- cars, and
Examples of asset forfeiture include:
- police taking ownership of several kilos of cocaine in a drug possession case.
- the government keeping a hunting knife that was used in an assault with a deadly weapon case.
- Cops taking a machine that a criminal used to make a counterfeit product.
Many asset forfeitures take place in:
- cases involving drug crimes, and
- cases involving organized crimes.
Note that before the government can legally forfeit property in these cases,
- a defendant typically has to be convicted of a crime related to the property, and
- the government has to comply with certain procedural rules.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is asset forfeiture
- 2. What type of property is subject to forfeiture?
- 3. Equitable sharing and Senate Bill 443
- 4. What about asset forfeiture in California drug cases?
- 5. What is asset forfeiture in organized crime cases?
1. What is asset forfeiture?
Asset forfeiture is when the government takes a person’s property because it suspects the property was either:
- used in committing a crime, or
- obtained via criminal activity.
Note that forfeiture can only occur after a civil proceeding.1
The proceeding is a lawsuit which the government files against the property it wants to take. Note that this means that the property is the defendant in the suit. The defendant is not the property’s owner.2
In order to obtain the property, the government has to show that:
- based upon the preponderance of the evidence,
- the property is connected to criminal activity.
“Preponderance of the evidence” is a lower standard of proof in comparison to the standard of “beyond a reasonable doubt,” which is used in criminal cases.
The property owner in these matters is usually convicted of a crime before his property can be taken. Note, though, that there are times when a forfeiture can take place without a finding that:
- the property owner committed a crime, or
- a crime was even committed.3
Example: Police take a gun from a person after they arrest him for negligent discharge of a firearm. The cops can keep the gun and take ownership of it. But they can only legally do so if they name the gun in a lawsuit. A prosecutor would then have to prove during this suit that the firearm was connected to a criminal activity.
Note that while the police can take the gun before a person gets convicted of a crime, they usually cannot forfeit it until a defendant is convicted of a crime.
2. What type of property is subject to forfeiture?
California’s asset forfeiture laws allow police officers and prosecutors to seize most types of property.
Some examples include:
- a weapon that is involved in an assault with a deadly weapon case,4
- telecommunications or computer equipment used to commit a computer crime, such as internet fraud,5
- animals, if someone is convicted of animal abuse and cruelty,6
- vehicles used to commit a crime, such as the transport of stolen property,
- machines used to break the law, like using a machine to make counterfeit trademarks,
- illegal drugs or the machinery, land or buildings used to make those drugs, and
- any property interest acquired through a pattern of criminal profiteering activity.
3. Equitable sharing and Senate Bill 443
“Equitable sharing” refers to a controversial practice within California asset forfeiture laws.
The practice allows California police to avoid certain state forfeiture laws by handing the seized property over to federal law enforcement agencies.
Once this is done, the property gets handled under federal forfeiture laws, which are more relaxed in comparison to California laws.
When handed over, a federal agency could sell the property and:
- local and California state agencies would get 80% of the proceeds, and
- the federal agency would keep the other 20%.
Senate Bill 443 was signed into law in 2016. The relatively new law:
- placed several restrictions on equitable sharing practices, and
- closed ways that California could circumvent state forfeiture laws by giving seized property to the feds.
4. What about asset forfeiture in California drug cases?
Most California forfeitures take place in connection with the State’s drug laws.
These cases often raise questions regarding:
- whether a person has to be convicted prior to forfeiture, and
- what procedures must the government follow before it can forfeit property.
4.1. Conviction requirement
Many drug forfeiture cases require:
- the government to first convict a person of a drug offense,
- prior to forfeiture.
In particular, there has to be a conviction of an “underlying or related criminal action” before there can be a forfeiture of the following property:
- a boat, airplane, or vehicle,
- money, securities, etc. worth up to $40,000, and
- any real estate (buildings and lands).7
Note, though, a distinction between:
- the government seizing property, and
- the forfeiture of that property.
The government can seize property without a defendant being convicted. But ownership of the property only passes to the government once a conviction is made.8
4.2. Exceptions to the requirement
There are two exceptions to the above conviction requirement. The first is that drug-related property can be forfeited, without a conviction, if:
- there is a defendant for an underlying criminal action, and
- he fails to appear for his case.9
In this event, the only condition prior to forfeiture is that:
- the government must make a “prima facie” case that
- the property in question is subject to asset forfeiture under the law.10
This just means that it has to supply some basic evidence that the property is related to a crime.11
The second conviction exception is related to cash or securities worth more than $40,000. These can be forfeited even if no one has been convicted of a drug crime in connection with them.12
But, for forfeiture to occur, the government must prove that:
- the money came from or was going to be used for
- illegal drug transactions.
