Asset forfeiture is one of the most powerful—and potentially unfair—weapons the government can use against people, regardless of whether they are guilty of a crime.
Asset forfeiture occurs when the government takes away someone's private property, without compensating them, because it suspects the property was used in committing a crime or was obtained through criminal activity. California's asset forfeiture laws allow cops and prosecutors to seize most types of property—including land, houses, boats, cars, money, etc.
In technical legal terms, an asset forfeiture proceeding is a lawsuit by the government against the property, not against a particular person.1 What this means in practice is that it doesn't matter whether the owner of the property is found guilty or has committed a crime at all—they can still lose their property to asset forfeiture.2
To illustrate the harshness of this rule: the United States Supreme Court has held that it is okay for the government to seize a car jointly owned by a husband and wife because the husband had sex with a prostitute in the car...even though the wife had no idea that he was using it for this purpose!3
In California, most asset forfeiture takes place in connection with drug offenses , under the California Uniform Controlled Substances Act, Health & Safety Code Section 11000 HS et seq.
Another major route to asset forfeiture in California is through the California Control of Profits of Organized Crime Act, Penal Code 186.1 PC et seq.
In this article, our criminal defense and California asset forfeiture attorneys4 explain asset forfeiture in California by addressing the following:
If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Police Misconduct and Civil Rights Violations; Penal Code 245(a)(1) PC Assault with a Deadly Weapon (ADW); Penal Code 597 PC California Animal Abuse and Cruelty Laws; California Internet Fraud Laws; Carrying a Concealed Weapon in a Vehicle or on your Person; Penal Code 597.5 PC California Dogfighting Laws; California Drug Crimes; Health & Safety Code Section 11379.6 HS California Laws re Manufacturing of Drugs and Narcotics; Health and Safety Code 11352 HS Selling or Transportation of a Controlled Substance; Health and Safety Code 11351 HS California's "Drug Possession for Sale" Law; Medical Marijuana and the Compassionate Use Act of 1996; California Criminal Jury Trials; Penal Code 186.22 PC California's Criminal Street Gang Sentencing Enhancement; Health Care Fraud Defense; Penal Code 530.5 PC California Identity Theft Laws; Bribery Law in California; Penal Code 311.3 & 311.11 PC California Child Pornography Defense Lawyers; Penal Code 518 PC California Extortion & Blackmail Laws; Penal Code 207, 208, 209, 209.5 PC California Kidnapping Laws; Penal Code 211 PC California Robbery Law; Penal Code 487 PC California "Grand Theft" Law; and Penal Code 496 PC Receiving Stolen Property.
In some ways, asset forfeiture looks like just another form of criminal penalty, like prison time or a criminal fine. But in fact it is very different.
For starters, you can lose your property to asset forfeiture even if you are innocent...or have not even been accused of a crime yourself!5
Also, in most cases asset forfeiture is technically not a criminal penalty. Instead, the law considers it a civil one.6
What this means in practice is that you have fewer rights and protections in an asset forfeiture proceeding than you do in a criminal case. For example, you do not have the right to a court-appointed attorney if your property is seized and you cannot afford an attorney on your own.7
Asset forfeiture in California is startlingly common. In 2010, California law enforcement initiated 3,344 asset forfeiture proceedings. The value of all the property involved added up to more than twenty-four million dollars ($24,000,000).8
According to the American Civil Liberties Union (the ACLU), asset forfeiture laws "create huge incentives for law enforcement officers to police for profit."9
This is because police departments get to keep a fraction of the proceeds of any property they seize. In California, sixty-five percent (65%) of asset forfeiture proceeds go to law enforcement.10
In other words, cops and their employers stand to benefit financially by seizing as much property as they possibly can! This creates an obvious incentive for
police misconduct .
A common practice called "equitable sharing" makes matters even worse.
