Reports of illegal searches and asset forfeiture abuses are becoming more common in the news, leaving many people to wonder how they can protect themselves against unauthorized actions by law enforcement.
In their motivation to stop illegal activities, police in Arizona may overstep the bounds of the law in their pursuit of criminal actions. Each state has its own laws regarding the taking of property that is involved in criminal or illegal acts. To ensure that all legal protections have been afforded to you in these circumstances, you may need to seek legal counsel.
An asset forfeiture lawyer in Arizona can inform residents about their rights under the law and assist them if they have had their property seized.
When Does Law Enforcement Use Search and Seizure?
“Search and seizure” is a legal concept that plays a pivotal role in investigating and prosecuting criminal and civil offenses. A search aims to unearth evidence linking accused parties with the commission of an offense while asset seizure may help provide the evidence to establish a motive for it.
A.R.S. 13-4305 outlines what property is subject to seizure by law enforcement. The statute specifies that law enforcement can seize property for forfeiture under the following circumstances:
- The property seized is related to a lawful arrest for a crime or a lawful search.
- The property subject to seizure has been the subject of a prior judgment in favor of the state.
- A law enforcement officer has probable cause to believe that property is subject to forfeiture, and the delay required for a court order would risk removal or damage to the property.
- The court has determined probable cause for property to be seized for forfeiture.
Financial gain derived from criminal activities does not increase one’s chances of conviction or harsher penalties for other charges—it’s up to the judge or jury verdict to decide whether a person is guilty of the crime they’re accused of.
Therefore, law enforcement cannot decide at their own discretion whether to seize a person’s property in a potential crime—they must abide by the 4th Amendment of the United States Constitution when conducting searches and seizures to protect citizens against unlawful searches conducted without due process of law.
Asset forfeiture is frequently used in cases involving drug possession, paraphernalia possession, fraud, marijuana possession, and even homicide. However, asset forfeiture must always follow legal processes; any violation may lead to inadmissible evidence in court proceedings.
Legal and Illegal Searches
The Fourth Amendment to the US Constitution protects individuals against unlawful searches and seizures by state-employed law enforcement officials, regardless of where they may be stopped – be it on a street corner, in their vehicle, at work, in a hotel room, or at home – so long as there is an expectation of privacy.
However, each state has its own laws and procedures which define when searches or seizures may be justified. Searches conducted by law enforcement officials can often be subjective due to judges who broadly interpret statutes to allow for the investigation of crimes; as a result, searches conducted may violate constitutional protections, leading to possible invalid searches being conducted.
If you feel your constitutional rights were violated under a search by law enforcement, you should contact a criminal defense illegal search and seizure attorney. Take note of the potential abuses you believe you experienced so that you can discuss them with an attorney. A violation of constitutional rights can provide a potential defense for someone charged with a crime.
Understanding Asset Forfeiture
Asset forfeiture is a legal process by which governments can seize assets believed to have been involved in illegal activities. These assets can include houses, cars, jewelry, and artwork from those believed to have engaged in it. Note that only assets directly involved can be subject to asset seizure proceedings.
Historically, law enforcement has had extensive freedom to seize assets as long as they assert that they believed the property was involved in a crime. However, new laws and regulation have increased the requirements necessary to seize assets, including a raised standard of proof that property is subject to forfeiture and a conviction of the property owner.
Criminal and Civil Forfeiture
Criminal and civil forfeitures are two legal processes utilized by governments for seizing assets. You can differentiate between the two by understanding:
- Criminal forfeiture refers to actions taken by legal authorities against property directly associated with crimes. Government prosecution for criminal forfeiture requires evidence that seized property was used or acquired from criminal activity.
- Civil forfeitures involve seizing assets by civil means. Civil forfeiture acts solely against the property itself without regard to whether its owner has committed any offenses.
Civil and criminal forfeiture procedures have differing goals. The former requires law enforcement agencies to demonstrate that a property has links with criminal activity. Meanwhile, with criminal forfeiture procedures, their assets can be returned more efficiently and with greater regulation.
Criminal forfeiture procedures tend to be a more regulated legal process that benefits both sides involved. Civil forfeiture can often lead to abuse by law enforcement with less regulation surrounding justifications for seizing property.
