Civil asset forfeiture is a powerful tool for law enforcement. Forfeiture laws are designed to keep criminals from profiting on their ventures — a premise few people would disagree with. However, it is possible that the civil forfeiture process can be used to take your property even if you have not been formally charged with a crime. Since law enforcement agencies can keep significant amounts of the proceeds, potential conflicts of interest arise.
There are actually three types of federal forfeiture: administrative, civil, and criminal. Let's take a brief look at each one.
- Administrative – Administrative forfeitures are generally uncontested. The seizing law enforcement agency processes the seizure, since without a challenge, the courts are not at all involved. However, administrative claims are limited to $500,000 or less and cannot include real property (homes or business real estate). The agency must have probable cause that a crime is involved, but over 200 different crimes can be subject to forfeiture of proceeds from the crime and/or property used in the commission of the crime.
The agency must get a warrant based on probable cause and notify the owner of the assets of the seizure procedure. If it is uncontested within a set timeframe, the agency claims the property. Otherwise, they must proceed with either criminal or civil forfeiture.
- Criminal – Criminal forfeiture requires being found guilty of the crime relevant to the forfeiture. The trial takes place in a criminal phase and a forfeiture phase, as the standards of guilt are different between the two phases. The criminal phase requires proof beyond a reasonable doubt, and the forfeiture phase requires a preponderance of evidence (more likely than not).
- Civil – While there must still be an underlying suspected crime, civil forfeiture involves only property. With the lower standard of a preponderance of evidence, it is often used by law enforcement when they are not sure they can prove the crime, but have enough evidence to pass the lower standard.
Most people still would not care if all of these procedures were followed. However, a significant number of civil forfeitures are proceeding without a warrant, sometimes putting innocent citizens in the position of being presumed guilty until proven otherwise.
Furthermore, states also have forfeiture laws, and often multiple agencies lay claim to part of the seized property through sharing agreements, even if they were not directly involved in the forfeiture.
Some forfeitures, particularly at state level, can be executed without a warrant. Examples according to the People's Law Library of Maryland, using Maryland law, include materials found during a search warrant or an administrative warrant (e.g. building codes), and probable cause that the property is dangerous to health or safety.
Another possibility is the "cold consent" primarily used at airports, bus, and train stations. Typically used by the DEA, agents stop and ask for consent to search for forfeitable assets if they fit a drug courier profile or have reason to believe there is an underlying crime such as money laundering. Unsuspecting travelers, believing they have nothing to hide, can find their assets seized on questionable premises. Probable cause has been stretched extremely thin at times, and has led to counter-charges such as racial profiling.
Civil asset forfeitures have risen dramatically over the last seven years. 2012 saw a massive increase, with $4.6 billion in assets seized by civil forfeiture. According to the Washington Post, since 2001, approximately $2.5 billion in cash alone was seized from individuals that were never charged with a crime. This makes for a group of odd political bedfellows seeking to reform civil forfeiture — liberals who see racial profiling and other discrimination in the search targets, and more libertarian conservatives alarmed at government overreach and the concept of law enforcement having financial incentive to increase civil forfeiture.
The takeaway: do not allow a cold consent, regardless of whether you have nothing to hide. The agent may think differently on that topic.
Even though it is legal, carrying large quantities of cash around is not a good idea, either, especially when driving long distances. Do not be a tempting target for an overzealous enforcement agency.