Things you need to know about civil asset forfeiture

This article about technological devices that are being used by law enforcement to skim funds off of pre-paid debit cards caught our eye. The Oklahoma law enforcement community has been using these devices to summarily seize money from individuals it suspects are drug dealers. For more information about what is going on in Oklahoma, click here. Basically, with this new “tool”, the government can take your money without due process of law, just like it could seize any cash you were carrying. Civil asset forfeiture proceedings are in rem: authorities charge the property itself as proceeds of a crime, not the individual owner. This means that police can seize cars, houses, and other valuable property without ever having to charge anyone with a crime.

Some of the biggest myths about forfeitures

Like many items related to the law, civil asset forfeiture is ripe with myths. Let’s take a look at a few of them:

• Contrary to popular belief, you don’t have to be convicted of a crime to lose your property at forfeiture. Law enforcement need only demonstrate “probable cause” – the lowest standard of proof – that the items were involved in a crime in order to seize your property, and then the burden shifts to the owner to try to get the property back.
• You don’t necessarily need to be guilty of a “major crime” for the police to seize your property. In Detroit, cops seized over a hundred cars owned by patrons of an art institute event—because the institute had failed to get a liquor license. Be careful who you loan your car to, or who you let stay in your house. If your guest uses it in the commission of a crime, even without your knowledge, the items are often subject to forfeiture.
• A very common myth is that innocent people can always get their property back. Being innocent does not mean that a law enforcement agency has to return your property. The Supreme Court of the United States has held that the “innocent owner” defense is not constitutionally required. While Arizona does have a “claim procedure” for innocent owners to attempt to reclaim what has been taken, the claimant has the burden of proof and must pay the expense of filing the claim. These expenses often outweigh the value of the item seized, and many potential claimants simply give up.

Fighting to get your property can be expensive, and you need a good lawyer in your corner to take the fight to the government. If you lose, the State can request an award of its attorney fees, meaning that you have to pay your lawyers and the State’s lawyers. This means that the vast majority of people who do lose property to forfeiture – many of whom are not even charged with a crime – are not in a financial position to contest the forfeiture. Add to that the tight and tricky “gotcha” deadlines built into the state forfeiture laws, and the deck is heavily stacked against you if you are on the receiving end of a forfeiture action. The Phoenix Criminal Defense Law Firm of Michael P Denea, PLC has successfully handled many forfeiture actions of various sizes and we are willing to consult with you about yours. For additional things you need to know about civil forfeiture, click here.

What happens to the money and property that is seized?

Most people would assume that the money seized would go into the State general fund. That is not the case. Most law enforcement agencies are allowed to keep what they seize. Consider this:

• The Pinal County Sheriff’s Department spent nearly $110,000 in forfeited funds to upgrade its fitness center.
• The Counter Narcotics Alliance, a Tucson-area drug task force, reported spending $654,000 on "personal services" in 2009, with no further details listed.
• The Pima County Sheriff's Department, put more than $1 million in federal forfeiture funds toward two 1999 Cessna 206H airplanes in 2014.

For more information about what the police are doing with seized assets, click here.