Forfeiture is something encountered frequently, but rarely looked at. Forfeiture, also known as Civil Asset Forfeiture is in essence, law enforcement charing your property for being associated with a crime and seizing it from you until either you are able to prove that you haven't been knowingly pursuing any criminal activity, or it is sold at police auction. From any standpoint, it is easy to see how this practice can be abused by law enforcement.
Across the nation more and more we are seeing cases of cops taking huge seizures to generate mass amounts of revenue. While the average person can plainly see abuse of a system that is all too convenient for the cops, when it comes down to the law itself, it's hard to place any wrongdoing on the police. On top of this, when your things are taken from you due to seemingly arbitrary reasoning and vague connections to criminal offenses, it can be a long and difficult process to get your property back.
Forfeiture Under VUSCA
In Washington state legislature, forfeiture has one definition for VUSCA, and another for all other felony crimes. Drug related offenses are covered under VUSCA, and as such, VUSCA carries its own language for forfeiture. This is covered under RCW 69.50.505. The law states that any item with the following conditions can be seized and they retain no right to property:
- Controlled substances and chemicals intended to manufacture them that are in violation to VUSCA
- Raw materials, products and equipment used, or intended for use in creation of controlled substances
- Any and all vehicles which were in use or intended for use to facilitate sale of controlled substances
- Any books or research materials used to create controlled substances
- Any drug paraphernalia
- Money, securities, negotiable instruments, or other tangible or intangible property gained from or involved with controlled substance crimes
- Real estate, land, lots involved with controlled substance offenses
Forfeiture When Involved With Felonies
Seizure and Forfeiture is a bit different when your property is involved with felony charges. This is covered under RCW 10.105.010. Your property can be taken from you if it meets one of these requirements:
- It has been or was actually used in committing, aiding, or intended to be used in a felony
- It was used, or intended to be used as compensation or reward for committing a felony
Typically, there is a due process for law enforcement to follow when making seizures like this, however, the statue includes language stating that seizure of personal property may be made without process under these circumstances:
- The seizure is incident to an arrest or search under a warrant
- The property has been the subject of a prior judgment in favor of the state in criminal or forfeiture proceeding
- An officer has probable cause to believe the property to be directly dangerous to health or safety
- An officer has probable cause to believe that the property was used to, or intended to be used to commit a felony
Similar forfeiture procedures apply to funds and real estate that are involved in money laundering cases.
Where Does Your Stuff Go?
The language in the legislature states that forfeited property must be sold, kept for police use, or destroyed if it is harmful to the public. Depending on your county you may see your items in police auctions, or used by the cops themselves. Seattle police make use of a web auction site and split the profits with them. The practice of seizing property and selling it has most critics calling this "policing for profit," because, in essence, that's what seizure allows law enforcement agencies to do.
What Can You Do?
If your property has been seized under a VUSCA violation the law enforcement agency that performed the seizure must send notice of seizure within fifteen days after the event. You will then have forty five days (ninety for real estate or land) to make a written claim of the property, or it will be deemed forfeit, and the police will retain possession of your property. If this happens, the things you own will be sold, destroyed, foreclosed on, or put to use for whatever the cops want. During the process for your claim, "the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture." Basically, this means that the police will have to work to prove their own case against you. There will be a hearing before either the "chief law enforcement officer of the seizing agency" or an administrative judge. If the hearing is in your favor the police must return whatever they took from you.
If your property has been seized under a felony or money laundering investigation, similar to VUSCA violations, law enforcement will again notify you within fifteen days following the seizure. If the law enforcement agency receives no notice or claim within forty-five days (ninety for real estate), this property is forfeit and also subject to being sold, destroyed or put to use by the police. The civil procedure when a felony is involved, however, is different than VUSCA violations in one very important way. The statute states that the burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. In essence, this means that your property is "guilty until proven innocent," and you are the one held responsible for proving that your property is not involved with the felony, or that you were not aware that the property was being used for criminal activity. Luckily, Washington State legislature states that forfeiture cannot occur until after a conviction occurs, however there are several other states that do not have this requirement.
If you are facing felony charges, or your property is involved with a felony, don't let your property be used any which way by law enforcement. Please contact Steve Karimi at 206-660-6200 today.