Driving home from work one evening, Dan is pulled over by a Lubbock Police officer. The officer approaches his driver’s side window and tells him that he was going 65 in a 55 mph zone. Dan acknowledges his mistake and hands the officer his driver’s license and insurance. A few minutes later the officer returns, but instead of handing him a ticket, he asks Dan some questions. Although Dan could decline to speak with the officer, he believes that he doesn’t have anything to hide. The officer then asks if he can search Dan’s car, to which he mistakenly agrees.
Upon searching the vehicle, the officer finds five ounces of marijuana hidden in a jar under the driver’s seat. Dan knows that marijuana is illegal in Texas, but he uses it to help alleviate his anxiety. The officer puts Dan under arrest for felony possession of marijuana and books him into the county jail.
The first thing that Dan does after bonding out is retrieve his vehicle. But when he gets to the wrecking yard, he is surprised to learn that his car has been seized by the police department. The District Attorney’s office subsequently serves Dan with a petition stating their intention to take his vehicle based on their belief that it has been involved in criminal activity.
What is Civil Asset Forfeiture?
Many people arrested for drug offenses share a similar story to Dan. Civil asset forfeiture is a common policing practice wherein law enforcement agencies can take and keep a person’s cash and property that they believe has been involved in criminal activity. In the above example, the officer assumed Dan’s vehicle was obtained by the proceeds of illegal drug activity or used in connection with drug activity.
Although civil asset forfeiture can apply to any crime, it is particularly common in drug cases where any major asset (cash, cars, houses) can be acquired using drug money, or used to commit a future drug crime.
How does Civil Asset Forfeiture Work?
Civil asset forfeiture proceedings actually charge the property itself, rather than the owner, with involvement in crime. The lawsuits are oddly named, and might look like The State of Texas v. one 2008 Honda Civic, or The State of Texas v. $7,800.
Because these proceedings are civil in nature, property owners have no right to court-appointed counsel. As such, many people fail to timely answer the lawsuit and a default judgment is rendered by the court. When this occurs, the State becomes the rightful owner to the property and the seizing agency can either sell or keep the property for their own benefit.
What Happens to the Seized Assets?
Generally, law enforcement agencies sell seized assets and use the proceeds to support the agency. Law enforcement can retain up to 90 percent of funds from forfeited assets. Statewide, over $100 million in assets are seized annually. That is over $90 million that Texas law enforcement officials just get by taking assets from suspects. Note the term suspects. Police can seize assets from people and not even charge them with a crime so long as they believe the property is connected to criminal activity.
Because assets seized in a civil forfeiture go directly into the wallets of law enforcement agencies, this creates a potential conflict of interest whereby there is a significant incentive to seize property whenever possible. Proponents of civil forfeiture laws argue that the practice is exploitative and should be ended.
How Do I Get My Property Back?
If you find that your property has been seized and is now the subject of a civil asset forfeiture, the most important thing to do is file an answer with the court. Burying your head in the sand and hoping it will go away will not do anything. In fact, this is what the government is hoping will happen. As previously mentioned, failing to file an answer will almost guarantee a default judgment—an easy win for the state.
Upon receipt of the petition, you must file an answer within twenty (20) days (including weekends). Once your answer is filed, the prosecuting attorney may serve you with written discovery requests. These are often in the form of interrogatories, questions designed to obtain more information about the subject property. You may also propound discovery requests on the government during this time.
In rare instances, these cases can go to trial. Whether the trier of fact is a judge or jury, a prosecutor must prove their case by a preponderance of evidence NOT beyond a reasonable doubt. This can be confusing since beyond a reasonable doubt is the standard that we apply in all criminal cases. But remember, asset forfeiture is civil in nature. The only thing at risk is the property itself, not your freedom. Thus, the prosecutor must only show that it is more likely than not the property is connected to or associated with criminal activity.
More often than not, you will be able to seek resolution of the forfeiture case with the prosecutor. If you have documentation showing source of funds or proof that the property is not involved in criminal activity, the more likely it is that the prosecutor will non-suit (dismiss) the civil case. Note that if you have both a civil forfeiture case and a criminal case, the outcome of one generally will not have a bearing on the other. For example, if your civil case is non-suited, that does not mean your criminal case will be dismissed as well. Despite arising out of the same transaction, these are two separate and distinct cases.
Navigating the world of civil asset forfeiture law can be immensely daunting. Although you are not entitled to a lawyer in these proceedings, it is always a good idea to have one on your side. If you have questions or concerns about any aspect of this area of the law, or need assistance in your own civil forfeiture case, contact me today.