Introduction to Arizona Civil Forfeiture Defense
Civil forfeiture, or civil seizure, is the act of police seizing assets involved in criminal activity. This could be cash, a car, a house; virtually any asset which police deem was obtained illegally or involved in illegal activity. Civil forfeiture is an incredibly controversial practice across the country due to the ambigious, biased, and often unfair nature of the seizures. This article will describe the inherent legal flaws relating to civil forfeiture, along with steps to defense and reacquisition of the seized property.
What is Civil Forfeiture, and why is it problematic?
There are numerous problems inherently present in civil forfeiture legislation, starting with the very nature of the crime itself. While most crimes require a human criminal- the actor in the act of crime- civil forfeiture does not require such. Rather, the assets themselves are considered the criminals. This leads to a strange legal anomaly where the property itself is “incarcerated” by the state and posted with a bond for its release. However, because the property is not a human under the constitution, it does not have the same constitutional rights afforded to a human criminal.
This leads to myriad legal problems. The first is a lower requirement for proof, because there is less constitutional fuss if property is unfairly seized than if a person is unfairly arrested. For instance, an officer can pull you over and seize your car if they have some suspicion that the car was stolen or involved in criminal activity. The officer does not need to provide evidence that the owner committed the crime, or even provide substantial evidence that the car was indeed involved in criminal activity. Because it is property, officers can basically throw caution to the wind and behave as they please.
This ease of seizure is only compounded by a strong and heavily documented police bias, commonly referred to as “policing for profit.” This is especially rife in Arizona, as law enforcement officials can keep up to 90 percent of funds raised through civil forfeiture. To top it off, Arizona along with Texas are the only two states which allow the use of civil forfeiture funds in police personnel salaries.
And this is not just nickels and dimes. Between 2000 and 2011, over 300 million dollars was raised through civil forfeiture, 53 million of which went directly into salary increases and overtime. However, perhaps the most troubling statistic is that between 2000 and 2011, the revenue generated through civil seizure quadrupled, 12 million in 2000 to over 50 million in 2011. This shows a willingness from Arizona police to use civil forfeiture as a conscious effort to supplement their alloted budget.
So what accounts for this sharp rise? Simply put, the answer is police corruption. This is evident in the fact that the largest proportion of seized asset funds go toward personnel salaries. One popular method among police to warrant seizure is the use of a drug-sniffing dog. The dog will “alert” the officer to the presence of drugs, leading to a search of the vehicle. Even if the officer finds no drugs, they will seize any cash in the vehicle on suspicion of criminal activity, often without issuing an arrest or even citation. Sometimes, the proof required for seizure can be even more nebulous, or entirely absent. One such story involves a man on his way to purchase a car from a craigslist vendor, but is stopped for one reason or another. During the officer’s search of the car, he noticed the driver had over 10,000 dollars in cash, and concluded that this amount of cash could only imply criminal activity. Even after the driver explained he was on his way to purchase a car, it did not matter. The officer seized the money and was on his way.
A powerful instance of the law’s failings arose in a 2013 Pinal County case involving Grandmother Rhonda Cox. Rhonda lent her truck to her son Chris, who was pulled over under suspicion of theft of a truck hood, and had the truck seized. She was too poor to afford a lawyer, but immediately had to pay a 300 dollar fee just to challenge the seizure. Then, even after paying said fee, Rhonda still held the burden of proof in court, meaning that she is guilty until proven innocent. Despite Rhonda’s insistence that she was not aware of the truck’s illegal hood, the Pinal County court determined that she was a “straw owner,” meaning that she was aware of the truck’s illegal hood but kept up a legal facade. Eventually, she was strong-armed into dropping her claim for the truck.
To add insult to injury, the Arizona law states that if the person loses in court, they are also responsible for all of the State’s costs and expenses associated with the legal proceedings arising from the seizure. Not only is this spitting in the face of those who simply want their property back, but it also creates a climate of fear for those who want to appeal for their seized assets but are afraid of being charged exorbitant legal fees. The potential for exploitation and corruption associated with these seizures would be laughable if it wasn’t so scary. Cops seize assets because it directly benefits them, and are then provided with inherent fear tactics to dissuade the owners from ever appealing for their property back. If they are confident enough to go to court, they then must prove not only their innocence, but sometimes the innocence of an inanimate object which bears no reflection on the owner’s innocence. It is an absurd and broken system.
