You might be wondering what steps you should take to get your property back once it is seized. Here are a few pointers about asset forfeiture and how you should proceed if your property gets involved.
If your property was seized as evidence in a crime, you should get it back unless one of the following applies:
- Your property is considered contraband (drugs, illegal weapons, or other illicit materials).
- It was forfeited to the state.
If the property is contraband, you will not be able to get it back. However, if it is not considered contraband and it was seized in connection to the crime, then you will have to win a forfeiture case in order to get it back.
If the government says that your property is going to be forfeited, immediately shop around for a forfeiture lawyer. Be selective – ask the lawyer how many forfeiture cases they have defended before proceeding. Forfeiture cases are different from ordinary civil procedures, and should be handled by those who have successfully defended them before. Just like any case, a misstep by an inexperienced lawyer can ruin your chances of recovering your property.
Possible Defenses to Civil Asset Forfeiture
The process for forfeiture depends on whether the seizure is local, state, or federal. For federal cases, you should receive a notice of forfeiture by mail. The government is supposed to start the forfeiture process within a “reasonable time,” and if it doesn’t do so, you can argue that there was an unreasonable delay which harmed your ability to put on a defense, as long as you can show that the delay is excessive and unjustified.
Other defenses to forfeiture include:
- Innocent owner defense
- In some states, if you can prove that you didn’t know of or consent to the illegal use of your property, you can win the forfeiture case.
- Illegal search & seizure
- Just like in criminal cases, you can move to suppress evidence that was illegally seized.
- Statutory defenses
- Each forfeiture statute contains additional defenses which might apply to you. This is where a lawyer with solid knowledge of the laws in your state comes in handy.
- In Austin v. United States, the U.S. Supreme Court decided that forfeitures of property that are disproportionate to the offense committed are unconstitutional.
Under CAFRA (Civil Asset Forfeiture Reform Act), you are eligible for a court-appointed attorney in two circumstances:
- Your primary residence is being forfeited (although you must specifically ask for counsel).
- You have a pending federal criminal case in which you are already represented by a court-appointed attorney. This is not required, so it is up to the judge’s discretion to do so.
Forfeiture cases can take anywhere from months to years, so it’s important to know what’s in store and to plan for a possibly long haul. Depending on the circumstances of your case, you might be able to take advantage of other resources, such as pro-bono representation from certain organizations.