indicate that its purpose is to secure the government against the expense of a judicial proceeding where the property is of little value. ⁽⁷⁴⁾ As noted previously, as the result of cases in the mid-1970s, the DEA and other agencies now have a procedure in place to allow waiver of the bond in case of indigence. Although the seizing agency, and not a court, makes the first evaluation of this affidavit, and thus may not be the most objective judge of indigence, the problem of excessive strictness or agency bias must be dealt with on a case-by-case basis. Unfortunately, the procedures are cumbersome, as the agency decision must be challenged by filing an APA action as described previously.

Some claimants may have assets in excess of the required bond but be unable to liquidate them to post the bond, at least within the 20 day period required by the statute. Depending on the flexibility of the definition of indigence, however, one could likely argue that individuals with cash flow problems should qualify as indigents. Even if they are not ultimately successful in their petitions, applying for a waiver of the bond will extend the time before the bond is due at least 20 days beyond the original due date, and thus may solve the problem for many individuals.

C. Judicial condemnation

I have already discussed a possible Fourth Amendment challenge to the admiralty procedure governing the commencement of an in rem forfeiture action by the issuance of a warrant. In addition to litigation on that topic, there has been a fair amount of litigation regarding the burdens of proof set forth in 19 U.S.C. § 1615. As described above, that statute provides that the claimant bears the burden of proof in an in rem forfeiture action: Essentially, the government is assumed to have a right to the property and the claimant must disprove that entitlement. The government must make some effort to earn this entitlement. Before the claimant is put to his proof, the government must establish that it had probable cause to believe the property subject to forfeiture.⁽⁷⁵⁾

Most litigation has concentrated on the notion that it is a violation of due process to place the burden of proof on the claimant. A lesser amount of litigation has considered whether there is a problem with allowing the government to establish probable cause by presenting evidence such as hearsay, which is not ordinarily admissible in a contested judicial proceeding but is ordinarily permitted in the ex parte proceedings to obtain a search warrant under the Criminal Procedure rules. I will discuss these topics in turn.

1. Is the burden of proof established by 19 U.S.C. § 1615 unconstitutional?

Over the years, a substantial number of cases have challenged the constitutionality of the burden of proof established under 19 U.S.C. § 1615, using a variety of rationales to argue that this scheme violates due process. Thus far, no such challenge has been successful at the circuit court level, although some individual judges have found constitutional infirmities in the scheme.⁽⁷⁶⁾

Cases brought thus far to challenge the burden of proof under § 1615 have relied on the argument that judicial condemnation of property under that law is a criminal or quasi-criminal action, thus requiring higher protection than a civil action. Many claimants argued that the quasi-criminal aspects of the action mandated that the government prove its case beyond a reasonable doubt, the standard required in a criminal prosecution. These claimants thus essentially sought two changes: the shifting of the burden of proof to the government and the raising of the burden of proof from the preponderance of the evidence currently imposed on the claimant (and certainly from the "probable cause" required of the government) to the much higher "beyond a reasonable doubt" standard.⁽⁷⁷⁾

Such challenges have been uniformly rejected by the circuit courts. Noting that Congress clearly labeled judicial forfeiture as a civil action, courts have concluded that the law is not so punitive in purpose or effect as to override that designation and require the full panoply of protections available in criminal cases. This conclusion has been bolstered by the Supreme Court, which despite inconsistencies in its treatment of civil forfeiture, most recently has asserted that civil forfeiture is not so punitive as to invoke the constitutional prohibition on double jeopardy.⁽⁷⁸⁾

Having concluded that a judicial forfeiture action is a civil action, no court has undertaken a serious analysis of whether due process may nonetheless require something other than the burden of proof set forth by Congress. Rather, the courts either go no further than rejecting the claimant's contention regarding the "quasi-criminal" nature of the action, or tack on an additional assertion that in a civil proceeding, Congress may essentially allocate the burden of proof as it sees fit without constitutional implication.⁽⁷⁹⁾ This latter notion draws support from Lavine v. Milne, 424 U.S. 557 (1976). Decided in the same term as the much better known Mathews v. Eldridge, the case involved a due process challenge to a rebuttable presumption in a New York welfare law. The plaintiffs did not challenge the substantive provision that an applicant who voluntarily terminates his employment in order to receive benefits shall be ineligible to receive those benefits for 75 days. Id. at 583. They challenged only the rebuttable presumption that an applicant who applies for benefits within 75 days of quitting his job did in fact quit his job in order to receive benefits. The Court rejected a due process challenge to the presumption, characterizing it as a largely superfluous manner of showing that, as with all other eligibility requirements, the applicant bears the burden of showing that he meets the requirements for receiving benefits. Id. at 584. It thus went on to say that rather than objecting to the rebuttable presumption,

their underlying complaint may be that the burden of proof on this issue has been unfairly placed on welfare applicants rather than on the State.

Where the burden of proof lies on a given issue is, of course, rarely without consequence and frequently may be dispositive to the outcome of the litigation or application. It may be that establishing the absence of an illicit motive-- as § 131 (11) requires appellees to do -- is difficult, although as appellant argues, an applicant's motive should be best known by the applicant himself. However that may be, it is not for us to resolve the question of where the burden ought to lie on this issue. Outside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment.

Although the court said only that the locus of the burden of persuasion is not normally a constitutional issue, it did not indicate where, other than in a criminal case, it might be a constitutional issue.

