Police can seize your property if it is believed to be evidence of a crime. One of the more common areas of controversy regarding police taking property today is civil asset forfeiture. In this situation, the police may seize your property even if you are have not been charged with a crime. How can you get it back?
To achieve the best results, it is recommended to find a good asset forfeiture lawyer to assist you in getting your seized property back. It is smart to find an attorney who is highly experienced in forfeiture cases. Forfeiture cases procedures are different than regular civil procedures, so it is important to have a lawyer who knows this side of the law well.
The process you have to go through will depend upon which department seized your property. Was it a state, local or federal agency? You may not always know at the start of your case whether it will be a federal or state case. Even if the state police have seized your property, it can be turned over to the DEA, the Justice Department, Customs, or another federal agency. The state or local agency can receive a kickback of as much as 80% of the value of your seized property; this is done under the ‘equitable sharing program.’
If yours is a federal asset forfeiture case, things will usually start with a notice of forfeiture, or a civil forfeiture complaint. These communications will arrive by registered mail.
If you have not yet gotten any communication in the mail, you only can wait. Current forfeiture laws prohibit you from filing a civil lawsuit to get your property returned. The federal government is supposed to initiate the process within a ‘reasonable time.’ If it does not, you and your attorney can raise the ‘unreasonable delay’ defense, which is detailed later in this article. There is little you can do to speed up the case process, other than write or call the police to ask them to start the case.
Be careful about what you say to the police. It is best to communicate with them in writing. That way, you can keep the subject strictly to your property. If you talk to them by phone, they may ask questions that can get you to talk about the alleged crime that led to the seizure. Keep all copies of any letters you send to the police.
When You Receive Notice
In a federal asset forfeiture case, you should receive a Notice of Forfeiture from either the DEA or FBI. This notice will inform you of the process, but it can be a bit confusing. The important thing is this: To get a court hearing to defend your property, you must file an Administrative Claim on a timely basis. You also must post a cost bond, if it is needed.
The Civil Asset Forfeiture Reform Act of 2000 or CAFRA outlawed most cost bonds. But for a seizure involving US Customs laws, you still may need to post a cost bond equal to 10% of your property’s value when you submit a claim.
If you have no assets, you can ask for a waiver of this cost bond. Your forfeiture notice will state if there is a cost bond or not. Note that the cost bond does not work like a bail bond. Paying your cost bond does not get your property released to you before trial. The bond simply pays for the costs to the government for seizing your property and holding it. If you prevail in your case, you may get the entire bond back; this is the judge’s call. If you lose, you only will get back part of the bond back, after costs are deducted for storing your property.
You have approximately 35 days after you receive the notice to file your claim. Carefully read the forfeiture notice for the deadline. The claim has to be made as a sworn statement under the penalty of perjury. It also must identify what your interest is in the property, such as the co-owner, owner or lienholder. It also has to state that your claim is not frivolous.
The notice you receive also may state that rather than just paying the cost bond and making a claim, you may file what is called a Petition for Remission or Mitigation. It is not advised that you take this option. A Petition for Remission is decided by the agency that seized your property. It is rare that they will decide to give the property back. You get no hearing and there is no appeal process.
After you file the claim and the cost bond, the US Attorney’s Office reviews your case. If they decide to proceed with the forfeiture, they then file a civil case with the US District Court. You are served with a complaint; the government has 90 days from when it gets your administrative claim to file the judicial forfeiture action.
After you get the complaint served to you, you have 30 days to file your Verified Claim. This is a statement under the penalty of perjury of what your interest is in the property. This is a separate matter from the Administrative Claim you had to file earlier. After you file the verified claim, you have 20 days to file an answer.
The answer has to state whether or not you deny, admit, or do not have enough information to deny or admit every allegation in the complaint. Next, you list your defenses; these are listed below. You should include a demand to have a jury trial, or you will not receive one. Request a jury of 12, or you get a jury of six.
Be wary of what you say in any documents you file. Anything you say may be used against you.
If the property in question is being forfeited by a state, the procedures outlined above will not apply. You should talk to your asset forfeiture attorney to learn what the steps are in this process.
Defenses to Forfeiture
Below are the common defenses to forfeiture that you should use in your Verified Claim. Remember to demand a jury of 12, or you get a jury of six. Talk to your attorney about which apply in your case:
- Innocent owner: If you can show that you did not know of or consent to illegal use of the property, you will win the case.
- Unreasonable delay: If the government takes too long to file the case or bring it to trial, you will win, if you can prove that the delay was unjustified and excessive.
- Illegal search and seizure: You can move to suppress evidence if you can prove it was seized illegally.
- Statutory defenses: Every forfeiture statute has other defenses which can apply to you.
- Disproportionality: Forfeitures of property that are not proportionate to the offense are unconstitutional.
With the assistance of your attorney, you should decide which of the above defenses you will argue in your claim to get your property returned.
Below are some frequent questions about asset seizure cases:
How long will my case take?
A forfeiture case can take a few months or several years. It is important to understand that these cases take time and require the services of a good attorney. These cases cost money to pursue legally, and you should budget carefully. If you cannot afford to pay your attorney, you will have to represent yourself. You will lose the case most likely in that scenario.
Does Amtrak work with the government to alert them of bulk cash aboard their trains?
Yes, Amtrak has similar software to detect unusual train ticket patterns, such as one way train ticket purchased with cash on long journeys. Amtrak notifies the Drug Enforcement Administration which patrols its rail lines and effectuates bulk cash seizures on behalf of the United States government.
What do I do when my cash has been seized by United States government law enforcement, and where does the money go?
When your cash has been seized by law enforcement, the money is accounted for by them and held in escrow by the United States Treasury pending final order of forfeiture. In order for you to stop the forfeiture process, you have to wait until you get a letter from the federal government, which is sent by both regular and first-class certified mail to the address that you provide law enforcement at the time of the seizure.
When you get a letter, it has to be responded to by our lawyers.
The government’s letter of notification of forfeiture to you is generated normally up to 90 days after the date of seizure. You have only 30 days to respond.
Where do most bulk cash seizure matters happen and what are the agencies that do this?
Normally, bulk cash seizure matters occur at major airline hubs such as Dallas, Boston New York Los Angeles Chicago San Francisco Atlanta Charlotte and Miami. Homeland Security and the Drug Enforcement Administration are the primary federal government law enforcement seizure agencies for domestic airline flights.
For international, this is usually US Customs and Border Protection. That agency also conducts interdiction seizures on the nation’s highways and at predetermined border patrol points. The United States government postal inspection service effectuates seizures on behalf of postal mail, FedEx and UPS.
How can these laws be constitutional?
Civil asset forfeiture statutes removed most of the procedural safeguards that American citizens enjoy in civil cases. They also provide less protection for innocent third parties than in typical criminal cases. Nonetheless, they have been upheld in many constitutional challenges over the years.