NEW CALIFORNIA LAW PULLS IN THE REINS ON LAW ENFORCEMENT’S SEIZING OF PROPERTY
You have probably heard of civil asset forfeiture but did you know that under this procedure law enforcement can confiscate property—be it money, a house, a vehicle, or any other asset—without any due process to the owner of the property. The property can simply be seized under civil asset forfeiture laws on the “suspicion” that the asset was gained by or used for a criminal enterprise.
While the owner of the asset can petition for the return of asset, the petition must be filed within a very short period of time and the process is daunting. In the end, the government can refuse to return the asset on the continuing suspicion that the asset is connected with criminal activity. And guess what: Even if the owner of the asset is never convicted of any crime as it relates to the suspected criminal activity for which the asset was seized, the asset is not returned to the owner.
Civil asset forfeitures have been executed on a cash and carry shop owners who deposited large sums of cash in the bank., a driver who had thousands of dollars in cash in his car who was on his way to make a purchase of a used vehicle, and on the home of grandparents who, unbeknownst to them, police suspected their grandson was dealing drugs out of their house. Incidents of egregious confiscations of assets by law enforcement seem to be in the news all the time. In the examples I just gave you, none of the asset owners had committed or were ever charge with any crime, yet they lost their assets because a law enforcement officer “suspected” the asset was connected with a crime.
Civil asset forfeiture got its start in 1980s as a law enforcement method for targeting criminal enterprises. By seizing the organization’s assets, civil asset forfeiture was intended to choke off the organization’s resources. But civil asset forfeiture has morphed into what many consider just a way for law enforcement to add to the seizing agency’s coffers. Many critics consider civil asset forfeiture to be outright theft and there is an emerging consensus that the laws must be reformed.
Last month Governor Jerry Brown signed a bill that seeks to rein in state law enforcement civil asset forfeiture. The new law, which will take effect on January 1, 2017, will require a conviction before any real or personal property (such as a home or vehicle) can be seized or if the seizure is cash, any amount under $40,000, may be forfeited to the state. In other words, state law enforcement might seize the property but if there is no conviction, the state must return the property to the owner.
Furthermore, there are new restrictions on the state’s receipt of any civil asset forfeiture seized by federal law enforcement. California law enforcement has found a way around California’s more restrictive civil asset forfeiture laws (first reformed in 1994) by enlisting federal law enforcement to pursue the forfeitures and then taking a portion of the proceeds in what is known as “equitable sharing.” The new law addresses this loophole. California law enforcement will be prohibited from receiving any share of federal forfeitures conducted under the same rules that prohibit state forfeitures.
While these new laws protect the due process rights of California residents, if you are convicted of the crime for which your asset had been seized, that asset will be forfeited to the state. If your asset has been seized under a criminal accusation, you should consult with an experience criminal defense attorney right away. With almost 25 years experience in criminal defense, William Weinberg is available to consult with you regarding any criminal matter. You can reach him at 949-474-8008 or at firstname.lastname@example.org.