Although the Lavine court thought it a "normal assumption that an applicant is not entitled to benefits unless and until he proves his eligibility," id. at 584, it is arguably quite another matter to assume that a property owner is not entitled to retain ownership (and regain control) of his property until he proves his lack of knowledge or complicity in the misuse of the property, or until he proves that the property was not in fact misused. Procedurally, the forfeiture claimant is really aligned with the position of defendant, unlike the welfare applicant who appears more in the posture of plaintiff. Thus, despite Lavine, whether one might argue for a different burden of proof, even conceding the civil nature of the forfeiture action, could bear more exploration. On first consideration, one is hard pressed to think of civil tort or contract regimes in which the plaintiff, upon a minimal showing, is assumed to be in the right, and the defendant must prove his case to maintain the status quo. Although Title VII and other civil rights statutes provide for burden shifting, the plaintiff's initial showing in those cases is still higher than the government's required showing in a civil forfeiture action. A claimant may argue, using language from James Daniel Good Real Property, that even if the civil forfeiture action is not so punitive as to require proof beyond a reasonable doubt, that the risk of erroneous deprivation of property under the existing proof scheme is too great to pass muster under the Mathews v. Eldridge balance.

2. Must the government use admissible evidence to make out its showing of probable cause?

Litigants and at least one judge⁽⁸⁰⁾ have found the proof scheme of § 1615 particularly unfair because courts have generally held that the government can make out its showing of probable cause upon inadmissible evidence, such as hearsay, so long as it has sufficient indicia of reliability.⁽⁸¹⁾ The result is to allow the same type of support that is offered in an ordinary, ex parte proceeding for a search warrant. As the establishment of probable cause places the risk of nonpersuasion firmly on the claimant/property owner, it may seem unfair at a gut level to permit the government to make its showing in this way. Furthermore, at least one court has expressed concern that the use of inadmissible evidence by the government to establish probable cause can place the claimant in the position of implicitly having to rebut "evidence" by witnesses who are not subject to cross examination and may in many cases be anonymous informants. Where the claimant bears the risk of nonpersuasion, this is particularly onerous.⁽⁸²⁾

The government may point to a number of factors that arguably reduce the unfairness of the use of inadmissible evidence. Despite the general right to a jury trial in a federal civil forfeiture case, the thresholddetermination of probable cause is assigned by statute to the court;⁽⁸³⁾ consequently, the claimant's attorney can assure that the jury will not be exposed to inadmissible evidence by requesting that the probable cause determination be held prior to the remainder of the proceeding. If the government is limited to admissible evidence in its presentation to the jury, the claimant will at least not be directly handicapped in meeting its burden by anonymous statements of informants, not subject to cross examination.

The probable cause determination can be demanded and made very early in the pretrial preparation because the statute states that "probable cause shall be first shown for the institution of such suit or action." Many courts have thus held that probable cause must be established as of the date of the filing of the complaint, and as a consequence, evidence acquired after the filing of the complaint is irrelevant and inadmissible to the probable cause showing.⁽⁸⁴⁾

Although generally helpful to the claimant, this interpretation may suggest one justification for permitting the government to establish its probable cause showing upon otherwise inadmissible evidence. Since discovery comes after the filing of the complaint, and by definition, all the evidence allowable to show probable cause must have been collected prior to the filing of the complaint, the government will not have had the benefit of discovery to help it acquire admissible evidence that could be used to establish probable cause. Hearsay or other inadmissible evidence may thus be permitted to make out the probable cause showing to avoid placing the government in a catch-22.

Treatise author David Smith suggests that courts are nonetheless mistaken as a matter of statutory interpretation when they permit the government to introduce hearsay, which is ordinarily inadmissible, to meet the threshold burden of probable cause imposed by the statute, because nothing in the statute or the Federal Rules of Evidence themselves indicates that the ordinary evidentiary rules governing hearsay should not apply in this as in all other actions. This argument is bolstered by 19 U.S.C. § 1615 itself, for the statute does set out three unique evidentiary rules to be applied in proceedings under the statute, clearly indicating that Congress understood how to alter the normal evidentiary scheme where it intended to do so and thus implying that it did not intend otherwise to deviate from the rules applicable in all other federal proceedings.

Nonetheless, for civil forfeiture opponents, the most valuable use of the fact that the government may make out its threshold showing upon mere probable cause, established in part or in whole by hearsay, may be as part of an overall due process argument against the proof scheme of 19 U.S.C. § 1915.^(85)/

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FOOTNOTES

1. See 21 U.S.C. § 881 (a)(1) ("controlled substances . . . manufactured, distributed, dispensed or acquired in violation of this subchapter"); (a)(8) ("controlled substances . . . possessed in violation of this subchapter"). As other sections of the law also indicate, there seems to be needless division and substantial overlap between provisions.

2. See 21 U.S.C. § 881 (a)(2) (raw materials and equipment); (a)(3) (containers); (a)(9) (chemicals and manufacturing equipment, including those that may have some legal uses, if used or intended for use improperly); (a)(10) ("drug paraphernalia").

The statute also permits forfeiture of firearms used or intended to be used to facilitate the "transportation, sale, receipt, possession or concealment" of controlled substances, or raw materials, products and equipment used or intended for use in "manufacturing, compounding processing delivering, importing or exporting" controlled substances or listed chemicals. See § 881(a)(11). And it permits forfeiture of "[a]ll books, records, and research, including formulas, microfilm, tapes, and data which are used or intended for use, in violation of this subchapter." § 881(a)(5).

4. § 881(a)(4).

5. § 881 (a)(7).

