Can the state take my stuff? Seizure and Civil Forfeiture of Property

This article introduces government seizure and forfeiture of personal property, explains the procedure, and provides information on how a property owner can respond when the government takes property.

Topics on this page:

What is Civil Forfeiture?
What process does the government use to take property?
Seizing the Property
Seizure - Frequently Asked Questions
Forfeiture Proceedings for Seized Property
Forfeiture - Frequently Asked Questions

What is Civil Forfeiture?

Civil forfeiture is a process that allows the government (typically through law enforcement) to take ownership of property believed to be connected to criminal activity. The property owner does not have to be charged with a crime (though they usually are). Through civil forfeiture, a court transfers ownership of property to the federal, state, or local government.
Criminal forfeiture is brought as part of a criminal prosecution of a defendant. Civil forfeiture is an action against the property itself—meaning the government sues the item, not the person. In civil forfeiture the government must prove by a preponderance of evidence that the property was linked to criminal activity. An individual has the right to contest the seizure through a trial.
While the government can seize property at both the federal and state levels, the focus of this article, is on civil forfeiture under Maryland law.

Read the Law:

What process does the government use to take property?

Taking property is a two-step process. In the first step, the government seizes the property in question. Seizure is the physical taking of property. In the second step, known as forfeiture, the government brings a case to show it has a reason to keep the property. Forfeiture is about whether title to the seized property should be permanently transferred from the property owner to the government.

Seizing the Property

Law enforcement officers in Maryland may seize property if they have probable cause to believe it is connected to certain crimes, including drug trafficking, theft, and money laundering. Common types of seized property include:

Cash suspected to be drug proceeds
Vehicles used to transport illegal substances
Weapons involved in a criminal offense
Real estate connected to ongoing illegal operations

The seizure may occur with or without a warrant, depending on the circumstances. Officers must generally provide a receipt or inventory of seized items at the time of seizure or shortly thereafter.

Read the Law:

Md. Code, Criminal Procedure, Title 12, Subtitle 2,
Md. Code, Criminal Procedure § 12-102, § 12-104,
Md. Code, Criminal Procedure § 13–102, § 13–202, § 13–404, § 13–504, § 13–505

Seizure – Frequently Asked Questions

Does the government need permission from the court before it takes my property?

Generally, under Title 12, a judge must sign a seizure warrant for the property in question before law enforcement officers can actually go and take the property. However, in certain circumstances, property can be seized without a warrant. These circumstances include:

The seizure follows an arrest or a search under a search warrant (a warrant signed by a judge granting law enforcement the ability to search a specific place or area);
The seizure is part of an inspection under an administrative inspection warrant (such as someone from the city with authority to search a home for a housing code violation);
The property seized was supposed to already be in the State’s possession (there was a previous ruling that the property be handed over but that has not yet happened);
Probable cause exists to believe that the property is dangerous to health or safety; or
Probable cause exists to believe that the property has been or is intended to be used illegally.

Read the Law: Md. Code, Criminal Procedure § 12-202

Which of my stuff did they take, and where is it being kept? Who can I talk to?

Within 15 days after seizing property, the authorities who seized the property are required by law to send information about seized property to the owner, if they know who that is. This notice must be sent by first-class mail, and must include:

A detailed description of the property
A case number or property identification number
The name and contact information of an individual or office that can provide further information
Notice that the property owner can submit a written request for return of the property (the seizing authority has 60 days to accept or deny on the written request)

Read the Law: Md. Code, Criminal Procedure § 12-104

Forfeiture Proceedings for Seized Property

Filing the Complaint

Once property is seized, the government must file a civil forfeiture complaint in court. Generally, the filing must be completed 90 days after the seizure or 1 year after the final disposition of the criminal charge which led to the forfeiture. For motor vehicles, the complaint must be filed within 45 days after the vehicle has been seized.

The complaint will have the details of the seizure, what was seized, and those who are affected by the seizure. The complaint is filed against the property itself. For example, a complaint may be filed in a case called State of Maryland v. 2006 Honda Accord. The complaint and summons must be served on the property owner by certified mail, restricted delivery. Service of the complaint and summons must occur within 20 days after the complaint is filed with the court.

Read the Law: Md. Code, Criminal Procedure § 12-303, § 12-304, § 12-305

Notice

In addition to service of the complaint by certified mail, the complaint is also posted at the courthouse. This is called “notice.” The notice must be posted on the courthouse door or on a bulletin board near the door within 20 days of a complaint being filed. If the property being seized is real property, then a notice will be placed on the land in a conspicuous place and the notice will be published at least once a week for 3 consecutive weeks in a newspaper of general circulation in the county where the action is pending.

Notice is for the benefit of the property owner. It ensures that the owner can have a reasonable amount of time to prepare a defense against the government’s seizure. A notice of the complaint has all the relevant information about what the government is trying to do with the property. The notice will state:

The parties involved in the case;
What the complaint says and what the filing party is seeking;
The latest date on which a response may be filed by the property owner or their agent;
That the property will be forfeited if there is no answer filed within 30 days;
The owner may be able to have the property back temporarily by posting bond with the court while the forfeiture proceeding is pending; and,
Where the owner may file a response, and whom to contact for more information.

