No Criminal Charge Necessary
Did you know that the state and the federal government can take your possessions without charging you with a crime? Through a controversial legal process called Civil Forfeiture or Civil Asset Forfeiture, law enforcement can seize assets of cash and property believed to be connected to criminal activity. For example, if they believe that your truck was used to transport drugs, they can seize your truck. If they believe the cash in your wallet is proceeding from a drug deal, they can seize your cash. If they believe that your phone was used to coordinate drug deals, they can seize your phone. This means that law enforcement can seize your car, house, boat, cash, and valuables if there is a reasonable belief that said property is linked to criminal activity.
Unlike criminal warrants for arrest, seizure of property suspected of being used in drug crimes, or the proceeds from crimes, requires a lower burden of proof because they are civil matters. The tests to establish the burden of proof are different for criminal and civil cases. In civil forfeiture, the test in most cases is whether police feel there is a preponderance of the evidence suggesting wrongdoing. A preponderance of the evidence standard means that property is more likely than not connected to a crime. In criminal cases, the test is whether police can prove their evidence establishes guilt beyond a reasonable doubt, which is a tougher test to meet. You can be completely innocent of any crime and still have your property seized, and being innocent does not mean that your property will be returned.
How to Fight for the Return of Your Property
According to Michigan law, if the property is seized through Civil Forfeiture, any person claiming an interest in this property may, within 20 days after receipt of the notice file a written claim expressing his or her interest in the property. Upon the filing of the claim, the State of Michigan will transmit the claim to the prosecutor for the institution of the case in court. The claim will include a list of the property seized along with a brief description.
In federal proceedings, a claim may be filed not later than 30 days after the date of final publication of notice of seizure. A claim shall identify the specific property being claimed, state the claimant’s interest in such property, and be made under oath, subject to a penalty of perjury.
Any property that is not claimed by the owner is either kept or sold by the seizing department, which is one reason this practice is deemed so controversial and can be easily abused. Forfeiture was originally enacted as a way to strip criminal enterprises of their resources, but today there are too many cases of innocent people being stripped of their money and property, which demonstrates the flaws in this law enforcement “tool.”
Always File On Time
Therefore, always file a claim of interest on time no matter what. Then the government has the burden of proof. They usually try and make it seem like the claimant has that burden which is not the case. If they cannot prove it by a preponderance of the evidence they have to return the property. More often than not they will try to settle which may or may not be the best option. It depends upon the facts but whatever they are, the most important thing is to file a timely written claim of interest. Don’t let them get away with anything.
Brianna is responsible for firm intake, scheduling appointments, managing attorney calendars, and assisting with case files and office management. She earned a Bachelor of Arts Degree from Hope College and is pursuing a Paralegal Studies certification from Oakland Community College. She has chosen to specialize in Civil Asset Forfeiture. After assisting attorneys with several Civil Forfeiture cases, Brianna developed a strong interest and passion in the matter.