Huge change in federal policy related to asset seizure

Employment law is my main focus, but I have quite a bit of experience related to federal forfeiture law, specifically, C.A.F.R.A.  I like to keep up on the topic. Asset forfeiture is an interesting niche that has been the subject of abuse and is not well understand by many practitioners.

Today marks a fairly large shift in policy, and a tacit recognition that the federal forfeiture process was previously being misused.

Attorney General Eric Holder announced that Federal Agencies will no longer adopt assets seized by local law enforcement. This closes the door on what was a fairly common practice of local law enforcement agencies seizing assets then turning them over to their federal counterparts for forfeiture under laws that were much friendlier than the state laws that law enforcement would otherwise have been forced to comply with.

Click to read the press release from AG Holder.

I saved a copy of the formal order issued by the AG, you can download a copy here.

The policy does not prevent all adoptive forfeitures, and still allows for forfeitures of “public safety concerns, including firearms, ammunition, explosives and property associated with child pornography.”

Nonetheless, this ends the practice of local law enforcement seizing currency and vehicles under questionable circumstances, transferring the property to the feds, and then reaping the rewards of forfeiture under generous asset sharing arrangements.

Now, state and local officials will be accountable to their own state laws related to asset seizure and forfeiture. Many of which, are much more rigorous and demanding than their federal counterparts.

This could lead to a increase in the amount of forfeiture cases litigated on the state level, or it could lead to a decrease in the amount of seizures done by law enforcement, if they decide it just isn’t worth the effort anymore. Only time will tell…

Civil Forfeiture, explained in an entertaining way

I previously talked about the potential for abuse of the civil forfeiture process.  I tried to create a plausible, yet scary, scenario to show just how easy it is for your property to be taken, and how hard it can be to get it back.  This new video from John Oliver’s show, Last Week Tonight, had a great segment about civil forfeiture:

Essentially, the thrust of the segment, which is not without basis, is that civil forfeiture has become a tool of policing for profit.

While the laws are not favorable to those who have had their property seized, you are not without recourse. Even if you do not have the money to hire an attorney, in some instances an attorney will take your case on a contingent fee basis, where they will only collect a fee from you if they help you get your property back.

If your assets have been seized, contact us now for a free consultation.

Consults@IvancieLaw.com

Phone: (619) 929-0451

Fax: (619) 828-1019

How you could lose your assets to Civil Forfeiture

Civil Asset Forfeiture Explained

Civil forfeiture… Many people have no idea what that phrase means.  So, lets break it down.

Civil forfeiture defined

First, the civil part.  Generally there are two broad types of court cases in the U.S., civil and criminal.  Criminal is when the state is prosecuting a person for committing a crime. When you watch Law & Order, those are criminal cases.  The burden of proof for criminal cases is beyond a reasonable doubt–quite a high burden.  Civil cases, by contrast are typically cases where one party is suing another.  Classic examples include, you suing someone when they rear-end you or a business suing another business for failing to meet the terms of a contact. The burden in civil cases is preponderant evidence, which in simple terms means was it more likely than not, or in numerical representation, its more than 50% likely that one side has proven their case.  Preponderant evidence is a much lower burden when compared to proving something beyond a reasonable doubt.

Forfeiture is when the state takes property from an individual, generally due to some sort of wrongdoing that is related to, or perpetrated with use of, the subject property.

Historically, law enforcement agencies would forfeit property subject to a criminal prosecution.  More recently, law enforcement agencies on the federal and state-level, across the country, have started pursuing civil forfeiture independently.

So, right now, you’re saying, “I get it, what’s so bad about civil forfeiture?”  Well, it all comes down to the burden of proof.

Lets work through a quick illustration.

