Asset Forfeiture

ASSET FORFEITURE

By Denise Lieberman, Legal Director
ACLU of Eastern Missouri

Despite the Fifth Amendment's promise that no person "be deprived of . . . property, without due process of law," the United States Supreme Court has ruled that property can be seized and sold by the government without any arrest, conviction, or due process. Under the idea that property itself can be guilty, police can take your property without convicting or even arresting you, leaving you to prove it has no connection to a crime. This is called asset forfeiture.

Asset forfeiture allows the government to take property without paying for it, if the property owner is engaged in illegal activities. It has become a very popular, though highly controversial, weapon of the government in the ìWar on Drugs.î Like many new laws enacted in the wake of the governmentÃ-s increased attention to the ìWar on Drugs,î asset forfeiture laws were originally designed to punish large-scale drug traffickers and organized criminals who got rich off of their crimes. Unfortunately, like similarly ill-conceived drug laws, many other citizens are swept under the laws too. Because many police departments keep a large portion of the profits from the sales of assets seized, one nasty side effect of the laws has been that police decide which cases to investigate based not on the amount of drugs involved or the possible danger to society, but on the profitability of investigating a case. Because organized criminals are better at covering their tracks than low-level dealers, this often means that the more serious crimes are ignored by cops in favor of the less serious.

Forfeiture laws mean profits for the police seizing assets. While some of the funds get diverted to schools, law enforcement agencies still keep a large percentage of the profits from assets seized. In return for turning the property over to a federal agency, many Missouri police departments have received what amounts to a kick back, which in some instances has been as much as 80 percent of the proceeds from the seized property. Missouri law enforcement have earned more $41 million in seized assets and handed over less that $12 million to schools. The St. Louis Metropolitan Police Department alone netted over $2.5 million in 1997 and 1998 using this practice.

There have been some reforms. In 2001, the Missouri legislature enacted a measure to reform Missouri's Civil Asset Forfeiture Act (CAFA) to ensure that police departments deposit seized assets into a public education fund, as required by the Missouri Constitution. The American Civil Liberties Union, which has criticized asset forfeiture laws as a ìlicense to steal,î called passage of the reform measure ìa victory for all Missourians.î ìIt is astounding that such a law was needed. The fact that seizure had to be defined in the law to make some police departments comply is disgraceful,î said ACLU of Eastern Missouri Executive Director Matt LeMieux. 

In 1999, Congress adopted a measure that somewhat refined in federal asset forfeiture laws. The ACLU, which worked hard to build support for the bill, said it represented a historic first step in ending the unfair seizure of innocent people's property, but much more remains to be done. In a recent national advertisement, the ACLU launched a new attack against this form of unfettered law enforcement abuse. ìThanks to civil asset forfeiture laws, possessions that took you a lifetime to acquire can be taken in the blink of an eye, or, more accurately, the flash of a badge," the advertisement says. "The forfeiture laws were designed as a new government weapon in the 'war on drugs.' But they've done little more than provide law enforcement with a license to steal."

Despite some state and federal reforms, asset forfeiture laws still allow police to seize property and still present a significant danger to civil liberties. With marijuana arrests at over 1 million a year (more than other drug crimes or violent crimes combined), asset forfeitures have increasingly been used by police investigating marijuana growers.  

If police obtain a search warrant (or if they search your property because you have consented to the search), and if they find indicators of drug dealing, like scales, drug paraphernalia, growing plans, financial records, etc., they may be able to seize certain property. The forfeiture laws allow the government to seize any property that is connected to a crime or purchased with the ìproceedsî of that crime. For marijuana growers this can mean homes, farms, and other items of real estate used in the cultivation or distribution of marijuana may be seized if the government can show that it was used to facilitate the crime or purchased with the proceeds. While innocence of the crime by the property owner is a defense for these forfeitures, the law generally places the burden of on the property owner to prove his or her innocence.

The good news is that we still retain much privacy in our homes. Unless you consent, police generally will need a search warrant to come into your home. Even if police detect the smell of marijuana when they knock on your door, this will likely not allow police to enter your home, even if you open the door, without a warrant (though it may give them enough information to go back to a judge and request a warrant). Police may not enter and search a private residence or its ìcurtilageî (except for the unblocked path to the front door) without prior judicial approval in the form of a search warrant. The bad news is that if there is probable cause to believe that you are involved in drug dealing, even if you donÃ-t do it in your home, that may itself be probable cause to search your home if police can demonstrate that they will likely find evidence of criminal activity there.

Police can not search your home unless a judge has concluded that there is probable cause and has issued a search warrant. They are typically issued based on sworn statements by police. If the evidence is not enough to establish probable cause, then the search warrant should not have been issued, and evidence found from it should arguably be suppressed and not used in any court proceeding. 

Police may get evidence to support search warrants in several ways. Informants can provide information; shipping companies can report ìsuspiciousî packages; power companies on your property to read meters can report ìsuspiciousî activity; surveillance of grow shops and others. Not all information from informants can support a search warrant, though police can look to the ìtotality of circumstances.î Basically, this means that they must be able to substantiate some of the facts of the tip. With some of the facts substantiated, the tip may be considered credible enough to secure a search warrant. In addition, even if there wasnÃ-t really probable cause to support the warrant, if the police thought in ìgood faithî that the warrant was supported by probable cause, then the evidence they find can still be used.

Outside your home you have less privacy. What is exposed to the public will not be considered private. If you are in you are stopped by police in public, they may conduct a ìpat downî search over your clothing or ask you what you are doing if they suspect criminal activity. The information they obtain from this could give them probable cause to do a full search of your person or vehicle, or cause to arrest and search you incident to that arrest.

What happens if police take your property through forfeiture? Unless property is seized as evidence of a crime, you should be returned when the case is over, unless it is contraband or it is being held for asset forfeiture. You should be given a receipt for any property taken. You should request a receipt for any property or cash taken.

If property is being held for asset forfeiture, you will receive a notice of asset forfeiture from the government. Unfortunately, even if you are found not guilty in your criminal case or your charges are dropped, you do not automatically get this property back. If the government has claimed your property by asset forfeiture, you must be successful in a separate forfeiture case in order to get it back.

The government must send you a notice of forfeiture within a reasonable time after taking your property. If you do not hear anything, you should file a written request with the police claiming your property. After you receive a forfeiture notice, you must respond within the deadlines stated in the notice or you could loose your rights. If you request a hearing to challenge the forfeiture, you may need to pay a bond. If you canÃ-t afford a bond, you can file a request asking the government to waive the bond because you are indigent.

The federal Civil Asset Forfeiture Act of 2000 made some reforms that help those facing asset forfeiture. The law now grants people whose assets have been seized the right to legal counsel, as well as providing for the temporary return of seized assets to their owners while investigation is pending, if hardship can be proven. You should be careful in what you say in your written responses, because anything you say can be used against you in other proceedings. To win a forfeiture case, you should be able to show either: that the warrant was defective; that you are innocent of the crime; that the government failed to establish probable cause that the property was being used for criminal purposes; that the government failed to comply with procedural rules like a probable cause hearing, or that the forfeiture is out of proportion to the crime (i.e., significant property should not be taken for a small crime). It is important to consult a lawyer if you are facing asset forfeiture. ItÃ-s best to find a lawyer who has handled asset forfeiture cases before.

For more information about asset forfeiture and search and seizure laws, visit the ACLUÃ-s website at: .aclu.org or F.E.A.R. (Forfeiture Endangers American Rights) at: .fear.org.