3 Seizure of Property for Civil Forfeiture

• Library: Asset Forfeiture: Practice and Procedure in State and Federal Courts (ABA) (2014 Ed.)

3Seizure of Property for Civil Forfeiture

A. General Principles

Between January 1999 and May 2000, the Kansas City Star newspaper ran numerous articles concerning the seizure of property by state law enforcement officials and the transfer of that property to federal authorities for processing under the federal forfeiture statutes.¹ These articles highlight one of the most controversial aspects of civil asset forfeiture cases: a law enforcement agency is permitted to seize property based on probable cause and retain possession of the property pending final resolution of the matter. See Republic National Bank v. United States, 506 U.S. 80, 84 (1992).

With this background, there are three questions that should be addressed whenever property is seized for civil forfeiture:

1. What is the legal authority for seizure of the property?
2. What constitutional issues are involved?
3. How is property transferred from one jurisdiction to another (state to federal or vice versa)?

B. Judicial Authorization

Federal and state statutes generally provide for the seizure of property by judicial process. These are divided into two types of orders called seizure orders or seizure warrants and arrest warrants in rem.

1. Seizure Order/Warrant

A seizure order, or seizure warrant, authorizes the seizure of property prior to the filing of the forfeiture complaint or petition. See In re Application for Warrant to Seize One 1988 Chevrolet Monte Carlo, 861 F.2d 307, 312 (1st Cir. 1988). This judicial authority is specifically provided for in the enabling forfeiture statutes. See 18 U.S.C. § 981(b)(2) & Cal. Health & Safety Code § 11471. It is generally presented to the magistrate in the same manner as a search warrant—an ex parte order based on a sworn affidavit of probable cause that the property is subject to forfeiture. United States v. Approximately 600 Sacks of Green Coffee Beans, 381 F. Supp. 2d 57, 64 (D. P.R. 2005). It is useful in seizing property not amenable to physical seizure, such as the proceeds of illicit criminal activity held in financial institution accounts under the names of the perpetrators. However, a state lacks authority to issue a seizure warrant to seize wire transfers for in rem forfeiture that have no nexus to its jurisdiction. See State v. Western Union Financial Services, 220 Ariz. 567; 208 P.3d 218, 227 (Ariz. 2009). (out of state wire transfers to Mexico).

Most state statutes contain specific judicially authorized prefiling seizing authority within their forfeiture provisions. See Table 3-1 (pages 49-50). Because the New York statute is civil in personam rather than civil in rem, it does not provide for judicial seizure warrants, however, because seizure of the property is not required for the court to obtain jurisdiction. The New York statute does provide for subpoena authority to locate assets precomplaint, see N.Y. C.P.L.R. §1311, and for provisional remedies to protect and preserve the property post-filing. (See N.Y. C.P.L.R. § 1312.)

2. Arrest Warrant In Rem

An arrest warrant in rem differs from a seizure order/warrant because it is issued after the filing of the civil forfeiture action by the court. Once issued and served, the property is either actually or constructively seized, thereafter vesting the court with in rem jurisdiction over the res. See Strong v. United States, 46 F.2d 257, 260 (1st Cir. 1931); Ventura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852, 859-61 (9th Cir. 2005).

The arrest warrant in rem has its genesis in the law of admiralty and is specifically provided for under Rule G(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules) and federal statutes. See 18 U.S.C. § 981(b)(2)(A).

There is no requirement that the magistrate conduct a probable cause hearing before issuing the arrest warrant in rem for property that is already in government custody or is subject to a judicial restraining order, Supplemental Rule G(3)(b)(i), (iii), as it is merely a ministerial duty that may be performed by a clerk. See United States v. Real Property 874 Gartel Drive, 79 F.3d 918, 922 (9th Cir. 1996); United States v. Four Thousand Eight Hundred Seventy Seven Dollars ($4,877.00) in U.S. Currency, 2010 WL 3172242 (M.D. Ala. 2010). If property is not in government custody or subject to a judicial restraining order, a probable cause finding is mandated. Supplemental Rule G(3)(b)(ii).

Table 3-1 Summary of State Asset Forfeiture Statutes Civil Seizure Authority—Court Order

State	Statute
Alabama	Ala. Code § 20-2-93 (b)
Alaska	Ak. Stat. § 17.30.114 (a)
Arizona	Ariz. Rev. Stat. Ann. § 13-4305 A.1
Arkansas	Ark. Code Ann. § 5-64-505 (c)
California	Cal. Health & Safety Code § 11471
Colorado	Co. Rev. Stat. § 16-13-315 (1)(a)
Connecticut	Con. Gen. Stat. Ann. § 54-36a
Delaware	Del. Code Ann. Title 16 § 4784 (c)
District of Columbia	D.C. Code Ann. § 48-905.02 (b)
Florida	Fla. Stat. Ann. § 895.05 (3)
Georgia	Ga. Code Ann. § 16-13-49 (g)(1)
Hawaii	Hawaii Rev. Stat. § 712A-6(1)(a)-(b)
Idaho	Idaho Code § 37-2744 (b)
Illinois	720 ILCS 550/12 (b)
Indiana	Ind. Code Ann. § 34-24-1-2(a)(3)
Iowa	Iowa Code Ann. § 809A.6 1
Kansas	Kan. Stat. Ann. § 60-4107 (a)
Kentucky	Ky. Rev. Stat. Ann. § 218A.415(1)
Louisiana	La. Rev. Stat. Ann. § 40:2606.A
Maine	Me. Rev. Stat. Ann. Title 15 § 5822.6
Maryland	Md. Criminal Procedure Act § 12-202 (a)(1)
Massachusetts	Mass. Ann. Laws Ch.94C-47 (f)(1)
Michigan	Mich. Comp. Laws § 600.4703 (1); 333.7522
Minnesota	Minn. Stat. Ann. § 609.531 Subd.4
Mississippi	Miss. Code Ann. § 41-29-153 (b)
Missouri	Mo. Ann. Stat. § 513.607.6(1)
Montana	Mont. Code Ann. § 44-12-103 (2)
Nevada	Nev. Rev. Stat. § 179.1 165.1
New Hampshire	N.H. Rev. Stat. Ann. § 318-B:17-b I-b.(a)

