Imagine you are driving to another state to purchase a boat from a seller you met on the Internet. About 300 miles and two states away from home, you are pulled over for speeding, and you disclose to the police that you are traveling with $6,000 in cash to purchase the boat. The police threaten to charge you with a crime; take you to the station; and force you to forfeit the cash. Once everything is settled, and the police determine you are not doing anything illegal, you are able to get back in your car and leave - except you can't take your money with you.
What Is Civil Forfeiture?
This story is rare, but it happens much more often than most people would think. The police are able to do this under a legal theory called civil forfeiture. Basically, this means that property, as opposed to the person who owns the property, is "charged" with the crime. This allows the government to take property from people without actually charging any person with a crime, let alone convicting someone of one.
In Texas, the civil forfeiture laws are being challenged by 10 people who had their property taken by the police. Basically, the property was deemed "guilty before proven innocent," which is the opposite of how most of us believe our justice system should operate. The 10 people are challenging the law as unconstitutional because of the lack of due process during the taking of the property.
Generally, in order for a forfeiture to be valid, the money, property or other item must have been obtained illegally or through an illegal activity. Also, if property is used in an illegal activity it may be subject to forfeiture. For example, using a vehicle while committing a felony DWI may subject the vehicle to forfeiture. Purchasing a home with drug sale proceeds may subject the home to forfeiture. In most cases the state is required to give notice of the forfeiture, and the property owner will have to decide whether to fight the taking of the property.
Institute for Justice Study
The Institute for Justice recently conducted a thorough investigation into civil forfeiture, its use by law enforcement and its effect on citizens. The findings are startling.
For example, the U.S. Department of Justice maintains an Assets Forfeiture Fund to hold monies confiscated by law enforcement. In 2008 the fund held more than $1 billion in net assets. When the federal government confiscates someone's property, that person is never charged with a crime in eight out of 10 cases.
Recent Case
In a recent Texas forfeiture case the law firm of Rush & Gransee, L.C., of San Antonio was hired to fight for the return of over $7000 taken from a client who was traveling through a county in Texas. The client was stopped for a minor traffic violation and a subsequent search uncovered the funds that the client was using for legitimate business purposes. The deputy sheriff took the money and gave the unfortunate traveler a crude receipt without identifying the sheriff's department or the badge number of the deputy.
After numerous calls and inquiries the law firm was able to locate the sheriff's department and deputy. It was ironic that the deputy asked for the client's address when the firm contacted him by phone. It would appear that a sheriff's department would need that information if it intended to ultimately charge a person with a potential crime. Also, what is even more interesting is that the receipt is for over $7000 and only slightly more than $6000 was deposited into the sheriff's trust account. The Sheriff's Department has returned the amount deposited into its trust account and the firm is still fighting over the remainder. The client was never charged with a crime.
Protect Your Rights
If your property has been confiscated by the police, contact an attorney. An experienced attorney will explain your legal rights and outline your options.
