At the risk of getting flamed, I have to speak out on this topic. As a former detective that dealt in asset forfeiture, the examples given don’t explain the vast majority of forfeiture and how it actually works.
There are only two ways that a police department can seize anything. It has to be either through “facilitation”, ie: the use of an automobile to commit a crime, or through “proceeds” which would be the “fruits” of criminal activity.
There is ALWYS an underlying offense. I can’t take money away from you just because you have it. I CAN seize money if a drug dog alerts on it, although this is tougher today because of the amount of drug-tainted money in circulation. Or, if as a result of our financial investigation you show an annual income of $25,000 and drive a brand new $200,000 dollar fully paid for automobile with no explanation of how you paid for it. And there still has to be an underlying offense.
This only gives me probable cause for the seizure. I still have to notify the “owner” via certified mail that the item was seized and I work with a prosecutor to present a case before a judge at a forfeiture hearing. The judge reviews the EVIDENCE of either facilitation or proceeds and determines if the state has met the threshold for forfeiture. The person who claims the property has the right to present his case and the judge makes a determination. It is not up to the officer to make the determination. It is a court hearing.
The burden is ALWAYS on the state to show either facilitation or proceeds. In many instances, a drug dealer will place the vehicle in the name of a third party to escape forfeiture. In those rare instances, the third party either fails to show up for a hearing or walks away from the car because he doesn’t want to become involved in the larger drug investigation.
Anyone who says they know of someone who had their property “stolen” through forfeiture laws doesn’t know the entire story. I’ve done way too many investigations to buy into this.
Wow - you personally worked the vast majority of forfeiture cases in the USA?
Sorry but that is not what is happening. Look at the Texas situation last year or before that. LE was literally extorting people to sign away any claim to money seized by threatening them and their children. A court finally slammed that one down hard.
The majority of these cases never result in criminal charges. And, as is pointed out, the government deliberately placed the burden of proof on the defendant. That wasn’t an accident. They also created a situation where the costs of defending oneself can easily exceed the value of the seized property even if successful. And make no mistake, this is not simply happening to people with a 100k in cash. As in this case, it happens to people with no more money than that of a used car purchase. In one case they stole bail money that a family had gathered up for a son.
Yes, most of these will be of criminals. But cops and the system have stopped caring if they harm innocent people with this activity. And as with SWAT, the expanded use of this activity guarantees innocent victims through sheer numbers.
Which is the American way?
1. A cop finds a wad of cash. In his mind, he is ‘certain’ it is from ill gotten gain. I marked certain, because cops are known for being ‘certain’ about a lot of things and are wrong. He then seizes it without being able to even claim a known crime happened. Just assumes one did. Then the suspect has to prove a negative event or loose the property.
2. A cop has to have enough evidence of a crime first, and be forced to make his case that it happened. That in order to make such a charge, he would clearly first need enough to make an arrest and charge the suspect.
One of these two is the American way, the other is the communist way. I think we all know which is which.