Imagine you are busy watching TV, and there's a knock on your door only to find a process server on your porch, and he inexplicably says that the boat parked in your driveway is being towed! That sounds ridiculous, right? Well, this is not strange since it is an all-too-common process referred to as forfeiture, in which the government tries to seize your property when it reasonably believes that it is connected to criminal activity.
It will only help if you seek the help of a professional asset forfeiture attorney if your property is about to be seized due to the allegations of its connection to criminal activity. An attorney will help you navigate the complex asset forfeiture laws, as we will explain further below in this blog.
Definition of Asset Forfeiture and How it Works
Asset forfeiture is defined as when the government takes your property if it suspects it was acquired through criminal activity or used to commit a crime. Asset forfeiture only occurs after a civil proceeding. In this kind of lawsuit, the government sues the property allegedly used in criminal activities rather than the property owner. Therefore, the property becomes the defendant of the suit.
For the government to obtain a property through seizure, it should prove that "based on the preponderance of the evidence," your property is connected to criminal activity. Let's have a detailed look at what this means.
The Preponderance of the Evidence
It is essential to understand how the preponderance of evidence works to know how it fits into the legal setting. There are different standards of proof used in law, depending on the type of case and the legal circumstances.
The lowest standard of proof is referred to as preponderance of the evidence. When a plaintiff satisfies the burden of proof by offering evidence with more than 50% chance to be accurate, the preponderance of the evidence comes to play. In other words, the claim presented by the plaintiff should be more likely to be true than false to meet this standard of proof.
The preponderance of the evidence is different from proving something beyond a reasonable doubt. While proving something beyond a reasonable doubt, this means that you have to prove that the defendant is undoubtedly guilty, although the evidence presented should not be necessarily absolute. To meet this standard of proof, the prosecution team should demonstrate that there is no reasonable doubt whether the alleged crime took place.
Examples of Property Subjected to Asset Forfeiture
Most of the properties subject to forfeiture in California are related to drug laws or laws against organized crime. Seizures made under these laws are usually the most common assets under the risk of forfeiture in California. These includes:
- Illegal drugs and their precursors
- Equipment used to deliver or manufacture illegal drugs like scales or lab equipment
- Property or vehicle used in the sale, storage, or production of illegal drugs
- Money or other financial instruments used or intended to be used to purchase drugs or money earned through drug sales
- A building used in the manufacture, sale, or distribution of drugs
Apart from properties associated with drug sale or distribution, other properties are at risk of forfeiture in California. These includes:
- A weapon used in the assault with a deadly weapon crime
- Computer or telecommunication equipment used in a computer crime like internet fraud
- Vehicles used to transport stolen properties
- Animals involved in abuse or cruelty
- Properties acquired through a pattern of criminal activities
- Machines used in criminal activity like counterfeiting
Please note, there are only a few exceptions in the list of properties at risk of forfeiture in California. For instance, the police cannot take your home if used as a family residence or a co-owned real estate. Law enforcement officers cannot also forfeiture a property owned by two or more parties, and one of them did not know that there were illegal activities taking place in it.
California Laws on Asset Forfeiture
As asset forfeiture laws go, California guidelines are usually relatively favorable for defendants. As a general rule, the defendant must be convicted of an underlying crime before losing their property after a property seizure process. This is considered under the current Senate Bill 443, which handles everything related to asset forfeiture in California.
Before the enactment of Senate Bill 443, police officers could seize assets without an arrest or conviction. Therefore, individuals who had their property confiscated had to prove their innocence through a court proceeding to take back their ownership. The time and expenses of gaining the property back were usually tolled on individuals later absolved of any wrongdoing.
How Senate Bill 443 Made Changes to Asset Forfeiture Process in California
Senate Bill 443 became effective on 1st January 2017 and made several changes to California's asset forfeiture process. In particular, this Bill made changes to California forfeiture processes and any interactions. Here are the significant changes to asset forfeiture made by Senate Bill 443.
Prohibition of Federal Adoptions
Under Senate Bill 443, local and state law enforcement agencies are not required to request the adoption of cases that they were not part of. The Bill suspended the adoption of suits from January 2015 to July 2017- which is about six months after Senate Bill 443. However, the Bill did not change local or state law enforcement agencies' ability to participate in a joint investigation.
