In California, the local, state, and federal governments are empowered to seize your assets if they determine through investigations that they have been linked in any way to criminal activity. Asset forfeiture is divided into two types: criminal and civil forfeiture. This blog explains civil asset forfeiture in detail, both at the federal and state levels. If you suspect wrongful seizure of your property, an attorney can help you navigate your legal options.

What Is Civil Asset Forfeiture?

Civil asset forfeiture is the practice of law enforcement confiscating assets believed to be linked to criminal activity, even if the property owner themself is never prosecuted for or convicted of an offense. Instead of accusing an individual of an offense, their inanimate asset itself faces charges and trial. Once a police officer learns of a potential criminal offense, they must show probable cause that the property in question was involved in it before confiscating it.

On the one hand, civil asset forfeiture is a tool to deprive criminal organizations of resources. However, on the other hand, it has turned into a lucrative means for police agencies to fill their coffers, at times at the expense of innocent people.

Categories of civil asset forfeiture include the following:

  • Proceeds from unlawful activity. These refer to any property or currency that is traceable back to unlawful activity. The situation is tricky since if authorities accuse a person of dealing drugs and argue that selling drugs is their primary income source, then they may assert that anything the person buys can be deemed proceeds from unlawful activity.

  • Contraband. Contraband is any form of asset that is intrinsically illegal. Smuggled weapons, narcotics, stolen property, or smuggled animals are considered contraband since they are considered illegal in and of themselves.

  • Instrumentalities or tools used in committing an offense. Any asset that was involved in the perpetration of the crime. For example, if a drug trafficker owned a building where narcotics were made or stored and used a vehicle to move them, then law enforcement would seize both the building and the vehicle. Authorities will seize a vehicle or house linked to illegal activity, even if the accused is innocent.

Most civil asset forfeiture cases result from drug-related offenses. Law enforcement agencies frequently seize assets such as cars, jewelry, boats, money, houses, weapons, and planes. The proceeds from confiscated currency or the sale of confiscated property go straight to the arresting agency. Asset forfeitures are a cost-effective and easy way for law enforcement departments to fund supplies like ammunition, weapons, and police cars. So, police have a direct incentive to confiscate assets.

Civil forfeiture can further be divided into two categories: judicial and administrative. Judicial forfeiture necessitates a court proceeding and a judge's order to confiscate property, usually linked to criminal activity. On the other hand, administrative forfeiture is a streamlined process used by agencies to confiscate property, usually low-value items or cash, when nobody files a claim within a particular timeframe. Administrative asset forfeiture occurs without a lawsuit, whereas judicial forfeiture entails official court proceedings.

The Civil Asset Forfeiture Process

The civil forfeiture process starts when law enforcement seizes the property believed to be part of criminal activity. Seizing means taking physical possession of an asset, usually with a warrant contingent on probable cause. The confiscating agency is legally obligated to notify the asset's owner that the property will undergo seizure within a specified timeframe.

Once the owner receives notice, they have between 15 and 30 days to file a response with the government requesting a probable cause proceeding. During this hearing, the property owner will contest the probable cause the confiscating agency acquired to establish whether the confiscation was legal.

Hiring a skilled forfeiture lawyer is one of the most effective ways to challenge the seizure of your property during a probable cause proceeding. Your attorney can argue various defense strategies on your behalf, including the following:

  • Innocent owner defense. This defense involves your lawyer demonstrating that the authorities seized the asset without your consent or knowledge.

  • The source of the asset is legitimate. Your lawyer can help prove that the asset in question is not part of criminal activity. They can do so by tracing the asset to legitimate income.

  • Contesting the seizure. Your lawyer can bring a motion to suppress evidence if the confiscation violated your constitutional rights.

The Government Must Justify the Forfeiture

Civil forfeiture is an "in rem" proceeding, meaning the asset, not the owner, is the defendant. This results in funny case terms, but the potential outcome is severe. Provided the government or seizing agency can establish a link between the asset and the criminal offense in question, it can confiscate and forfeit the property.

Because “in rem” cases are civil actions, it does not matter whether the property owner was found guilty of an offense or even accused of one. Additionally, the seizing agency only has to demonstrate its case by a preponderance of the evidence. This is a much lower standard of proof than the “beyond a reasonable doubt” standard necessary in criminal proceedings.

To win a civil forfeiture case, the seizing agency must prove the connection between the asset and the offense. Generally, the connection requirement is restricted to 3 categories. However, these categories have such a broad reach that they can apply to almost any form of property. Basically, the government can prove the connection requirement in any of these ways:

  • The asset facilitated criminal activity, for example, a getaway vehicle in a robbery, or a boat or truck used to move contraband such as illegal drugs.

  • The asset concealed criminal activity, such as a warehouse hiding stolen merchandise or a computer used to alter important documents.

  • The asset is the profits of an offense or was obtained with criminal-related proceeds, for example, money from a narcotics deal or bank robbery, or just anything purchased with the cash that the authorities can trace back to an illegal source.

Federal Civil Forfeiture Laws

Federal agencies such as the FBI and DEA (Drug Enforcement Administration) use civil forfeiture statutes when investigating criminal activity. The United States Supreme Court upheld the legal mandate for these agencies' actions under 18 U.S.C. 981.

