3 times the Nevada government can seize your property for criminal activity

Posted on April 20, 2021

Three of the times that Nevada law enforcement may seize private property for criminal activity are when:

1. The seizure is incident to a lawful arrest;
2. The seizure is pursuant to a lawful search warrant or search warrant exception; or
3. The seizure is of property subject to asset forfeiture

People may be able to get their property back if it was unrelated to criminal activity, or if they genuinely did not know that it was related to criminal activity. But it is often an uphill legal battle to retrieve property from the police once it has been seized.

1. Seizure of property incident to arrest

Police may place suspects under arrest when they have probable cause to believe they committed a crime. If police witness a crime, they can place the suspect under arrest right away without a warrant. Otherwise, they usually must secure an arrest warrant first before executing the arrest.

When police make an arrest, police typically seize property on the suspect’s person or in the suspect’s immediate control that is connected to the alleged crime or that could harm the officer (such as a gun). For example if police arrest an alleged pimp, they may seize the cash on him on the assumption that it is proceeds from prostitution. And then the D.A. can use this cash as evidence against the alleged pimp in court.¹

2. Seizure of property from a search

Police need a warrant to search and seize property related to a crime unless a lawful exception applies. Examples of these exceptions to the search warrant requirement include:

• Evidence of the alleged crime was in plain view of the officer.
• The owner consented to the search.
• The evidence was in a vehicle, and police had probable cause to believe there was criminal evidence inside.
• The officer conducted a Terry stop (a.k.a. “stop-and-frisk”), where police may pat down people they reasonably suspect of a crime.
• There was an emergency situation, and the police acted to preserve evidence that may be destroyed or taken away otherwise.
• In “hot pursuit” of a suspected criminal, the police enter private property and see evidence of a crime.
• The search was incident to a lawful arrest (described above).²

3. Asset forfeiture

Nevada asset forfeiture laws permit the government to seize private property when the property was used to carry out a felony, or was derived from the proceeds of the felony. For example if a convicted drug lord used her earnings to buy a yacht, the yacht could be forfeited because it was bought from the proceeds of an illegal activity.

Asset forfeiture typically occurs in cases involving drug trafficking, gangs, large-scale theft, racketeering, and organized crime. With some exceptions, police have to get a magistrate judge’s permission (“process“) before they can seize property that is subject to forfeiture. A criminal conviction is a prerequisite for property connected to a crime to be forfeited, and prosecutors must have clear and convincing evidence that the property being forfeited is tied to that crime.

There are various ways to fight asset forfeiture. One is to argue that the property owner had no idea that the property was being used for a crime. For instance if a store employee secretly used a company car to sell drugs in, the store owner should keep the car as long as he did not know the car was being used for criminal activity. But if the store owner simply looked the other way (“willful blindness”), then the car could be subject to asset forfeiture.

Note that if a person is acquitted at trial or has her criminal charges dismissed or denied, any property seized in relation to the case must be returned within seven business days.³

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Legal References