The requirement of Criminal Conviction for Receipts of Federal Proceedings
Senate Bill 443 prohibits both the state and local law enforcement agencies participating in a joint investigation from receiving any distributions worth under $40,000 unless the forfeiture is done for a conviction in a federal court and for a criminal offense which subjects the property to seizure under state laws. However, a criminal conviction is not necessary for a forfeited property worth $40,000 or more.
Increased the Burden of Proof for Seized Property Worth Between $25,000 and $40,000
Before implementing Senate Bill 443, prosecutors were required to prove beyond a reasonable doubt that properties like home, cash, vehicles, or negotiable instruments worth up to $25,000 met the state requirements for seizure. For properties worth above $25,000, clear or convincing evidence (preponderance of the evidence) was needed to seize them.
However, with the implementation of Senate Bill 443, an increased burden of proof is needed for cash and negotiable instruments worth between $25,000 to $40,000. However, for properties worth above $40,000, a lower burden of proof is necessary to seize them.
The requirement for Criminal Conviction in a Civil Judicial Proceeding for Seizures Worth $25,000 to $40,000
Under Senate Bill 443, all seized property which needs proof beyond a reasonable doubt can only be seized if:
- The defendant has been convicted for the underlying criminal case
- The conviction suits an asset forfeiture under state laws
- The offense generally occurred within five years of the beginning of the asset forfeiture process
This means that for cash or negotiable instruments worth between $25,000 to $40,000, the above-stated three conditions must be met before any seizure takes place.
The Asset Forfeiture Process
Three steps are involved in the asset forfeiture process. This includes seizure, adjudication, and distribution. Both California and federal laws use these three steps in asset forfeiture. For instance, they both define the processes and conditions governing the asset forfeiture process for particular items and determine whether to keep specific properties and how to use the seized properties. However, state policies usually provide detailed procedures in every step in this process. Here is a detailed view of the asset forfeiture process in California and across the United States.
The Seizure Process
Local and state laws dictate how law enforcement officers can seize properties and the specific procedure they should follow. The following is a detailed procedure that they should follow.
Seizure Done by Law Enforcement Agencies
Both federal and individual state laws permit law enforcers to carry out an asset forfeiture seizure. These laws can also state the conditions as to which the prosecutors should consider once they are involved. For instance, in California, prosecutors can initiate a forfeiture related to drug sales or distribution.
Seizures Related to a Suspicion That the Property is Connected to a Criminal Offense
California and federal laws can sanction an asset forfeiture process for a drug-related offense. For instance, California asset forfeiture laws permit the seizure of properties related to suspects selling particular drugs like cocaine and heroin.
A seizure can also be authorized under specific circumstances like a search warrant on a particular property and a reasonable belief that it is connected to a drug offense.
Seizures Should Have a Statutory Authorized Justification
Both California and federal laws usually authorize the seizure of property, cash, or other properties if there is a clear justification for the process. Practically, these justifications are referred to as theories, and the most common ones are as follows:
- Exchange Theory: This theory allows the forfeiture of items believed to be exchanged for illegal items like drugs
- Contraband Theory: This theory allows forfeiture of properties that are considered illegal under state or federal laws. This includes items like illegal drugs
- Proceed Theory: This theory allows forfeiture of properties that benefited an illegal exchange.
- Facilitation Theory: This theory allows forfeiture of properties intended to ease the commissioning of an offense. This includes items like vehicles used in the distribution of drugs
After the seizure has occurred, the prosecution team initiates a proceeding to determine whether seized assets are appropriate for keeping and subsequent distribution. Prosecutors can hold these proceedings at the state or federal level.
Adjudication at Federal or State Levels
Prosecutors and law enforcement agencies in California can sometimes decide to purchase an asset forfeiture suit through state or federal proceedings. Federal proceedings are usually pursued through the United States Department of Treasury Asset Forfeiture Programs or the United States Department of Justice (U.S DOJ).
Generally, cases pursued through federal proceedings are pursued in the following two ways.
