If you face asset seizure and forfeiture procedures, you might wonder what steps to take next. Knowing the difference between asset forfeiture and asset seizure will help you make informed choices, including how to recover your assets. Asset seizure occurs when you temporarily lose access to your assets, for example, when the court freezes your bank account. Asset forfeiture means you permanently lose your rights to those belongings, usually following a court decision.

At the Asset Forfeiture Attorney, our lawyers have the experience to protect your assets from seizures and forfeitures. We can use different strategies to fight unjust seizures and protect your property. Call us today to schedule a consultation.

What is an Asset Seizure?

An asset seizure is a procedure where the authorities confiscate property and money they believe you obtained through illegal activities. These seizures help fight crime and uphold justice. It also gives law enforcement the resources they need without using taxpayer money.

The Fourth Amendment plays a crucial role in controlling seizures. Police typically need approval before taking property. They must obtain a warrant from an unbiased judge. A sworn statement should support this warrant by detailing what the government takes and its connection to the crime. The Federal Rules of Criminal Procedure outlines how the court authorizes seizure warrants. Four main reasons can justify seizing an asset:

  • Proof of a crime
  • Illegal items or contraband
  • Gains from illegal activities (money and items obtained unlawfully)
  • Tools used in committing a crime

Investigators must include one or more of these categories in the affidavit for the search warrant.

California Seizure Procedures

Seizures often happen:

  • After a traffic stop
  • When executing a search warrant
  • During a search related to an arrest

Officers can identify if an item may be important as evidence or linked to the crime. If so, they must quickly take the item and consult prosecutors about the next steps.

Most seizures should happen only after a complete investigation and careful evaluation by a group of officers, prosecutors, and supervisors. For example, the method for seizing a luxury car would be very different from that of an old, worn-out vehicle. Investigators must start planning for the seizure once they have identified assets for seizure or forfeiture during the investigation.

Pre-seizure planning helps agencies avoid expensive management problems and ensures that investigations are complete. It prevents the authorities from dismissing charges or returning assets to offenders too soon. The U.S. Marshals Service manages seized assets and has created and widely used this planning method.

During pre-seizure planning, officers must decide if seizing the asset is necessary. Sometimes, there may not be a strong reason to do so. For example, the cost to taxpayers for cleaning up properties contaminated by chemicals from meth production can be very high. In such cases, officials should consider other options instead of seizing the asset.

Law enforcement must consider various factors before taking an item. They should make a plan to carry out the warrant safely, handle the item correctly, and keep its value intact. Investigators should also verify who owns the item and consider the chance that others might claim it.

Additionally, officers must determine the item’s fair market value. Assessing the financial importance and equity of assets like real estate, vehicles, and aircraft is crucial. Investigators can acquire help from experts, like appraisers, to determine how much items are worth. Evaluating cash is simpler, but figuring out the value of things like houses can be trickier.

Issuing Warrants Before Asset Seizures

The U.S. Supreme Court highlights the need for seizure warrants to ensure the legality of the procedures.

Once investigators prepare the affidavit, the forfeiture process becomes easier since most of the work is already done.

Officers can seize an asset during a search or traffic stop and obtain a seizure warrant later. Doing this is useful because, even though the item is already restrained, any new evidence collected after the seizure can help strengthen the case.

Acquiring judicial approval for property seizures has several benefits. It protects agencies, investigators, and officers from possible civil lawsuits over wrongful seizures and helps ensure that the public does not view property seizures as random or unfair.

What Is Asset Forfeiture?

Asset forfeiture allows authorities to take control of assets and money they believe you gained from illegal activities. Forfeitures help fight crime and ensure justice. They also give law enforcement the necessary resources without depending on taxpayer money.

The asset forfeiture process is one of the government’s most powerful legal actions. To keep the property, the government must show that it relates to criminal activity based on a preponderance of the evidence. It is easier to meet than the “beyond a reasonable doubt” standard in criminal trials.

Civil asset forfeiture involves seizing property linked to criminal activity rather than penalizing the individual meaning that asset forfeiture can happen even without the owner's consent.

Because this is a civil matter, people have fewer legal rights. A key difference is that the court does not provide a lawyer for them.

Without a court-appointed attorney in civil forfeiture cases, it is easy for the government to exploit those unaware of their rights or the legal system. Reclaiming your property is intricate and time-consuming, so hiring a lawyer specializing in asset forfeiture can significantly increase your chances of recovering your property.

Criminal Asset Forfeiture

Criminal asset forfeiture is a legal procedure in which the government takes an accused person’s property to cover the damage incurred after they committed certain criminal acts. This process aims to support victims and discourage future crimes. It could also provide funds for prosecutions and investigations.

The United States Department of Treasury states that criminal forfeiture occurs alongside the accused’s criminal trial. Crimes that may lead to asset forfeiture include:

  • Human trafficking
  • Drug offenses
  • Money laundering
  • Extortion
  • Fraud

After the court convicts you, it seizes the property if it is subject to forfeiture.

