Asset Forfeiture Proceedings

Imagine that it’s a lazy Sunday summer afternoon. You’re home watching a Padres game on TV and Tyson Ross has just pitched a string of shutout innings when there’s a knock at your door. You open the door to find a process server on your porch. He hands you papers that inexplicably say that the state of California is suing not you, but the boat parked in your driveway.

This may sound like a strange scenario, but it’s an all-too-common process called asset forfeiture, in which the government tries to seize your property because police and prosecutors believe it is connected to criminal activity. In the scenario above, if you let your brother take your boat out into San Diego Bay, and while on the boat your brother sold a baggie of marijuana to a friend, then the government can use the asset forfeiture process to seize your boat because it was connected to a drug deal — even though you weren’t on the boat and didn’t know anything about the drug sale. A San Diego criminal defense lawyer can help you through this time.

Through asset forfeiture, police or prosecutors may try to seize property including:

• Houses
• Cash
• Cars
• Boats
• Land
• Firearms
• Computers, tablets or smartphones

When the government seizes your property through the asset forfeiture process, it is not required to compensate you. In fact, what typically happens is that if a court allows the government to keep your property through the forfeiture process, the government usually sells it at auction and keeps the money. According to a report by the Institute For Justice, law enforcement agencies keep about 65 percent of all the money made through asset forfeiture programs — amounting to tens of millions of dollars each year.

San Diego Asset Forfeiture in Criminal Cases

There essentially are two ways that the government can have your property declared forfeit in connection with criminal activity. One is if you’ve been convicted of certain crimes, most often related to drugs. If the property was used in the commission of a drug offense, in most instances the government is allowed to try to declare it forfeit.

A couple of noteworthy exceptions to property the government can have declared forfeit include:

• A home used as your family residence or for any other lawful purpose
• Real estate with two or more owners and one of the owners was unaware it was being used in connection with illegal activity

California’s Uniform Controlled Substances Act requires that you be convicted of a drug offense related to the property before the government can keep your:

• Vehicle, boat, or airplane
• Cash or securities up to $25,000 in value
• Real estate

However, if you willfully fail to appear in court, then the government no longer needs to convict you before your property can be forfeited. Prosecutors just have to prove that the property is legally subject to forfeiture because it’s connected to a crime.

San Diego Civil Asset Forfeiture

As in the scenario above, it isn’t always necessary that you be convicted of a crime — or even accused of a crime yourself — before the government can seize your property and ask a court to declare it forfeit. The second way that you might lose your property is through the process of civil asset forfeiture described above. In civil asset forfeiture, the government files a lawsuit against your property alleging that it’s connected to criminal activity.

However, California law does offer some protections to property owners, and through the court process — and with the help of an experienced San Diego criminal defense lawyer — you may be able to get your property back or prevent it from being declared forfeit. A criminal defense lawyer with experiencing handling asset forfeiture cases can explain your options and the process, and help protect your rights and your property.

Defending Against Asset Forfeiture

When the government wants to have your property declared forfeit, you must be provided notice. The notice can come in the form of someone personally delivering it to you, via registered mail, or by publication in the legal notices of the newspaper of record in your area. Once you receive notice of the forfeiture proceeding, you have 30 days to file a claim, which triggers a court process and a jury trial to determine whether the property will be forfeited.

Unlike some other states, California places the burden on prosecutors to prove why your property should be forfeit. The state requires that police and prosecutors have clear and convincing evidence to connect $25,000 or more in cash to criminal activity before it can be forfeited, and must prove a connection between real property, such as land or a house, or less than $25,000 in cash beyond a reasonable doubt before it can be forfeited. As noted above, some types of forfeiture require that you be convicted of a crime before your property is forfeited.

In general, the prosecutor has to prove that:

• The property in question is connected to a crime — either used to commit the crime or that it was the proceeds of or derived from a crime
• Everyone who has an ownership interest in the property knew it was being used for a crime and consented tot hat use

This process gives you a chance to go to court and argue to a jury or judge that your property shouldn’t be forfeit and that it should be returned to you. You stand your best chance at having your cash or vehicle returned to you, or keeping your house or other real property when you are represented by a lawyer who has a thorough understanding of asset forfeiture laws and proceedings, and who will fight on your behalf in court.