Asset forfeiture occurs when the government claims someone has profited from criminal activity. The government will then attempt to seize the proceeds of that criminal conduct. However, law enforcement often seizes money and property well beyond what the law allows. Common scenarios include a person who was not involved in a crime yet has their property taken; or when there has been a minor crime, but there is substantial overreaching by the government in what they take from the person.
Below are answers to several of the questions I am often asked about government seizure and forfeiture.
1. May law enforcement simply take my assets if they think I committed a crime?
No, the asset (usually, cash, bank accounts, jewelry, real property, automobiles, etc…) must be seized through the judicial process. Arizona has laws that dictate specific procedures the government must follow to seize property. Generally, if the government can make a showing of probable cause that the assets were obtained as fruits of criminal activity, or “traceable” to the criminal activity, the courts will allow the seizure.
Then, the government has to prove in a civil, administrative or criminal proceeding that the asset was used to facilitate criminal activity (i.e. fraud or drug trafficking), or was derived from criminal activity, for it to be forfeited to the government.
2. How are assets seized?
Assets are seized by law enforcement incident to arrest, a search warrant, consent or with a seizure order.
3. What type of assets can be seized?
Contraband (i.e. illegal drugs and illegal weapons) is the most well known type of property seized by the government. Obviously, this type of property does not cause many disputes.
Beyond contraband, the government may take alleged proceeds from criminal activity such as vehicles, houses, funds in bank accounts, cash, or an entire business enterprise.
4. After my property is seized, what happens to it?
When an asset (such as cash, a home, or a vehicle) is seized by the government, it is stored in the same manner as evidence in a criminal case. Departmental reports are drafted indicating the identity of the property owner, an estimated value and a description of the asset. Moreover, any liens are also recorded.
5. What law enforcement agencies are involved in seizures and forfeiture proceedings?
State, Municipal and Federal law enforcement all regularly conduct seizure and forfeiture actions. Some of the agencies involved are the Arizona Attorney General’s Office, the Maricopa County Attorney’s Office, the Pinal County Attorneys’ Office, the Pima County Attorneys’ Office, the Coconino County Attorneys’ Office, The Yavapai County Attorneys’ Office, etc… Moreover, most federal agencies, such as the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS) also conduct these proceedings.
6. Does law enforcement have to prove I committed a crime prior to seizing my assets?
Surprisingly, the government need not obtain a criminal conviction prior to taking a person’s assets. Seizure and forfeiture proceedings are considered civil (non-criminal) matters. Thus, law enforcement need merely meet the civil standards to take property, and not the more stringent criminal standards. The procedures for taking property are specified in Arizona Revised Statutes, Section 13-4310.
7. Can you fight the forfeiture?
Yes. Arizona law permits a person whose property has been seized to contest the government seizure. Arizona law specifically provides that certain property is not subject to forfeiture. It is common that law enforcement fails to observe these statutory requirements when they take property. Thus, a person may be able to recover their property if the government did not observe these laws or follow the proper procedure.
In addition, many circumstances involve a property owner that has no relation to the alleged crime. This person may not have been present at the time of the alleged crime, nor even had any knowledge of it (i.e. loaning an automobile to someone who committed a crime.) The so-called “innocent” property owner has the legal right to contest the seizure of her property.
In sum, the mere fact that property has been seized by law enforcement does not mean that it was a lawful taking.
If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm online or by phone at (602) 494-3444.
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The Arizona Criminal Defense Lawyer Blog is published by Lawrence Koplow. Our criminal practice experience includes a wide variety of defense representation and cases; and is led by Lawrence Koplow, a former prosecutor with the Maricopa County Attorney's Office.
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