Whether you need to know how to fight asset forfeiture to get your property back, or have never heard of asset forfeiture, we’ll tell you how asset forfeiture works and how to recover your property. It should be stated at the outset, however, that while citizens can get their assets back, the process is long and complicated. That’s why hiring a defense attorney is invaluable; they can help you get your property back.
What Is Asset Forfeiture?
Asset forfeiture allows law enforcement officers to seize cash or property if they suspect it is or has been involved in criminal activity. The property can be your vehicle, home, or business. They can even seize your bank account.
This type of forfeiture usually applies to the following types of crimes:
These laws make sense if a person is arrested for drug trafficking and has a kilo of cocaine confiscated, or if the police seize a machine used to counterfeit money from a person suspected of counterfeiting. But you don’t have to be charged or convicted for officers to seize your property. To make their case in court, police officers abide by a lower standard of proof. This is not a criminal trial where the government must prove its case beyond a reasonable doubt. Here, police officers only need to demonstrate either of the following:
- The asset allegedly derives from illegal activity; or
- The asset was allegedly involved or intended to be used during the commission of a crime
It can be difficult for a criminal defendant to get their assets back, even if they were found not guilty at trial. It can be even more difficult for the person whose property was taken but was never charged. And in some cases, the government may have already sold the goods as victims petition the courts in their effort to retrieve the property. There are strict rules and timing requirements concerning asset seizure and its forfeiture to the government. The difference will be discussed further, below.
The Difference Between Asset Seizure and Asset Forfeiture
These definitions may seem similar, but the differences are stark. Asset seizure means the government takes possession of the property. Even though officials have seized the assets, the government doesn’t own the property legally.
Under asset forfeiture, the government not only seizes your property, but becomes its sole owner. This means the legal title officially transitions into government hands. This rule applies to state and federal forfeiture cases.
Types of Asset Forfeiture
Criminal forfeiture is part of a criminal prosecution against a person. This requires that the government indict the property used or derived from the crime, along with the defendant. In criminal forfeiture, an individual has the right to contest the seizure in court.
Civil forfeiture does not require a criminal conviction and allows law enforcement to seize property that is allegedly involved in a crime. Civil forfeiture is similar to criminal forfeiture, except that the charges are brought against the property itself instead of a person. An individual has the right to contest this seizure through a civil trial. In the trial, the government must prove that the property facilitated criminal activity or represents criminal proceeds.
Summary Forfeiture is outlined in California Health & Safety Code 11475. This is a function of California state practice. It occurs when a law enforcement agency takes possession of Schedule 1 drugs. This can be done without any procedure and (except in certain circumstances in states where marijuana is fully legal) there is no recourse to reclaim possession of these drugs. Schedule 1 drugs include marijuana, heroin, ecstasy, and LSD.
California Administrative Forfeiture
At the California State level, Administrative Forfeiture is outlined in California Health & Safety 11488.4j. It is used in cases involving personal property (not including real estate) worth less than $25,000. In these cases, the police must give public notice before they can take full ownership of the property. Once notice is given, a person has a set timeframe to challenge the seizure of property. If no one challenges the forfeiture, the police will sell the property and keep the proceeds.
Federal Administrative Forfeiture
At the Federal level, Administrative Forfeiture is outlined in 19 U.S.C. § 1607. It occurs when property that facilitated a crime or was purchased with the proceeds of criminal activity is seized. This property cannot include real estate and its value must be less than $500,000. Federal law requires public notification of the seizure and the administrative forfeiture process. If contested, the case will go to a criminal or civil trial.
Many police departments use federal law to circumvent state laws governing asset forfeiture. For example, some states forbid police departments from using any proceeds from a forfeiture.
However, the police can partner with a federal agency and allow the feds to seize the property. From there, local agencies can use 80% of the proceeds to fund the agency.
This is possible under the Equitable Sharing Program. The federal government takes control of the assets but gives 80% of the assets to state agencies or local police departments.
How Is Asset Forfeiture used in Federal Cases?
Federal agencies like the Federal Bureau of Investigation (FBI) use asset forfeiture during investigations, but the feds must abide by certain protocols:
- The agency must send a written notice to the property owner with 60 days of seizure
- If the property owner sends a claim, the agency has 90 days to get a civil complaint against the property or obtain an indictment
- If the government cannot proceed with a complaint or indictment, the agency must return the property
Each state has different procedures and timing requirements when it comes to asset forfeiture notice.
Legal Options Against Asset Forfeiture
Even though the state takes ownership of the property, officials cannot take immediate ownership. The U.S. Constitution protects the rights of citizens to own property. Therefore, the government must adhere to strict legal mandates to own the property.
For example, state and federal agencies must notify the defendant about the seizure. The standard 60-day notice applies to the federal government, but the states have different deadlines. Florida, for example, gives the government five days to send notice of the seizure.
When you receive notice, you must send a claim. The claim deadline depends on state law as well.
Under the constitution, you can generally fight these cases in two key ways:
- Private Property Rights: You have a right to own property and live without unjust search and seizure
- Due Process: If the government pursues legal action against you, you have the right to challenge the evidence
Under due process, you can present your own defense and find witnesses that will assist you in your defense. Each agency has its own rules concerning forfeiture. Assume, for example, that CBP arrests you for alien smuggling, but prosecution is declined. Despite you escaping federal prosecution, you may still have to deal with the ensuing forfeiture proceedings. The CBP officers may have seized your vehicle, and any personal belongings that they believe may have had evidentiary value or have been used in the commission of the offense. This could include such things as your cell phone and other electronic devices, your wallet, and other paraphernalia.
Contact an Asset Forfeiture Attorney
Above all, find an attorney who is familiar and comfortable dealing with asset forfeiture cases. They will help you contest forfeiture and get you your property and valuables back. They will also play a vital role during negotiations.
An attorney can also help you determine if a settlement is appropriate. During negotiations, the government may make an unfair or one-sided offer. You should always confer with an attorney first before accepting any offer from the government.
A lawyer can tell you if the settlement offered is fair and reasonable. Find an attorney who has experience in negotiations and settlements. If negotiations fail, your attorney may recommend litigation.
How to Fight Civil Forfeiture the Smart Way
If you want to know how to fight civil forfeiture effectively, contact a lawyer immediately. They can help you find evidence, gather witnesses, and craft a tailor-made strategy to help get back what is rightfully yours.
If you don’t contest forfeiture, the government can take your property permanently.