You’re driving back from the dock where you just sold your boat for $12,000 dollars.  You’re happy you got what you were asking and in your after-sale exuberance you happen to run a light that is just turning from red to yellow.  Local law enforcement pulls you over.  They ask to search your car, you oblige; you’ve got nothing to hide. In your center console they find an envelope with $12,000 in it.  You’re driving a big black SUV because, well, it was good for towing the boat.  You happen to have two cell phones because you are self-employed.  Finally, in your center console there are some dried ground up green leaves from when you were bringing ferns back from Home Depot months ago.  Near them are some small ziplock bags you used for fishing gear and figure would be worth holding on to since the new boat owner doesn’t fish and didn’t want them.  OK whats the point?

But guess what?  Your $12,000?  Seized.  Your nice big black SUV?  Seized.  That means you cant use either until the government gives them back to you.  What for?  Well, you’re a suspected drug dealer…

The police report reads something like this ‘green leafy material consistent with marijuana found in center console near plastic baggies which is consistent with drug dealers who package drugs for individual sales in small quantities.  $12,000 cash found with questionable source, again consistent with drug dealer. Individual had two cell phones, consistent with drug dealer.’

You then spend months trying to get your car back.  No criminal case follows but you don’t have a car, you can’t work.  You are draining your savings and that $12,000 from your boat sale would really come in hadny, but guess what that is still subject to forfeiture to.  You never get prosecuted, the case is too weak, but the state proceeds with civil forfeiture.

The Burden of Proof

This is where the burden really matters.  Civil forfeiture, they only have to show that its more likely than not that you were using your SUV to further your drug dealing enterprise and that the $12,000 was proceeds or intended to be used to further your drug kingpin.  With a criminal case and forfeiture they have to prove all that beyond a reasonable doubt. Right now you should be seeing a light bulb.  Law enforcement sure has.  They know criminal cases are tough to win, but with civil forfeiture they can win more cases and bring in the money and resources to keep their operations going.

This scenario sounds pretty crazy right?  Well, sadly, its not.  Civil forfeiture is a huge money-maker for local law enforcement agencies. This is well documented.  It can cause great harm to families and individuals.

If something like this happens to you, do you know what to do?  What to say?  Who to ask for help?

 

We know how these agencies operate.  We know how the statutes work.  We can help.  Call us for a free consultation now.

 

Getting your arrest records sealed or destroyed in San Diego County

If you were wrongly arrested in San Diego County and you want your arrest records sealed or destroyed, your are not without recourse. Subject to some procedural hurdles your records can be sealed or destroyed.

For starters, the bulk of your relief is controlled by California Penal Code Section 851.8.

If you’re arrested and charges are never filed against you, you have to petition the arresting agency to get your records sealed or destroyed.  If that agency doesn’t respond within 60 days, its deemed denied and then you can move on to filing in California Superior Court. To win your case at superior court you must get a finding of factual innocence.

A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.

Further, the burden is on you, the applicant, to show that you did not commit the offense for which you were arrested.

In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made.

If charges were filed, but there was no conviction, you can petition the court that dismissed the charges. If that court agrees that you are factually innocent then a hearing may occur with the prosecuting attorney to determine the outcome of your dismissal.

As you can see, each circumstance leads to a different series of steps, and potentially a different result.

If you need help navigating this process call us now for a free consultation.

Penal Code Section 851.8 – Sealing your arrest records

(a) In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records, and the petition for relief under this section for three years from the date of the arrest and thereafter destroy its arrest records and the petition. The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor. The Department of Justice and any law enforcement agency so notified shall forthwith seal their records of the arrest and the notice of sealing for three years from the date of the arrest, and thereafter destroy their records of the arrest and the notice of sealing. The law enforcement agency having jurisdiction over the offense and the Department of Justice shall request the destruction of any records of the arrest which they have given to any local, state, or federal agency or to any other person or entity. Each agency, person, or entity within the State of California receiving the request shall destroy its records of the arrest and the request, unless otherwise provided in this section.