6. § 881 (a)(6). The proceeds provision appears to be limited to the proceeds of a drug sale, so that presumably, salary received by a person paid to be a drug courier, or money used to pay a supplier for cutting materials, would not be reachable.

7. See § 881 (a)(6) & (a)(7).

8. See § 881(a)(4)(B)

9. See § 881(a)(4)(C).

10. See § 881(a)(4)(A). This common carrier provision applies only to conveyances, and not to other forms of common carriers, such as telecom providers.

11. Subsections (b)(2) and (b)(3) permit the seizure of property outside of the Admiralty process if the United States has previously won a criminal injunction or civil forfeiture against the property, or if the Attorney General has probable cause to believe that the property constitutes a health or safety threat.

12. See Pub. L. 99-570, § 1865(3).

13. See United States v. James Daniel Good Real Property, 510 U.S. 43 (1993).

14. See 19 U.S.C. § 1607.

15. 19 U.S.C. § 1607(a).

16. 19 U.S.C. § 1608. In the case of the DEA, this is the Chief Counsel, Asset Forfeiture Section, in Arlington, Virginia.

17. 19 U.S.C. § 1608. As stated, this bond is intended to ensure at least partial payment of the government's costs, and its payment does not entitle the claimant to regain possession of his property; release pending trial requires posting of the full value of the seized property. 19 U.S.C. § 1614.

18. See Epps v. Bureau of Alcohol, Tobacco, and Firearms, 375 F. Supp. 345, 349-50 (E.D. Tenn. 1973), aff'd, 495 F.2d 1373 (6th Cir. 1974) (stating that bond need not be filed at same time as claim, but within a reasonable time thereafter).

19. See Wiren v. Eide, 542 F.2d 757, 763-764 (9th Cir. 1976); Lee v. Thornton, 538 F.2d 27, 32 n. 3 (2d Cir. 1976); 19 C.F.R. § 162.47(e).

20. See 21 C.F.R. §§ 1316.76 & 1316.77.

21. See United States v. Evans, 92 F.3d 540, 542 (7th Cir. 1996) (denial of IFP may be challenged by filing action in district court to set aside denial as "arbitrary" or "capricious" within the meaning of the Administrative Procedure Act, 5 U.S.C. §§ 704, 706(2)(a); Jones v. United States Drug Enforcement Administration, 801 F. Supp. 15 (M.D. Tenn. 1992) (same). Department of Justice Guidelines promulgated in 1993 indicate that indigent claimants should file a claim and a bond waiver/IFP petition within the 20 day limit to stake their claim. In the event that the IFP petition is subsequently denied, the DOJ guidelines indicate that the claimant should be informed of his right to obtain judicial review of the denial of the IFP petition by filing an APA action, and indicating that the agency will withhold completion of the forfeiture for 20 days to allow the claimant to make such a challenge or satisfy the bond requirement. These guidelines do not give rise to separate enforceable rights, however.

22. 19 U.S.C. § 1609.

23. See also United States Attorneys' Manual, 9-38.211 (Apr. 23, 1987).

24. See James Daniel Good Real Property, 510 U.S. 43 (1993).

25. 19 U.S.C. § 1618; 21 C.F.R. §§ 1316.79-1316.81; 28 C.F.R. §§ 9.1-9.9. Petitions for remission or mitigation must be filed within 30 days of the receipt of the notice of seizure; petitions seeking only the monetary equivalent of property which has already been sold or put into official use must be filed within 90 days of the disposition of the property. 21 C.F.R. § 1316.80.

26. See 21 C.F.R. § 1316.78 & 1316.80.

27. 19 U.S.C. § 1608.

28. Id. Although the statute states that the U.S. Attorney "shall" commence judicial condemnation, U.S. Attorneys may individually evaluate the viability of a forfeiture claim, and may drop or settle cases rather than proceed to a full judicial hearing.

29. 19 U.S.C. § 1610 (stating that agency shall transmit report of the case to the U.S. Attorney in order to institute judicial condemnation of any property not eligible for administrative forfeiture under § 1607); 19 U.S.C. § 1607(a) (limiting administrative forfeiture to items valued at less than $500,000).

In calculating the value of property for purposes of this statute, the government may look at each item subject to forfeiture separately. See,e.g., Case of One 1985 Nissan/ United States v. Walker, 889 F.2d 1317 (4th Cir. 1989) (government not required to aggregate values of all items which it sought to forfeit in administrative forfeiture and could institute separate proceeding against each vehicle alleged to be drug proceeds). Thus, the seizures of a $50,000 car and a $495,000 yacht at the same time from the same owner because they are both alleged to have been bought with drug proceeds does not preclude the institution of administrative forfeiture actions against each of them.

Justice Department policies may curb this type of action somewhat. A Justice Department directive (applicable to the FBI & DEA, although not to Customs or to the IRS) states that "when multiple items of property are seized and their aggregate appraisal value exceeds [the statutory limit] they are all to be forfeited in a single judicial proceeding, rather than separate administrative actions, if they are subject to forfeiture under the same statutory authority and the same factual basis and if one individual has an ownership interest in the items seized." Asset Forfeiture: Law, Practice and Policy 44 (Asset Forfeiture Office 1988). ⁽³⁰⁾

30. CITE FROM SMITH

31. See U.S. Attorneys' Manual 9-238.211 (Apr. 12, 1987).

32. See Fed. R. Civ. P. Supp. Ad. Rule A.

33. See Fed. R. Civ. P. Supp. Ad. Rules C(2) & E(2)(a).

Courts differ in the amount of detail required, but for the most part do not require that the complaint set forth sufficient facts to establish probable cause. Rather, the complaint must merely allege sufficient facts to "support a reasonable belief that the government will be able to make out probable cause at trial," United States v. One Parcel of Real Property Known as 6 Patrician Dr., 921 F.2d 370, 376 (1st Cir. 1990); accordUnited States v. Daccarett, 6 F.3d 37, 47 (2d Cir. 1993); United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437, 441 (6th Cir. 1991).

