Civil Asset Forfeiture: Can Police Take Your Assets?

Police can take your assets in civil forfeiture if law enforcement have probable cause to believe the cash seizure or vehicle seizure is related to criminal activity. Police seizure puts the asset recovery burden of proof on the owner to prove their property rights in a civil suit. Claimant rights legal defense claims are based on violations of the Fourth Amendment or due process. Some states require a criminal conviction or seizure notice prior to government taking. Innocent owners may forego contesting forfeiture because the cash forfeiture legal fees are more than their financial loss.

To understand forfeiture cases in your state, talk to a local criminal defense lawyer.

When and How Are Civil Asset Laws Used?

Civil asset forfeiture, as its name implies, is a civil action rather than a criminal action. Because of this, individuals whose assets are seized have different rights than individuals facing criminal charges. When an asset is seized, the object itself is considered to be guilty.

You do not have to have a criminal conviction to have your personal property taken through an act of civil asset forfeiture. Police officers need to suspect merely that it was connected to a crime or criminal activity. Police may not always need a warrant to seize property if an exception applies, but they generally must possess probable cause to believe the property is connected to criminal activity to seize it lawfully under the Fourth Amendment.
In Texas, for example, the State must prove by a “preponderance of the evidence” that the asset is subject to forfeiture. This is lower than the reasonable doubt standard required in criminal forfeiture. This means there is a greater than 50 percent chance that the officer’s allegation of illegal activity is accurate.

“The leading case in Texas right now is One Lincoln Navigator,” says Frank Sellers, a criminal defense attorney at Westfall Sellers in Fort Worth. In that case, the Texas Supreme Court held that the exclusionary rule does not apply to civil forfeiture cases. Consequently, even if police seize assets during an illegal search or stop, the evidence generally cannot be suppressed in the civil forfeiture proceeding.

Seizing assets through civil forfeiture involves legal processes and timelines that must be adhered to, although these processes differ from those in criminal cases:

• Traffic stops
• Real estate seizures
• Seizure of firearms
• Seizure of funds in bank accounts

States can benefit from an “equitable sharing” program with the U.S. Department of Justice, where they receive a portion of the proceeds from federal forfeitures, potentially incentivizing seizures.

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Disparate Impacts of Forfeiture Proceedings

Lower-income citizens are disproportionately affected by forfeiture proceedings. One-car families would be forced to cope with the absence of a car during the pendency of the case. Further, they are often charged the storage fees and court fees after the case is resolved, which can be more expensive than the vehicle was worth.

Civil forfeiture is a measure to prevent criminals from accessing the instruments they used to break the law, like illegal drug trafficking or money laundering. Effectively, it accomplishes that crime-fighting goal. However, civil rights advocates want to see forfeiture reform because of the disparate impact of asset forfeiture cases.

What Can I Do if My Assets Are Seized?

Recovering your seized assets from law enforcement agencies depends on state laws. Attempting to recover your seized property can be difficult, but there are several possible defenses, Sellers says.

“There are some cases that say, very pointedly, that the law abhors forfeiture. It does not favor taking citizens’ property away from them. There are some strict timelines that the state has to comply with if they want to take your property,” Sellers says.

In Texas, “they have 30 days from the date that the property was seized to file a notice of seizure and intended forfeiture. If they’re outside of that timeline, the remedy is that they cannot proceed with forfeiture. They can try, but there’s a defense to that.”

Just because the local police seize someone’s property doesn’t mean they own it. “They have to go through the whole process and, until a judgment is assigned, the state isn’t entitled to your property,” he adds. Typically, you have about 20 days to respond to the notice of seizure, and it is imperative that you do so.

Another defense, which has been upheld by both the Texas and U.S. Supreme Courts, is the excessive fines and punishment clause of the Eighth Amendment. “The maximum fine for most first-degree felonies is $10,000. When you see a brand new car in a drug crime arrest, the court has said if it’s over and above the maximum fine, it can qualify as an excessive punishment,” Sellers says.

If the property owner can meet the burden of proof under the “innocent owner” statute, they get their property back. An innocent owner must show that the person charged with a crime was not authorized to use the property or that the owner of the property didn’t know it was likely they would use the property in the commission of a crime.

Get an Experienced Criminal Defense Lawyer

Unfortunately, these forfeitures happen quite frequently, and far too many go unchallenged. “You don’t find many criminal lawyers who get down into the details of a civil case,” Sellers says, “and you don’t find many civil lawyers who want to step over to the criminal world.” Yet, his biggest advice is to do exactly that.
If you are suspected of a drug crime, it is a good idea to consult with a qualified criminal law defense lawyer who can advise you of the potential risks of civil asset forfeiture and guide you through your forfeiture proceedings.