A Review of Asset Forfeiture in California
Our firm handles criminal matters exclusively and will refer out civil forfeiture matters to appropriate legal professionals.
The term “asset forfeiture” means the government is taking someone's property because they believe it was acquired through criminal conduct or it was used to commit a crime.
Asset forfeiture laws in California are often used by law enforcement to seize all types of property and even money.
You may have heard of overzealous government agents seizing innocent owners' assets in forfeitures relating to a family member's drug crime or other criminal activity.
However, forfeiture can only occur by the government filing a lawsuit against the property it is seeking to take. In order to acquire the property, they must prove:
- the property was directly connected to criminal activity;
- based on the preponderance of the evidence.
Types of property subjected to forfeiture
Government agents have broad power to seize not just bank and brokerage accounts but also:
- computer equipment,
- illegal drugs,
- other real property obtained through a pattern of criminal activity.
The federal government seizes around a half-billion dollars in drug crime assets alone every year, while California receives around one hundred million dollar in annual forfeiture distributions.
Unfortunately, agents too often exercise those powers unjustly. Overreaching by forfeiture agents is real, substantial, and longstanding.
Government may appear to have unchecked power to seize and forfeit assets, but those who suffer asset forfeiture have their own rights. Don't give in to government intimidation and abuse.
In order to give readers a better understanding on California's asset forfeiture laws, our Los Angeles criminal defense attorneys are providing a review below.
Asset Forfeiture Laws Are Complex
You don't have to be a drug dealer or other criminal to lose assets to forfeiture. Federal and state laws, and local policies on seizure, differ.
But depending on the specific law, government agents may be able to seize and transfer to government ownership any property tied to the crime, not just property that the criminal owns.
Complex forfeiture laws can depend on the crime, property, and federal, state, or local jurisdiction. But generally, forfeiture theories include:
- contraband like illegal drugs or guns, or illegal imports, the illicit nature or origin of the property itself being a key part of the crime;
- exchanges, in which the government seizes and the owner forfeits cash, or other items exchanged or intended for exchange for contraband;
- proceeds, especially cash earned from illegal sales of drugs or other contraband but also other things of value purchased with such cash; and
- facilitation, when the forfeited item, often a vehicle, furthered the crime's commission.
Under these theories, agents may attempt to seize a family or business vehicle that the criminal secretly used for drug distribution.
They may also attempt to seize a home or commercial property that the criminal secretly used for drug manufacturing, even when the vehicle or real property's owner was unaware of the crime.
Because both federal and state laws authorize forfeiture, federal and state agents often cooperate in seizures, sharing the spoils.
And keep in mind that forfeiture can apply not only to drug crimes but also to other illegal schemes and crimes.
How Does the Asset Forfeiture Process Work?
Asset forfeiture in California generally follows three steps. Agents first take control of the property, whether:
- putting banks or brokers on notice to hold accounts,
- taking physical possession of personal property like vehicles, or
- recording forfeiture notices against real property to prevent its mortgage or transfer.
Once government agents take control, the owner loses the ability to sell, use, or otherwise benefit from the property.
Forfeiture court hearing
Under the seizure and disposition rules under California Health and Safety Code 11469 HS, many forfeitures require that the government to prove its forfeiture right at a court hearing.
Seizure of illegal drugs
Under California Health and Safety Code 11475, some forfeitures, like those involving certain illegal drugs, permit the government to act summarily without hearing.
Other forfeitures follow administrative procedures requiring only notice but permitting the owner to demand a hearing, under California Health & Safety Code 11488.5(a)(1).
In the final step, the government distributes the assets as the procedures permit or the court orders.
Recent Restrictions on Forfeiture
Given the patterns of overzealous forfeiture, California's legislature in Senate Bill 443 recently raised the bar on government agents to complete a lawful asset forfeiture.
The new restrictions permit agents in state forfeiture cases to seize assets:
- only on a criminal conviction;
- not merely on probable cause.
While federal law continues to allow seizure in certain cases merely on probable cause, not requiring conviction, California's new restrictions also limit state agents from turning forfeiture over to federal authorities.
The new restrictions also increase the burden of proof for certain seizures. The government has a greater obligation to prove the forfeiture lawful at the forfeiture hearing.
How Can I Fight Asset Forfeiture in California?
In these steps and procedures, you can see how experienced legal professionals could potentially frustrate and defeat seizures.
As stated above, our firm handles criminal matters exclusively and will refer out civil forfeiture matters to other legal professionals.
You need to ensure that agents seize only the property they have the requisite cause to seize, rather than misidentified or nearby property.
You need to also ensure that the government distributes property as the courts may order, including returning promptly and clearing the legal title to illegally seized property.
California's forfeiture laws and proceedings are complex. The government is always an intimidating opponent and agents may also not adhere to these new restrictions.
Eisner Gorin LLP is a top-ranked criminal defense law firm representing people throughout Southern California, including LA County, Orange County, Ventura County, Riverside, and San Bernardino.
We are located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.
Our main office is next to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office for an initial consultation at (310) 328-3776.