Table 3-1 (continued) Summary of State Asset Forfeiture Statutes Civil Seizure Authority—Court Order

State	Statute
New Jersey	N.J. Stat. Ann. § 2C: 64-1 b
New Mexico	N.M. Stat. Ann. § 30-31-30.A
North Dakota	N.D. Cent. Code § 19-03.1-36.2
Ohio	Ohio Rev. Code Ann. § 2981.03 (B)(1)
Oklahoma	Okla. Stat. Ann. § 63-2-504
Oregon	Ore. Rev. Stat. § 131A.060
Pennsylvania	Pa. Consol. Stat. Ann. Title 42 § 6801 (b)
Rhode Island	R.I. Gen. Laws § 21-28-5.04.2 (c)(1)-(2)
South Carolina	S.C. Code Ann. § 44-53-520 (b)
South Dakota	S.D. Codified Laws Ann. § 34-20B-74
Tennessee	Tenn. Code Ann. § 40-33-102 (a); 53-1 1-451(b)
Texas	Tex. Code of Crim. Proc. § 59.03 (a)
Utah	Utah Code Ann. § 24-2-102(1)
Vermont	Vt. Stat. Ann. Title 18 § 4242 (a)
Virginia	Va. Code Ann. § 19.2-386.2A
Washington	Wash. Rev. Code Ann. § 69.50.505 (2)
West Virginia	W. Va. Code § 60A-7-704 (a)
Wisconsin	Wis. Stat. Ann. § 961.55 (2)
Wyoming	Wyo. Stat. § 35-7-1049 (b)

The use of the arrest warrant in rem has limited applicability in state forfeiture practice because only two states authorize its use in their state forfeiture procedures. See Va. Code Ann. § 19.2-386.2; Md. Ann. Code Crim. Proc. § 12-306.

3. Warrantless Seizure

Both federal and state statutes specifically authorize the warrantless seizure of property for forfeiture. Prior to August 2000, the seminal federal statute for seizure without a warrant was contained in the narcotic forfeiture statute at 21 U.S.C. § 881(b) and authorized seizure without process under four conditions:

1) The seizure was incident to an arrest or search warrant;
2) The property was subject to a prior forfeiture judgment in favor of the government;
3) There was probable cause to believe that the property was directly or indirectly dangerous to health or safety; or
4) There was probable cause to believe that the property was subject to civil forfeiture. See 21 U.S.C. § 881(b)(1)-(4).

This provision became the pattern followed by virtually all state narcotic forfeiture statutes and 47 states plus the District of Columbia have comparable civil warrantless seizure authority. See Table 3-2, pages 52-53.

However, with the enactment of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) Section 5, (106 P.L. 185; 114 Stat. 202, 213) Congress effectively repealed 21 U.S.C. § 881(b) and revised 18 U.S.C. § 981(b)(2) to permit seizure without a warrant if:

1) A complaint for forfeiture has been filed and the court has issued an arrest warrant in rem; 18 U.S.C. § 981(b)(2)(A);
2) There is probable cause to believe that the property is subject to forfeiture, 18 U.S.C. § 981(b)(2)(B) and

a. The seizure is made pursuant to a lawful arrest or search; 18 U.S.C. § 981(b)(2)(B)(i) or
b. Another exception to the Fourth Amendment warrant requirement would apply, 18 U.S.C. § 981(b)(2)(B)(ii); or

3) The property was lawfully seized by a state or local law enforcement agency and transferred to a federal agency, 18 U.S.C. § 981(b)(2)(C).

In comparing the old and new versions of the statute, it appears that the new section is more restrictive because it does not allow a total exemption from the warrant requirement for probable cause seizures; however, it does permit any seizure that can be justified as an exception to the Fourth Amendment of the Constitution. Therefore, warrantless seizures under the automobile, Florida v. White, 526 U.S. 559, 566 (1999); United States v. Nelson, 530 F. Supp. 2d 719, 729-30 (D. Md. 2008); plain view, United States v. Dixon, 1 F.3d 1080, 1084 (10th Cir. 1993); exigent circumstances, United States v. Daccarett, 6 F.3d 37, 49 (2d Cir. 1993); United States v. 5 Anchor Drive, 2011 WL 344748, *2 (D. Mass. 2011); and search incident to execution of a search or arrest warrant exceptions would all apply. United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 875-76 (10th Cir. 1992). In essence, it...