You call the police when your personal property is stolen but who do you call when it’s the police stealing your property? This is civil asset forfeiture, also known as civil forfeiture. If the police suspect your personal property-- cash, car, house, any item really--was somehow related to a crime, they can seize it forever.
Unfortunately, a law meant to tackle large crime syndicates has become profitable for the police and is even included in their budget.
Arizona has been rated one of the strictest states when it comes to civil forfeiture law. Police don’t need any indictments or charges to perform seizure of property.
It’s important you learn the details about Arizona’s forfeiture laws so you’re prepared if this were to ever happen to you. Rideout Law Group has experience with similar situations. Contact them for a forfeiture attorney if you find yourself in this predicament.
What is Asset Forfeiture?
Personal property is a vague term so you might be wondering, okay, what does that mean? What can be seized? What counts as property? The answer is: Everything. As long as law enforcement suspect it as having involvement, or some sort of relatability to a crime, it can be forfeited.
Examples of asset forfeiture from Arizona police include:
- Cell phones
- An $18 Best Buy gift card
- Three glass pie dishes
In 2019, 77% of Arizona asset forfeiture cases involved cash values less than $10,000 and in 2018, 56% of Arizona cash forfeitures were for less than $1,000 dollars. A dollar amount isn’t too specific and the crime doesn’t have to involve you, it can only involve your property. Tucson resident Kevin McBride let his girlfriend borrow his Jeep Wrangler to grab a soda at the convenience store. When she didn’t return, he became worried and got a ride in time to watch his jeep get hauled away. Allegedly his girlfriend sold marijuana to an undercover cop, a charge that was later dropped. But the car had been seized as part of the crime.
In a situation such as this, a forfeiture attorney can help win back your property in cases that are often difficult to argue; that your property didn’t do the crime.
History of Asset Forfeiture
Essentially, forfeiture comes from the idea that an item can be criminal of its own accord. This reasoning isn’t new and has been spotted as early as the Bible.
“Exodus 21:28: “If an ox gore a man or a woman, that they die: then the ox shall surely be stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.”
‘Trial of a Sow and Pigs at Lavegny’, French illustration, 1849 © Getty Images.
In the 11th century, this idea first came to law in the form of a ‘deodand.’ Medieval law established that in the case of an item causing a person’s death, whether purposeful or accidental, it was to be forfeited to God. If a person fell off a horse, a boat, a steeple, an ox cart, and fell to their death, then those items were labeled as deodands. Parliament abolished the law in 1846 but, by then, the American colonies had been under forfeiture by the British for ship cargo.
The Navigation Act of 1660 demanded that all ships leaving or coming to the American colonies had to first go through Britain. Soon, British Royal Navy or British privateers had the authority from the crown to forfeit ships, cargo, even the horse and buggy that moved the cargo to and from the docks. America adopted the privateering system to find smuggling ships and to help them win the War of 1812, the Civil War and the Spanish American War. The money and goods seized on foreign ships all went to the government as it does now.
Forfeiture again reappeared after Prohibition so the government was able to acquire money that should’ve been spent on liquor taxes from illegal booze. Around this time, forfeiture was used to handle organized crime, which is the argument for forfeiture use today though most cases prove that this isn’t true.
However, the kind of forfeiture we see now was really implemented into law during the War on Drugs. Richard Nixon set this up in the 1980s to tackle drug kingpins by taking their luxury homes, their money stash, and their luxury cars. That was the idea anyway; steal the money from the drug enterprise and you can cripple the enterprise.
But in 1984, Congress allowed the police to practice asset forfeiture on everyday citizens who were suspected of a crime and this has become the legal rabbit hole that led to where we are now.
Arizona civil forfeiture turns the constitution on its head. It’s a loophole that allows citizens to be guilty before proven innocent instead of innocent before proven guilty. Under ARS 12-4301 to ARS 12-4315, forfeiture occurs when police receive permission from the state to seize property.