Asset forfeiture lawsuits can arise from a joint investigation between the local, state, or federal law enforcement and have them pursued at the national level. These kinds of investigations take place through a task force. Taskforces involve agencies agreeing to provide their individuals for a specific purpose, like investigating illegal drugs.
In a joint investigation, the law enforcement agencies usually pay particular costs like the officers' salaries while the taskforce takes up the officers' overtime payment. The participating agencies usually sign an agreement that documents their responsibilities and how they will share the proceeds.
Adoption of an Asset Forfeiture
In cases involving federal police, local and state jurisdiction can request federal law enforcement to adopt an asset forfeiture case. A case adoption requires federal law to consider the alleged offense as a crime similarly and sanction the theory used in the seizure.
Individuals can Contest Asset Seizures in a Proceeding
Federal and state laws specify that affected individuals can challenge a seizure if there is a justifiable reason. For instance, you can challenge the confiscation if you reasonably believe that it did not comply with statutory procedures. You can also claim that you didn't know about the suspected criminal activity. For instance, if you loan out a vehicle and the loanee uses it for illegal purposes, you can contest the seizure.
Please note, an asset forfeiture proceeding is adjudicated whether there is an asset seizure contest or not.
Ways Which Adjudication Proceedings Are Handled Both at State and Federal Levels
An asset forfeiture proceeding can end if an official orders the item to be forfeited or returned to the affected person. Asset forfeiture at state and federal levels occurs through the following proceedings:
Administrative proceedings allow law enforcers to issue a forfeit seizure order without the court's involvement under particular conditions. These proceedings are permitted for specific items worth a specific value or when there is no contest filed against the forfeiture. For instance, district attorneys can order a forfeiture for seized items worth less than $25,000 if an appropriate notice has been given in California. They can also forfeiture the property if there is no contest filed within thirty days.
California and federal laws require judicial proceedings to occur under particular circumstances such as when a specific type of asset is involved, exceeds a specific threshold, or when the items involved can be contested. For instance, in California, judicial proceedings must occur in drug-related asset forfeiture and when there is a contest for the seized property or cash.
Judicial proceedings can be held through a civil or criminal proceeding. In a criminal proceeding, the prosecution should prove beyond a reasonable doubt why particular seized items like homes and vehicles are eligible for forfeiture. However, a preponderance of proof is necessary for cash that exceeds a specific threshold.
Once a claim has been verified, the jury will handle and decide on the contest.
Distribution of Asset Forfeiture Proceeds
Both federal and California state laws provide instructions on how asset forfeiture proceeds should be distributed. Non-cash items can be sold, maintained for official use, or destroyed. Federal and state laws also set the conditions for which prosecution and law enforcement agencies should receive the proceeds. Below are different ways used in the distribution of asset forfeiture proceeds.
Distribution from State Proceeding Based on The Type of Criminal Offense
California asset forfeiture laws allow the deduction of particular expenses before distributing the net proceeds. The remaining profits are then distributed according to the nature of the criminal offense. Subject to Senate Bill 443, drug-related asset forfeitures are distributed in the following ways:
- One percent of the net proceeds to the local prosecutor’s nonprofit organizations that handle training on asset forfeiture
- 10% to the prosecution agencies responsible for the forfeiture
- 24% to the state General Fund
- 65% to participants in the asset forfeiture process based on the proportion of distribution percentage signed in the taskforce agreement
Distribution from Federal Proceedings Based on Agency's Workload
There are certain deductions like victims' compensation costs made under federal laws before distributing the remaining proceeds. These proceeds are also referred to as net proceeds by the state and local agencies involved in the case. Currently, every agency receives its proceedings according to the resources that it has invested in the asset forfeiture process. However, the federal government generally agrees to abide by the agreement made through the taskforce agreement that specifies the assets' distribution through percentages.
Find an Asset Forfeiture Attorney Near Me
Asset forfeiture can become a reality if your items or property are involved in criminal activity. That's why it is recommendable to seek a professional asset forfeiture attorney to help understand how asset forfeiture works and how you can contest for your property. At the Asset Forfeiture Attorney, we are committed to ensuring that our clients' rights are protected by aggressively fighting for their property once they are seized in connection to criminal activity. Call us at 888-571-5590 and let us evaluate and develop the most viable strategies and solutions for your case.