34. See Fed. R. Civ. P. Supp. Ad. Rule C(3).

In James Daniel Good Real Property, 510 U.S. 43 (1993), the Court's description of the facts stated that after filing of the forfeiture complaint, a magistrate, in an ex parte proceeding, determined the existence of probable cause and issued a seizure warrant. In discounting the need for an adversary hearing and arguing that compliance with the Fourth Amendment satisfied due process, several of the dissenters relied on this procedure. This set of facts does not appear to be typical however, because, as just demonstrated, the admiralty rules reject the necessity of an independent evaluation of probable cause prior to the issuance of a warrant. As will be explained later, outside of the case of real property, it remains the view of the majority of courts that the Fourth Amendment does not require the use of warrants in seizures for purposes of forfeiture.

35. See Fed. R. Civ. P. Supp. Ad. Rule E(4).

36. See Fed. R. Civ. P. Supp. Ad. Rule C(6).

37. Where the seizure actually involves a boat or other seizure on the waters, which falls within traditional admiralty jurisdiction, the claimant may not be entitled to a jury trial, as no jury trials are had in admiralty. However, in most drug cases, the physical locus of the seizure does not place the action in admiralty, and thus the Seventh Amendment right to a jury trial applies. Note, however, that a jury trial may not be available in state-law civil forfeitures, to which the Seventeenth Amendment does not apply.

38. See 21 U.S.C. § 881(b).

39. See, e.g. Whiteley v. Warden, 401 U.S. 560, 564 (1971); Katz v. United States, 388 U.S. 347, 356 (1967); Wong Sun v. United States, 371 U.S. 471, 481-82 (1963).

40. See, e.g., United States v. Daccarett, 6 F.3d 37, 47 (2d Cir. 1993); United States v. $150, 660, 980 F.2d 1200, 1204-05 (8th Cir. 1992); United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437, 441 (6th Cir. 1991); United States v. One Parcel of Real Property Known as 6 Patrician Dr., 921 F.2d 370, 376 (1st Cir. 1990); United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1216 (10th Cir. 1986); United States v. $19,120, 700 F. Supp. 33, 34 (N.D. Ga. 1987); United States v. 1625 South Delaware Ave., 661 F. Supp 161 (E.D. Pa. 1987).

41. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993).

42. The following are the only circuit cases that deal in any way with the question of whether the Admiralty procedures for issuance of an in rem arrest warrant in a civil forfeiture case comply with the requirements of the Fourth Amendment's Warrant Clause.

Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir. 1969) (in case in which allegedly mislabeled medical devices were seized for forfeiture pursuant to warrant issued under Admiralty procedure, court found seizure to be independently reasonable and rejected claim that items needed to be suppressed as evidence because of violation of Warrant clause);

United States v. Pappas, 613 F.2d 324, 328 (1st Cir. 1979) (in dicta, court noted that it "would hesitate to construe the general provision as authorizing issuance of a warrant on less than a showing of probable cause, since this would conflict with the Fourth Amendment's proscription that 'no Warrants shall issue, but upon probable cause,'" stating that it did "not see how the incorporating of a procedure from a context in which warrants traditionally have issued without probable cause can immunize a warrants from the Fourth Amendment's generally applicable probable cause requirement," normally applied in criminal and quasi-criminal actions); cf. id. at 334 (Campbell, J., concurring in judgment) (disagreeing that the prior judicial determination of probable cause required for the issuance of "criminal" warrants applied to civil forfeiture using the Admiralty procedure, and stating that § 881(b) "simply provides for two alternative means of commencing forfeiture proceedings, the first being in the nature of an attachment pursuant to the admiralty procedure and the second, seizure.") ; United States v. TWP 17 R 4, 970 F.2d 984, 988-89 (1st Cir. 1992) (where owner of real property presented no evidence that he was "denied access to the property in question," Court held that no Fourth Amendment seizure had occurred and thus that Warrant Clause was not violated by issuance of in rem arrest warrant by clerk; court held that posting of in rem arrest warrant on property is merely a manner of serving process and is not an seizure for Fourth Amendment purposes); United States v. Daccarett, 6 F.3d 37, 50 (2d Cir. 1993) (holding that while Fourth Amendment applies to civil forfeiture seizures using warrants, and thus that government must in fact have probable cause at time that warrant issues, "the government need not obtain a judicial determination of probable cause prior to seizure.") ;

United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir. 1983) (indicating in dicta that Admiralty Warrant merely effects "attachment", and need not even be supported by probable cause, without violating Fourth Amendment); United States v. Turner, 933 F.2d 240, 245 (4th Cir. 1991) (holding that where a car had already been seized by the police in a valid, though warrantless, seizure, and thus was in custody prior to the issuance of an in rem arrest warrant, there was no Fourth Amendment violation, as issuance of warrant merely served to bring the res before the court, like a civil summons, and did not cause a "seizure").

