Forfeiture of Money and Property

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Forfeiture of Money and Property

California Health & Safety Code §11470(e)

Forfeiture laws allow state and federal governments to seize money and property that  are proceeds of, or are used to, facilitate illicit drug activity. Forfeiture proceedings are  usually filed separately from the criminal case in which the “defendant” is the money  or property itself. The owner must file a claim opposing forfeiture and may be required  to prove its legitimate source. 

U.S. V. BAJAKAJIAN (1998) 524 U.S. 321. The forfeiture of a defendant’s property or  money must be proportionate to the gravity of the offense committed. 

State and Federal governments can impose criminal punishment in addition to forfeiting the defendant’s  property and money.  

The Federal courts held that the value of the forfeited property cannot be disproportionate to the crime. In 1995,  the Ninth Circuit Court of Appeals stated, “If, for example, one marijuana/cannabis plant were found growing on  the ranch, forfeiture of all 825,000 acres would be excessive” (U.S. v. 6380 Little Canyon R.D.), (1995) [59 F. 3d 974,  9th Circuit] 

In some cases, California law protects innocent owners (see below). Under California statutes, a criminal  conviction is required for forfeitures under $25,000. However, the state police agencies may turn the property  or money over to the Federal government; in this case, a criminal conviction is not required under federal laws.  

The California Forfeiture Statue [Health and Safety Code §11470(e)]  

allows forfeiture of the following: 

A) All controlled substances, except arguable for medical marijuana 

B) All of the money and equipment involved in the crime 

C) Any vehicle used, or intended to be used, in the transportation of marijuana (more than 10  pounds dry weight) 

Motor vehicle forfeitures can be prevented if an innocent spouse is a co-owner, or has a community property  interest, and if the defendant immediate family, having no knowledge of the illegal activity, uses the vehicle. 

Maintaining a Place [H&S Code §11366] and Forfeitures: Homes and land (real property) are also subject to state  forfeiture if the owner is convicted of maintaining the property for the purpose of manufacturing, distributing,  or possessing marijuana for sale. However, if a property is used as a family residence or other lawful purpose, and  is co-owned by an innocent person with no knowledge of the unlawful use, it may not be subject to forfeiture. 

Note from Bruce: I have many clients who had their money seized at airports or when traveling in vehicles. The  cops often use narcotics dogs to see if they have a “hit” (smell marijuana) on the currency and use that as a reason  to seize the currency; however, the dog’s smell alone may not be enough reason to forfeit the money. It often  takes months for state or federal prosecutors to notify the defendant of their intent to proceed with forfeiture.  The money becomes the defendant in civil proceedings, and is considered to be the unlawful proceeds used to  facilitate unlawful drug activity. The claimant must file a notice to oppose the forfeiture within 30 days. Call my  office if you need help with a forfeiture matter.

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