Anyone with a narcotics-related case – regardless of how simple or complicated the facts may be – has been in this situation. Defense counsel is able to negotiate an acceptable plea deal with the prosecutor which requires their client to, among other things, forfeit property seized at the time of arrest. The property can be anything that was allegedly connected to the drug-related activities, but frequently includes cash and/or a vehicle. The State obtains the property in one of two ways. First, it can commence a civil forfeiture action with an eye toward obtaining a judgment that eliminates the defendant’s right in or to the property and turns it over to the State. It can also require the defendant to execute a consent judgment at the time of the plea or sentencing. Cash, which the State held in an account pending resolution of the criminal case, then becomes State property.
Vehicles and other items may be sold by the State. Occasionally, if a car is deemed suitable, it may also be outfitted with the necessary equipment and then used by the police for law enforcement activities. I have also had cases where the State allowed my client to “redeem” a vehicle. This required my client to purchase their vehicle back from the State at fair market value. Thus, the client or the vehicle’s owner effectively purchased their car a second time. The fact that the car was financed and had a bank lien on it was irrelevant to any determination of the amount of money sought by the State. As with forfeited cash, the proceeds of any vehicle sale or redemption go the State and, at least according to what we are told, are used to help finance law enforcement activities.
This is an issue of considerable magnitude since it goes directly to budget and funding decisions on every level of government. On February 20, 2019, the United States Supreme Court decided Timbs v. Indiana, No. 17-1091. This decision should have a dramatic effect on forfeiture proceedings that are related to criminal cases. Continue reading