Criminal Forfeiture & Civil Forfeiture
Civil asset forfeiture can be a complex and challenging process. Civil asset forfeiture or civil seizure is a practice where the police can take away property from citizens who they believe may have committed a crime. Sometimes, the people whose property is taken are accused of a crime, but other times, they are not. The property is just taken away from them, leaving owners of seized property in a difficult position.
At The Litwak Law Group, we understand the intricacies of criminal and civil forfeiture in Arizona. As authorities in this field, we are committed to protecting our clients’ rights and guiding them through the forfeiture process. If you are facing the potential loss of your assets due to criminal or civil forfeiture, contact The Litwak Law Group today for skilled legal representation and effective defense strategies.
Understanding Forfeiture in Arizona
Forfeiture is a legal process by which the government seizes property believed to be involved in or derived from criminal activity. The government has the authority to seize various types of property that are believed to be connected to criminal activity. This can include cash, vehicles, real estate, bank accounts, and other assets. In some cases, property can be seized even without a formal arrest or charges filed.
In Arizona, there are two primary forms of forfeiture: criminal forfeiture and civil forfeiture. Each has its own unique characteristics and procedures
Criminal forfeiture occurs as a part of a criminal case, where the government seeks to seize property directly related to the offense. It requires a conviction or a guilty plea by the individual accused of the underlying criminal activity. The government must demonstrate a direct connection between the property and the criminal offense.
Civil forfeiture is a legal action taken against the property itself, rather than against an individual. It does not require a criminal conviction, and the burden of proof is generally lower. The government must establish that the property is connected to criminal activity by a preponderance of the evidence, often placing the burden on the property owner to prove their innocence.
How Does This Relate to Search and Seizure?
Civil asset forfeiture is closely related to search and seizure laws, as law enforcement may seize property during an investigation or under a search warrant.
Contesting Civil Forfeiture in Arizona
Arizona has specific laws governing forfeiture proceedings, outlining the rights and procedures for property owners. Contesting this action requires a timely and thorough response, including filing a claim, asserting valid defenses, and presenting evidence to support your case.
In Arizona, if someone’s property is taken by the government, they can try to claim that they are innocent and not involved in any criminal activity. This is called the innocent owner defense. However, in Arizona, there is a rule that if the defense is not accepted, the person has to pay for their own lawyer and also the government’s lawyer. This can be very expensive and have serious consequences. Because of this, many people are not able to or don’t want to try to get their property back. They have to let the government keep what belongs to them.
In cases such as this, it is essential to work with experienced attorneys who understand Arizona forfeiture laws and can effectively advocate for your rights.
The Problem with Arizona Forfeiture: Conflict of Interest
When authorities take away property from citizens, they can sell it and make money from the proceeds. Normally, this money goes into the state treasury or other supervised funds. This might seem like a conflict of interest since the government benefits from taking people’s property. However, in Arizona, the law enforcement agencies that seize the property keep the profits from the sales. 100% of forfeiture proceeds go to law enforcement. This money is used for things like retirement funds, overtime, salaries, and medical expenses. This creates a serious conflict of interest because the very same people who have the power to take and sell the property are the ones who get to enjoy the financial rewards. This can be troubling, especially when police budgets are often limited.
Can You Dispute a Forfeiture of Property?
Yes, property owners have the right to challenge the forfeiture of their assets. The legal process for disputing a this can be complex, and it is crucial to have skilled legal representation to navigate the intricacies of forfeiture laws.
Does the State need to tell you if they’ve seized your property?
A.R.S 13-4306 has to make a reasonable effort to provide a notice of the seizure of property to “all persons known to have an interest in the seized property.” The same statute previously mentioned also requires that the State send a written request for forfeiture, within 20 days, if there had been a seizure of property. This is an important section of the statute because it details the circumstances of the seizure, the estimated value of the property, and a summary of the facts.
The State has 60 days to initiate forfeiture proceedings
The State cannot hold your property indefinitely and without cause. A.R.S 13-4308 defines that should the state neglect to commence forfeiture proceedings against the seized property within sixty days of its seizure, the owner may request the release of the property from seizure. However, this release will be subject to further proceedings, which must be initiated within seven years from the date of the actual discovery of the last act that led to the taking of property. In other words:
“When the state does not act in a timely manner in filing a complaint for forfeiture and a claimant makes a request that the property be released, a trial court is obligated by the statute on forfeiture proceedings to release the property from its seizure for forfeiture.”
Does the Exclusionary Rule Apply in Civil Forfeiture Cases?
Yes, the Exclusionary Rule applies in Civil Forfeiture cases, however this can be challenged if there was evidence obtained due to a violation of your Fourth Amendment rights. The Exclusionary Rule simply means that evidence that is obtained unconstitutionally, for example searching a phone without a warrant, cannot be used as evidence against you in court.
Arizona courts have not directly addressed whether the exclusionary rule applies to civil seizure cases, however, the Supreme Court has unequivocally stated that the exclusionary rule does apply in civil forfeiture proceedings. In terms of seized property, the exclusionary rule applies to any “fruits” of a constitutional violation (per United States v. Crews). Thus, the government must demonstrate reasonable grounds for holding property that might have gotten seized due to a constitutional violation.
The Exclusionary Rule and taking property
The purpose of the exclusionary rule is to deter future police misconduct and to preserve the integrity of the courts. Both of these goals are advanced in civil proceedings because law enforcement agencies depend in part on the proceeds of seizure actions. Therefore, the government has a strong financial incentive to prevail in civil forfeiture actions, and applying the exclusionary rule would be especially effective in deterring law enforcement agents from continuing to engage in illegal activities.
Applying it in civil forfeiture actions would also help “protect judicial integrity by ensuring that the courts do not serve as a conduit through which the government fills its coffers at the expense of those whose constitutional rights its agents violated.”
Additionally, the societal cost associated with the exclusion of evidence in criminal cases (potentially setting a criminal free) do not apply in the civil forfeiture setting.
What happens if a court does not recognize the exclusionary rule in a forfeiture proceeding?
Even if the court chooses not to recognize the exclusionary rule in a forfeiture proceeding, it must make a determination of probable cause before the property can be seized.
What is a civil in rem forfeiture?
‘In rem’ means against a thing in latin. In a civil in rem forfeiture proceeding, the state bears the initial responsibility of proving “probable cause for forfeiture.” The government must meet this burden with proof independent of tainted and suppressed evidence.
Several defenses can be employed to challenge a forfeiture, including:
- Lack of Probable Cause: Challenging the government’s evidence to establish a lack of probable cause for the seizure.
- Innocent Owner Defense: Demonstrating that the property owner had no knowledge of the criminal activity or that the property was not involved in any wrongdoing.
- Procedural Errors: Identifying violations of due process or other procedural errors made by law enforcement or the government during the process.
If you are facing the threat of criminal or civil forfeiture in Arizona, it is crucial to act swiftly and secure experienced legal representation to protect your rights and assets. The Litwak Law Group is here to guide you through the complex forfeiture process, assert your defenses, and fight to preserve your property. Contact us today for a confidential consultation, and let us provide you with the strategic advocacy and unwavering support you need. Your assets deserve protection, and we are here to safeguard your interests.