Read the Law: Md. Code, Criminal Procedure § 12-306

Response to Complaint

Any person claiming an ownership interest in the seized property may file a response to contest the forfeiture. The response must:

State the owner’s interest or right to the property
Indicate how the owner obtained those rights
Indicate the relief sought
Request a hearing

If the property owner lives in Maryland, the response must comply with the Maryland Rules and be filed within 30 days from the date of service. If the property owner lives in another state, the response must be filed within 60 days from the date of service. If the answer has been timely filed, then the court will schedule a hearing date. This hearing date will be scheduled either within 60 days of the posted notice at the courthouse or land, or the final publication of notice in the newspaper, whichever comes later.

NOTE: If the property owner does not file a response to the complaint within the time allowed, the court may order forfeiture of the property without a hearing. This means that the government will be allowed to keep the property.

Read the Law: Md. Code, Criminal Procedure § 12-307

Hearing

A forfeiture hearing takes place in the court where the complaint was filed. If the seized property is real property, the proceedings may be brought where the where the criminal charges are pending, where the owner lives, or where the property is located. If the proceedings are brought outside the jurisdiction where the real property is located, then notice of the case must also be filed where the property is located. The notice must then include the name and address of the owner of the real property, a description of the property, and description of the reasons for filing the forfeiture proceedings and notice of upcoming case.

The government must prove that the property is subject to forfeiture by a preponderance of the evidence (i.e., more likely than not). If the government meets this burden, the court may declare the property forfeited. If the court rules in favor of the owner, the property must be returned. If the government prevails, the property may be retained, sold, or transferred.

Read the Law: Md. Code, Criminal Procedure § 12-308, § 12-310

Frequently Asked Questions - Forfeiture

What property can the Government seek forfeiture for, in drug-related cases?

Maryland law allows for the forfeiture of many types of property associated with a drug crime. These are some examples of the kinds of property that can be forfeited:

The drugs themselves;
Property used to make, process, deliver, and import or export drugs, such as vehicles, boats, planes, materials, products, and equipment;
Money or weapons used or intended for use in relation to the drug crime;
Real Property (such as a house or land); and,
Anything of value exchanged for drugs.

Read the Law: Md. Code, Criminal Procedure § 12-102

What if the criminal charges are dropped?

The government may be able to win a forfeiture case, and keep the property that it has seized, even if it does not convict the property owner of a crime.

If the seizure does NOT relate to drug activity, the government can bring a forfeiture case even if it never charges the owner of the property with a crime, or if the charges are dismissed.

If the seizure DOES relate to drug activity, the government can only bring a forfeiture case if the owner of the property is charged with a violation of drug law. If the owner is not charged within 90 days, the seized property must be returned immediately to its owner.

Whether or not the seizure relates to drug activity, the government does not have to convict you of a crime in order to bring a forfeiture case. Even in a drug-related case, where the government has to charge you with a violation of a drug law within 90 days, the charges can be dismissed, or you can be found not guilty, and seizure proceedings can still occur.

To convict a person of a crime, the government must prove “beyond a reasonable doubt” that the person committed the crime. However, for the government to win a forfeiture case to keep seized property, it only needs to prove that the property was probably (more likely than not) involved in a crime.

Read the Law: Md. Code, Criminal Procedure § 12-307, Md. Rule 2-321, Md. Rule 2-323

How do I get my property back?

Once a hearing on the forfeited assets has been completed, if the court finds that the property should not be forfeited, the property will be released back to its original owner.

However, if the court determines that the seized property should remain forfeited then the authorities that initially seized the property may retain it. Property will generally remain forfeited if it is found by the court to be directly or indirectly related to illegal drugs (e.g. a home or car purchased with the proceeds from drug sales).

Read the Law: Md. Code, Criminal Procedure § 12-402

What happens to my property when it is forfeited?

If the property is forfeited, then the government may use it for official use, transfer it to another party to be destroyed or disposed, or sell it, as long as it is not harmful to the public and the law does not require its destruction. The proceeds of any sale must be used first to pay all expenses related to the forfeiture, including seizure, costs associated with storing the property, advertising and court costs. If there is any money left over from a sale, then that money will go to either the General Fund of the State, to the political subdivision that seized the property, or to the State law enforcement unit that seized it.

Read the Law: Md. Code, Criminal Procedure § 12-403

What are the rules regarding seized money?

To apply for drug-related money to be forfeited, the government file a complaint and affidavit in the District Court or the Circuit Court in the county where the money was seized. There are many government entities that can file the case, including the Attorney General or another appropriate financial authority, (such as the director of finance of Baltimore City, a county treasurer or other county finance officer, or a municipal treasurer). The complaint and affidavit must support the relationship of the money to drugs.

Read the Law: Md. Code, Criminal Procedure § 12-302

If the government does not bring drug charges within 90 days, money seized in relation to drugs is immediately and automatically returned to the owner. If the owner does not request the money within 1 year of the final judgment in the criminal proceeding, then the money will be returned to either the jurisdiction in which it was seized or to the State, if State authorities seized the money.

Read the Law: Md. Code, Criminal Procedure § 12-304

Source

Brian Bajew, Howard Kim, and Ian Konigsdorffer, Practicing pursuant to Rule 16 of the Rules Governing Admission to the Bar of Maryland – University of Maryland Francis King Carey School of Law (Summer 2014), edited by PLL. Updated by Devin Luqman, Esq.