State and federal law enforcement agencies conduct investigations involving a wide array of crimes, including those where fraudsters, drug traffickers, gangs, or other types of criminals aim to make illegal profits. In such cases, perpetrators may be arrested and imprisoned for the crime they have committed. However, law enforcement officers are aware of the fact that conviction may be just a brief respite from the regular lives of the convicts and they may be able to return to their “job,” high standards of living, and illegal profits when released.
This article thoroughly explains the complexities and differences between asset seizure and asset forfeiture.
Definition of Terms
When communicating about asset seizure and asset forfeiture, many people, including legal professionals, often use the words interchangeably. While these two words are closely related, they have unique meanings and refer to different concepts and processes. So, given the potential misuse and confusion, we find it important to properly define terms commonly used in these two processes.
An asset generally refers to an item, a piece of property, or another thing that has external or intrinsic value. Examples of assets subject to seizure in California include real estate, cash, buildings, motor homes, vehicles, telecommunications or computer equipment, weapons, controlled substances, equipment or raw materials, books and research materials, and animals in cases involving abuse and cruelty. Other forms include professional certifications, liquor licenses, artwork, negotiable instruments, securities, and income tax refunds. Simply put, anything that carries worth to the individual who seeks, possesses, or owns it, is considered an asset. However, in California, the police cannot seize a home if it’s used as a family home. They also can’t seize real estate if it’s owned by two or more people and one of them wasn’t aware that it was being used for unlawful activities.
Asset Seizure involves the physical restraint of an asset or the transfer of custody or control from the owner or possessor to the government. This is usually accomplished through a law enforcement agency and is done if the officers believe that the property is linked to criminal activity. This means that law enforcement officers are legally allowed to confiscate and take physical possession of an asset if they have probable cause that the property is linked to a possible crime. The property is then stored in an evidence room or in an impound lot. Asset seizure typically occurs in 3 main contexts:
- Adherent to a search warrant,
- Incident to arrest, or
- Pursuant to a warrant for certain items subject to forfeiture.
Asset forfeiture happens when one’s assets or property are impounded by the state. It involves a legal process where an asset’s ownership is removed from a person because they employ it to facilitate a crime, derived or received it from illegal activity, or used it illegally. Forfeiture by the state typically follows a criminal, civil, and administrative proceeding.
Criminal activities that may result in asset forfeiture include:
- Terrorist activities,
- Violations involving copyright or patented goods,
- Warehouse activity involving counterfeit products,
- Drug-related crimes, particularly manufacturing and distribution of illicit substances,
- Crimes involving the manufacture and storage of illegal guns,
- Child pornography and/or
- Other forms of crime.
For instance, if an individual is convicted of manufacturing narcotics in their home, the state may seize and forfeit the home. This is done primarily to prevent the person or criminal organization from continuing to manufacture the drugs.
Most law enforcement officials comprehend the procedures for unclaimed, abandoned, and found property. However, some do not understand the procedures for seizing assets. Before seizing any asset, an investigator is required to obtain a seizure warrant based on a sworn affidavit that clearly describes the property for seizure and evidence demonstrating its link to the said criminal activity. The basis for asset seizure falls into four categories.
- Proceeds of a crime (illegally obtained items and profits)
- Evidence of an offense
- Contraband or items illegally possessed
- Instrumentalities (properties used in criminal activity)
During an investigation, law enforcement officers are required to remember these categories of property for seizure, especially facilitating property, proceeds, and contraband. They must be able to establish one or more of the aforementioned categories in the warrant affidavit.
Example of situations where property may be seized:
Mary’s has severe attention deficit disorder and legally takes the drug Ritalin, which is a prescription drug meant to help her control her symptoms. Mary starts dating Jonathan who comes over to her house one day for dinner. He finds a large supply of Ritalin in Mary’s bathroom and steals it. Jonathan is then arrested for selling the drug on the street. In this case, the police can seize the drug because Jonathan was distributing it in violation of the law.
