September 19, 2023
Imagine this scenario: you’re driving to your Rocky Mountain vacation destination and a police officer pulls you over for a broken taillight. During the stop, the officer decides he has reason to search your vehicle and he finds an envelope of cash, which you withdrew from the bank specifically for this trip.
The cash alerts the officer that you might be a drug dealer. There is no other evidence or proof that you actually are a drug dealer, but the officer is convinced simply by the presence of the cash. Because only drug dealers carry that much cash on them.
So you’re brought in for questioning, but the officers find nothing to charge you with and eventually release you. However, they don’t give you your money back. The authorities confiscate your cash in order to deter you from committing any drug crimes with the money – even though you haven’t been charged or convicted of any crime.
That’s right. The police get to keep the money and use it however they want. Sounds pretty horrendous, right? Like it couldn’t possibly be true?
Guess again. It’s a process called “asset forfeiture,” and it’s used by police officer across the country – including right here in Colorado.
Thankfully, our state has just made it a bit harder for police officers to keep your property, but that doesn’t mean that the practice has disappeared completely.
Because of this, we want to help you understand what asset forfeiture is, why law enforcement uses it, and what the new law means for you.
What Exactly Is Asset Forfeiture?
Asset forfeiture is a legal process where law enforcement authorities can confiscate your property if you are suspected of being involved in criminal or illegal activity. You don’t actually have to be charged with a crime in order for them to do it. You just have to be suspected of one.
Officers can seize:
- Proceeds: anything of value acquired due to a crime
- Facilitating property: any property used to make a crime easier to commit or harder to discover
- Property involved in: property involved in money laundering
There are three types of asset forfeiture:
- Criminal forfeiture happens when a defendant is part of a criminal prosecution. This action is against the person – or in personam – and is used as a type of punishment for a crime, along with jail time. A criminal conviction is necessary, however, to seize the property in this case.
- Administrative forfeiture happens when property is confiscated but no one files a claim to contest the confiscation. Property that doesn’t exceed $500,000 and is not a house or real property can be administratively forfeited.
- Civil forfeiture happens when authorities seize property that is suspected of being involved in a crime, as in our example above, and does not require a criminal conviction.
Forfeited property is considered to be the government’s property at the time the crime was committed, so if you want to get your property back you will have to prove your title to the property and that it was not used for illegal activity.
So much for innocent until proven guilty.
What Is the Purpose of Asset Forfeiture?
Asset forfeiture is used for three main reasons:
- To deter and punish criminal activity
- To boost cooperation among law enforcement agencies through asset sharing
- To provide revenue for law enforcement agencies
While this seems fine on the surface, there are a few issues with the practice of asset forfeiture.
First, since people don’t actually have to be convicted or even charged with a crime, law enforcement officers can take full advantage of asset forfeiture. By suspecting whomever they choose and seizing that person’s property, officer can make a profit since that money goes right back to them. In other words, officer are incentivized to seize assets.
Also, forfeiture reporting is limited, inconsistent, and not made available to the public. This means it’s difficult to keep up with what officers actually seize and how they spend that money or use those assets.
On top of that, asset forfeiture hasn’t proven to be effective in deterring or punishing criminal activity.
The New Colorado Asset Forfeiture Law
Colorado Governor John Hickenlooper recently signed a new bill to reform our state’s asset forfeiture practices.
There are two main parts to the new bill. The first says that law enforcement agencies cannot share in revenue from federal seizures of less than $50,000. Since most seizures are less than $50,000, this will cut back on a significant amount of revenue.
Instead of focusing on seizing small amounts of money from low-level criminals or innocent people, officers can focus their attention on larger scale criminal activity.
The law also calls for stricter reporting policies that will be made available to the public.
This new law is a step in the right direction in terms of limiting police officers’ power to seize assets and also protecting the innocent. If your assets have been forfeited for a crime you didn’t commit, reach out to an experienced Colorado attorney with proven results to fight for your rights and protect your property.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.