43. See Founding Church of Scientology v. United States, 409 F.2d 1146, 1150 (D.C. Cir. 1969)("Though warrants are generally necessary for arrests of person and for searches, the warrant requirement has not traditionally been imposed upon seizures of the type involved in this case-- attachment of property in the course of civil proceedings.") The Scientology court thus acknowledged that attachment was a type of seizure, and relied merely on historical practice to explain why the warrant requirement was not the means by which Fourth Amendment interests were safeguarded in that context. See also United States v. Pappas, 613 F.2d 324, 334 (1st Cir. 1979) (Campbell, J., concurring in judgement) (stating that § 881(b) "simply provides] for two alternative means of commencing forfeiture proceedings, the first being in the nature of an attachment pursuant to the admiralty procedure and the second, seizure. The Attorney General may commence the proceeding by filing a verified complaint, in which event process for seizure of the conveyance or property will issue "forthwith" (see Rule C), and the owner may defend in court if he believes the seizure unjustified. Alternatively, the Attorney General may effect a seizure without initiating judicial proceedings but only if he determines there is probable cause. In the latter case, forfeiture proceedings are to be instituted "promptly" thereafter."); United States v. TWP 17 R 4, 970 F.2d 984, 988-89 (1st Cir. 1992) (where owner of property did not present evidence that he was physically barred from his property, court held that posting of in rem arrest warrant on property is merely a manner of serving process and is not an seizure for Fourth Amendment purposes); United States v. Turner, 933 F.2d 240, 245 (4th Cir. 1991) (holding that where a car had already been seized by the police in a valid, though warrantless, seizure, and thus was in custody prior to the issuance of an in rem arrest warrant, issuance of warrant merely served to bring the res before the court, like a civil summons, and did not implicate Fourth Amendment); United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir. 1983) (approving language considering the Admiralty procedure to constitute the origination of a forfeiture action by attachment and stating that "If [the Attorney General] lacks probable cause, but believes the vehicle may be forfeitable, he may file a verified complaint pursuant to the maritime rules and effect the seizure pursuant to that process." )

44. See Fed. R. Civ. P. Supp. Ad. Rule E(4).

45. See United States v. Turner, 933 F.2d 240, 245 (4th Cir. 1991) ( "The distinction between the constitutional seizure of property and the procedural aspects of bringing the res within the jurisdiction of the court is critical to our disposition of this issue. Our holding is a narrow one for it does not address the question of whether the procedure would pass constitutional muster if a clerk's warrant were relied upon for the seizure of property for which a warrant was essential under the fourth amendment.")

46. See United States v. TWP 17 R 4, 970 F.2d 984, 988-89 (1st Cir. 1992). Whether physical intrusion and dispossession of real estate are necessary to effect a seizure implicating the due process right to a prior hearing established in James Daniel Good Real Property is a question that the Eleventh Circuit is currently disputing. A panel of that court held that the mere execution of a warrant, without physically barring the owner from the property or otherwise taking possession did constitute a "seizure" for purposes of due process, but the decision was vacated by the grant of rehearing en banc. United States v. 408 Peyton Road, S.W., 112 F.3d 1106 (11th Cir. 1997), vacated, 133 F.3d 1378 (11th Cir. 1998). Reargument occurred in June 1998 and the court's full opinion had not been issued as of the writing of this memo. The panel did not determine whether the execution of the arrest warrant effect a seizure for Fourth Amendment purposes, but interestingly, in stating that physical intrusion was not required for a due process "seizure", it cited United States v. Jacobsen, 466 U.S. 109, 113 (1984), which it characterized as "holding that, in the Fourth Amendment context, '[a] "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property'." 112 F.3d, at 1110 (emphasis added).

47. See Scientology, 409 F.2d, at 1150; Turner, 933 F.2d, at 245 (noting the narrowness of its holding and leaving open the question of whether seizure upon a clerk's warrant would pass constitutional muster); Daccarett, 6 F.3d, at 50 (stating that while "the government need not obtain a judicial determination of probable cause prior to seizure," it must nonetheless have probable cause at the time of seizure).

48. Several district courts have found the warrant procedure established by subsection 881(b) and Rule C(3) to violate the Fourth Amendment in the context of cases where property that did not fit any established exception to the warrant requirement was seized under an in rem arrest warrant. See, e.g., United States v. Real Property Located at 25231 Mammoth Circle, 659 F. Supp. 925, 927 (C.D. Cal. 1987); United States v. Life Ins. Co. of Va. Single Premium Whole Life Policy, 647 F. Supp. 732, 742 (W.D.N.C. 1986); United States v. $128,035, 628 F. Supp. 668, 672-673 (S.D. Ohio 1986); In re Kingsley, 614 F. Supp. 219, 223 (D. Mass. 1985).

49. United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir. 1983).

50. In James Daniel Good Real Property, there had in fact been an ex parte determination of probable cause by a magistrate prior to the issuance of a seizure warrant, but the Court nonetheless required a full pre-seizure adversarial hearing on the issue. It stated:

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.

United States v. James Daniel Good Real Property, 114 S. Ct. 492, 502 (1993) (citations omitted). This statement of the flaws of an ex parte determination does not appear to be logically limited to real property cases. However, the Court's discussion of the absence of any provision for presentation of an innocent owner defense at a pre-seizure ex parte probable cause determination frankly appears to conflate the probable cause for seizure with the ultimate determination of forfeitability.

