Asset forfeiture is sometimes unfair, but it is definitely one of the most powerful tools the government can use against you. The government can use this tool even if you are not guilty of a crime. This process happens when the government takes away your private property and doesn't compensate you. They perform this seizure because they suspect the property was used in the commission of a crime, or you obtained it through criminal activity.
Under California's asset forfeiture laws, law enforcement and prosecutors are allowed to seize almost all types of property, including money, boats, cars, land, houses, etc. In legal terms, the proceeding for asset forfeiture is a lawsuit the government has against the property, not against you. So, basically, it doesn't matter if the government cannot find you guilty of committing a crime, you could still lose the property they've seized.
This law is a harsh one. The United States Supreme Court stands behind these proceedings. According to this Court, it is acceptable for the government to seize a car even if it is owned jointly. If a husband has sex with a prostitute inside of the vehicle, it is legal to seize the vehicle, even though the wife had no idea of what her husband's action were.
Drug offenses have the highest rate of connection to asset forfeiture in the State of California. Health and Safety Code Section 11000 et seq HS under the California Uniform Controlled Substances Act covers asset forfeiture rules.
Overview of Asset Forfeiture
Asset forfeiture is similar to a form of criminal penalties like the criminal fine or prison time, but it is different. One difference is you can lose your property even if you've committed no crime, and even if you are not accused of a crime. Asset forfeiture is technically not a criminal penalty; the law often looks at as a civil penalty.
What this difference means to you, is there are fewer rights or protections extended to you in asset forfeiture than you would experience in a criminal case. You do not have the right to a court-appointed lawyer when your property is seized, and you cannot afford one on your own. You can contact Asset Forfeiture Attorney, as you are still allowed legal counsel and it is to your advantage to have legal representation through these proceedings. The courts are just not going to provide this legal counsel or pay for you to be represented.
Asset Forfeiture Creates Opportunities for Abuse
The ACLU (American Civil Liberties Union) says asset forfeiture creates significant incentives for law enforcement officers to profit. This profit is possible because the police department is allowed to keep a fraction of the profits of any property it seizes. In the State of California law enforcement is permitted to keep sixty-five percent of their asset forfeiture proceeds.
This amount of proceeds means the police and their employers can benefit financially by seizing property, and it creates an incentive for police misconduct. The practice of ‘equitable sharing’ makes it even worse.
In 1984 a law was created to set up an arrangement where local and state police could share the seizures with federal agents. Equitable sharing is a United States program which allows for liquidated seized assets resulting from an asset forfeiture can be shared between federal and state law enforcement authorities.
The equitable sharing allows for police to get around laws by turning property they have seized over to the federal law enforcement. The property then gets handled as federal asset forfeiture, which is much stricter in California. Under California law, local and state agencies are allowed to keep eighty percent of the proceeds of the property, while the feds keep the other twenty percent.
In the end, California police can perform an end-run around the restrictions of asset forfeiture put in place by California’s elected officials, and still make a lot of money for their departments.
Property Subject to Asset Forfeiture
Asset forfeiture can happen in a variety of different situations. California Penal Codes define when it is allowable or legal:
- A weapon can be seized in a criminal case when it was used in an assault with a deadly weapon
- Computer equipment or telecommunications that have been used to commit a crime, such as internet fraud can be seized from a criminal case
- An animal can be seized, in a criminal case where one is convicted of animal cruelty or abuse
- A weapon can be seized if one is convicted for carrying a concealed weapon on your person or in a vehicle during a criminal case
- Vehicles can be seized if they were used to transport goods bearing trademarks found to be counterfeit, or the devices used to produce those goods if one is convicted under Penal Code 350 for the manufacturing or sale of a mark which is counterfeit in a criminal case
- Some properties can be seized when one is convicted under California dogfighting laws in a criminal case
These are examples of cases where the property can be seized in criminal cases, but the most significant number of seizures occur under the California Uniform Controlled Substances Act (drug laws).
Drug Laws and Asset Forfeiture
Under the California Uniform Controlled Substance Act, Section 1100 et esq from the Health and Safety Section, there is a complicated scheme governing the seizure and forfeiture of a property when it is involved in a drug crime.
Almost any kind of property that is considered by law enforcement to be involved in the commission of a drug crime, it can be taken as asset forfeiture. This law means you could lose:
- All drugs being manufactured, dispensed, distributed, or acquired illegally
- All equipment or materials that are being used or even were intended to be used for the manufacturing of narcotics or drugs, or in the delivery, exporting, or importing of said drugs
- All property that has been used as containers for drugs, or the materials to manufacture those drugs, it does exclude planes, boats, real estate, or other vehicles
- Any books, research materials, records or any other materials considered as an ‘intended use’ for the violation of this Act
- The interest of a registered boat, airplane, or other vehicle being used to manufacture, sale, posses, or the selling of drugs in a specified amount, unless the vehicle is community property and the only available transportation to the immediate family
- All monies, negotiable instruments, securities, or anything else of value being used for the intended use of paying for drugs and can be traced to the selling or transporting of drugs being used or intended to be used in violation of the drug laws
- Property or land being used or is allowed to be used for the sale, use, manufacture, distribution, or storage of drugs, or one fortified to prevent law officials entry due to drug crimes being committed inside
One exception to the last item on this list is that the police cannot seize a home if it is being used as a family residence. Real estate cannot be seized if more than two persons own it, and one of them is not involved and did not know that it was being used illegally.