According to ARS 13-4305, law officials can seize property by
- A legal search warrant
- Before obtaining or executing a warrant
- Before court process it
- Forfeiture is related to incident, arrest or search
- Property has been subject of prior judgement of state, any other state, or federal government
- The officer has probable cause to believe the property was involved in crime
- Property placed under constructive seizure: Posting notice of forfeiture on the property, or filing notice, or notice of pending forfeiture
- Conduct giving rise to forfeiture occurred
- Person acquired property during the time of the conduct
Once the property is seized, the individual has to prove the property was never used in a crime. This can be a complicated process where the burden of proof is on the citizen, and extremely difficult to prove. Under A.R.S. 13-4314(G), if you cannot prove your innocence, you not only have to pay your own legal fees but the government’s legal fees as well.
Who’s Affected By Civil Asset Forfeiture?
- Ideally, start or end with a personal success story from RLG of someone defended from asset forfeiture
Just as the war on drugs disproportionately harmed racial minorities so has asset forfeiture. Data shows that police tend to use forfeiture on black and Hispanic motorists more often than white citizens. Other data shows that economically disadvantaged communities are most likely to suffer asset forfeiture. But, really, any community can be affected. The only clear connection is a lucrative incentive.
How much is seized?
To show the growth of asset forfeiture you only have to look at the numbers. Federal forfeitures totaled $93.7 million in 1986 and by 2014 had grown to $4.5 billion a year. From 2011 to 2015, Arizona law enforcement agencies seized around $200 million. Since 2000, Arizona has raised roughly $27 million a year through civil forfeiture.
Examples of Arizona counties include:
- La Paz County- has a population of 20,500 and seized $1.6 million over five years, $955,000 of it in 2015
- Apache County- reported $3,000 in 2011, $6,000 in 2012, $26,000 in 2013, and $250,000 in 2015
- Maricopa County- $89 million from 2011 to 2015
- Mohave County- $109,000 in 2011 to $852,000 in 2015
- Pima County- $24 million from 2011 to 2015
- Pinal County- $8 million from 2011 to 2015
- Yavapai County- $5 million from 2011 to 2015
Arizona forfeiture laws also apply to citizens of other states who are passing through. Jerry Johnson flew from North Carolina to Phoenix Sky Harbor Airport to purchase a truck on auction for his trucking company that hauls freights and tractors. Johnson had almost $40,000 in his luggage to purchase the truck. Officers at the airport said that because of the large amount, they suspected him of money laundering, and seized the cash. In the end, Maricopa County Superior Court said that Johnson, who got this money from his business and family members, couldn’t prove where he got the money from and he lost the case.
A forfeiture attorney who has previous experience winning these cases is essential. Especially in Arizona where clients are facing some of the harshest forfeiture laws.
Arizona-Specific Asset Forfeiture Laws
The burden of proof is on you. What does that mean? It means you have to prove that your item wasn’t used in a crime. Without a forfeiture attorney, it’s difficult to prove a negative. In 2017, House Bill 2477 passed and increased the state’s burden of proof. Now asset forfeiture seizures require audit reports. However, with most cases tried within law enforcement agencies, it’s best to suit up with a forfeiture lawyer.
In Arizona civil forfeiture law, law enforcement agencies can keep 100% of amounts seized through asset civil forfeiture after putting property up for auction. The government only has to show that they believe it’s likely the property seized had something to do with criminal activity. An absence of an arrest or conviction doesn’t prevent the state from forfeiture of seizure of your property.
People with seized property must hire a forfeiture attorney to win their property back in civil court.
The Asset Forfeiture Process in Arizona
Once law enforcement agencies have followed laws ARS 12-4301 and ARS 12-4315, police receive permission from the state to seize property. Then the following happens.
- Court determines probable cause
- The property is put under constructive seizure
- Posted notice of seizure on the property or notice of pending forfeiture in public record
Notice of pending asset forfeiture is required following ARS 13-4207. Then the attorney of the state has 60 days to start proceedings. If the state can’t properly complete forfeiture in those 60 days, then the property’s owner can request the release of the property.