51. At least one court has held the order of proof in a civil forfeiture case to have due process implications. The court held that a claimant was entitled as matter of due process to surrebuttal in which she could have asserted innocent owner defense, after the government rebutted her initial case. United States v. One Single Family Residence Located at 15526 69th Drive N., 778 F. Supp. 1215 (S.D. Fla. 1991).

52. Cf. South Dakota v. Opperman, 428 U.S. 364 (1976) (warrantless inventory search of vehicle legally seized pursuant to forfeiture statutes was reasonable under Fourth Amendment).

53. See United States v. LaSanta, 978 F.2d 1300 (2d Cir. 1992) (holding that § 881 does not negate the Fourth Amendment requirement of a warrant absent exigent circumstances); United States v. Linn, 880 F.2d 209, 215 (9th Cir. 1989) (Fourth Amendment applies to forfeiture seizures); In re Application for Warrant to Seize One 1988 Chevrolet Monte Carlo, 861 F.2d 307, 311 (1st Cir. 1988) (same); White v. Florida, No. 88813, 1998 Fla. LEXIS 300 (Fla., Feb. 26, 1998) (holding that Fourth Amendment requires warrant for seizure under state drug forfeiture law, absent recognized exception to warrant requirement).

54. In these cases, the appellants did not challenge the validity of the forfeitures but rather sought the suppression of evidence found inside the cars incident to their seizure.

55. See United States v. Pace, 898 F.2d 1218, 1242 (7th Cir. 1990); United States v. Valdes, 876 F.2d 1554, 1558-60 (11th Cir. 1989); United States v. $29,000-- U.S. Currency, 745 F.2d 853, 856 (4th Cir. 1984); United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir. 1983); United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154. 158 (3d Cir. 1981); United States v. One 1975 Pontiac LeMans, 621 F.2d 444, 450 (1st Cir. 1980).

56. See, e.g., United States v. Pace, 898 F.2d 1218, 1242 (7th Cir. 1990) (analogizing to arrest of person outside of the home without a warrant but with probable cause); United States v. Values, 876 F.2d 1554, 1558-60 (11th Cir. 1989) (same); United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir. 1983)(stating that approach was not inconsistent with arrest analogy).

57. Cardwell v. Lewis, 417 U.S. 583, 589 (1974)(explaining Warden v. Hayden, 387 U.S. 298 (1921)).

58. Id. at 351.

59. Id.

60. United States v. Daccarett, 6 F.3d 37, 46 (2d Cir. 1993)

61. White v. Florida, No. 88813, 1998 Fla. LEXIS 300 (Fla., Feb. 26, 1998).

62. 19 U.S.C. § 1607(a).

63. Where a client indicates that he has not received a forfeiture notice, a FOIA request for the agency's copy of the letter should be made as soon as possible.

64. Specifically, the DEA notice states:

The U.S. Department of Justice, Drug Enforcement Administration (DEA), Washington, D.C., gives notice that the properties listed below were seized for violation of Title 21 United States Code (USC), Section 881. Owner(s) or lienor(s) may file petitions for remission or mitigation of forfeiture pursuant to 19 USC 1618, 21 Code Federal Regulations (CFR) 1316.71-1316.81 & 28 CFR 9.1-9.9 62 Federal Register 314 (January 3, 1997) with the DEA, Office of Chief Counsel, Asset Forfeiture Section, Caller # 91017, Arlington, VA 22202. Persons desiring to place the matter in U.S. District Court to contest the probable cause for seizure must file with the Chief Counsel, Asset Forfeiture Section, a claim & bond or approved sureties, in the amount specified payable to the U.S. Department of Justice on/or before the date indicated. A sworn affidavit of indigency may be filed in lieu of the cost bond. Otherwise, the property will be administratively forfeited pursuant to 19 USC 1608 and will be disposed of according to law. Under certain circumstances, involving seizures based upon the possession of personal use quantities of a controlled substance or seizures of conveyances (vehicles, vessels, or aircraft), expedited release procedures are available under the Anti-Drug Abuse Act of 1988. See 21 CFR 1316.90-1316.99. The names of persons or businesses appearing in this notice are listed because they were in possession of the listed properties at the time the assets were seized by the DEA. Those persons or businesses are not necessarily criminal defendants or suspects, nor does the appearance of their names in this notice necessarily mean that they are the target of DEA investigations or other activities.

65. See Gete v. Immigration and Naturalization Service, 121 F.2d 1285 (9th Cir. 1997) (Reinhardt, J.) The court held that the INS notice "does not inform the owner which statutory provisions are alleged to have been violated, nor does it contain any statement of the factual basis for the claim that a violation of the INA occurred." Id. at 1289-90. The court rejected the government's argument that Due Process entitled plaintiffs only "to bare notice that they may choose between judicial and administrative proceedings, and that if they elect administrative forfeiture they are entitled to nothing more, except for the timely processing of their claims." Id. at 1296- 1297. The court noted that despite the fact that many owners are present when their vehicles are seized,

without knowing the exact reasons for the seizure, as well as the particular statutory provisions and regulations they are accused of having violated, they may not be able to clear up simple misunderstandings or rebut erroneous inferences drawn by the INS. Vehicle owners who are not present will, of course, frequently have even less information as to how to counter the INS' claims. Moreover, ambiguous factual circumstances many in many cases cause vehicle owners to guess incorrectly why their vehicle has been seized, thus preventing them from responding effectively to the unspecified accusations of criminal wrongdoing that underlie a forfeiture.

66. 103 F.3d 82 (10th Cir. 1996).

67. Id. at 85.

68. 121 F.2d 1285.