In California, asset forfeiture law does require a conviction in certain cases, but this is not true for all asset forfeitures when dealing with the CSA (California Substances Act). There has to be a conviction in a related or underlying criminal action before law officials can seize:
- An airplane, boat, or other vehicles
- Securities or money valued up to $25,000
- Or, any real estate
This seizure can only occur if the defendant was convicted of a crime that has taken place within the last five years of the date the property is taken. This rule means the defendant doesn't have to be convicted for the property to be seized; they have to be convicted for the property to be forfeited, which means becomes the property of the government.
In the case of money or negotiable instruments over $25,000 in value being seized as suspected intent to use in connection with illegal drugs, it can be forfeited without a conviction. The government only has to prove that the money is from or was connected to illegal drug transactions. This proof need only be 'clear and convincing,' it does not have to be proved 'beyond a doubt' as is typical in criminal standards.
Rights Under Asset Forfeiture and Notice of Seizure
As a criminal defendant or if you are an unlucky owner of an asset that has received notice of seizure for forfeiture, you have rights. There are means in which you can get your property returned. There are specific procedures the government must follow before it can declare property be forfeited.
Law officials can seize and hold your property with few guidelines to follow. They do; however, have to follow a set of procedures before they can formally forfeit your rights of ownership. When Schedule I drugs are taken or seized by law officials, these can be forfeited without any form of procedure. These drugs include:
- - Medical marijuana has become legal for adults over the age of 21 in many states, including California. If you are legally or medically allowed to have marijuana, the police would have to return it to you.
An administrative forfeiture can be used which streamlines the government's procedures in certain forfeiture cases with personal property, not considered real estate, that is valued at $25,000 or less. When the property seized under the asset forfeiture section of the California Uniform Controlled Substances Act, it is designed to protect the property owner, and the process cannot be finalized if the government did not follow proper procedures. One way for you and your attorney to keep your property is to find the prosecutor has committed a procedural error.
What the Government Must Perform in Asset Forfeiture
If the property the government has seized is valued at $25,000 or less, the prosecution must:
- Give you notice of the forfeiture proceedings. This notice must be given to everyone named in the receipt of the property and anyone who claims ownership of the property. It is the prosecution's responsibility to find out who the owner's interest is in the property up for forfeiture.
The notices have to include:
- - A description of the property being forfeited
- - The appraised value of this property
- - The date and place the property was seized or the location of the property that has not yet been seized,
- - The alleged violation of the law -
- - And time limits and instructions for filing and serving a claim for this property
- The notice must be published in a general circulation newspaper within the county where the property is located or where it was seized
Defense For an Asset Forfeiture Notice of Seizure
There are laws that will protect you as a property owner, and with the help of an experienced Asset Forfeiture Attorney, you can reclaim your property. When you have received a notice from the government, and they are required to notify you, you need to contact your attorney immediately.
You are given thirty days to file a claim once you have been notified by registered mail or through a publication in the legal section of your local newspaper that your property is about to be forfeited. Once you file your petition, it will begin the legal process to appear before a jury trial to determine if you can reclaim your property.
The burden of proof will be on the prosecution during this trial to prove why your property should be forfeited. They will have to show clear and convincing evidence that connects you to the criminal activity involved with the $25,000 in cash or more before it can be forfeited. They must also show there is a connection between you and the real estate property, or to cash if it is under $25,000 beyond a reasonable doubt before it can be forfeited.
This process will give you and your Asset Forfeiture Attorney a chance to go before the court and argue to either the judge or the jury that the property should not be forfeited, but returned to you. Having an attorney by your side, that understands the forfeiture laws is your best chance of keeping your real estate property or other property through this type of government seizure.
The federal laws also allow you a variety of defenses to forfeiture procedures. The most apparent argument you may have is that the property is not connected to illegal activity as the prosecution is trying to prove. You may also qualify as an 'innocent owner' because your interest in this property cannot be forfeited. The government has to have probable cause before they can take someone's property, and this may not be the case with your situation. Your attorney will be able to look at the case and find the best possible solution for you to reclaim what is rightfully yours.
Every case is different, and the prosecution will work hard to make the facts stack up against you. You need the advice of an attorney who knows both the consequences and the benefits of fighting the forfeiture in your given situation. This advice is especially necessary should the government seek to develop a criminal case against you. If it is decided your best option is to file a petition, you must understand in these proceedings your property is considered the defendant, not you. In this process, you and your attorney will be filing a verified claim to intervene in the civil forfeiture case. This is your legal assertion that you have a legitimate interest in the seized property.
When you received notice of asset forfeiture, it should have included a deadline for you to file a claim. It is imperative to pay heed to this date and ensure the courts receive your claim before this date passes. Your claim can be stricken, or an entry of default can be filed against you if you miss this date.
An entry of default is detrimental to you, and you would have to prove specific facts that would show a defense to the forfeiture. You then have the burden of proof to argue the government's accusations of illegal conduct or other established manners of an affirmative defense. Filing on time could also benefit your case with the government deciding to negotiate with you and your attorney and possibly avoiding a trial.
In many cases, it is a good economic sense for the government to choose negotiation and even returning a portion of the seized property as part of a settlement agreement. This compromise or negotiation saves time and resources necessary for the prosecution to prove a case in court. This process is even more likely when you appear with experienced legal counsel who can articulate a colorable defense.
Find Help Near Me for Asset Forfeiture Notice of Seizure
Your best option and an important first step when receiving a notice of asset forfeiture is to call Asset Forfeiture Attorney at 888-571-5590. We understand the laws and loopholes involved with the asset forfeiture procedures and are ready to help you regain possession of your property. There are strict deadlines to file a petition, so the sooner you call, the faster we can begin defending your rights to win back your property.