Did you receive a Notice of Seizure? How to fight back against forfeitures with the help of a lawyer
Have you received a notice from the government that they intend to seize your property? During an investigation, after an arrest, or following a conviction, the government may seize your house, car, bank account, or other property. This process is called forfeiture in our legal system. This article will walk you through what forfeiture means, what to do if you get notice of seizure or forfeiture, and how a lawyer can help you fight against forfeiture and the loss of your property.
What is a forfeiture?
Under several different federal and state laws, the government can seize property—like a house, car, or bank account—if someone used it to commit an offense or if the person bought the property from the proceeds of the crime. What does that mean? If you use a car to transport drugs, or if you use a house as a drug stash house, then the government can take that property away from you because you used it to commit an offense (in other words, it was the “instrumentality of a crime”). Similarly, if you are charged with racketeering or money laundering, the government may look for financial assets linked to you that might be the earnings of that offense (also known as the “proceeds” of an offense). In fact, in some instances, the government can seize “replacement” property if they cannot find the original money gained from a criminal offense.
There are many different laws and regulations that give the government the power to seize property and financial assets. On a DEA “Notice of Seizure of Property and Initiation of Administrative Forfeiture Proceedings,” the DEA points to the following authorities as the basis for their power: 21 U.S.C. § 881; 19 U.S.C. §§ 1602-1619; 18 U.S.C. § 983; and 28 C.F.R. Parts 8 and 9. These are federal laws and regulations that generally give federal agencies like the DEA, FBI, HSI, CBP, and ATF the power to seize property. These laws are complex and go into minute detail. For example, 21 U.S.C. § 881 lists all the types of property that might be seized: controlled substances; the raw materials, products, and equipment used in manufacturing, delivering, importing or exporting controlled substances or chemicals; all property used as a container for the items above; all vehicles, aircraft, or vessels used to transport and traffic controlled substances, all “books, records, and research, including formulas, microfilm, tapes, and data” used during a controlled substance offenses; all money, negotiable instruments, securities, or other assets; all real property; drug paraphernalia; and firearms.
The State of Arizona also has its own laws stating when and how state law enforcement can seize property or money. Generally, A.R.S. § 13-4301 through § 13-4315 apply to forfeitures at the state level. These laws were recently changed to make it harder for the State of Arizona to take away property without giving you a day in court. In the next section below, learn why those changes are important, and why it is important to pay attention to the procedures laid out in these laws.
Here are the takeaways:
- Forfeiture is a way for the government to take property used in a crime or earned because of a crime.
- Federal forfeiture involves a slew of laws and regulations that can be exceedingly complex.
- Arizona forfeiture laws have been recently amended to level the playing field.
What to do if you receive a notice of seizure or forfeiture:
The most important thing to remember when the government first seizes your property is that you must act quickly and follow the rules. Forfeiture laws can be complicated and filled with deadlines. In general, these laws and regulations are designed to make it difficult for people to ask for their property back. Arizona’s old forfeiture laws and their deadlines were particularly notorious for being complicated, strict, and filled with pitfalls or traps. If you miss a deadline for mailing even something simple back to the government, you may have completely lost your chance to ask for your property back.
Because of the complexity of these laws and the strict timelines, it is important to quickly hire an attorney to defend your rights. It is your responsibility to hire an attorney in this context—unlike a criminal case, you do not have a right to a court-appointed attorney if you are fighting a forfeiture. In addition, hiring an attorney quickly to help fight against a forfeiture will increase the chances that they can satisfy statutory deadlines and effectively negotiate on your behalf. For this reason, if you are facing a forfeiture, we highly recommend that you contact our lawyers as soon as possible.
Again, here are some of the benefits of hiring a forfeiture attorney:
- Expertise: Attorneys have the knowledge and experience to navigate the complex forfeiture laws and procedures.
- Representation: Attorneys can represent you in court and negotiate with the government on your behalf.
- Peace of mind: Having an attorney can give you peace of mind knowing that your rights are being protected.
How a lawyer can fight to get your property back:
There are many ways to fight against a forfeiture, but none of them are obvious at first glance. At Ralls & Wille, our experienced attorneys can help guide you through the process—educating you on what to expect and your chances of success—while defending your rights against the government. Most importantly, an experienced attorney will know the importance of meeting the deadlines imposed by the different forfeiture systems at the federal and state levels. From there, an attorney can help identify the best way of pursuing your goal: getting your property back.
A third-party owner or lienholder usually has the most powerful defense available. If property is owned by an innocent person but used by another to commit a crime, the innocent owner may have a valid claim to recover the property. To do so, the innocent owner must show that he or she did not know about the offense or that, after learning of the offense, tried to stop the unlawful use of the property. So, for example, imagine a husband and wife who jointly own a car: if the wife starts transporting precursor chemicals to manufacture drugs in the car and federal agents seize the car, the husband can still recover the vehicle if he can prove his innocent state of mind.
Like the innocent-owner defense, the person alleged to have committed an offense can also try to demonstrate their own innocence. In other words, that person can try to show that no offense occurred in the first place. These fights are similar to what criminal defense attorneys do on a day-to-day basis. A particularly powerful tool in either context is the claim that law enforcement obtained its evidence—or the property in question—illegally in violation of the person’s rights under the Fourth Amendment to the U.S. Constitution.
In addition to legal defenses like those described above, a skilled attorney can engage in negotiations with the government’s agents or attorneys to recover property in exchange for a sum of money. The government may want to settle after weighing the risk of losing all together, the amount of time and money needed to fight the case, and other mitigating factors.
Lastly, remember that other legal avenues can be used to regain possession of the property—at least temporarily. Some federal forfeiture laws expressly allow law enforcement to temporarily return property to an individual if the loss of the property is causing substantial hardship. Substantial hardship includes missed work, homelessness, or other severe consequences. Similarly, there are occasionally ways of paying a bond for the value of the property in exchange for its return while the litigation proceeds. These considerations, even if only temporary, can give you relief if a forfeiture has left you in a precarious situation.
What should you do now?
If you have received a notice of seizure of property and initiation of administrative forfeiture proceedings, or any other form of notice about a seizure or forfeiture, we strongly encourage you to seek out the advice of an experienced attorney as soon as possible. The lawyers at Ralls & Wille have the experience and resources to guide you through this process, giving you peace of mind, while exploring all your legal defenses. Call our office now to speak directly with an attorney.
Don’t wait! Contact an attorney today to protect your rights.
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