2218

Seizure Upon Exigent Circumstances Without Notice and an Opportunity for a Pre-Seizure Hearing (Possible Removal of Occupants).

Real property may be seized without notice and a pre-seizure hearing upon a showing of exigent circumstances. Seizure of property without a pre-seizure hearing, however, requires that the government show that a less restrictive measure, e.g., a lis pendens, restraining order, or bond, will not suffice to protect the government's interests in preventing the sale, destruction, or continued unlawful use of the real property. Any deprivation or interference with rights associated with the ownership of real property (e.g., the collection of rents, the setting of the terms and conditions of continued occupancy, and the eviction of occupants) requires notice and an opportunity for a pre-seizure hearing. Advance ex parte judicial approval including a finding of probable cause is required. A warrant of arrest in rem together with supporting affidavits must set forth facts relevant to the existence of exigent circumstances. A sample warrant of arrest in rem setting forth exigent circumstances can be found in the AFBB Civil Forms section, Warrant topic. Where state law allows, the filing of a complaint and a lis pendens should occur to prevent the transfer or encumbrance of the real property subject to forfeiture. If advance notice is a concern, the lis pendens need not be filed simultaneously with the filing of the complaint. The government must continue to provide all known persons or entities that may have a possessory or ownership interest in, or claim against, the defendant property with notice of the government's intent to forfeit regardless of whether the property is "seized" or "posted." Service of process, whether by personal service or mail, is still required. The U.S. Marshals Service must acquire an appraisal within 10 days of seizure. Occupancy agreements should be obtained in every case where the occupants continue to occupy the real property during the pendency of the case. Such agreements should take the form of a protective order or stipulated occupancy agreement by containing the appropriate style and heading of the case and should be signed by the court. (See Asset Forfeiture Policy Manual (1996), Chap. 5, Section II.C. at p.5-2, "Use of Seized Real Property By Occupants" and USAM 9-115.203.) A copy of the appropriate form of occupancy agreement can be found in the AFBB Civil Forms section, Pre-seizure topic. Removal of occupants is a substantial form of intrusion that may be undertaken by the government. Therefore, removal of occupants should not be sought at the outset of a case unless exigent circumstances exist and less intrusive measures (e.g., lis pendens, restraining order, or bond) have been tried and have failed, or a case can be made that such measures would prove ineffective (e.g., search and arrest warrants have been executed previously and the illegal activity continues). EXAMPLES: Exigent circumstances that may require immediate removal of occupants include: (1) danger to law enforcement officials or the public health and safety; (2) the continuation of illegal activity on the premises; or (3) the government is unable to prevent destruction or sale of the property.) In such cases, the occupants are likely to have a right to a prompt post-eviction hearing.[INDENT] A protective order or an agreement should accompany every civil complaint for forfeiture of real property. This order or agreement should ensure that the property is maintained in the same or better condition as when seized. (This includes, but is not limited to, ordinary and routine maintenance; the procurement of casualty, fire, and liability insurance; the timely payment of any and all mortgage, loan, rent, utilities, tax and/or other obligations; and the continual maintenance of quiet title to the property.) EXAMPLE: The District of Alaska typically applies for a "Writ of Waste." A sample "Writ of Waste" can be found in the AFBB Civil Forms Section, Orders Preserving Property topic. Restraining orders are available prior to seizure but will serve only to secure the property until a hearing can be held. If there is evidence, in a particular case, that an owner is likely to destroy his or her property when advised of the pending action, the government may obtain an ex parte restraining order, or other appropriate relief, upon a proper showing in the district court. A sample restraining order can be found in the AFBB Civil Forms Section, Orders Preserving Property topic. [cited in USAM 9-111.130]