Under federal statutes, the government must notify the interested parties (property owners) in writing within 60 days of seizing the asset, though courts frequently grant extensions on the deadline.

If the asset owner (claimant) files a claim with the seizing agency, the government then has ninety days to bring an official civil complaint against the confiscated property. Failure to do so, the government will have no choice but to release the asset.

Because the government brings civil action against the asset, the asset owner often does not have the right legal counsel during these hearings. An exception applies when the seized asset is the owner's primary residence. Per federal law, the court can appoint counsel for indigent individuals in forfeiture cases involving their primary residence. Some states provide this protection, too.

To effect a valid confiscation of assets in a civil administrative forfeiture case, the government or seizing agency must generally secure an “in rem” arrest warrant. After the government demonstrates probable cause linking the asset to unlawful activity, a judge may issue this type of warrant.

Civil Forfeiture Has Faced Criticism and Controversy

Civil asset forfeiture intends to target unlawful gains. The United States Department of Justice (DOJ) shows that property forfeiture is an instrument that disrupts, dismantles, or deters criminals by depriving them of the proceeds and the instruments of illegal activity. Whether the asset is a bank account, a vehicle, or real estate, there is typically no restriction on the kind of asset that authorities may seize.

Civil asset forfeiture is controversial since it allows the government to confiscate assets before someone is convicted of an offense. Unsurprisingly, there are many arguments in favor and against this move. Critics usually refer to the 5th Amendment, which guarantees the right to due process.

In forfeiture cases, due process mandates that the seizing agency give notice before seizing a person's assets. It also mentions that the person is entitled to a proceeding before the authorities seize the asset. According to critics, the civil asset forfeiture process violates asset owners’ due process rights since a judicial proceeding is not required to decide whether the confiscated asset is actually part of a crime.

Additionally, the 8th Amendment safeguards citizens from exorbitant fines. The United States Supreme Court ruled that the Excessive Fines Clause necessitates that the forfeiture amount bear some connection to the severity of the crime it is meant to punish. Consequently, the forfeited value must be proportional to the severity of the crime.

Civil forfeiture proponents argue that the process is a potent instrument that can efficiently combat criminal activity. Allowing the government to confiscate and auction unlawfully acquired proceeds from crimes like money laundering harms criminal organizations.

Since the profits from selling the confiscated assets go to police agencies, critics assert that these agencies have efficiently taken that cash directly from individuals and placed it into their bank accounts. In addition, they argue that law enforcement departments have an incentive to confiscate and auction assets, which yields a conflict of interest.

Further, critics of civil forfeiture assert that because the standard of proof for the government is lower, it can confiscate items contingent on unestablished claims. The government can seize assets from innocent owners if someone else unlawfully uses the assets. However, whether an innocent property owner will win in a forfeiture hearing often depends on whether they were aware of illegal activity linked to the asset.

Lastly, critics assert that the burden of proof lies on the asset's owner to demonstrate that they never used the confiscated property to abet criminal activity. Generally, in criminal cases, the burden of proving that an offense occurred lies with the government. In a case involving money laundering, for example, the prosecution must show that the accused person participated in a money laundering scheme. However, in civil forfeiture, the case is against the property in question, not an entity or individual.

It goes without saying that an inanimate item cannot defend itself during a trial or hearing. Thus, the asset owner must demonstrate a negative, meaning they never obtained or used the asset for any illegal activity. Critics assert that it is unjust for the asset owner to demonstrate a negative in this kind of case.

Civil vs. Criminal Forfeiture

Unlike civil forfeiture, which does not require criminal prosecution, criminal forfeiture occurs during a criminal prosecution. Criminal forfeiture starts with a notification to the accused person that the state, federal, or local government will pursue forfeiture of their property as one of the sentencing options. The seizing agency does not have to identify the particular asset it plans to confiscate or the value of a forfeiture cash judgment it may pursue at this initial stage.

Should the accused person's trial end with the jury finding them guilty, or if they plead guilty to a charge for which the government is seeking forfeiture, the trial proceeds to a distinct forfeiture stage. At this point, the court decides whether there is a nexus between the asset in question and the crime. Here, the judge can consider existing or new evidence and will schedule a proceeding if the accused person challenges the forfeiture.

That said, a criminal forfeiture proceeds through multiple stages, including notice, an initial order of forfeiture, a general order, confiscation, and a final forfeiture order. You can appeal the final forfeiture order, and the court can stay the order pending the appeal outcome.

Contact an Asset Forfeiture Attorney Near Me

If you believe law enforcement has unjustly seized your property when you have not been convicted or even charged with an offense, you have legal options at your disposal to try to retrieve it. An experienced civil asset forfeiture lawyer can explain ways in which you may successfully safeguard your assets from forfeiture.

At Asset Forfeiture Attorney, we help clients throughout California and even nationwide with all kinds of asset forfeiture cases, including civil and criminal forfeiture. We are readily available to defend your property against seizure or to help recover it if it has already been seized. Call us today at 888-571-5590 for a free consultation.