The laws passed by the California legislature actually provide pretty good protections for individuals caught up in asset forfeiture proceedings.11 But equitable sharing allows California cops to get around those laws by handing property they have seized over to federal law enforcement agencies. That property then gets handled under federal asset forfeiture laws, which are much harsher than California's. California state and local agencies get to keep eighty percent (80%) of the proceeds of the property seized, while the feds keep the other twenty percent (20%).12
What this means is that California cops can do an end-run around the restrictions on asset forfeiture that were put in place by California's own elected officials...and still make plenty of money for their departments! Over three hundred million dollars ($300,000,000) worth of assets were seized in California through equitable sharing between 2000 and 2008.13
Some examples of property that can be seized in criminal cases include:
However, by far the most common and important path to asset forfeiture in California is the Uniform Controlled Substances Act, aka California's drug laws .
Virtually any kind of property involved in the commission of a California drug crime is subject to asset forfeiture. This includes:
Thankfully, there is an exception to this last item: the police cannot seize a home under this section if it is used as a family residence or for other lawful purposes. They also cannot seize any real estate owned by two or more persons if one of them didn't know that it was being used for illegal purposes.27
So here are some examples of situations where property might be forfeited under these laws:
Example: Sophia's son Terry has severe attention deficit hyperactivity disorder. Terry takes the drug Ritalin legally, though a prescription, to control his symptoms. One day Nick, a friend of Terry's, comes over to their house, finds a large...and expensive...supply of Ritalin in the bathroom, and steals it. Nick is then arrested for selling the Ritalin on the street in violation of California drug laws.
Because Nick was distributing the Ritalin in violation of law, the police can seize it28 ...and Sophia and Terry may have trouble getting it back.
Example: Tanya is arrested while driving a car with a large amount (over ten pounds) of marijuana in the trunk and is charged with possession for sale . The car's owner is actually Tanya's mother, Rose. Plus, the title to the car is held by Rose's bank, from whom she took out a loan to buy the car. The police seize the car and begin asset forfeiture proceedings.29 This puts Rose in default under her car loan and ruins her credit rating.
Example: Russell is a drug dealer who is using some of the proceeds of his criminal career to fund a college savings account for his nephew. When Russell is arrested, the prosecutors may confiscate that account, even though Russell's nephew has been counting on the money.30
It would certainly make sense for there to be a requirement that someone actually be convicted of a crime before assets can be forfeited. Otherwise, the police could seize and keep innocent people's assets whenever they felt like it!
California asset forfeiture law does require that there be a conviction for some---but not all—asset forfeitures under the Uniform Controlled Substances Act. Basically, there needs to be a conviction in an "underlying or related criminal action" before there can be a forfeiture of any of the following property:
Also, the defendant needs to be convicted of a crime that took place within five (5) years of the date the property was seized or the date a notice of forfeiture was issued.32
It's important to note that this does not mean that the defendant has to be convicted before the property can be seized. Instead, it just means that there needs to be a conviction before it can be forfeited—meaning, before it becomes the property of the government and is lost forever to its original owners.33
Also, this requirement only applies if the forfeiture is "contested."34 As we'll discuss in Section 2.3 of this article, anyone who has an interest in property that has been seized for asset forfeiture needs to move quickly to contest the forfeiture. Otherwise, they risk losing the property...even if they have never committed or been charged with a crime themselves!
As you can see, it's not the case that a conviction is required before any property can be forfeited.
Interestingly, if the police seize cash or negotiable instruments worth more than twenty-five thousand dollars ($25,000), that money may be forfeited even if no one is ever convicted of a drug crime in connection with it.35
In that case, the government still has to prove before a court that the money came from or was going to be used for illegal drug transactions. But it only needs to prove this by "clear and convincing evidence"...not the typical criminal standard of "beyond a reasonable doubt."36
So what does this mean for the people in our examples above?
Example: With Sophia and Terry, whose Ritalin was stolen and sold on the street by Nick...there is no conviction requirement for asset forfeiture of controlled substances themselves. So the Ritalin may be forfeited even if Nick is never convicted of a crime.
Example: With Rose, whose daughter Tanya was arrested with marijuana in the trunk of Rose's car...Tanya will need to be convicted before Rose can lose her car permanently.37 (Of course, that may not help her if the police seize her car while the charges against Tanya are pending, and if her lender declares her loan in default because the car was seized.)