Common Asset Forfeiture Abuses
Unfortunately, abuse of asset forfeiture laws has become more common in news stories from around the country despite strong legal prohibitions against it. Law enforcement may even seize assets to benefit themselves, providing an incentive to seize even when there is no direct evidence linking the property with criminal activity. This controversial practice has sparked concerns about possible abuse of power by law enforcement officials.
In many cases, the owners of the assets do not have to be convicted of any crime or wrongful activity, nor do they even have to be arrested to have their property taken. The assets simply have to be named in an investigation in order to be available for forfeiture. This looseness of interpretation has led to individuals taking governments to court to recover their assets, time spent on legal actions for wrongful forfeitures in the court system, and public money being used to defend forfeiture actions.
For example, police detectives seized $39,500 in cash from a man at the Phoenix airport, accusing him of being a drug trafficker on suspicion alone. In reality, the man was coming into Phoenix to use the cash to potentially buy a semi-truck at auction. Although he was never charged with a crime, the police seized the money from him and held onto it, requiring the man to navigate the court system to have the money returned.
The money was eventually returned to him, but this process took almost three years and a lengthy legal process. This is a strong example of the potential injustices and abuses that can occur under the concept of civil asset forfeiture. However, a new law passed in 2021 has made it more difficult for law enforcement to take advantage of asset forfeiture.
HB2810 is a bill that was signed into law in 2021 and prohibits law enforcement agencies from seizing a person’s assets unless they have been convicted of a crime. The intention of this law is to prevent law enforcement agencies or prosecutors from seizing property for an alleged crime.
In the past, law enforcement agencies were able to seize a person’s property simply if they believed it was connected to a crime. The property owner didn’t need to be charged or convicted, giving these agencies more ability to seize property at their discretion.
The system before made it difficult for property owners to recover their property after it had been seized, as there was very little burden of proof required for law enforcement to justify the seizure. This law requires the property owner to be convicted of a crime and requires the state to provide clear and convincing evidence that the property is subject to forfeiture.
The new law is seen as a protection of property rights and provides innocent people with a more reasonable pathway to recover their property. Still, it’s important for Arizona residents to understand their rights under asset forfeiture to avoid being taken advantage of.
Search and Seizure Laws
Arizona’s search and seizure laws have long been a cause for worry among its residents, especially when it comes to asset forfeiture. Law enforcement may seize assets without immediate proof of cause for forfeiture, thus putting the burden of proof squarely on the owner, who must then file suit to claim ownership and show that their property was not involved in an alleged crime or civil dispute. Additionally, even if a defense is successful, the defendant could incur costs associated with a legal defense against the state.
An innocent party can be punished twice by asset forfeiture laws in Arizona—first, by having their property taken due to false allegations of illegal activity, and secondly, by being required to pay legal costs back to the state if their ownership cannot be successfully proven. As such, citizens may become dissuaded from challenging asset forfeiture cases; it’s essential that legal advice be sought to fully understand your rights and options in these instances.
What To Do If Your Assets Have Been Seized in Arizona
Law enforcement is not always correct in their assessment of a situation in which a crime may have occurred. In some cases, innocent parties can become entangled in the process of investigation and prosecution, with a variety of negative consequences.
Overzealous prosecutors may seize any number of assets, including homes, vehicles, or bank accounts, if they believe you have profited as a result of a crime, or even if they simply feel they can get away with it. If you have been the victim of an illegal search or asset forfeiture, you require the services of an experienced attorney who knows the legal intricacies in great detail and can provide the following areas of support:
- Research prior legal decisions that may be applicable to your case
- Determine ways to relate the circumstances of your case to prior decisions
- Utilize the applicable professional reasoning to make your case before a judge
Asset forfeiture is not always a question of justified actions by law enforcement. If you have been involved in an unauthorized search or seizure, contact a search and seizure attorney in Arizona to learn your legal recourse and how to protect your interests.
Call JacksonWhite to Get the Results You Need
Asset forfeiture is a controversial topic, and abuses by law enforcement are far more common than they should be. Although newer legislation has given the general public more rights in protecting and recovering their assets, recovering your property can still be a challenge without an effective property seizure lawyer by your side.
If you need an Arizona search and seizure attorney, then the JacksonWhite Criminal Defense team will provide you with the representation that you need. Don’t face the courts alone.
Call the JacksonWhite Criminal Law team at (480) 418-4281 to discuss your case today.