California Asset Forfeiture Law & How to Keep Your Property

California asset forfeiture laws allow the government to seize (and sometimes keep) your property when there is evidence that the property was either used in the commission of a crime, or obtained by way of criminal activity.

Most types of property can be seized, including:

• houses,
• boats,
• cars, and
• money.

Examples of asset forfeiture in cases we handle include:

• police taking ownership of several kilos of cocaine in a drug possession case.
• the government keeping a hunting knife that was used in an assault with a deadly weapon case.
• Cops taking a machine that a criminal used to make a counterfeit product.

In our experience, many asset forfeitures take place in:

• cases involving drug crimes, and
• cases involving organized crimes.

Note that before the government can legally forfeit property in these cases,

1. you typically have to be convicted of a crime related to the property, and
2. the government has to comply with certain procedural rules.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is asset forfeiture?
• 2. What type of property is subject to forfeiture?
• 3. What safeguards are there for asset holders?
• 4. What about asset forfeiture in California drug cases?
• 5. What is asset forfeiture in organized crime cases?

1. What is asset forfeiture?

Asset forfeiture is when the government takes your property because it suspects the property was either:

1. used in committing a crime, or
2. obtained via criminal activity.

Forfeiture can only occur after a civil proceeding¹ where the government files suit against the property itself (not you as the property owner).² To win the lawsuit, the government has to show by a preponderance of the evidence that the property was connected to criminal activity.

“By a preponderance of the evidence” means “more likely than not.” This is a far lower burden of proof than in criminal trials, where prosecutors must prove guilt “beyond a reasonable doubt.”

Note that while the police can seize your property before you get convicted of a crime, they usually cannot forfeit it until you are convicted of a crime.³ In our experience, forfeiture agents can be very sloppy and often seize property that is:

• misidentified as the suspect’s property or
• found nearby the suspect’s property but belongs to an innocent party.

1.1. How assets get seized

To get control over your property allegedly connected to criminal activity, forfeiture agents will typically:

• take physical possession of your personal property (such as drugs, cash, cars, etc.);
• order banks or brokers to hold your accounts so that you cannot withdraw any money; and
• record notices of forfeiture on your real estate to keep you from selling, transferring, or mortgaging it.

Once your property is seized, you can no longer benefit from it or control it unless the court ultimately denies forfeiture and orders the property returned to you and the legal title cleared.

Overzealous and intimidating forfeiture agents often go unchecked and may seize more property than they are legally entitled to.

2. What type of property is subject to forfeiture?

California’s asset forfeiture laws allow police officers and prosecutors to seize most types of property. Some of the most common examples we see are:

• a weapon such as a gun that is involved in an assault with a deadly weapon case,⁴
• telecommunications or computer equipment used to commit a computer crime, such as internet fraud,⁵
• raw materials,
• animals, if you are convicted of animal abuse and cruelty,⁶
• vehicles used to commit a crime, such as the transport of stolen property or distributing drugs,
• boats and planes,
• machines used to break the law, like using a machine to make counterfeit trademarks,
• illegal drugs or the machinery, land or buildings used to manufacture those drugs, and
• any personal or real property interest acquired through a pattern of criminal profiteering activity.

Note that police may not seize your residence or any real estate you jointly own with someone who was unaware that criminal activity occurred there.

In short, all assets subject to forfeiture generally fall under one of the following categories:

1. contraband involved in the illegal activity (such as narcotics or firearms),
2. proceeds from contraband or other illegal activities (such as cash, real estate, or other things of value),
3. exchanges, which includes cash or other property traded for (or intended to be traded for) contraband, and
4. facilitators, which includes items used in furtherance of criminal activity (such as a getaway car).

3. What safeguards are there for asset holders?

California police used to avoid state forfeiture laws by giving seized property to federal law enforcement, which has laxer regulations. Through “equitable sharing,” the feds sold the property and kept 20%, leaving local and state agencies with 80% of the proceeds.