The citizen has to prove they’re the owner of the property. Within 15 days after the release of notice for seizure, or awareness of the seizure, the property’s owner can file for a hearing. The owner can’t have previous judicial determination of probable cause. The attorney for the state must be served a notice for the hearing no less than five days before the hearing’s date.
After property’s been auctioned, Arizona forfeiture law allows 100% of the proceeds to go directly to the prosecutors and law enforcement agencies who seized the property. What’s it spent on? While a portion of forfeiture money is supposed to go to things like drug educational programs, the money is spent on anything and everything. Here’s what forfeiture proceeds have been spent on by law enforcement:
- A helicopter
- Military grade equipment
- A $637 coffee maker
- Police personal vacations
What do you do if Your Assets are Seized?
The likelihood of ever winning an asset forfeiture case is extremely low. The same agencies that take your things can bring forfeiture cases such as Maricopa County who won 99% of their cases. Because most property is forfeited without a conviction, it’s easier for the government to win.
A property owner can demand the immediate return of their property from the seizing office if they’ve never been charged with a crime.
You have only 30 days to file a verified claim, claiming ownership of the property once you’ve received a notice. There are no extensions. Then your claim must be served to the seizing agency and attorney for the State. However, this is a race against time and there are many tricky fine details that could land you in even more trouble or criminal liability. It’s important to seek an asset forfeiture lawyer to deal with the complications of these laws so you don’t accidentally incriminate yourself.
You’ve filed the claim and are now the ‘claimant.’ And, you’ve paid the filing fee which can be hundreds of dollars. If you don’t follow every step required from your county, your case can be considered uncontested.
There are many documental hoops to jump through and consulting an attorney is the best way to secure your assets.
How are you Protected?
If your forfeiture involves a vehicle, a forfeiture lawyer can use the following defense.
- Vehicle can’t be forfeited unless citizen knew it was used for criminal acts under ARS 13-4304
- Vehicle can’t be seized after use for drug transport if the drug wasn’t transported for money and doesn’t stick to the following weight:
- Nine grams of methamphetamine or powdered cocaine
- Nine grams of methamphetamine or powdered cocaine
- ¾ grams of rock cocaine
- A single gram of heroin
- Half liter of liquid LSD
- 50 dose units of LSD
- Two pounds of marijuana
- Four grams or 50 ml of PCP
Forfeiture cases are involved and complicated and an attorney should always be contacted for legal advice. Additionally, a forfeiture lawyer can help you seek an appeal if you feel your property was wrongly forfeited. Rideout Law Group has experience getting property back for customers in asset forfeiture cases and they can do the same for you.
Takeaways/ Final Thoughts
Doug Ducey signed House Bill 2810 on May 5, 2021, legislation that reforms asset forfeiture in Arizona.
Conviction: Moving forward, Arizonans have to be convicted of a crime or else their property can’t be taken forever by forfeiture. This allows innocent people more likelihood that they’ll retrieve their property. If the government can’t convict within 60 days, then by law they must return the property or notify the owner of a pending forfeiture.
Changes: There are many important changes to Arizona forfeiture law due to the 2810 bill. When the bill becomes law, it prohibits Arizona citizens from being coerced by police to relinquish their rights to their property. It bars the Attorney General’s office from using anti-racketeering fund money to pay salaries. It also gives people more time to challenge the forfeiture in court. Instead of 30 days, it doubles the amount of time a citizen has to respond to a forfeiture notice to 60 days. https://reason.com/2021/05/06/arizonas-newly-enacted-reforms-will-make-it-harder-for-cops-to-steal-property/
What this means for the future: This legislation becomes law 90 days after the Legislature adjourns, making Arizona the 16th state to require a criminal conviction before property is forfeited. Because there are so many laws in flux during this transition, you’ll need the help of an experienced forfeiture attorney before and after. Brad Rideout at Rideout Law Group has the distinguishability of being specialized in criminal law and having previous wins in forfeiture cases. Call (833) 854-8181 for a free case review.