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How is it possible to be on the wrong end of civil forfeiture while not engaging in criminal activity? I'd like to understand this because, tools that victimize or even put the public at risk seem antithetical to principles of the constitution.

Even if one is 'squeaky clean' Eagle scout, it makes sense to understand the nature of the issue and best practices to not fall in 'the line of fire' of the war on drugs.

  • This has been addressed in law.stackexchange.com/q/21291 and law.stackexchange.com/q/887. – user6726 Sep 15 '18 at 4:24
  • The most obvious way is to be falsely suspected of engaging in criminal activity, but that's a fairly trivial answer. Are you looking for others? – phoog Sep 15 '18 at 17:13
  • Yes: OP seeking to understand the modes of how this happens so as to understand hot to mitigate a puzzling risk. – gatorback Sep 15 '18 at 23:43
  • I edited my answer to address your edited question. See below. – Libra Sep 17 '18 at 17:24
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The answer ultimately is very jurisdiction-specific, but there are generalizations that apply to most jurisdictions. This IJ study summarizes how it is possible. The first problem is that civil forfeiture is usually handled administratively, not judicially, so unless you challenge a forfeiture, the agency that takes your property decides whether it was correct in taking your property. One impediment to a court challenge is that you may have to post a large bond of e.g. 10% of the property value. Paired with the fact that you will lose the bond plus have to pay the government's legal costs (plus your own) if you lose, it is risky to challenge a seizure. Adding in the fact that seizures are not usually huge (the IJ found average values in 10 states of between $451 to $2,048), there is a significant disincentive to challenge a seizure. For which reason, the majority of seizures are unchallenged, and the number of successful challenges is low (the latter fact reinforces the former fact). I should point out that statistics on seizure are hard to get, since law enforcement agencies are usually not required to track or report seizures.

If you do challenge, state or federal law will specify a certain level of proof necessary for the seizure to be legal. In North Dakota and Massachusetts, that would be bottom-of-the-barrel "probable cause". The majority of jurisdictions require a preponderance of evidence to sustain a seizure. The owner then has the burden of proving that he is innocent. On the better end of things, New Mexico abolished civil forfeiture, and a criminal conviction is required for some or all seizures in California, Nevada, Montana, North Carolina, Minnesota, Missouri and Vermont. However, for instance, California requires that there be a criminal conviction, not that the property owner be convicted.

Appendix B of the study gives a state by state summary of standards and case law. For instance, Alabama requires "reasonable satisfaction", and there is case law establishing that in that state, suspicion that the property was involved in a crime is insufficient.

  • When you say seizure to be legal (MA, ND), do you mean adjudicated as correct and final? – gatorback Sep 15 '18 at 22:35
  • In MA, for example, the law says that "upon motion of the attorney general or district attorney, [it shall] be declared forfeit", then "the commonwealth shall have the burden of proving to the court the existence of probable cause to institute the action". At that point the only question is whether the owner can prove that the property was not criminally implicated. – user6726 Sep 15 '18 at 23:11
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It's pretty easy, really. All you have to do is something that looks like it could be criminal but is not. As long as it gives rise to probable cause, you're a target for forfeiture.

Imagine this: You're moving across the country. You've cleared the money out of your local bank and you're taking it with you, with plans to use it for a down payment on a new house. You've got $63,000 packaged up in a box, in your trunk for safekeeping.

Risky? Yes. Illegal? No.

Anyway, police think they see you breaking the law. You weren't, though, so you stop and fully cooperate with the police, who decide there's no reason to write you a ticket. But they want to ask a few more questions: Do you have any drugs? Weapons? Bundles of cash? You just want to get back on the road instead of explaining why you've got the cash, so you just tell them no.

But they want to look in your trunk. They do, and they discover the cash.

So they take it. They ask if it's drug money. You tell them it's not. You've got your whole life in your car, so you let them look at your bank records, pay stubs, etc., to prove it.

They don't believe you. They bring out the drug dog, and it barks at your car. They search, but they find zero drugs. They find zero drug paraphernalia. But they do find a magazine with articles about marijuana, so they still think it's all a little fishy.

So they take all your money.

What do you do? You are now forced to basically sue the police to get the money back. And the burden is on you to prove that it isn't from some crime. But the judge doesn't like that you lied about the money. (Never mind that you don't have to tell the police when you're carrying a lot of money) Or that the drug dog said there were drugs in your car. (Never mind that there were no drugs.) Or that your testimony was self-serving. (Never mind that that's the whole point of the hearing.)

So the judge rules against you and says the police get to keep your money. That's obviously insane, so you appeal to the Eighth Circuit. They tell you to pound salt. The police keep your money and buy some nice new toys.

That's basically what happened to Mark Brewer: U.S. v. Brewer, 781 F.3d 949 (2015). Never charged with any crime. Never convicted of a crime. Out $63,000.

So the answer to your question is that if you don't want to be on the wrong end of civil forfeiture, you must refrain from possessing anything that a police officer could reasonably believe was related to a crime. This is unfortunately impossible, so the real answer is that you have to write your lawmakers and tell them to end civil forfeiture.

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    Highway Robbery – mark b Sep 17 '18 at 17:10
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Basically, "forfeiture" is a civil action, while "criminal activity" falls under criminal law.

To prove that you are a criminal, and impose corresponding sanctions, the authorities need convict you of something "beyond a reasonable doubt."

Under "forfeiture," the burden of proof on the authorities is much less; such as "preponderance of evidence" or even "reasonable suspicion" or some lower standard than preponderance of evidence.

The way to remain "squeaky clean" is to NOT do things that drug dealers commonly do, even if they are entirely innocent. These include 1) buying transportation tickets, particularly airline tickets, on the same day as the trip and 2) carrying large amounts of cash, and using it to pay for things (over $100), rather than using credit cards or checks.

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