State Laws, Federal Policy Changes Offer Some Good News on Asset Forfeiture

Civil asset forfeiture has received a significant amount of attention recently, and for good reason. If law enforcement believes that property has been used in the commission of a crime, or obtained with the proceeds of a crime, civil forfeiture allows the state to seize that property and divest its owner of title. See Tex. Code Crim. P. Art. 59.01 et seq., 18 U.S.C. § 981 et seq. This has resulted in many law enforcement agencies, according to various news reports, using civil forfeiture as a means of generating revenue, and even creating “wish lists” of items to seize. Some states are now scaling back on this practice by requiring a criminal conviction in forfeiture cases. The federal government announced that it was scaling back on parts of its forfeiture programs, although it still engages in practices that are widely criticized.

Federal law allows law enforcement agencies to seize property based on suspicion of criminal activity. In January 2015, then-Attorney General (AG) Eric Holder announced that the Department of Justice (DOJ) and the Department of Treasury (DOT) would cease a practice known as “federally adopted forfeiture,” by which a federal agency takes custody of property seized by state or local law enforcement at their request and commences federal forfeiture proceedings.

The extent to which the AG’s announcement changes actual practice by federal law enforcement remains to be seen. Prior to the announcement, the DOJ’s apparent policy was that “[f]orfeiture is one of the most effective weapons in the law enforcement arsenal and its use should be encouraged.” DOJ, Asset Forfeiture Policy Manual (PDF file) at 42 (2013). Even after the AG’s announcement, federal agencies are still expressly authorized to use forfeiture in joint federal-state and purely federal operations.

In another bit of relatively good news, the New Mexico governor signed a bill, HB 560, in April 2015 that reforms state forfeiture law. In order to subject property to forfeiture proceedings, the state must now demonstrate that the owner of the property was arrested for an offense covered by the statute and convicted of that offense. The state must then prove by clear and convincing evidence that the property was used or obtained in the commission of the offense.

Civil forfeiture remains a serious problem, however, especially in cases involving drugs or suspicion of drug-related offenses:
– A state appellate court affirmed the forfeiture of over $33,000 in cash seized from a man charged with drug possession, even after he was acquitted of all charges. The court held that the state only needed to show that the property was related to illegal activity by a preponderance of evidence, not beyond a reasonable doubt. In re Property Seized from Robert Pardee, No. 14-0029, slip op. (Iowa Ct. App., Feb. 25, 2015).
– Police in Colorado seized $25,000 in cash from a South Dakota couple driving through the state after a search of the vehicle found marijuana, despite the fact that the amount found by the officers is legal in the state of Colorado.
– Agents with the Drug Enforcement Administration (DEA), part of the DOJ, seized $16,000 in cash from a man traveling from Michigan to California on an Amtrak train. The man, who was never arrested nor charged with an offense, had spent years saving up the money and was going to Los Angeles to get into the music business.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified criminal defense attorney, defends people in west Texas charged with alleged offenses in state and federal courts. To schedule a confidential consultation with a knowledgeable and experienced advocate for the rights of criminal defendants, contact us today online or at (432) 687-5157.

More Blog Posts:

Federal Judge Grants Default Judgment in Forfeiture Action for Money that Allegedly Smelled Like Marijuana, Texas Criminal Lawyer Blog, September 23, 2014
New State (Not Texas) Requires a Criminal Conviction in Civil Forfeiture Cases, Texas Criminal Lawyer Blog, August 8, 2014
State of Texas Seizes Mormon Sect’s West Texas Ranch in Forfeiture Case, Texas Criminal Lawyer Blog, July 14, 2014

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