(b) If, after receipt by both the law enforcement agency and the prosecuting attorney of a petition for relief under subdivision (a), the law enforcement agency and prosecuting attorney do not respond to the petition by accepting or denying the petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then the petition shall be deemed to be denied. In any case where the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, petition may be made to the superior court that would have had territorial jurisdiction over the matter. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense at least 10 days prior to the hearing thereon. The prosecuting attorney and the law enforcement agency through the district attorney may present evidence to the court at the hearing. Notwithstanding Section 1538.5 or 1539, any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable. A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made. If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy the records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy those records. The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy the records, unless otherwise provided in this section. The court shall give to the petitioner a copy of any court order concerning the destruction of the arrest records.

(c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made. A copy of the petition shall be served on the prosecuting attorney of the county or city in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner’s factual innocence. The prosecuting attorney may present evidence to the court at the hearing. The hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b).

(d) In any case where a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred, the court may, with the concurrence of the prosecuting attorney, grant the relief provided in subdivision (b) at the time of the dismissal of the accusatory pleading.

(e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that the defendant was factually innocent of the charge, the judge may grant the relief provided in subdivision (b).

(f) In any case where a person who has been arrested is granted relief pursuant to subdivision (a) or (b), the law enforcement agency having jurisdiction over the offense or court shall issue a written declaration to the arrestee stating that it is the determination of the law enforcement agency having jurisdiction over the offense or court that the arrestee is factually innocent of the charges for which the person was arrested and that the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.

(g) The Department of Justice shall furnish forms to be utilized by persons applying for the destruction of their arrest records and for the written declaration that one person was found factually innocent under subdivisions (a) and (b).

(h) Documentation of arrest records destroyed pursuant to subdivision (a), (b), (c), (d), or (e) that are contained in investigative police reports shall bear the notation “Exonerated” whenever reference is made to the arrestee. The arrestee shall be notified in writing by the law enforcement agency having jurisdiction over the offense of the sealing and destruction of the arrest records pursuant to this section.

(i) (1) Any finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d), or (e) shall not be admissible as evidence in any action.

(2) Notwithstanding paragraph (1), a finding that an arrestee is factually innocent pursuant to subdivisions (a) to (e), inclusive, shall be admissible as evidence at a hearing before the California Victim Compensation and Government Claims Board.

(j) Destruction of records of arrest pursuant to subdivision (a), (b), (c), (d), or (e) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred. However, where (1) the only entries on the record pertain to the arrest and (2) the record can be destroyed without necessarily affecting the destruction of other records, then the document constituting the record shall be physically destroyed.

(k) No records shall be destroyed pursuant to subdivision (a), (b), (c), (d), or (e) if the arrestee or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of the records has received a certified copy of the complaint in the civil action, until the civil action has been resolved. Any records sealed pursuant to this section by the court in the civil actions, upon a showing of good cause, may be opened and submitted into evidence. The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person authorized by the court. Immediately following the final resolution of the civil action, records subject to subdivision (a), (b), (c), (d), or (e) shall be sealed and destroyed pursuant to subdivision (a), (b), (c), (d), or (e).

(l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section

(m) Any relief which is available to a petitioner under this section for an arrest shall also be available for an arrest which has been deemed to be or described as a detention under Section 849.5 or 851.6.

(n) This section shall not apply to any offense which is classified as an infraction.

(o) (1) This section shall be repealed on the effective date of a final judgment based on a claim under the California or United States Constitution holding that evidence that is relevant, reliable, and material may not be considered for purposes of a judicial determination of factual innocence under this section. For purposes of this subdivision, a judgment by the appellate division of a superior court is a final judgment if it is published and if it is not reviewed on appeal by a court of appeal. A judgment of a court of appeal is a final judgment if it is published and if it is not reviewed by the California Supreme Court.

(2) Any decision referred to in this subdivision shall be stayed pending appeal.

(3) If not otherwise appealed by a party to the action, any decision referred to in this subdivision which is a judgment by the appellate division of the superior court shall be appealed by the Attorney General.

(p) A judgment of the court under subdivision (b), (c), (d), or (e) is subject to the following appeal path:

(1) In a felony case, appeal is to the court of appeal. (2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court.

(2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court.

(Amended Sec. 159, Ch. 328, Stats. 2010. Effective January 1, 2011.)