Steps to Recovering Property:
Even within this broken system, there is advice you should follow if your property is seized. First, you should be asserting your right to due process at every possible opportunity. After your property is seized, write a letter to the seizing agency immediately demanding your property be released.
After a short time period, the State of Arizona will issue one of two documents: “Notice of Seizure for Forfeiture” or “Notice of Pending Forfeiture.” Often, a notice of seizure for forfeiture will be issued first, and will outline the calendar of deadlines. The first is the owner’s right to request a hearing on probable cause of seizure, and must be conducted within fifteen days of the NSF issuance. This hearing will allow the officer to explain his or her probable cause, but often does not result in any verdict one way or the other.
Within sixty days of the NSF issuance, the State must also issue the Notice of Pending Forfeiture. It is at this point that the owner must begin to act quickly, which may include hiring legal assistance. The owner has thirty days to file a verified claim on their property once the Notice of Pending Forfeiture is sent, which is essentially the owner declaring to the court that they plan to appeal the seizure. This verified claim should include all evidence the owner plans to employ, but must avoid any and all incriminating information. For instance, if your car was seized for being involved in a bank heist, and you claim it was not that car, but in fact a different car, this shows that you were involved in the bank heist. Otherwise, how would you have access to that information? In short, be sure that when you are exonerating your property, you do not incriminate yourself in the process.
After filing a verified claim, the last step is the trial. Of course, the first step to recovering seized property is to hire an experienced defense attorney. There are a few common defenses available for owners to recover their assets. The first is the innocent owner defense. If it was only the property itself involved in the crime- like a used car sold to an unwitting owner- the owner can use this defense. The second most common defense is asserting an illegal search. Because the fourth amendment protects against illegal search and seizure, this would be an obvious defense against a corrupt and self-interested police officer.
If the property seized truly was done in error, or in independence of your own criminal status, or in violation of 4th amendment rights, there is a good chance for reacquisition. Defense options are numerous and fairly easy to prove. But the issue with Arizona’s forfeiture laws is not lack of defensibility, but rather lack of police scrutiny. Just as it would be considered immoral for a large corporation to flood an individual with innane lawsuits just because they can, police seizure without repercussion holds to the same principles. The effort, time and money required to appeal a police seizure is the police’s weapon, and they know, and are hoping, that many will just give up if the property value is low enough. Even if the property owner risks going to court and wins back their property, there is very little risk of disciplinary action toward the police officer anyway, and the owner still has to pay their own legal fees. This opens up a situation where police officers are incentivized to behave selfishly and sometimes illegally with no fear of punishment for their actions.
Just last year, the Arizona American Civil Liberties Union filed a lawsuit in U.S. District Court stating that the Arizona laws on Forfeiture are unconstitutional and lead to inevitable conflict of interest problems. They pursued this on the back of the Rhonda Cox case discussed earlier, claiming that although the “innocent owner” defense can work in court, it does not excuse the exorbitant fees required to hire an attorney and even file the required paperwork. Read the article on how unfair Arizon’a civil forfeiture laws are.
Conclusion to Civil Forfeiture Defense in Arizona
The effort and money required to appeal the seizure in court leaves many either unable or unwilling to do so, consequently filling the police force’s coffers. A law should not reward officers for seizing property, and then punish owners for standing up for themselves. In the words of the ACLU, “civil forfeiture results in a perverse, unfair, unconstitutional incentive to seize and forfeit as much money and property as possible as a means to ensure a slush fund with little or no oversight.” Hopefully, lawmakers will one day find a way to still uphold legal seizures while eliminating the inherent conflict of interest present in the police force today.
Interested in learning more about civil forfeiture laws in the state of Arizona? We’d love to hear from you! Comment below or reach out to us on our social media channels. If you need criminal defense assistance for seized assets in the state of Arizona, contact an experienced defense attorney today. For more Arizona criminal law contact our experienced Tucson criminal defense attorneys.