Seizure and Forfeiture Law
The police or government can seize and attempt to take title to your property, most commonly vehicles, cash, jewelry or your home in one of two ways.
I. BASIS FOR SEIZURE
A) If your property was used in a crime, for example, your car or truck was used to transport a load of drugs, or used in a bank robbery, the government can attempt to seize it in addition to prosecuting the driver or bank robber in a separate criminal prosecution.
B) The second theory or basis for forfeiting property is if the government can show that the asset or property was the proceeds or profit from criminal activity, in essence, “dirty money”. For example, if the government can prove that your car or home was purchased with the profits from illegal activity, then even if no criminal activity ever took place in the car or home, they can attempt to seize it.
II. NECESSITY TO FILE A CLAIM OR PETITION
You must respond in writing within strict time limits or you will lose your property. Many times police seek to seize property where they lack sufficient evidence to bring a criminal prosecution, as the standard of proof is lower in a forfeiture case. Please be advised that any statements you make to police or in your claim or petition may be used against you in any criminal prosecution, so you should always speak with a lawyer first. See Section V.
III. DEFENSES TO FORFEITURE
There are several possible defenses to a seizure of your property.
A) INNOCENT OWNER DEFENSE
If the actual owner of the property did not take part in nor know of the illegal activity, he or she can assert the innocent owner defense. For example, if your neighbor or relative borrows your car to go to the grocery store, and also uses your car or truck in a drug transaction, the law is not intended to make you lose your property. However, if you knew or should have known that they might do this, (due to a prior conviction) the government may still try to seize your property.
B) LIEN HOLDER
A lienholder, such as a bank or anyone else that holds a lien or mortgage on a vehicle or property, has a defense to the forfeiture of their interest in the property.
C) ILLEGAL SEARCH & SEIZURE
The Supreme Court has ruled that if police violated the 4th Amendment guarantee against illegal search and seizures, this may be raised as a defense to any forfeiture, even if the property would otherwise be subject to forfeiture.
As noted, the property owner or lienholder must file paperwork asserting a claim within strict time limits (generally 30 days of receiving notice) or you will lose all rights to your property.
The time limits vary depending on whether the seizure was done by the federal government or the State of Arizona. Other states have different time limits.
The property owner should contact a lawyer immediately after receiving notice of the seizure to protect your rights.
V. RIGHT TO REMAIN SILENT
You have a constitutional right to remain silent and refuse to answer questions related to seizure of property or cash. Any answers you give to police may be used against you in the forfeiture proceedings and also in any criminal charges growing out of the same activity. You should consult a lawyer before answering any questions from police, I.R.S., etc.