Whether you are accused of a crime or involved in the proceedings, it is possible some of your personal property will be considered evidence and seized by the authorities. If this happens, you may wonder when and if you will ever see your property again. The answer to this depends on a number of factors, which an asset forfeiture attorney will be skilled at helping you navigate.
What Is Asset Forfeiture?
Asset forfeiture is a legal process that enables the government to take property away from civilians without paying for it, either temporarily or permanently, if the owner is allegedly involved in criminal offenses. Property seized under these rules can include cars, boats, airplanes, cash, bank accounts, homes, or even businesses. They are able to do this when it is evidence of a crime, contraband found during a lawful search, or any property deemed subject to forfeiture. The property itself must be purported to relate to the crime.
Some examples of property eligible to be considered asset forfeiture include:
- Money that was exchanged for drugs or intended to be exchanged for drugs
- Vehicles that may have transported property or weapons used in the commission of a felony or vehicles that were used in human trafficking
- Cell phones that were used during the commission of an offense
Civil vs. Criminal Asset Forfeiture Procedure
In civil asset forfeiture cases, the government is actually suing the item of property itself in relation to the crime, while the owner is a third party. The government must then prove the property is subject to forfeiture, and the owner can attempt to establish an “innocent owner” defense.
Federal civil forfeiture usually begins with seizure of the property, followed by a notice of seizure from the relevant agency to the owner. The owner must file this claim in order to later protect his property. Once filed, the prosecutor will review the claim and determine whether to file a complaint. The owner then has 35 days to file a judicial claim which assets ownership interest. Within 21 days of this claim, the owner must also file an answer denying any allegations. The forfeiture case can then be litigated. Because the item itself is being sued, the government can have an innocent owner and still find that the property was used by another person.
Criminal forfeiture is generally carried out with a sentence and conviction pursuant to the offender rather than the property.
Return of Forfeited Assets
If you are found guilty of a crime or your property is determined to be involved in a crime, you will not get it back. There is an entire process and industry within the government that is designed to turn a profit on forfeited items and fund further law enforcement. Any contraband items found during a search will also not be returned.
If you are found not guilty or charges are dropped, you can potentially get your belongings back. Items that are being held as evidence, such as clothing, will usually be returned once the prosecutor decides they are no longer needed.
When your items are not easily returned to you, you may need to proceed with a forfeiture case in order to win back your items. This is where it is important that you follow any procedures required by the court during the forfeiture process to show compliance and ensure you have a strong record of all communication.
Defenses in Asset Forfeiture Cases
There are a number of ways an asset forfeiture attorney can argue for the return of your property.
Innocent Owner Defense: If you can prove you did not know of or consent to illegal use of your property, you are able to win a forfeiture case and get your items back in certain states.
Unreasonable Delay: Lawyers will often argue that the government delayed filing for too long, or prolonged trial, and if this is deemed excessive or unjustified, this can win back assets.
Illegal Search and Seizure: In criminal cases, you can move to suppress evidence that’s has been illegally ceased. These same items can be ordered to be returned to you as they are no longer pursuant to a case.
Disproportionality: If it is ruled that forfeitures of property are not proportionate to the offense committed, this is considered unconstitutional and returns property to the owner.