For years now, asset forfeiture laws have been used to confiscate property and money that the authorities believe has been involved in some way in drug trafficking. In most cases in the United States, a drug conviction is not required; property can be confiscated on the mere suspicion that it was involved in a drug transaction, and the burden is then on the property owner to prove that it wasn’t involved before the property can be returned.
There are numerous examples involving confiscation of cash (see here and [url=]here for starters), but houses, cars, boats, and airplanes have also been taken.
Question:
what happens in cases where the property being confiscated is not owned “free and clear” by the title holder? Example would be a house with a mortgage on it, or a car/boat/plane on which monthly payments to a lender are still being made. In non-forfeiture situations where the title holder stops making payments, the asset is repossessed or foreclosed upon by the lender. But if the government has confiscated the asset, and the original owner stops making payments, how does the lender - an innocent third party - recoup their loss?
If the lien is recorded, the lienholder would get notice of any forfeiture action against the property. They should be able to assert a claim on the property to the extent of the lien so long as their interest in the property existed before any shenanigans were engaged in, or if the interest was acquired in good faith without knowing that the asset in question was connected with shenanigans. So in the case of a seized automobile, I imagine the government would liquidate it and pay the lienholder what it’s owed, assuming they manage to sell it for enough money.
This happened to my BIL’s step son. Drove his 3 month old Pontiac Trans Am up to Canada and tried to bring back a couple pounds of pot. In his case, the lien holder was notified by the Border Patrol of the seizure and the remedies available to them. The most common remedy is tough shit, Sherlock.
The kid quit paying on the car because he spent 6 months in jail then blew off the creditor when they finally found him. The last time I talked to him about 8 years ato he had just been sued for the full amount owed.
I used to do exactly what the OP is talking about. I worked in the Asset Forfeiture Group for a Federal agency. We did lots of homework while investigations were going on in order to identify a target’s assets prior to his/her arrest. When all goes well (usually does) all of their assets would be seized via in rem (the thing) prosecution. In other words, it doesn’t matter if the bad guy gets convicted, but his/her house was bought with drug money and his/her car was used for moving drugs.
It’s a carry-over from British common law, if I remember correctly, and pointed at piracy. But it’s been a while.
I remember attending a “voluntary” meeting with the new presidentially-appointed boss of the organizationn. “I don’t care if you never take another kilo. We want their money. That’s what will put them out of business.” I agree… but… drugs aren’t going out of business.
BTW - CAFRA drives the process now, at least in the Federal system.
If you own property someone else is using for a crime, it can still be seized. I know people who owned houses, and had them seized because the guy renting them was smoking pot in them. Hey, it was used in a commission of a crime! Tough luck.
I hate this forfeiture seizure and think it should be outlawed. It’s just too easy to abuse. Charging someone with a crime, seize their money, and then charge them with a crime. Now, they have no money to hire a decent lawyer. It also eliminates the oversight civilians have over their police departments since most of the asset seizures go directly to the police department’s coiffeurs.
The best example of what can go wrong is the story of Nicholas L. Bissell, Jr.
It’s just too easy to abuse.
Particularly when the presidentially-appointed ‘boss’ is quoted as saying that there is no concern about getting the drugs themselves. Makes me worried that people will get killed in the quest to seize assets by search warrants rather than reducing amount of drugs themselves.