Asset forfeiture laws allow the federal government and state governments to seize property that either:

  1. Has been used in the commission of a crime, or
  2. Was obtained through criminal activity

Obvious examples of such property are drug money, cars used to transport drugs, or weapons. The government can also seize personal property that is only tangentially related to illegal activity, such as homes and businesses.

What’s the Difference between Criminal and Civil Forfeiture?

There are 2 basic types of asset forfeiture used in the United States: criminal forfeiture and civil forfeiture.

  • Criminal forfeiture is the less common of the two. It usually takes place after someone has been convicted of a crime, and is treated as part of the punishment.
  • Civil forfeiture is different. It does not operate through the criminal justice system. Rather, the government essentially sues the property to gain possession of it. This leads to some strange case names, such as “United States v. $100,000 in U.S. Currency”, “California v. 500 Cedar Street”, or “United States v. A 1965 Ford Mustang”.

If a state or federal government suspects that a piece of property is being used to commit a crime, they simply need to present “probable cause” that this suspicion is true. This is a very low standard of proof. It usually defined as a reasonable belief. Once this standard is met by the government, the owner of the property has the burden of proving that it was not used to commit a crime. They must prove this by a preponderance of the evidence. While this is a fairly low standard of proof (defined as a showing that something is more likely true than false), it is almost always difficult to prove a negative.

Does Double Jeopardy Apply to Forfeiture?

Like most questions in law, it depends. If the defendant was already convicted and sentenced, then a criminal forfeiture could constitute a second punishment, thereby triggering double jeopardy.

Civil forfeitures, on the other hand, are not considered a "prosecution" or a "punishment." In addition, civil forfeiture proceedings often occur before sentencing, so civil forfeitures are not a second prosecution or punishment for double jeopardy purposes.

Are There Any Defenses to Forfeiture?

Since criminal forfeiture only occurs after a defendant is convicted of a crime, the best defense to criminal forfeiture is to successfully defend against the underlying criminal charge.

Civil forfeitures are trickier. Instead of focusing on the underlying criminal charge, the defenses should be based on the police and the defendant’s conduct around the property itself.

First, forfeiture is still based on police search and seizure powers. If police don’t have a warrant, they must have probable cause to search and seize property. Proving that police lacked probable cause in searching and seizing the forfeited property can often be fatal for the government’s case.

Second, if the property wasn’t connected to the crime, then the police do not have a basis for seizing the property. Suppose a drug dealer uses rental property to sell drugs. The landlord can argue that the building shouldn’t be subject to forfeiture because the landlord did everything a reasonable and innocent owner could do: the landlord called the police, evicted tenants who used drugs, etc.

Are There Any Limitations to Forfeiture?

There are a few, but those limitations are not difficult for the government to overcome.

First, forfeitures must be substantially connected with a crime. Police cannot seize property unless they believe the property was being used to violate a law. However, the legal standard, "preponderance of the evidence," is quite low. This makes it easy for local, state, or the federal government to prove that property was connected to a crime. For instance, police often seize cash from drivers moving across state lines if the driver is transporting thousands of dollars. The argument is that large amounts of concealed cash are sufficient evidence that the driver intended to buy illegal drugs.

If the government can show the property was used to facilitate a crime (and chances are good they can), the defendant has the opportunity to show that the government is wrong in its accusations. The problem with this limitation is that in many states the burden of proof also shifts to the defendant and the rules of evidence that normally aid defendants in criminal cases do not apply in civil cases.

The most significant limitations on forfeitures are based on procedure rather than individual rights. The federal government is required to send the owner of the property notice. Failure to send that notice within a certain time period will destroy the government’s case, so look for that notice.

The government is entitled to keep forfeited property if the owner fails to prevail in court. In some jurisdictions though, if the government fails to properly seize forfeited property, the government can only keep the property for a certain period of time. In those cases, the owners may have a second chance at retrieving their property.

Should I Consult an Attorney If My Property Has Been Seized?

Forfeiture laws are among the most technical and complicated laws in the country. The advice of a criminal defense attorney can be helpful in these cases. Additionally, this is a special area of law and it is advisable that one finds an attorney with specific experience in these proceedings for the most favorable outcome.