A civil forfeiture action is a case filed by the State of Indiana against an individual who stands accused of certain criminal offenses. The case filed is civil in nature and completely separate from the criminal proceedings that might be brought against the individual. This type of case is filed when the State of Indiana is seeking the forfeiture of property that has been used to facilitate illegal drug activity or other criminal act. The most popular types of cases the State can seek forfeiture over include the following:
- Dealing in or manufacturing cocaine or a narcotic drug;
- Dealing in or manufacturing methamphetamine;
- Dealing in a schedule I, II, III, IV, or V controlled substance;
- Dealing in a counterfeit substance;
- Possession of cocaine or a narcotic drug;
- Possession of methamphetamine;
- Dealing in paraphernalia;
- Dealing in marijuana, hash oil, hashish, or salvia;
- Dealing in a synthetic drug or lookalike substance;
- Theft; Receiving stolen property.
As you can see, the list includes most types of drug cases as well as theft.
So what can law enforcement take? When law enforcement conducts an investigation, executes a search warrant, or comes across property as incident to a lawful arrest, search or administrative inspection, the officers often times take property they believe are connected to the illegal activity. The State the opens a new civil case separate from the criminal filing and petitions the court for the seizure of property involved in an investigation. Essentially, they take the property first and then the individual gets their due process later. Property that officers can take can be anything from vehicles they believe are used or intended for use by persons in possession of them to transport or otherwise facilitate any of the above listed crimes, any money, securities, weapons, communications devices or any other property used to commit, attempt to commit, or used in conspiracy to commit one of the above offenses, any real property (such as a house or piece of land) purchased with money that is traceable as a proceed of a violation of a criminal statute, and many other types of property. This basically boils down to if officers believe any kind of property, real or personal, is involved with a crime, they may have authority to take it without you ever being able to see it again. When law enforcement takes the property, they keep it in their possession until the civil forfeiture action is decided. The property officers take is not subject to replevin (a procedure where seized property may be provisionally restored to the owner pending the outcome of the case). Therefore, officers could possible keep your property, vehicle, or house while the criminal action is still pending and before you have been proven guilty or even before a connection between the property and the alleged criminal act has been established!
Once the property is accounted for, the State of Indiana will file a civil forfeiture action within 180 days after the property is seized or within 90 days after receiving written notice the owner is demanding the return of the seized property. Once the State of Indiana files the civil forfeiture action, the owner of the seized property only has 20 days to file an answer to the complaint and try to fight the allegations. This is why it is extremely important to contact an attorney experienced in civil forfeiture matters! Otherwise, all of the property the State seeks to seize that you own could be loss without further recourse.
If a response to the civil forfeiture action is filed by the owner of the seized property, the prosecutor must show by a preponderance of the evidence that the property was the type of property allowed to be seized in connection with a criminal investigation. The preponderance of the evidence standard is must lower than the beyond a reasonable doubt scale. Some scholars have defined the preponderance of the evidence standard as requiring a finding an event was at least 51 percent likely to have occurred. This is a very low burden for the prosecutor and fairly easy for them to meet if the property is indeed connected to a criminal act. If proven that the property is associated with the criminal investigation, the court will enter a judgment in favor of the State, determine the amount of resources that law enforcement used during the investigation and repay their costs, and if there are proceeds left over, they will be forfeited and transferred to the treasurer of State for deposit in the common school fund. If the property seized is not money but some other kind of tangible property, the property will be sold at a sheriff sale that is open to the public and the property will be transferred to the highest bidder with the proceeds again givne to the treasurer of the State.
Isn’t the taking of property before I have been proven guilty wrongful? Isn’t civil forfeiture double jeopardy and punishing me twice for one action? There has been a major push to determine Indiana’s civil forfeiture law unconstitutional and there has been recent progress for reform of the law. However, until that changes, Courts have held civil forfeiture is civil in nature, as they seek to progress nonpunitive legislative goals in an attempt to disincentive future illegal acts, with emphasis given to drug offenses. In other words, the civil forfeiture statutes were created in with the “War on Drugs” intent in mind.
So what can be done to stop this? The forfeiture statute requires the State to demonstrate there is some connection between the property sought by the State and the pending criminal action the forfeiture case is tied to. There must be more than a minor connection between the property and the offense to warrant the forfeiture. This is where the State will attempt to prove by a preponderance of the evidence the property they seek for forfeiture is connected to the criminal action. It could be cash found at the residence law enforcement executed a search warrant on, a vehicle an individual was driving when they were found in possession of a drug, or the residence someone lives at if the State thinks they can prove to a judge there is a 51% chance it was related to a crime! This is why it is important to retain an attorney who has handled civil forfeiture proceedings to try to break those ties the State of Indiana is alleging. Even if the property is likely tied to a criminal case, there may be a constitutional claim available to challenge the law itself. These claims are a bit too lengthy to explain in a blog but for example, there has been growing support in the legal community for claims that the 180 day time limit the State has to file for civil forfeiture after taking an individual’s property is unconstitutional. Imagine, you let your friend borrow your car to take to the grocery store and they get pulled over for a drug offense. The State could have up to 180 days (or up to 90 days if disputed timely) to file a claim the vehicle was used in connection to a crime, even if you had nothing to do with the criminal act!
If you or somebody you know is facing a civil forfeiture action or a drug case where your property has been taken, contact the experienced criminal attorneys at Banks & Brower, LLC for a free consultation. We can assist in either contesting the forfeiture or negotiating a resolution. We are available 24/7/365 by calling (317) 870-0019 or emailing us at info@banksbrower.com.