The passage of Senate Bill 443 in 2016 significantly restricted “equitable sharing” and closed ways that California police can overreach and get around state forfeiture laws. Additionally, the bill increases the prosecutors’ burden of proof in certain forfeiture cases so that you have to be criminally convicted for you to lose your property.

Note that the feds can still seize your property based only on probable cause, which is a far lower standard than now required in most state cases.

4. What about asset forfeiture in California drug cases?

In drug cases, you generally must be convicted of an “underlying or related criminal action” before the government can forfeit your:

1. boat, airplane, or vehicle,
2. money or securities worth up to $40,000, and
3. any real estate (buildings and lands).⁷

There are two exceptions to the above conviction requirement:⁸

1. You fail to appear in your criminal case,⁹ and the government shows that the property in question is related to the crime¹⁰ (called a prima facie case¹¹); or
2. Cash or securities worth more than $40,000 can be forfeited with no conviction¹² if the government proves by “clear and convincing evidence” that the money came from – or was going to be used for – illegal drug transactions.¹³

Most California forfeitures involve drugs.

4.1. Required procedures

Depending on your drug case, the government has to follow one of the following procedures before it can forfeit your property:

1. Summary forfeiture: This is where the government can forfeit the schedule I drugs marijuana, heroin, ecstasy, LSD and peyote without any procedure of any kind.¹⁴ Though if the government seizes marijuana, it has to give it back if you had the right to possess it legally under California’s medical marijuana laws.
2. Administrative forfeiture: Before the police can forfeit your personal property (no real estate) worth less than $25,000, the police must give public notice of: The property’s description, appraised value, date and location of its seizure, the facts justifying its seizure, and instructions for challenging the taking.¹⁵ Once notice is given, we have 30 days to challenge the seizure of property.¹⁶ If no challenge, the police can sell the property, and keep the proceeds.¹⁷ If we challenge the seizure, then judicial procedures get applied.
3. Judicial procedures: A civil trial must be held when we have challenged the seizure of your property worth less than $25,000, or a state or local law enforcement agency has seized your property worth more than $25,000.¹⁸ For forfeiture to occur, the government must prove that the property was used to commit a crime or bought with money gained illegally, and you (the property owner “claimant”) were not an innocent owner and knew that a crime was being committed and agreed to it.¹⁹

Since asset forfeiture can get very complex – and because forfeiture agents are not lawyers – we see law enforcement make procedural mistakes all the time. We have a long track record of using these errors against the government to convince the judge to return your property.

5. What is asset forfeiture in organized crime cases?

For the police to forfeit property in an organized crime case, there has to be a conviction for a crime where there was a pattern of criminal behavior done for financial gain.²⁰ A pattern means that you committed two or more connected crimes.²¹ Common examples in cases we handle include:

• child pornography, unlawful under Penal Code 311 PC,
• extortion, unlawful under Penal Code 518 PC, and
• receiving stolen property, unlawful under Penal Code 496 PC.

5.1. Required procedures

For the government to legally forfeit property in organized crime cases, the prosecutor must:

1. file a petition with the court,
2. give a notice of the property to anyone with an ownership interest in it, and
3. publish a notice of the property in a local newspaper (in some cases).²²

If you have an interest in the property, we have 30 days of receiving the notice to challenge the forfeiture.²³ Then the court will hold a hearing and permit the forfeiture if the prosecutor can prove beyond a reasonable doubt that the property is subject to forfeiture.

Depending on the case, police can seize any property tied to a crime whether or not it is owned by a criminal suspect.

Helpful Links:

• U.S. Department of Justice Asset Forfeiture Program
• Asset Forfeiture Fund (AFF) of the federal government
• DEA Asset Forfeiture
• U.S. Attorney General
• U.S. Congress
• U.S. Supreme Court
• American Civil Liberties Union (ACLU)
• Institute for Justice – Civil Asset Forfeiture Reform on the state law level

Legal References: