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Asset Forfeiture - When can the government keep your property?

Our clients often ask us about how they can recover their own money or personal property that has been taken from them by law enforcement during an investigation or arrest. The process for doing so is both time-sensitive and rather complicated, and failing to act promptly and properly will almost certainly result in a permanent loss of the person's property. In 2010 alone, forfeiture proceedings involving assets valued in excess of 24 million dollars were commenced in the state of California.

[California DOJ Asset Forfeiture annual report, 2010, at p. 2]

A common example of a property-seizure situation is when a person is arrested on suspicion of selling drugs. Law enforcement officers find several hundred dollars on the individual's person, which they take. They then arrest the individual and book him at jail.

In all likelihood, whether or not a person can get their money or property back will depend on whether the district attorney/deputy attorney (DA) assigned to the case believes that the money was used - or intended to be used - in connection with a criminal activity, like selling drugs. If the DA does believe this, the person from whom the property was taken will be served personally and/or via public notice (publication) with a written notice that the DA intends to "forfeit" the property. Problems arise when the true owner of the property is either unknown or his location is unknown. This occurs in situations where property is seized from an apartment shared by several occupants, and law enforcement allege the property is used by the arrestee, when in fact it is used and owned by his law-abiding co-tenant who is out of town.

The DA cannot lawfully ask the court to declare a person's money forfeited to the state until the property's apparent owner has been served with that notice. Often the written notice will be "served" in such a way that a person is not actually aware what they have been served with. They might be handed the notice along with a number of other documents upon their release from custody and never be told to carefully examine the notice itself. If the person's identity and/or location are not known, the DA might give them notice by stating the intent to forfeit in a written notice buried in a newspaper. The odds that the true owner will see that notice is, of course, astronomically low.

Once a person has been served with this notice, they have 30 days to file a verified claim opposing the forfeiture of the property. If the person was personally served with the notice, by law the notice must include, as an attachment, a copy of the "verified claim" form. The notice must also identify which court the verified claim must be filed. (If the person was initially arrested and booked at the Kern County Jail in Bakersfield, the court will most likely be 1415 Truxtun Ave. in Bakersfield.)

If the person served does not timely file the claim form, the DA is entitled, by law, to ask the court to declare the subject property forfeited to the state. In almost every case where the DA requests this, the court will order the property forfeited.

If the person files the claim form before his or her deadline to do so has passed, the court will be on notice that the DA's proposed forfeiture is contested and the court will schedule a hearing at which both sides will submit evidence before a judge or jury that support their respective arguments. If the judge or jury finds the property owner's evidence more compelling than that of the DA, the person's property will not be forfeited.

It is advisable to hire an attorney to advocate your case throughout these proceedings - and especially at the hearing. There are numerous other issues involved in forfeiture proceedings, and some that are not thoroughly discussed in this brief post may be particularly relevant to your case. Feel free to contact us if you have any questions about a specific matter.

NOTE: In cases where the DA intends to use an individual's personal property as evidence at trial (and the property is relevant evidence), the owner will not be able to fully recover the property until at least the conclusion of trial.