For those who confront and battle asset forfeiture laws everyday, the news coming out of Washington is long overdo. As a federal and state asset forfeiture attorney, I have seen over the last few years a dramatic increase in the use of asset forfeiture by the government, especially the federal government, in lieu of criminal prosecutions. While that may seem like a win for a defense attorney because, after all, you cannot lose your freedom or be sent to jail via an asset forfeiture case, which is obviously quite different than criminal prosecutions where everything is at stake.
That said, the government has abused its power to seize property because it knows how easy it is to do so and how unlikely it is for the person to challenge the taking of property. The typical case I have seen and defended over the last few years is the innocent person being pulled over for a traffic ticket and after a thorough search of the vehicle and person a large amount of money is found. I have had many clients who legitimately carried large amounts of money (think around ten thousand dollars or so). Some were on their way to get a car, others were traveling, some about to go gambling, etc. Well, the officer would take the money based on nothing more than a hunch that was obtained illegally. Fearing the process of getting the money back, many simply walked away and the government got a bit richer. Those that did fight it soon found out what an uphill battle it is to get the money back. First, the standard of proof is much lower. Second, the government has unlimited funds to fight the process while the client does not.
Well, there is recent news that the process and abuse is about to change. Rep. Tim Walberg just introduced a bill to curb asset forfeiture abuse. "Walberg’s legislation, introduced Monday, would raise the standard of proof necessary for the government to seize property and reinstate due process so the government is required to prove a property owner’s involvement in criminal activity." Many besides Rep. Walberg are growing increasingly outraged. According to the Washington Post, the libertarian public interest law firm the Institute for Justice, has just launched “End Forfeiture Now,” a Web site dedicated to, well, ending forfeiture now. From the press release: “When Americans learn that law enforcement officials can take their property without convicting them of a crime, they are outraged and want the practice to stop,” said Institute for Justice Senior Attorney Scott Bullock. “This online initiative educates citizens about the pernicious practice of civil forfeiture and what they can do to fight back.”
In the meantime and until real progress is made, I continue to advise my clients to do several things whenever confronted by law enforcement. First, ask for a lawyer up front. Second, do not answer any questions that my implicate you in a crime, period. Third, never, and I mean never, consent to a search of yourself or property without seeing a warrant. Fourth, never assume the law enforcement official is on your side. Their job is to investigate crime and arrest those involved so never think they will be nice if you are nice.