When someone is accused of a crime, they will typically be arrested and charged in court. Strangely, if any physical property is believed to be tied in with the crime, it too may end up heading to the police station under the asset forfeiture laws of California. This strange process has its roots in English anti-piracy laws of the 1600s. Proponents claim it is an effective deterrent for criminal organizations such as drug cartels. But many civil liberties advocates argue that the process is more commonly used as a way to line the pockets of police agencies. Here’s what you should know about how civil asset forfeiture laws work and their current legal status in California.
Asset Forfeiture Definition
Civil asset forfeiture is a legal process that permits the police to seize possessions that may be involved in criminal enterprises. Property that may be taken under these laws includes:
- Bank accounts
- Items in safety deposit boxes
- Luxury goods
To take hold of the items, the court will file a lawsuit against the property (not the property’s owner) on the grounds that it was either used in a crime or purchased using illicitly gained income —for example, drug money. If the government wins the lawsuit, the Police Department can then sell the items at auction and pocket the majority of the proceeds, dividing the rest of the income amongst victims and prosecution departments. The property owner is entitled to no compensation under the law.
Property Owner Protections
It can be scary to know that the government can lay claim to an individual’s possessions by simply claiming they were related to some type of criminal activity. The good news is that California has included more protections for property owners in its asset forfeiture laws than most other states.
Convictions Are Usually Necessary
One of the strongest protections is that state law typically requires someone to be convicted of a crime before their property can be forfeited —though the government may still seize it prior to a conviction. There are two exceptions to the conviction requirement though:
- When the seized cash or securities involved in drug crimes are valued at over $40,000
- When the defendant fails to appear for their court hearings
Even then, for the government to use these exemptions, it must prove that the money is subject to asset forfeiture, and in the case of alleged drug money, it must show it was directly related to drug transactions.
The Innocent Owner Defense
California also allows for an “innocent owner” defense, meaning that if the property belonged to someone uninvolved in the crime, it must be returned to its rightful owner. For example, if you lent your car to a friend, who then sold drugs out of it, you should be able to get your vehicle back because you (the actual property owner) did not commit a crime.
The Burden of Proof is on the Government
Another protection granted to property holders who fight the seizure of their possessions is that California presumes the individual who possessed the property is the rightful owner, so the government has the burden of proving it was gained illicitly.
The Real Estate Exemption
Finally, real estate is granted special protections to protect people from being thrown out on the street due to a criminal conviction. Law enforcement agencies cannot seize a home being used as a residence or for any other legal purpose, nor can they take real estate owned by more than one person if at least one party was unaware of the criminal activities connected to the property.
The Three Types of Forfeiture Cases
There are three legal processes for the government to declare a seized property subject to forfeiture under the law. Whether a case will be handled using summary, administrative, or judicial procedures will vary based on the case’s specifics.
The summary forfeiture process is used in drug cases to allow the government to seize and destroy illegal drugs such as heroin, LSD, and methamphetamines.
While police have the right to take marijuana products they believe to be grown, processed, or sold illegally, this drug is handled differently. Marijuana products must be returned if those in possession of them were following the state’s marijuana laws and did not violate any other criminal statutes.
When the seized property is valued at less than $25,000, the police must provide public notice through registered mail or a statement in the local newspaper that the property will be forfeited, and the property owner has 30 days to challenge the seizure. If no challenge is filed, they can sell the property at auction. When the property owner challenges the forfeiture, the judicial forfeiture process will begin.
A trial must be held in cases involving more than $25,000 worth of property or when someone challenges the civil forfeiture of property valued at less than that. In these cases, the prosecuting attorney must show that:
- the property is subject to asset forfeiture laws, meaning it was either used in a crime or bought with illicit money
- the property owner knew about and agreed to the crime related to the property’s use or purchase
Like any other civil trial, you can hire a lawyer to represent you in these cases and present evidence on your behalf. Even if you have been convicted of a crime, you can still fight the forfeiture of your assets. A strong defense can be showing the source of the funds you used to obtain the property to prove that it was purchased using legal means.
Is Civil Asset Forfeiture Constitutional?
The practice of seizing assets from those who obtained the items illegally is about as old as the U.S. itself. Interestingly, the practice wasn’t even challenged in the Supreme Court until the 1990s. The Court has ruled that asset forfeiture is legal; however, there is a limit to how much can be forfeited under the Excessive Fines clause of the 8th Amendment. The Justices have said that the amount seized must be proportional to the offense —so you can’t have your $40,000 truck taken if you’ve been accused of selling a single tab of LSD to a friend at a party.
As the public has become increasingly critical of civil asset forfeiture over the last few decades, states, including California, have been adding more restrictions to its use by police.
What to do if Your Property Was Seized
If police took your property, an experienced criminal defense attorney can file a motion to force the return of your assets. Please call (760) 643-4050 to speak with lawyer Peter M. Liss.