Can the Government Seize My Property?
People suspected of certain crimes, particularly drug crimes, may get their property confiscated by the police and never see it again. Such property can include money, homes, cars, and other valuables. This is called asset forfeiture.
Asset forfeiture refers to the seizure and transfer of cash or other items believed to be tied to a crime. The proceeds from these seizures are typically used to fund state and local law enforcement activities. Keep in mind that a person does not have to be arrested or even charged for a crime to be subject to asset forfeiture.
So, what’s the point of taking suspect’s belongings that seem to be linked to their alleged drug crime? Under federal and state laws, the purpose of asset forfeiture is to punish, disrupt, and deter criminal activity by taking items perceived to facilitate the crime(s) or obtained through it.
The asset forfeiture process involves three steps:
Seizure: Law enforcement officers may seize a suspect’s assets by following certain procedures. In California, prosecutors generally request drug-related asset forfeiture seizures for individuals suspected of selling certain types of drugs, although, the state prohibits the seizure of real property if it is a family residence or used for other legal reasons.
If there is a search warrant or probable cause to believe an item was used to break CA drug laws, a seizure may be permitted. However, officials may need other justifications (also called “theories”) to seize a suspect’s assets. The most common theories include:
- Contraband theory allows the forfeiture of illicit items (such as illegal drugs).
- Exchange theory allows the forfeiture of items that are intended to be exchanged for illegal items (such as cash exchanged for illegal drugs).
- Proceeds theory allows the forfeiture of items that are connected to a benefit that resulted from an illegal exchange. For example, items purchased legally using money deposited into a bank from the sale of illegal drugs would be eligible for forfeiture.
- Facilitation theory allows the forfeiture of items intended to make it easier to commit a crime, such as a vehicle.
Adjudication: After a seizure, asset forfeiture proceedings will occur at the state or federal level. Luckily, suspects can contest, or challenge, seizures in these proceedings for reasons such as:
- Claiming the seizure was inappropriate (i.e., investigators violated legally-required procedures)
- Claiming they had no idea that they were involved in criminal activity (i.e., loaning their car to a friend who then uses it for transporting drugs)
An asset forfeiture case will be handled at the federal level in one of two ways. They include:
- Joint investigations between federal and state and/or local law enforcement that are carried out through taskforces, which involve an agreement between agencies to provide staff for a specific purpose. For example, law enforcement agencies at various levels will provide staff to conduct an illegal drug investigation) and may use a suspect’s asset forfeiture funds to pay for costs such as officers’ overtime.
- Adoption by state or local jurisdictions. They must request the federal government to “adopt” a case if federal law enforcement isn’t involved. Federal adoptions are prohibited in California, however. To adopt a case, federal law must deem the alleged activity a criminal offense and authorize a theory (described above) of forfeiture to justify the seizure.
How do these proceedings end? An asset forfeiture case at the state and federal level will end in one of two ways: Forfeiting the items to allow the government to keep and distribute them or returning the items to a specified party.
Distribution: Once property is seized in an asset forfeiture case, the proceeds will be distributed based on various factors. Noncash assets may be sold, destroyed, or kept.
In California, state and local law enforcement agencies in joint investigations cannot receive distributions from seizures under $40,000 unless a suspect is convicted for a federal offense that subjects their property to forfeiture under state law. However, if these agencies seize cash or property worth $40,000 or more, a criminal conviction is not required.
If you are under investigation for a crime, contact our lawyers at (805) 467-6060 to learn how we can work to protect your assets from forfeiture. Law enforcement agencies often abuse their powers and seize innocent people’s property, which is why you must equip yourself with legal defense today.