Missouri Asset Forfeiture
According to Missouri law, any property that is used in or derived from criminal activity may be forfeited. This broad language has facilitated the seizure of a wide variety of property (for example real estate, cash, cars, boats, weapons, stock, and banks accounts). It is also presumed that “currency found in close proximity to forfeitable controlled substances” is itself forfeitable, thus making forfeiture even more likely if money is found nearby. Between 2000 and 2014, Missouri law enforcement agencies caused the forfeiture of at least $1,648,366 worth of property using state asset forfeiture procedures.
in addition to the variety and value of seizures, Missouri civil asset forfeiture has led to the abuse of the process on the part of law enforcement officials. for example, after a husband and wife were arrested for drug-related charges, a state prosecutor authorized police officers to seize “anything of value” in the couple’s home because “it appeared to him that [their] personal possessions were subject to the Missouri criminal activity forfeiture act (‘cafa’).” a two-day search of the couple’s home resulted in the seizure of more than 300 items, including: a bible, a typewriter, a calculator, three telephones, a computer, a cable television box, stereo equipment, two video cassette recorders, two televisions, two sets of headphones, a camera, binoculars, a clock radio, two lamps, a dresser, a sewing machine, several desks and stands, a bed, a mirror, a buffet, a microwave oven, a blanket, a saddle, a rug, two cordless drills, two vacuums, silverware, four car jacks, a hydraulic engine hoist, a tool cabinet, assorted manual tools, miscellaneous magazines, welding helmets, a weed eater, a generator, a drill press and vise, a chain saw, a router, a power skill saw, a jig saw, an electric sander, a battery charger, a barbecue grill, a lawn mower, a flashlight, a “for sale” sign, an ice scraper mitt, a fishing rod, transmission fluid, a gas can, two spare tires, greeting cards, two answering machines, a first-aid kit, a rain coat, sunglasses, jumper cables, and a pair of rubber boots.
United States v. Decker, 956 F.2d 773, 775, n. 2 (8th Cir. 1992). The seizure in that case was eventually held unlawful, and the items returned, but it nonetheless occurred and could happen again if the process is not checked.
Has your property been seized after alleged criminal activity?
So, How Does Civil Forfeiture Come About?
In order for property to be forfeited in the State of Missouri, 1) forfeiture must be initiated, 2) notice must eventually be given, and 3) a Criminal Activity Forfeiture Act (CAFA) proceeding must take place
Step 1: Initiation
Forfeiture can be initiated by two methods: police seizure or prosecutorial petition. Since it is more like that the prosecutor will initiate forfeiture after police seizure, we will focus attention to that method while briefly addressing a standalone petition for forfeiture. Contact The Watt Law Firm here
A police officer may seize property and effect forfeiture if:
incident to a lawful arrest, search, or inspection;
he or she has probable cause to believe the property has been used in or derived from criminal activity;
he or she has probable cause to believe the property will be lost or destroyed if not seized; and
he or she reports the seizure to the prosecutor within four days.
Once the property is seized, the prosecutor will then take over the pursuit of forfeiture.
After the prosecutor receives the police report, he or she will then have to file a petition with the court. In the petition, the prosecutor must make a statement which includes:
Property to be forfeited;
Jurisdiction of the Court;
Grounds for Forfeiture; and
Names of persons having an interest in the property.
A statement of date and place of seizure included in the petition; and
Filing within ten days of reporting.
The State then has the burden of proving that all of these elements are met.
It is important to note that the time limits imposed by statute (4 days to refer to the prosecutor and 10 days to file the petition) are mandatory. Unless an extension for filing has been granted, failure to meet any of these time limits will result in the return of the property and the inability to otherwise pursue forfeiture. Extensions are limited to ten days each, but can ultimately be extended up to thirty days.
In the alternative, if the prosecutor attempts to pursue forfeiture by a standalone petition, the petition need only state the first four elements above. This might occur, for example, when an arrest has been made but no property was seized during the arrest; it appears as if it would essentially work as a search warrant, although the intended result would be forfeiture as opposed to the use of the property as evidence at trial. Under this method, the State has five years to bring a CAFA proceeding.
Under either of these two methods, a court will then review the petition and determine if there is “reasonable cause” to continue the process of forfeiture. If reasonable cause is found, notice is the next step.
STEP 2: Notice
Notice of forfeiture proceedings is always required at some point, but the timing of notice depends on the circumstances.
In police seizure situations, notice will be required as soon as the prosecutor files the petition. This means the property has already been seized, and therefore, there are no concerns about its destruction by the interested parties.
If a prosecutor files a standalone petition, however, notice to the interested parties depends on whether the Court has “reasonable cause” to believe the property will be lost or destroyed if prior notice is, in fact, given. If there is reasonable cause, a writ of seizure will be issued for a law enforcement agency to seize the property and notice will thereafter be required. If there is no reasonable cause, notice must be given prior to seizure. Contact The Watt Law Firm here
STEP 3: CAFA Proceedings
The forfeiture proceeding is a civil proceeding, and is thus otherwise governed by the rules of court and rules of civil procedure. This means that the burden of proof is lower than it would be in criminal proceedings (preponderance of evidence, instead of beyond a reasonable doubt).
One of the most crucial pieces of asset forfeiture defense is that “no property shall be forfeited unless the person charged is found guilty or pleads guilty to a felony offense substantially related to the forfeiture.” Thus, if there has not yet been a felony conviction or guilty plea, but the property is deemed by the court to be subject to forfeiture, the court must stay the CAFA proceedings and order release of the property, subject to bond or other measures. Alternatively, “CAFA requires that upon acquittal or dismissal of a criminal action, the civil action shall be dismissed.” Contact The Watt Law Firm here
If a person was not involved in the criminal activity and had no knowledge of the property’s use or intended use, his or her rights in the property cannot be forfeited. Innocent parties’ interests in the property are superior to those interests of the State, and therefore, an innocent party has the right to intervene in the proceedings. “Implied is an obligation to return seized property where forfeiture is not proper . . . .” The issue with this, however, is that the innocent party must prove himself or herself innocent, as opposed to the “innocent until proven guilty” virtue we hold dear in criminal proceedings in the United States.
After judgment of forfeiture, the court may order the property destroyed, retained by an innocent party, sold, transferred to an innocent party, or disposed of in any other manner deemed within the interest of justice. If property has been forfeited pursuant to a CAFA proceeding, the proceeds go toward funding schools.
Has your property been seized after alleged criminal activity? If so, you need an attorney who will represent your interests and help you get your property back. Contact The Watt Law Firm here today for a free consultation.