When the police are called it is rarely a good situation. Typically, there is a dangerous situation, like a fire, or someone alleging a crime has occurred. Either way, when the police show up, people tend to be on edge, panicked and stressed. If someone claims a crime took place, police immediately begin interviewing witnesses and start trying to identify a suspect. Beyond arresting a suspect, which triggers the need for a skilled criminal defense attorney, police investigations include another aspect that few people realize. As most know, evidence at a scene is seized by police for further examination and processing, and what people may not know is this evidence can include someone’s private property, like a car or computer. This process is called asset forfeiture, and can be used to take permanently any property, without compensation, police believe was used to commit a crime or obtained through criminal activity. Most of this property belongs to suspected criminals, and there is rarely any recourse to this taking even if the person is never convicted. California lawmakers passed a bill this year that will prohibit seizing private property worth less than $40,000 from suspects without a conviction. The goal of this law is to limit the impact of this practice on innocent, lower income individuals who lack the resources to fight back. Most property is seized in relation to drug-related crimes, so a discussion of when property may be seized in drug crimes and the procedure to contest forfeiture will follow below.
California’s asset forfeiture laws are extremely complex, but essentially these laws act as civil penalties for criminal acts. Because forfeitures are viewed as civil matters, a person attempting to reclaim his/her property is not entitled to an attorney, as in a criminal trial, if the individual cannot afford to pay a lawyer.
- In drug cases, many different types of property are subject to seizure by police, including:
- any illegally obtained, distributed or manufactured drugs;
- equipment used to make, hold or transport the drugs;
- any money used to pay for the drugs; and
- real estate used or permitted to be used to by the owner for the sale, distribution, manufacture or storage of drugs. However, homes cannot be seized they are used for lawful purposes, such as family residences, or if one of the owners did not know of the drug activity.
Convictions are required for some, but not all, asset seizures under the state’s drug laws. Convictions are needed to take: boats, airplanes and vehicles; money worth up $25,000; and any real estate. Note that the property can be seized before conviction, and the government just needs a conviction for the owner to forfeit it. Thus, the owner could be legally deprived of his/her property for years before the criminal case ever comes to trial.
No conviction is required for cash seizures over $25,000. Instead, the government is only required to prove the cash was used a drug-related enterprise by “clear and convincing evidence”, and not the criminal standard of “beyond a reasonable doubt.”
Once property is seized by police as part of drug investigation, the owner must act quickly to avoid losing it forever. However, note that seized drugs are automatically forfeited, except legally obtained medical marijuana. Beyond drugs, the government must go through a process called administrative asset forfeiture for personal property worth less than $25,000, and judicial forfeiture for property worth more than $25,000 and real estate. In administrative forfeiture, the government must notify property owners of the forfeiture proceedings and publish a notice in a newspaper circulated in the county where the property was seized or is located. The owner has 30 days to file a claim, and if one is not filed, the property is automatically forfeited. In judicial forfeitures, the same notice requirements apply, and if a claim is filed, a civil trial takes place where the prosecutor must prove the property was used in or obtained through a criminal act, and the owner consented to such use. Combating both criminal charges and property forfeiture can seem overwhelming, but an experienced criminal defense attorney can help you through these procedures.
Ask for Help
People are suspected and accused of crimes every day, and if you find yourself facing criminal charges, take away the government’s advantage by retaining a criminal defense attorney as soon as possible. The Los Angeles law firm, Manshoory Law Group, APC, handles a broad range of criminal charges, including drug offenses, theft and assault. Contact our firm for a free consultation.