Example: With Russell, the drug dealer who had set up a college fund for his nephew....if the amount of money in the college fund traceable to drug proceeds is less than $25,000, then Russell will need to be convicted before that money can be forfeited.38 But if it is more than $25,000, then the government can take it even if Russell is never convicted. (Though the government will still have to show in a civil trial, by clear and convincing evidence, that the money came from illegal drug sales.)39
There is also an important exception to the requirement that a defendant be convicted before a vehicle, real property, or $25,000 or less in money can be forfeited. If the defendant in the underlying criminal action willfully fails to appear, then the conviction requirement disappears completely.40
Even worse, if this happens, the government barely has to prove anything. It just needs to make a "prima facie" case that the property is subject to asset forfeiture under the law, which means that it just needs to supply some basic evidence that the property is related to a crime.41
To go back to our example of Tanya and Rose above:
Example: Let's say Tanya manages to post bail. She then flees to Mexico and does not appear for her criminal proceedings. The government can keep Rose's car if it can muster even some evidence that it was used for the crime of possession for sale . (The fact that Tanya had a large amount of marijuana in the trunk when she was arrested will probably be enough.)
Whether you are a criminal defendant or just the unlucky owner of an asset that has been seized for forfeiture, you do have rights that may help you get your property back. Under California asset forfeiture law, the government has to follow certain procedures before it can declare property forfeited.
(But note that the police can seize and hold onto property with minimal procedure beforehand.42 The procedures described here must be followed before the formal right of ownership of the property transfers to the government.)
When certain Schedule I controlled substances are seized by police, they can be forfeited without any procedures of any kind.43
The drugs that are subject to this so-called summary asset forfeiture procedure include:
However, let's say the police seize marijuana from someone who has the right to possess it legally under California's medical marijuana laws. In this case, the government is required to give the marijuana back.45
The government can use a relatively streamlined procedure called "administrative forfeiture" in some asset forfeiture cases. Administrative forfeiture can be used for personal property (that is, anything that's not real estate) worth twenty-five thousand dollars ($25,000) or less.
According to Santa Ana criminal defense lawyer Al Amer46:
"If your property is seized under the asset forfeiture section of the California Uniform Controlled Substances Act, you'll want to have a good understanding of what procedures the government is required to follow. These procedures are designed to protect property owners, and asset forfeiture can't be finalized if the procedure the government followed was defective. One of the best ways to keep your property from being forfeited is to catch the prosecutor in a procedural error."
If the police seize personal property worth $25,000 or less, the prosecutor has to do the following two things:
a. everyone named in the receipt for the property, and
b. everyone with an ownership interest in the property.47 In order to figure out who has an ownership interest in property, the prosecutor is required to investigate DMV and federal agency records on vehicles, boats, and airplanes.48
a. a description of the property,
b. the appraised value of the property,
c. the date and place where the property was seized or the location of property that hasn't been seized yet,
d. the alleged violation of law, and
e. instructions and time limits for filing and serving a claim regarding the property.50
Let's say you receive personal notice of asset forfeiture for property that you own, or you see the notice in the newspaper. Your next move is to file a claim regarding the property. And you need to move quickly—claims have to be filed within thirty (30) days of either the day you received notice of forfeiture or, if you did not get personal notice, the day the notice was first published in the newspaper.52 You may be able to get an extension of this deadline from the court...but otherwise, if you miss the deadline, you will not have a chance to contest the forfeiture.53
How do you file a claim? A form for filing a claim (Form MC-200) is available on the website of the California courts. You must complete the form and first file it in the superior court in the county where the defendant was charged. Then, within thirty (30) days after you file the form with the court, you need to serve it on the prosecutor who has initiated the forfeiture proceeding.54
If the property is worth more than five thousand dollars ($5,000), the court may charge you a fee to file the claim.55
In an administrative forfeiture proceeding (which can be used, as we mentioned above, only where the property is not real estate and is worth $25,000 or less), if no claims are filed by the 30-day deadline, then the prosecutor can declare the property forfeited.56 All the prosecutor needs to do is draft and sign a "declaration of forfeiture," which will be sent to all the same people who initially got the notice described above.57
This it is why it is so important not to miss the deadline for filing a claim. It is also incredibly important that your claim be properly filed, because a defective claim may not work to prevent the property from being forfeited.