Note that it only needs to prove this by “clear and convincing evidence.” This is a lower burden of proof than “beyond a reasonable doubt.”13
4.3. Required procedures
The government does have to follow certain procedures, in drug cases, before it can declare forfeited property. Depending on the facts of the case, these may take the form of:
- summary procedures,
- administrative procedures, or
- judicial procedures.
4.3.1. Summary forfeiture
Summary forfeiture is when the government can:
- forfeit certain Schedule I drugs, and
- do so without any procedure of any kind.14
The drugs that are subject to the summary procedure are:
- LSD, and
As to marijuana, please note that:
- if the government seizes marijuana, then it has to give it back if
- a person had the right to possess it legally under California’s medical marijuana laws.
4.3.2. Administrative forfeiture
Administrative procedures get used in forfeiture cases involving:
- personal property (no real estate),
- worth less than $25,000.
In these cases, the police must give public notice of the following before it can forfeit the property:
- a description of the property,
- its appraised value,
- the date and location of seizure,
- the facts justifying the seizure, and
- instructions for challenging the taking.15
Once notice is given, a person has 30 days to challenge the seizure of property.16 If no challenge, the police can:
- sell the property, and
- keep the proceeds.17
If a person challenges the seizure, then judicial procedures get applied.
4.3.3. Judicial procedure
Judicial procedures get used in forfeiture cases when:
- a party has challenged the seizure of property worth less than $25,000, or
- the police have seized property worth more than $25,000.18
A civil trial must be held in these cases before the police can forfeit the property.
At trial, a prosecutor must prove the following in order for forfeiture to occur:
- the property was used to commit a crime or bought with money gained illegally, and
- the property owner knew that a crime was being committed and agreed to it.19
5. What is asset forfeiture in organized crime cases?
In addition to drug cases, many asset forfeitures take place in cases involving organized crime.
Questions often arise in these cases on:
- what activity can lead to asset forfeiture, and
- what procedures must the government follow before it can forfeit property.
5.1. Activity that can lead to asset forfeiture
In order for the police to be able to forfeit property in an organized crime case,
- there has to be a conviction, and
- the conviction must be for a certain activity.
This certain activity basically means that the conviction must involve a crime where:
- there was a pattern of criminal behavior, and
- the crime was done for financial gain.20
A pattern means that the defendant committed two or more connected crimes.21
Many types of offenses will include this type of activity. Some examples include:
- child pornography, unlawful under Penal Code 311 PC,
- extortion, unlawful under Penal Code 518 PC, and
- receiving stolen property, unlawful under Penal Code 496 PC.
5.2. Required procedures
The government must follow certain procedures in order to legally forfeit property in organized crime cases.
These procedures include:
- a prosecutor filing a petition with the court,
- notice of the property being given to anyone with an ownership interest in it, and
- the prosecutor publishing notice of the property in a local newspaper (this is in some cases).22
A party with an interest in the property can challenge the forfeiture. This challenge, though, must be made within 30 days of receiving notice that the property was taken.23
If a challenge is made, then a hearing must be held to determine whether the property can be forfeited. Forfeiture will be allowed if:
- a prosecutor can prove beyond a reasonable doubt
- that the property is subject to forfeiture.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For information on asset forfeitures in Nevada, please see our article on: “Nevada ‘Asset Forfeiture’ Laws.”
- People v. Madeyski (2001) 94 Cal.App.4th 659.
- People v. US $6.500 Currency (1989) 215 Cal.App.3d 1542.
- California Penal Code 245e.
- California Penal Code 502.01.
- California Penal Code 597g1.
- California Health & Safety Code 11488.4i.
- California Health & Safety Code 11471.
- California Health & Safety Code 11488.4k.
- See same.
- See same.
- California Health & Safety Code 11488.4i4.
- See same.
- California Health & Safety Code 11475.
- California Health & Safety 11488.4j.
- California Health & Safety Code 11488.5a1.
- California Health & Safety Code 11488.4j.
- California Health & Safety Code 11488.4a HS and 11488.4j.
- California Health & Safety Code 11488.5d1-d2.
- California Penal Code 186.3a.
- California Penal Code 186.2a.
- California Penal Code 186.4a.
- California Penal Code 186.5.