Asset Forfeiture

What is asset forfeiture?

Asset forfeiture is a tool that prosecutors and law enforcement officials use to take and keep private property based on an assertion that such property is linked to criminal activity. Seizures is the taking of private property. Forfeiture is the legal process whereby that government divests ownership of such property outright.
Asset forfeiture has been a focus of legislators in recent years because certain types of asset forfeitures involve the police or law enforcement taking property from individuals who have not been convicted of any crime and essentially shifting the burden to the property owner to prove their innocence. A seizure can be accomplished by a showing of probable cause, and a forfeiture can be accomplished by a preponderance of evidence. Both standards are a far cry from proof beyond a reasonable doubt.

What is a Seizure?

It is important to recognize to recognize the differences between seizures and forfeitures. A seizure is an act of confiscation. That is, seizures have to do with the possession of property. For example, if a police officer takes a suitcase full of cash or obtains a warrant to confiscate a bank account and then proceeds to that bank and has the account converted to a cashier’s check, all that has happened so far is that a government entity has obtained possession of (seized) the property. In contrast, forfeiture describes an actual transfer of ownership between the prior owner and the government.

Can your property be seized and forfeited even if you are not guilty?

There is no requirement that property seizures are accompanied by criminal charges of any kind. In other words, a government agency can pursue forfeiture even if no person is arrested or charges are never filed. For example, if an officer pulls a person over for speeding and finds money bundled in a manner that officer finds suspiciously similar to drug money, the officer can seize it and pursue forfeiture even if the driver never gets arrested or even if the officer has no direct evidence of any drug deal. See Tex.Crim.Pro. Art. 59.05. Similarly, a person who deposits money in increments below $10,000 could have their account frozen or seized via warrant on the basis that it is suspected to have been structured under 31 USC 5324. Many cases are made by indirect evidence such as drug dog sniffs or lack of identified income. This means that claimants typically are in a position that they must prove their money’s innocence.