If one or more claims are filed by the 30-day deadline, then the property can no longer be forfeited through the simpler administrative forfeiture procedure. Instead, the prosecutor has to convert the procedure to a judicial forfeiture.58
Prosecutors are required to use the more involved "judicial forfeiture" procedure if either of the following is true:
A judicial forfeiture begins when a prosecutor files a "petition of forfeiture" with the superior court in the county where the defendant has been charged with a crime, or in the county where the property has been seized or is located.61 The prosecutor has to file this petition no later than one year after the property is seized.62
The prosecutor is then required to provide the same notice that they must provide for an administrative forfeiture:
However, if the prosecutor already sent notice to individuals as part of the administrative forfeiture procedure, they not need to send those same people notices again after the process converts to judicial forfeiture.64
As with the administrative forfeiture procedure, people have thirty (30) days to file a claim after they receive notice of forfeiture (or after the notice is first published in the newspaper, if they did not receive notice).65
The procedure for filing a claim is also the same as under the administrative forfeiture procedure. You may use the form for the claim (Form MC-200) provided by the California courts. You must complete the form and first file it in the superior court in the county where the defendant was charged. Then, within thirty (30) days after you file the form with the court, you need to serve it on the prosecutor who has initiated the forfeiture proceeding.66.
If the property is worth more than five thousand dollars ($5,000), the court may charge you a fee to file the claim.67
However, if you already filed a claim when the prosecutor was trying to proceed under the administrative forfeiture procedure, you do not need to file another one if the process converts to judicial forfeiture.68
If no claim is filed in a judicial asset forfeiture proceeding by the 30-day deadline, the prosecutor can't just declare the property forfeited, like he/she can in an administrative forfeiture. Instead, the prosecutor has to make a motion to the court for an order of forfeiture.69
The court will probably grant the motion and issue an order of forfeiture. But the prosecutor still has to make a "prima facie" case—that is, present some evidence—that the property is connected to a crime and so really is subject to assets forfeiture.70
If anyone files a claim to the property by the 30-day deadline, then there will be a trial to determine whether the property will be forfeited. It needs to take place no later than another thirty (30) days after the claim was filed.71
This has to be a civil jury trial , unless all the parties agree otherwise.72
As we discussed above, for some types of property, the defendant needs to be found guilty of the crime before asset forfeiture can occur. In these cases, the same jury or judge needs to decide both the criminal charges and the forfeiture question...unless all the parties agree otherwise.73 The forfeiture question will be separated out from the question of the defendant's guilt and dealt with in a separate proceeding.74
If a forfeiture goes to trial, what then? Basically, the prosecutor needs to convince the jury of two things:
The prosecutor needs to prove both of these things beyond a reasonable doubt...unless the property seized was cash or negotiable instruments with a value of more than twenty-five thousand dollars ($25,000). In that case, the prosecutor only needs to prove these things by clear and convincing evidence.76
What does this mean in real life? Let's return to our examples from above:
Example: Sophia and Terry possessed Ritalin legally, but the drug was seized by police after a family friend stole it from their house and sold it on the street. The prosecutor probably can't show that they knowingly consented to the Ritalin being stolen and sold. If Sophia and Terry can properly file a claim and present their case at a forfeiture trial, they can probably get their Ritalin (or reimbursement for it) back.
Example: Rose had her car seized after her daughter Tanya was arrested while driving it with marijuana in the trunk. The prosecutor will try to prove that Rose consented to Tanya's using the car and that Rose knew Tanya would use the car to commit the crime of possession for sale of marijuana. If the prosecutor can't prove this, Rose gets her car back.