OK - we’re getting closer.
sailor, as I’ve mentioned several times above, the cops cannot merely suspect, or “decide” to confiscate property. So when you say “mere suspicion,” that’s inaccurate.
The standard needed is probable cause. Probable cause is a flexible, common-sense standard. It requires that the facts available to an officer would “warrant a man of reasonable caution in the belief” that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.
Mere suspicion, even if it is reasonable and articulable suspicion, does not rise to the level of probable cause.
The cops on the scene are not the final word - every forfeiture statute I’ve seen requires a neutral, detached magistrate to hear the facts and decide if probable cause exists. It is, then, not true that “without further proof or judicial process” a forfeiture occurs. At that point, the government has simply “made its case” to the neutral magistrate for the seizure - not the forfeiture - of the asset in question.
Again - I agree that this is too lax a standard – but you do the cause of arguing against the scheme no good by misrepresenting it as worse than it is.
Similarly, the cops can arrest someone and put them in jail on nothing more than probable cause. And, once there, they do have to “initiate a process” to get out.
After an arrest, the magistrate will set a bond. The arrested individual must “initiate a process” - pay his bond in cash or surety - or he will not be released. Within 24 hours, in general, the arrestee is entitled to an arraignment. At that time, his bond arrangements may be reviewed - but it is up to him, either himself or through his attorney, to present reasons that his bond should be changed.
Except in very rare cases, a person arrested will have to put on a defense at trial. While it’s true that at trial the state must prove their case beyond a reasonable doubt, the reality is that an accused who offers no defense is not likely to win release. Here, too, an accused must “initiate a process” to get out.
I think there’s a great deal of value in rational and informed discussion about asset forfeiture. But incorrect comments about the burden of proof, posted confidently as though correct, do nothing towards that end.
- Rick