US Police Can Simply Seize Your Belongings

By J. Wisniewski on Friday, January 17, 2014
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“Until they become conscious they will never rebel, and until after they have rebelled they cannot become conscious.” —George Orwell, 1984

In A Nutshell

Regardless of whether or not you have committed a crime (or even been charged with one), in most parts of the United States, police officers may confiscate your belongings under a provision called civil forfeiture. “Probable cause” that your possessions may in some way be connected to perceived criminal activity is sufficient for seizure in most cases. In these cases, the burden of proof of innocence rests with the civilian.

The Whole Bushel

You’re probably aware that if you get caught selling drugs or if the police pull you over trafficking coke across the US-Mexican border, the police can (and will) seize your assets (cash, car, cool hat, etc.). This is called criminal forfeiture and the idea is the police can help fund their crime-fighting by, well, fighting crime. The “catch” with criminal forfeiture is the confiscated property must have been used in the commission of the crime. Not exactly the steadiest stream of income.

So, let’s say you get pulled over for speeding or some other infraction and the citing officer detects a whiff of marijuana or suspects you of possession. A search reveals no contraband, but you do look suspicious. Can that police department take everything in the car and all your cash without arresting you or charging you with a crime? Yes, they certainly can (and do).

The laws which govern this civil forfeiture provide little recourse for property owners. The burden of proof is on the owner to prove any seized property was not connected in any way to any crime. As a result, civil forfeiture is a regular occurrence across much of the nation. And since police departments keep approximately 90 percent of the profits from seized property, the law in its current form effectively incentivizes abuse. Which might explain why in 85 percent of the NYPD’s forfeiture cases the property owner was never even charged with a crime.

So, why don’t property owners challenge these questionable seizures? The “civil” nature of the provision means the government is basically suing you for your stuff, and you need to prove your stuff is innocent. Cases like “The United States vs. One Pearl Necklace” are common. And since your possession is not a person, it has no constitutional rights and thus has no legal right to an attorney. So, if you want your iPod or 500 bucks back, you would need to hire an attorney yourself. And chances are any attorney with the skill to win your stuff back is going to charge legal fees which exceed the value of your confiscated possessions. You could represent yourself, but in most cases the governing law is an arcane beast over a century old which even most uninitiated lawyers and law students struggle to comprehend.

If it sounds like the deck is stacked against the defendant, it’s probably because it is. Civil forfeiture is a convenient, legal way for District Attorneys’ offices and police departments to fund their budgets. While cars and houses are frequently seized, most often the property value is just small enough it makes far more sense for the owner to forget about contesting the forfeiture. But all those small amounts add up, and as a result some states make millions of dollars annually from such forfeitures.

Imagine going to court against the unlimited (compared to your own) resources of the state and trying to prove your iPhone, or car, or even your house is innocent. It really sounds like something from which a citizen should be guaranteed protection.

Show Me The Proof

The New Yorker: Taken
Forbes: Civil Forfeiture Laws And The Continued Assault On Private Property
Gothamist: How The NYPD’s Use Of Civil Forfeiture Laws Robs Innocent New Yorkers
Fourth Amendment of the US Constitution