What Kinds of Property Can the Court Seize?

Law enforcement can confiscate anything they think links to a crime. The items they can seize vary based on the situation and the type of crime. Typical items seized through asset forfeiture include:

  • Homes bought with money from illegal activities
  • Weapons used in assaults
  • Cash from drug-related activities
  • Animals after a conviction for animal abuse
  • Vehicles used to transport stolen items
  • Laptops or phones used in crimes
  • Machines for printing fake money
  • Boats used for smuggling illegal drugs
  • Illegal items like drugs or guns
  • Drugs and the tools used to make them
  • Money made from selling illegal drugs or items
  • Cash seized by the government
  • Other properties gained through ongoing criminal acts

California law has a few specific exceptions to this rule. The police cannot seize your home if:

  • It is your primary residence
  • A property has several owners, and some owners are unaware of any illegal activities

California Asset Forfeiture Procedures

Asset forfeiture is a complex legal process. Law enforcement can seize your property but must adhere to specific laws to keep it permanently.

If the government plans to take your property, it must send you an official notice about the forfeiture process. Relevant authorities can deliver this notice in person, by mail, or publish it in local legal notices. After you receive this notice, you have thirty days to file a claim. These procedures begin a court process and a jury trial to determine the outcome of the forfeiture.

In California, the police and prosecutors must prove why the authorities should take away your assets, unlike in other states. Generally, the prosecutor needs to show that:

  • The property has links to a crime, which the authorities can show in two ways:
  • You or someone else used the property to commit a crime.
  • You acquired the property from the proceeds of a crime.
  • Everyone who owns the property knew it was being used illegally and agreed to that use.

These rules allow you to go to court and present your case before a judge or jury, stating that the authorities should not seize your property. You have a better chance of keeping your belongings if you have an asset forfeiture lawyer who knows the laws and procedures about property forfeiture.

What Happens to Seized Assets?

If you do not challenge the seizure of your assets in court, you could permanently lose your assets. In this case, the government will not have to pay you anything. In this case, the government will not have to pay you anything.

If the court allows the government to keep your property, they will sell it at an auction and keep the money. Although California has recently enacted Senate Bill 443 to offer more protection to citizens, police departments still engage in “equitable sharing” regarding forfeitures linked to criminal convictions.

Equitable sharing occurs when state police transfer seized property to federal law enforcement. The transfer shows the property is subject to federal rules, which are stricter than state laws.

The police can keep up to 80% of the funds from forfeited property under equitable sharing. The funds provide millions of dollars in income for law enforcement in California each year. Because of this financial incentive, police departments may work hard to take your property, making it crucial to have a solid defense to help you retain it.

How to Recover Your Seized Property?

Law enforcement can confiscate property, whether they have a warrant or not if they suspect it may hold evidentiary value. Unfortunately, this can result in misuse of power, as police sometimes seize items merely to intimidate the owner. If the owner does not receive a notice of intent to forfeit, their options for reclaiming their property become quite limited.

Knowing the legal steps and your rights is important if law enforcement or another federal body seizes your property. Police must give a receipt detailing all cash and property they seize during a probe.

However, the complicated asset forfeiture laws can make it hard for people to recover their seized property. Speaking with a knowledgeable asset forfeiture lawyer can provide valuable guidance and answers.

Will the Judge Convict You After the Asset Forfeiture Procedures?

Often, when it comes to asset forfeiture linked to drug crimes, the government needs to obtain a conviction of the individual involved in the drug offense. A conviction means the court must find you guilty of the underlying offense or a related crime for them to seize your property, like boats, planes, cars, cash, or real estate.

There are two exceptions to this rule. First, if a defendant in a criminal case does not show up, the government can seize property linked to drugs even without a conviction. They must show enough proof that the property relates to the crime. 

The second exception applies to cash or securities over $40,000. In this situation, you do not need to have a prior conviction. The government must still demonstrate that you acquired the money from drug-related activities.

In cases related to organized crime, the court allows the authorities to seize assets only after a criminal conviction that shows a recurring pattern of unlawful acts intended for financial gain. The occurrence of two or more related crimes shows a pattern of organized crime. Some examples of these types of crimes are extortion, receiving stolen property, and child pornography.

To legally take property in organized crime cases, the government must follow these steps:

  • Submit a petition to the court
  • Notify anyone who has ownership rights
  • Publish a notice in a local newspaper (if required).

If you own the property, you have 30 days from receiving the notice to contest the forfeiture. After that, the court will hold a hearing and allow forfeiture if the prosecutor can prove the offense beyond a reasonable doubt.

Find an Asset Forfeiture Attorney Near Me

Asset forfeiture can be frustrating for those dealing with criminal charges. A knowledgeable lawyer can assist you in lessening the severe effects of asset forfeiture and protecting your assets. They will also ensure that any legal actions taken against you are legal.

At the Asset Forfeiture Attorney, we provide legal support for asset forfeiture cases across the country, including California. Contact us today at 888-571-5590 to set up a consultation with one of our lawyers.