While asset seizure is a civil action, in most cases, it is based on criminal activity. When the police have seized your assets, it’s important to get in touch with an asset forfeiture attorney who understands the related allegations. You should not underestimate the seriousness of seizure by the government. In most cases, the government will only seize the assets if they’re worth tens of thousands of dollars. Asset seizure is often the first step in a case, followed by an investigation by the grand jury and an indictment. Having an attorney at the early stages of the case can help protect your interests and your rights. It can also help prevent the seized asset from being forfeited.
In some cases, asset seizures occur during a search incident to arrest, in the execution of a search warrant, or after a traffic stop. Law enforcement officers could immediately understand the role of a certain item in crime or identify a potential evidentiary value the item. In such incidents, they usually deal with the seizure in the quickest way possible and get legal advice from the prosecutor on how to proceed.
Conversely, before confiscating an asset, investigators must conduct a full investigation and comprehensive assessment of various factors by a group of prosecutors, officers, and managers. They are required to commence pre-seizure planning after an investigation has been done to identify assets to be seized or forfeited. Law enforcement officers usually utilize pre-seizure planning methodology to ensure that no incomplete investigations occur, which would otherwise result in the premature return of the asset to a criminal or the dismissal of charges. They also use this method to avoid potentially costly safekeeping or management issues.
As a primary issue, police officers should consider whether or not to seize an asset because in some cases, they tend to seize without any compelling reason. For example, taxpayers may bear the burden of cleaning up property that’s chemically contaminated after being used for methamphetamine production. This could be cost-prohibitive and in such a case, the officers may have to weigh alternatives to seizure or forfeiture. Other factors that cops consider before a seizure include storage and management concerns, warrant executions, safety issues, and assurance of steady asset value. It’s also worth noting that investigators can work with valuation professionals and appraisers to determine the most valuable asset for seizure.
Law enforcement officers are required to obtain a warrant prior to searching you or seizing your assets. This protection is under Article I, Section 13 of the California Constitution. This law is designed to limit the power of the government and protect your rights when you’re being investigated. During a search, police may seize property and use it to solidify the case against a person. As such, they must have probable cause to search you or your property.
California laws, for instance, provide pretty good protections for individuals on the receiving end of a seizure. However, equitable sharing laws allow officers to hand over the seized property to federal law enforcement agencies. That means that the proceedings will be handled under deferral asset forfeiture laws. The U.S. Supreme Court decisions afford higher priority to the utilization of seizure warrants to make legal restraint. The related federal laws are harsh on seized properties but make it easy for officers to do their work.
Even if an asset is seized in the course of the officers working a traffic stop or executing a search warrant, and the seizure falls under the exceptions of case laws, a seizure warrant can still be obtained by the investigators. This can be done to strengthen their case by gathering more evidence when they already have seized the item. Actually, the U.S. Department of Justice noted that a warrant meant to help seize an asset serves multiple roles, such as reducing the public’s perception of asset seizure as a capricious and arbitrary process and protecting officers against potential civil suits following wrongful confiscation of property.
Asset forfeiture is one of the most powerful tools used by the government against people, irrespective of whether they’re guilty of a crime. This occurs after asset seizure and involves the government taking away a person’s property because it is suspected that it was obtained through criminal activity or it was used to commit a crime. This means that asset forfeiture is centered on the asset or property, and not the owner of the property. A person can lose their property to asset forfeiture whether they have committed a crime or have been found guilty. For instance, the U.S. Supreme Court has held that a vehicle can be seized and forfeited even if it’s jointly owned by a husband and wife, and the husband was arrested having sex with a prostitute in the car and in a public place, even though the wife didn’t know of such usage.
Asset forfeiture involves a legal process lead by a prosecutor to enable the government to remove ownership of property involved in crime, without any form of compensation. The legal possession is transferred to the government. This may occur in two ways:
- In a civil procedure such as a lawsuit against the asset in question, or
- After a person has been convicted in a criminal trial
Victims of fraudulent activities may have their assets or property returned through forfeiture since the profit is removed from the defendant.