69. Under INS procedure, the administrative forfeiture at least permitted the claimant to have an informal talk with an INS official prior to the forfeiture, rather than the forfeiture operating automatically upon the failure to file a claim and cost bond.

70. Id. at 1294.

71. Id. at 1293.

72. Id.

73. Id. at 1298, n. 20.

74. See Colacicco v. United States, 143 F.2d 410, 411-412 (2d Cir. 1944) (L. Hand, J.) (discussing cost bond in forfeiture under revenue laws), Wiren v. Eide, 542 F.2d 757, 763 (9th Cir. 1976) (citing Colacicco) ; Epps v. Bureau of Alcohol, Tobacco, and Firearms, 375 F. Supp. 345, 349 ( E.D. Tenn. 1973), aff'd, 495 F.2d 1373 (6th Cir. 1974).

Colacicco, the leading case regarding the purposes of the cost bond, is frequently cited virtually without explanation as justifying the bond. However, most of the reasons given by Judge Hand in that case are inapt for the current regime of drug forfeitures, in part because of differences in the statutes, and in part because of the difference between forfeiture for a revenue violation and forfeiture for a drug crime. Judge Hand stated:

The case comes before us, therefore, barely upon the question whether it is a denial of due process of law to the owner of property, appraised at less than $500 [the maximum value of property subject to administrative forfeiture under the law in question], to require the bond, in cases where he is able to post one.

We think it clearly constitutional, for there is a sound reason for making an exception in cases where the property seized is of little value. The section applies to forfeitures for violations of the Revenue Laws, and therefore presupposes that the treasury has suffered some loss. True, a forfeiture is primarily punitive, but it has a remedial aspect as well, though the loss is ordinarily unascertained, and may indeed be unascertainable. It would indeed have been fair to provide that a claimant should always be obliged to secure the Treasury against the expense of a proceeding which turned out to have been unnecessary, because the seizure was warranted; at least, in cases where it was within his power to do so. But the occasion for such a condition becomes more pressing in proportion as the value of the property grows less, and as with it the chance increases that the putative loss may not be covered. This is what the section was designated to meet, and its sole effect.

Unlike the statute interpreted by Judge Hand, there is no logical presupposition that "the treasury has suffered some loss" where the predicate for forfeiture is a drug offense. Nor does the drug forfeiture statute limit applicability of the cost bond to the forfeiture of low value items, as did Judge Hand's statute. Thus, the current regime lacks the built-in safeguard that the cost bond would not apply, and thus would have no potential to bar unjustly a challenge to administrative forfeiture of valuable property. By the same token, however, one would think that the greater the value of the property, the greater the incentive of the owner to contest the forfeiture, regardless of the bond requirement.

75. Probable cause requires a reasonable basis for belief, constituting more than "mere suspicion" but not necessarily rising to prima facie proof. See, e.g., United States v. $250,000, 808 F.2d 895, 897 (1st Cir. 1987); United States v. One 56-Foot Yacht Tahuna, 702 F.2d 1276, 1282 (9th Cir. 1983); United States v. $83,320, 682 F.2d 573, 577 (6th Cir. 1982).

76. See, e.g., U.S. v. Leasehold Interest in 121 Nostrand Ave., Apt. 1-C, 760 F. Supp. 1015, 1032 (E.D.N.Y. 1991) (Weinstein, J.); United States v. $12,390, 956 F.2d 801, 807-812 (8th Cir. 1992)(Beam, J., dissenting in part).

In dictum, two other circuit judges have expressed doubt about the constitutionality of some aspect of § 1615's burden of proof. In his majority opinion in United States v. $49,576, 116 F.3d 425 (9th Cir. 1997), Judge Kozinski digressed elaborately on the burden of proof, concluding that a Mathews v. Eldridge analysis of the adequacy of the procedures provided would be in order for § 1615. He suggested that in light of recent Supreme Court decisions in Austin and James Daniel Good Real Property, courts should reconsider whether the procedural protections in place were sufficient to protect individuals "threatened with permanent deprivation of their property, from their hard-earned money, to their sole means of transport, to their homes," stating that "[w]e would find it surprising were the Constitution to permit such an important decision to turn on a meager burden of proof like probable cause." Id. at 492. However surprising Judge Kozinski might have found it, however, another panel of the Ninth Circuit rejected the argument that he had outlined in United States v. $129,727, 129 F.3d 486 (9th Cir. 1997).

In a less detailed argument, Judge Winter of the Second Circuit also expressed doubt about the continued validity of Second Circuit precedent regarding § 1615. Writing for the majority in United States v. 194 Quaker Farms Road, 85 F.3d 985 (2d Cir. 1996), Judge Winter reaffirmed that the burden of proof may be placed on the claimant in a civil forfeiture action, but stated that "Good and Austin reopen the question of whether the quantum of evidence the government needs to show in order to obtain a warrant in rem allowing seizure-- probable cause-- suffices to meet the requirements of due process." Id. at 991. He also noted that "it is an open issue 'whether the due process clause requires the government to sustain a burden falling between the extremes of probable cause and proof beyond a reasonable doubt' before a seizure is made and a claimant is pt to proof of the innocent owner defense." Id. at 991.

