Civil Forfeiture in Criminal Cases in Arizona
The Government can seize your property even if you did not commit a crime using the state and federal civil forfeiture statutes. Many times the government will take large amounts of cash just because a drug sniffing dog alerted to the money.
There are two types of forfeiture available to the government, civil and criminal. Civil forfeiture allows the government to confiscate property used in violation of the law, although no formal charges were ever brought. This confiscation results in the transfer of all right title and interest in the property. There are three types of property which are subject to forfeiture; contraband, proceeds from illegal activity, and tools or instrumentalities used in the commission of a crime. Civil forfeiture actions are legal actions against the property and not against the person or violator in possession of the property. In order to start a civil forfeiture, the government need only establish probable cause that the property was used in the commission of a crime. With that said, if they begin a civil forfeiture action against you, you only have a limited time with which to contest probable cause. If you miss this deadline you lose your right to contest probable cause. The government may seize the property by executing a warrant, and no criminal charge or conviction is required for the government to seize the property. There are over 200 federal forfeiture laws for non-drug related crimes in addition to the drug related crimes.
There are two types of proceedings that the government may employ in a civil forfeiture action, administrative forfeiture and judicial forfeiture. An administrative proceeding is conducted by the government agency which seized the property. However, administrative proceedings cannot be employed by the government when the action is contested by the owner of the property. A person can contest the confiscation by filing a claim. When filing a claim, it is recommended that the owner employ the services of an attorney for the simple fact that there are strict deadlines and you must sign the claim under penalty of purgery. During these judicial proceedings the government need only show by a preponderance of the evidence that the property was used in illegal activity. This standard is lower than the criminal standard of beyond a reasonable doubt. The property owner is provided a few statutory defenses, however these defense have been interpreted very narrowly by the courts. Often, courts will determine an owners knowledge of criminal activity using an objective standard, not the owner’s actual knowledge. Attorney’s representing clients who have had property confiscated may attack the governments action by arguing, in addition to the statutory defenses, that no crime ever occurred, probable cause is lacking, or that the connection between the crime and the property is too attenuated for the government to demonstrate that it was an instrumentality or proceeds of criminal activity.
Additionally, the Supreme Court has extended all of the rights of the First Amendment free speech for expressive materials, Fourth Amendment protection against unreasonable search and seizure, the Fifth Amendment due process right, and the Eighth Amendment protection against excessive fines to civil forfeiture actions. Lastly, these Constitutional limitations have been applied to the states through the Fourteenth Amendment.
It is estimated that over $7 billion has been forfeited to the federal government since 1985. Police in Houston stopped a woman at the airport because a police dog scratched at her luggage. No drugs were found, however roughly $39,000 in cash was found. In Detroit, a grocery store was raided and officers confiscated all the cash because dogs reacted to some of the cash. This sort of action by police is unwarranted due to a new study by Dr. Zuo of the University of Mass, indicating that 90% of all cash is contaminated by cocaine. Attorney representation will greatly aid in a persons ability to recover such funds. But, in the event that an attorney is successful in retrieving the property, the government need only to return the property and is not liable for damages caused by its seizure. In cases in Arizona if you challenge that forfeiture and lose in court you may have to pay the governments attorney fees and costs.
ABOUT THE AUTHOR: Dwane M. Cates
Dwane M. Cates is the founder and managing partner of Dwane Cates Law Group, PLLC located in Phoenix, Arizona. This firm handles criminal and forfeiture cases throughout the state of Arizona in both state and federal courts.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.