Asset forfeiture is a controversial law enforcement tactic that lets police seize cash, houses, vehicles, and other property if it is suspected to have been ill-gotten through criminal activity or used in the commission of a crime. Police can then sell the property and keep the proceeds to enrich their departments in a process that critics refer to as “theft by cop” or “policing for profit”. This can happen even if you were only arrested and never even convicted of a crime!
The procedures by which the government can keep your property will vary depending on the type and worth of the property seized. Continue reading below to learn more about this complicated and sometimes confusing area of law and what you can do if you have lost your property to the police.
Lawyer for Asset Forfeiture in Ventura, CA
Facing a criminal charge is frightening enough without having to worry about losing your possessions – property that you and your family depend on for your livelihood. Retaining an aggressive defense attorney immediately is the best course of action if you or a loved one is caught up in an asset forfeiture proceeding.
Jay Leiderman is a board-certified specialist in Criminal Law, a rare designation awarded only to the less than 1% of California lawyers who can pass a rigorous, judge-reviewed evaluation that involves additional education and experience beyond the already-difficult steps needed to gain admittance to the State Bar of California. In other words, he is a member of a tiny elite within an already distinguished group. He has a wealth of knowledge and skill gained through years of vigorously representing clients across California in a broad range of criminal cases, from petty theft to murder, and is one of the nation’s leading attorneys working on cutting-edge cases involving medical marijuana and complex computer crimes.
If you or a loved one is faced with the prospect of losing your property to the government, do not hesitate to call Jay Leiderman Law at (805) 654-0200 for a free consultation. Headquartered in Ventura, he works with clients in all ten Ventura County cities – Camarillo, Fillmore, Moorpark, Ojai, Oxnard, Port Hueneme, Santa Paula, Simi Valley, Thousand Oaks, and Ventura proper. Though unable to take every case that comes across his desk, the clients he does accept can count on receiving hard-hitting, innovative, and effective defense. When the cards are down, you need an attorney like Jay Leiderman on your side.
Overview of Asset Forfeiture Law in California
- What is Asset Forfeiture?
- Examples of Property Subject to Asset Forfeiture
- Do I Need to Be Convicted Before My Property is Forfeited?
- Police Procedures for Asset Forfeiture
- Asset Forfeiture for Organized Crime
- Additional Resources
What is Asset Forfeiture?
Asset forfeiture is typically a civil proceeding undertaken in conjunction with a criminal case but is not itself a type of criminal punishment like jail or probation. Most forfeiture proceedings are civil suits “in rem”, meaning against the property, so that the property itself is treated as the defendant. This is how the government can take your property without the normal due process rights that protect defendants in suits “in personam”, or against the person. The property is effectively considered to have done something wrong itself, whether or not the owner is charged or convicted with anything.
Though asset forfeiture is usually done in civil rather than criminal court, California criminal laws do still govern when and how property can be seized. Almost all asset forfeiture in California originates either from California’s drug laws or its laws against organized crime. Below, you can learn more about what property is subject to forfeiture and the required procedures for different kinds of forfeiture proceedings.
Examples of Property Subject to Asset Forfeiture
Most asset forfeiture happens under California’s drug laws or its laws against organized crime. Chapter 8 of California’s Uniform Controlled Substances Act outlines a detailed, intricate system for the seizure and forfeiture of property in a drug case. Seizures made under these laws are by far the most common type of asset forfeiture proceeding in California.
Almost any kind of property can be subject to forfeiture, including:
- Illegal drugs themselves, or their precursors
- Equipment used for drug delivery or manufacturing, such as lab equipment or scales
- Property interest in any vehicle used for possession, manufacture, or sale of drugs
- Land or buildings used for production, sale, storage, or use of illegal drugs
- Money or other financial instruments used or intended to be used to purchase drugs, or money gained through drug sales
California law provides only a few narrow exceptions to this list. Importantly, police cannot take your home if it is used as a family residence, and if a piece of real estate is co-owned, police cannot seize it if one or more parties did not know about the illegal activity that was occurring there.
Do I Need to Be Convicted Before My Property is Forfeited?
As asset forfeiture laws go, California’s guidelines are relatively favorable to defendants. In most cases, the defendant must be convicted of an underlying crime before permanently losing their property. Unfortunately, there are several exceptions to this. Additionally, the government can still take your property (the “seizure”) and wait to sell it (the actual “forfeiture”) until after you are ultimately convicted.
