Police and prosecutors around the country routinely seize and forfeit cars, boats, money, computers, guns and homes that were “used in, or facilitated, the criminal activity charged.” While many cases involve significant crimes and the forfeitures are justified, too often the person is charged with fairly low-level drug sales and their car is seized if it was used to transport the drugs during the sales. The federal and state governments argue that forfeitures are simply part of the cost of the criminal’s conduct and work as a separate fine on the illegal activity. These fines and forfeitures are often used to supplement local and state budgets, including those of the very agencies that seized and forfeited the property.
Civil Asset Forfeiture

The problem is that these forfeitures may be grossly excessive to the criminal activity charged. A case now before the U.S. Supreme Court involves low-level drug sales to support the person’s own drug habit and the seizure of his $42,000 Land Rover Discovery. In Timbs v. Indiana, the defendant pled to one count of dealing and one other count. He was sentenced to a year of home detention, five years of probation, and $1,200 in fines and court costs. In a separate civil forfeiture proceeding, the State sought to forfeit his expensive Land Rover as it was used in the commission of the crime. The trial and appellate courts held that the forfeiture was excessive, disproportionate to even the maximum fine of $10,000 under the drug statute. The Indiana Supreme Court, however, reversed and permitted the forfeiture. The U.S. Supreme Court will now decide whether the excessive fines clause in the Bill of Rights applies to the states.

While this decision will ultimately come down to constitutional interpretation, the everyday implications are far reaching. Cars are a huge expense and something that many people work long and hard to purchase, both as necessary transportation and the pleasure of owning a nice, reliable car. Every day throughout New Jersey and elsewhere, local and state law enforcement seize cars they allege were used in or facilitated the criminal activity – whether that consists of relatively minor drug sales, transportation of stolen property or other crimes involving the “use” of the car. The person charged may be admitted into a pretrial diversion program or receive probation and a minor fine, and yet, the government may still proceed to forfeit their car civilly in rem, or as part of the criminal sentence. That forfeiture may be grossly disproportionate to the underlying criminal charges and used as leverage to get the better plea deal in the criminal case.

After battling with county prosecutors’ offices for the information, the ACLU in New Jersey compiled five months of data, from January through May 2016, and found that police departments in New Jersey seized $5.5 million in cash in 1,860 cases over that time period, roughly $368,000 per day, along with 234 cars and, in one case, a house. Once police officers seized the suspects’ money, it was rare for them to see it again. Only 50 cases in the data were even contested by the suspects.

In a number of cases, the government may negotiate an amount of money to be paid for the return of the car. They may negotiate an amount of money for the return of the vehicle, or items seized, allegedly to cover the costs of the forfeiture, or as some additional penalty. When the person is faced with additional legal costs to defend against the forfeiture, often in a civil proceeding where the state’s burden of proof is less than in a criminal case, they often decide to “cut their losses” and settle for a lesser dollar amount. As one can easily surmise, these types of actions can and do lead to abuse and misuse of forfeiture to fund the seizing agency and the local and county budgets.

Experienced criminal defense counsel is an absolute must for these types of seizures and forfeitures. Forfeitures can be justified under the law, or they can be grossly disproportionate to the crimes charged and misused by the prosecution.

Robert Stahl, and his firm, Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.