By Brock Benjamin
Founding Attorney
How can this happen? The government, particularly the federal government can and does seize cars, trucks, boats, planes, hotels, and money with surprising regularity. One Congressman described it as a ‘A Series Of Government Shakedowns’.
What Is Civil Asset Forfeiture?
The government has a vast array of tools at its disposal to investigate crimes or potential crimes. Some of these tools can have powerful impacts on people and they may not even be aware that such tools even exist. One such government tool that may surprise people is civil asset forfeiture. It is a rather broad power and can far too easily result in the government wrongfully taking someone’s property.
In civil asset forfeiture, law enforcement is empowered to seize property that they believe has been or will be in the future involved in a crime. Before forfeiture, the property will be seized by authorities. Seizure is the actual act of taking property or other assets. If the property is non-tangible, then law enforcement authorities will freeze the assets rendering them inaccessible. Forfeiture is the resulting loss of property ownership that can follow, but not always, seizure. They refer to funds seized as “proceeds” of crime. It is their responsibility and burden to prove, but it can be challenging, because as said before, “possession is 9/10s of the law”. And at that point in time, the government has possession of your property.
At its inception, asset forfeiture was designed and intended to take down large organized crime rings, such as mob activity. Despite this being the original intention of asset forfeiture, it has come to be broadly applied over the years. Asset forfeiture has become quite controversial. This is especially true considering law enforcement can be authorized to seize assets if someone else, other than the property owner, used it in the commission of the crime. Furthermore, law enforcement can seize assets upon suspicion of criminal activity. No arrests need to be made and no charges need to have been already filed for law enforcement to seize property. This can all too easily result in imposing unnecessary financial hardships on individuals as well as potentially violating their legal rights.
According to civil asset forfeiture law, the government is empowered to take a wide range of property, both intangible and tangible, including:
- Motorized vehicles such as cars, motorcycles, and boats
- Cash
- Financial assets and accounts
- Technological devices including computers and mobile phones
- Controlled substances and drug paraphernalia
- Real estate
- Weapons
It may be strange to consider this, but, under Federal and Texas law, the actual asset forfeiture proceedings is considered to have been brought against the property itself and not the owner of the property. It is a civil proceeding where it is as though the property is being charged with involvement in criminal activity. Despite the property being at the center of the issue, the burden rests solely on the shoulders of the property owner to prove that the property was improperly seized and that they have a right to retain the property.
The proper authorities are required to send you specific information via first-class mail to the address of record. This is usually the registration address for a vehicle, or the account holders information for a seized bank account. This information should include a description of the seized property as well as its location and contact information to learn more. To get back property that was seized in an asset forfeiture proceeding, the owner has to prove that the seized property was not involved in criminal activity. This must be done in the county or jurisdiction in which the property was seized. The law enforcement agency responsible for seizing the property must submit paperwork to the county requesting the district attorney file a lawsuit that will allow them to permanently retain the property. Should the property owner fail to do anything, the government will be permitted to keep the property. To put this plainly, if you want your property back, you will need to file the necessary paperwork as well as make the required court appearance.
Should your assets be forfeited, the government can use them in a variety of ways. It will likely be destroyed if it is found to be harmful to the public. The property may also be sold and the proceeds used to pay for expenses associated with the forfeiture. In the alternative, the proceeds may be used to pay the general expense of the state or the law enforcement agency responsible for the asset forfeiture.
- In TX, law enforcement does not necessarily need a warrant to seize your property.
- A police officer can take your property if they’re in the process of making an arrest, conducting a lawful search, or a search with your consent.
- However, if police take your property without a warrant, they must have probable cause.
- Probable cause means that before being searched, the officer has to have reasonable cause to believe that a crime is being committed or is about to be or has been committed.
Criminal Defense Attorney
While law enforcement may have surprisingly wide discretion in seizing property and bringing asset forfeiture proceedings, it is not without its limits. For instance, while law enforcement may not need a warrant to seize your property, if they do so without a warrant, they must have probable cause. If your property has been seized by law enforcement, do not hesitate to reach out to the Benjamin Law Firm. Any delay may result in the permanent loss of your property. Contact us today.
About the Author
Brock Benjamin is board-certified in Criminal Law by theTexas Board of Legal Specialization. His practice is primarily state and federal criminal law and appeals.Brock
Posted in: Forfeiture, White Collar Crimes