Under California’s drug laws, the government must secure a conviction before selling any of the following types of property:
- Vehicles including boats and planes
- Money under $40,000
- Real estate (buildings or land)
Money or financial instruments worth more than $40,000 can be forfeited without a conviction if police can connect it to a crime in a court hearing by “clear and convincing evidence”.
Police Procedures for Asset Forfeiture
It is important to remember the distinction between seizure – the initial taking – and forfeiture – the permanent transfer of ownership rights to the government. If you are arrested, law enforcement can seize assets right away but will have to follow certain procedures before they can actually sell it. Under California’s drug laws, there are essentially three kinds of forfeiture procedures. In order of least to most steps that the police are required to follow, they are “summary forfeiture”, “administrative forfeiture”, and “judicial forfeiture”.
Many illegal drugs are subject to “summary forfeiture”, which means they can be permanently taken immediately without a hearing. Medical marijuana that is possessed legally must be returned, however. In fact, we once forced the police to return 7 pounds of marijuana that had been seized.
Administrative forfeiture applies to personal property (everything except real estate) worth $25,000 or less. Police are required to give public notice in a newspaper and direct notice to anyone with an ownership interest in the property. The notice must contain:
- A description of the property
- The appraised value
- The date and location of seizure
- The legal grounds for the seizure (what law has allegedly been broken)
- Deadlines and instructions for contesting the seizure
After receiving notice, you have 30 days to file a Claim Opposing Forfeiture, available here. If no claim contesting the forfeiture is filed by the deadline, a “declaration of forfeiture” will be issued and the police can then sell the property and keep the proceeds. If a claim is filed on time, a process called “judicial forfeiture” is triggered and a court hearing will be required to forfeit the property.
Judicial forfeiture is required when a forfeiture is contested by filing a claim opposing it, or if the property is worth more than $25,000. The notice requirements and deadlines for this process are the same as for administrative forfeiture. A civil trial must then take place before the property is forfeited.
At trial, the prosecutor must prove that the property was used to commit a crime or was purchased with money gained illegally, and that the owners of the property knew that the criminal activity was happening and allowed it to occur. If you find yourself in this situation, it is critical to consult with an experienced attorney to help make sure you don’t lose your property.
Asset Forfeiture for Organized Crime
Besides drug laws, the other most common avenue for property to be forfeited is through the California Control of Profits of Organized Crime Act., found in Chapter 9, Section 186 of the Penal Code. A conviction is required for a forfeiture under these laws.
Prosecutors can seize the proceeds (primarily money, but also anything else of value) from organized crime, as well as “any property interest acquired through a pattern of criminal profiteering activity”. A “pattern” means two or more connected criminal acts that are similar, and the crimes must be done for profit. Many kinds of crimes qualify, including receiving stolen property, bribery, extortion, fraud, human trafficking, money laundering, and pimping.
The procedures are similar to those for drug laws and include notice and a 30-day period to contest. If contested, it will be up to a jury to decide whether the property should be forfeited. A competent attorney can assist you in developing the best strategy to get your property back.
“Above the Law: An Investigation of Civil Asset Forfeiture in California”, Drug Policy Alliance – An article detailing abuses of civil asset forfeiture in California. It includes a breakdown of different police departments and the revenue they have received through “equitable sharing” with federal asset forfeiture programs. The article also provides statistics showing that asset forfeiture has a disproportionate impact on low-income people and people of color.
2018 Asset Forfeiture Annual Report, State of California Department of Justice – This report gives information about all asset forfeiture in the state for the calendar year. Statistics about the value of assets forfeited can be found here. Information about where the proceeds of asset sales went is also included.
Asset Forfeiture Lawyer in Ventura, CA
Having your assets taken by the government can be devastating to your family’s livelihood, but you needn’t go through this frustrating process alone. Jay Leiderman Law can help stop your property from being sold and the money kept by the police. We can also assist with any underlying criminal charges you may be facing.
Jay Leiderman is a board-certified specialist in Criminal Law who has assisted people all over California in many high-profile cases. Call us at (805) 654-0200 today for a free initial consultation and together we can develop a strategy to protect your property from law enforcement interference and fight for your freedom in all criminal cases.