Facing criminal charges is a stressful ordeal. Unfortunately, Indiana also allows
the government to seize personal property believed to be used for, or derived from,
criminal activity. This process is known as “forfeiture.” Forfeiture proceedings are
actually civil matters, and are brought forth as separate proceedings from criminal
cases. Civil forfeitures in Indiana can be brought under one of two statutes. The
general forfeiture statute is found at IC 34-24-1-1. The statute that allows property to be
forfeited as part of racketeering, or corrupt business influence, is IC 34-24-2-2.
IC 34-24-1-1 allows the State to seize property related to criminal activity. The
property specified could include vehicles, cash, weapons, or phones. Essentially, police
can seize and attempt to forfeit any property that they believe was used to further or
perpetuate criminal activity.
IC 34-24-2-2 is the forfeiture statute pertaining specifically to racketeering, or
corrupt business influence. This statute allows the State to seize any property used in
the course of, intended for the use in the course of, derived from, or realized through
fraudulent business transactions.
In order to keep property under either section, the State must show by a
preponderance of the evidence (or more likely than not) that the property was used as
part of a criminal enterprise. If the State fails to meet this burden at an evidentiary
hearing, the property is returned to the original owner. If the State succeeds in meeting
their burden, then the property is “forfeited” to the State. The property can then be sold,
auctioned, or used to support law enforcement or the local government.
It is important to note that the State can prevail in a forfeiture action even if the
property owner is never proven guilty of a crime. The civil preponderance standard is a
much lower burden of proof than that in a criminal case, which requires the State to
prove that a crime occurred beyond a reasonable doubt.
All hope is not lost once the State initiates a forfeiture action, but it is direly
important to have an experienced attorney to combat the State’s allegations and hold
them to their burden. The State must prove a nexus, or connection, between the
property seized and criminal activity. If the State cannot prove this connection, then
their forfeiture action fails.
For instance, in Smith v. State, the State seized $11,180 found during the search
of an apartment belonging to an individual named Dylan Williams. Williams was a
parolee that had been testing positive for narcotics. Along with the money, suspected
crack cocaine and a scale were recovered during the search. Williams himself did not
contest the forfeiture. However, his aunt, Angela Smith, moved to intervene and filed an
answer to the forfeiture complaint, asserting that the money belonged to her.
At an evidentiary hearing, Ms. Smith explained that she had given Williams the
money to hold for her so that her abusive boyfriend could not access it. The State did
not produce any evidence that contradicted the testimony of Ms. Smith. Williams never
testified. Although the trial court entered judgement for the State, the Indiana Supreme
Court reversed the decision and ordered the money returned to Ms. Smith. The
Supreme Court reasoned that because the State failed to establish a nexus between
the money and any illegal activity, and because the State did not offer any evidence to
contradict Ms. Smith, that the State failed to meet their burden and that the money
should be returned to Ms. Smith. Smith v. State, 232 N.E.3d 109, 116-117 (Ind. 2024).
Have you or a loved one had property seized by the government in a civil
forfeiture action? Contact the experienced attorneys at Banks and Brower by emailing
us at info@banksbrower.com or by calling us anytime at (317) 870-0019.
