What You Should Know About Asset Forfeiture

Did you know that you can be stopped driving on the highway for a minor traffic offense, and have your cash or other assets legally taken away from you by the police? The federal, state, or local authorities can seize an asset if they suspect it is being used, or will be used, in criminal activity. This power also extends to taking your home or other properties, money in bank accounts, airplanes, vehicles, and guns.  This is called "asset forfeiture" and has been legal since the "drug war" became a priority in the 1980s.

The Problems with Asset Forfeiture

Proponents of asset forfeiture say that this process has been instrumental in slowing down the drug trade and is a valuable tool for law enforcement. Since the money obtained can be used for public purposes, it incentivizes police to work harder to stop crimes involving illegal drug activities. Critics say that this practice is a type of illegal search and seizure prohibited by the Constitution.

There have been cases reported in the media about apparently innocent people losing their money and other assets unfairly when approached for minor offenses. All the police officer has to do is report he or she suspects your money (or property) will be used to commit a crime.

This is an important point: not only can your asset be seized before you have been proven guilty of a crime, this can happen if the officials just suspect you are thinking about or planning to commit a crime with it. You can lose your stuff, and still not ever be charged or convicted of any crime.

Who Can Be Targeted

In some areas, it has been apparent that minorities have been unfairly targeted, but actually this can happen to anyone. People who have tried to fight this have been threatened with losing their children, or being charged with serious felonies, even if the evidence is scant or non-existent.

Several cases have involved persons who were traveling with large sums of money and had legitimate evidence to prove where they got the money, and what they planned to do with it.  

In one case, a man driving through Putnam County, Indiana, had $17,500 taken from him that he had with him to purchase a car for his aunt, even though he could prove the money came from a legal settlement.  In another, a pair of professional gamblers lost over $100,000 when stopped by Iowa state troopers. (The troopers did find a small amount of marijuana and a piece of drug paraphernalia in the car, but both men were certified to use it for medical purposes.)

In Philadelphia, Pennsylvania, a couple had their home seized when their adult son, who lived with them, sold $40 worth of marijuana to an undercover policeman. This happened even before the man went to trial. In Massachusetts, a motel was seized from a family because drug activity happened in some of the rooms there, although no one in the family was ever charged with a crime.

How to Fight Asset Forfeiture

A seizure can be legally justified because the government entity will usually start a civil case against the asset, and not actually against the possessor of the asset. You should receive a summons when an asset is being taken from the court. You may receive it back if you can:

  • Present compelling evidence that you did not know of or consent to any illegal use of your asset.

  • Show that a delay in bringing your case to court was excessive and unjustified.

  • Show that the forfeiture violated a state law.

  • Show that some evidence against the asset was illegally obtained through an illegal search and seizure without just cause, and this evidence is necessary to prove the case.

  • Show that amount of property taken was disproportionate to the offense that was committed.

You will need to hire an attorney (at Jackson, Mays & Associates LLC or another firm) familiar with asset forfeiture laws to fight this successfully in court. You might find it encouraging that some people have gotten some or all of their property back. In the case of the gamblers in Idaho, they hired a lawyer and got $90,000 back. The Philadelphia couple received help from the University of Pennsylvania Law School and were able to keep their house. The Massachusetts family fought the seizure of their motel and won.

It is also interesting that a group of plaintiffs working with the ACLU also won a class action case against the town of Tenaha, Texas, for unfairly targeting minorities with unjust asset forfeiture.