Regardless of whether the asset forfeiture is civil or criminal, the government must show probable cause for the seizure. It’s important to note that an asset can be seized even if no criminal charges are filed or the owner of the asset has not been convicted. However, the government must prove that the asset in question has ties to illegal activity. This can come in the form of a property used to carry out or facilitate a crime, or the profits from illegal activities.
The Objectives of Asset Forfeiture
Through asset Forfeiture, the government is able to curb criminal behavior, therefore, improving a community’s health and safety. Asset forfeiture laws are designed to ensure that criminals are deprived of the ability to profit and exercise control over a community through extortion, coercion, and violence. Law enforcement officers can also beseech the process to do away with stash houses, criminal safe havens, as well as conveyances used to transport and distribute contraband. A legal seizure of forfeiture is usually founded on one or more of the following policy objectives:
- Deter illegal activities and crimes
- Punish any unlawful enterprise
- Disrupt an illegal organization
- Confiscate tools used by criminals, including property used to facilitate crime
- Protect the community
- Return proceeds of fraud to the victims
- Use forfeited funds for law enforcement and public safety to save taxpayer money. This means that police and their employers stand to greatly benefit when they seize as much property as they can.
Seizure warrants and forfeiture actions should never occur in the absence of legal and evidentiary basis. It’s also worth noting that assets could be forfeited even if the owner has not been convicted for an underlying or related crime.
Presenting Forfeiture Cases
After the asset has been seized, officers involved will begin an action against the property in question. The prosecutor will want to get details by asking several key questions:
- What’s the criminal violation?
- Is there a provision for forfeiture following the involved crime?
- What asset can be forfeited under the statute?
- Is there evidence that specifically ties the asset to the violation or crime?
- What is the exact value of the property in question?
- How should it be or how was it seized?
- Who controls or owns the property?
- Where is it now?
When evaluating evidence in an asset seizure or forfeiture case, investigators are guided by the following questions:
- How was the asset involved in the crime?
- Is the property itself the proceeds of criminal activity?
- Was the property acquired with proceeds earned from the criminal activity?
- Who owns the asset, both in reality (control) and on paper (title)?
Forfeiture Claims Deadline
If cops have seized your assets or threaten to seize them, you may be eligible to file a claim and contest the action. Depending on whether the case is civil or criminal, or whether it is governed by state or federal law, different deadlines govern the time you have to respond. Claims deadline are strictly enforced and you must act promptly so as to recover your asset before it is permanently taken away from you. It is also imperative to have an asset forfeiture attorney who can help you file the property recovery claim, fiercely advocate on your behalf, and ultimately fight asset forfeiture. Submitting a careless claim or missing the deadline could put you at risk of losing property even if you’ve not been charged with or convicted of a crime.
In conclusion, while seizure and forfeiture are usually subject to misunderstanding as many people use them interchangeably, they constitute two unique, distinct legal; processes that are connected and share some similarities. Asset seizure happens first and forfeiture happens next if the prosecutors decide to pursue the case.
Finding an Asset Seizure and Asset Forfeiture Attorney Near Me
It’s not uncommon for the government to overstep its bounds and seize assets from innocent citizens. At Asset Forfeiture Attorney, we understand the complexities and relationship between asset seizures, asset forfeitures, and the related criminal case. Our attorneys have the skills and experience to defend and protect your liberty, rights, and property. We help our clients fight back against unfair seizures and forfeitures. Regardless of how you're involved with asset seizure or forfeiture began, the lawyers at Asset Forfeiture Attorney are well-equipped to retrieve your property. We prepare strong defenses and provide effective representation in matters involving confiscation or forfeiture of property. There are a number of ways we may be able to defend against the government’s action including arguing that there was a lack of probable cause, challenging specious conclusions, identifying inconsistencies in warrants and unsubstantiated claims, proving property ownership is legitimate, refuting testimony, examining potential violations, raising challenges where evidence presented by the prosecution appears unreliable, and checking investigators’’ backgrounds.
If you believe that your property or money was unlawfully seized or forfeited, contact Asset Forfeiture Attorney for assistance. Call us at 888-571-5590 or complete our online contact form to schedule a confidential consultation.