77. See Bramble v. Richardson, 498 F.2d 968, 979 (10th Cir. 1974) (civil action; no need for government to prove case "beyond a reasonable doubt"); U.S. v. $2,500, 689 F.2d 10, 15-16 (2d Cir. 1982) (same);U.S. v. $250,000, 808 F.2d 895, 900 (1st Cir. 1987)(civil action; thus, due process does not prohibit statute's burden of proof);United States .v. Santoro, 866 F.2d 1538 (4th Cir. 1989) (same); U.S. v. $94,000, 2 F.3d 778 (7th Cir. 1993) (forfeiture under currency reporting law is civil action; thus burden of proof is constitutional);U.S. v. One Beechcraft King Air 300 Aircraft, 107 F.3d 829, 830 (11th Cir. 1997) (per curiam) (forfeiture action is civil, not criminal; thus, burden of proof is permissible); cf. United States v. $129,727, 129 F.3d 486 (9th Cir. 1997) (forfeiture is civil action with ordinary civil "preponderance" burden, merely shifted to the defendant; because action is not criminal, there is no due process infirmity with this burden and thus plaintiff's claim for placing preponderance burden on plaintiff government is rejected)

78. See United States v. Ursery, 16 U.S. 2135 (1996).

79. See Bramble v. Richardson, 498 F.2d 968, 979 (10th Cir. 1974) (rejecting argument that action is criminal and thus that government must prove case "beyond a reasonable doubt"); U.S. v. $2,500, 689 F.2d 10, 15-16 (2d Cir. 1982) (same);U.S. v. $250,000, 808 F.2d 895, 900 (1st Cir. 1987) (stating that "Generally, Congress may alter the traditional allocation of the burden of proof without infringing upon the litigant's due process rights unless the statute is criminal in nature," and thus concluding that since forfeiture action is civil, burden of proof is constitutional) ; United States .v. Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989) (concluding that forfeiture law is civil and stating that "Undoubtedly, Congress may alter the burden of proof in a civil proceeding as it sees fit, without constitutional implications."); U.S. v. $94,000, 2 F.3d 778, 784 (7th Cir. 1993) (" Congress deliberately has provided for civil forfeitures; it also has mandated the procedures to be followed. [Claimant] offers us no substantial basis upon which to strike down that congressional judgment on constitutional grounds."); U.S. v. One Beechcraft King Air 300 Aircraft, 107 F.3d 829, 830 (11th Cir. 1997) (per curiam) (holding that forfeiture action is civil, not criminal and thus that "Congress's decision to allocate the burden of proof to the claimant in civil forfeiture proceedings is not unconstitutional").

80. See United States v. $12,390, 956 F.2d 801, 807-08 (8th Cir. 1992) (Beam, J., dissenting in part).

81. See, e.g., United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1283 (9th Cir. 1983) (probable cause depends not on admissibility of evidence but only on its legal sufficiency and reliability); Nnadi v. Richter, 976 F.2d 682, 686 (11th Cir. 1992) (hearsay admissible to show probable cause). See also Franks v. Delaware, 438 U.S. 154, 165 (1978) (in non-forfeiture context, stating "probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily").

82. Cognizant of this burden, the court implied that where the government's probable cause showing is dependant upon the statements of anonymous informants, the government may either have to establish probable cause without reliance on such statements or waive its privilege regarding the identities of the informants, in order to give the claimant a fair opportunity to make his case. See United States v. Lot Numbered 718, No. CIV. A. 96-2100-LFO, 1997 WL 420331(D.D.C. July 24, 1997) (unpublished).

83. 19 U.S.C. § 1615 (probable cause is "to be judged of by the court").

84. See, e.g., United States v. $191,910, 16 F.3d 1051 (9th Cir. 1994) (government may not rely on evidence gained after filing of suit to establish probable cause; probable cause must exist when suit filed); Jones v. United States Drug Enforcement Admin., 819 F. Supp. 698 (M.D. Tenn. 1993) (same).

It appears that some courts, responding to the fact that seizures under § 881(b) may take place without a prior judicial evaluation of probable cause, as described above, and are not routinely followed by a Fourth Amendment evaluation of their reasonableness, have conflated the question of whether there was probable cause for the seizure, the relevant question under § 881(b) and the Fourth Amendment, with the question of whether there was probable cause for the filing of the judicial condemnation complaint, the inquiry mandated by 19 U.S.C. § 1615. The answers to these two questions need not be the same, although they often may be. See United States v. Daccarett, 6 F.3d 37 (2d Cir. 1993)

Even if the information known to the government at the time of seizure was not sufficient to constitute probable cause and justify the seizure, the government may learn additional facts subsequent to seizure and prior to the filing of the complaint that establish probable cause for the filing of the complaint. There may be complicated arguments, however, if the additional evidence giving rise to probable cause for the filing of the complaint, are fruits of the prior seizure which was not authorized by probable cause. Conversely, if the police had probable cause for the seizure, it is possible that they would have become aware of additional facts or of mistakes in their initial information which mean that after the seizure, they no longer have probable cause to the believe that the property is subject to forfeiture, and thus do not have probable cause for the filing of a forfeiture action. One hypothetical example of this would be where, subsequent to seizure, the police discover that the powder being transported in the car is in fact baking soda, and not cocaine.

85. Judge Beam, of the 8th Circuit, in a partial dissent, expressed just such a concern and suggested changing the proof scheme of § 1615 to a full burden shifting scheme analogous to Title VII, in which the ultimate burden of proof would return to the government. But Judge Beam expressed concern that this could not be instituted by judicial fiat, even if the court were to declare the existing scheme unconstitutional. See United States v. $12,390, 956 F.2d 801, 811-12 (8th Cir. 1992) (Beam, J., dissenting in part).

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