Chapter 23 - § 23.2 • FORFEITURE

• Jurisdiction: Colorado

§ 23.2 • FORFEITURE

§ 23.2.1—Forfeiture Resulting from Criminal Activity

Forfeiture is the relinquishment of a right or property as a result of an illegal act.⁹¹ (At common law, the value of an inanimate object directly or indirectly causing the accidental death of a king's subject was forfeited to the crown as a deodand.⁹² ) A forfeiture action is a civil proceeding,⁹³ the involuntary diverting of specific property without compensation in consequence of some default or act forbidden by law.⁹⁴ Civil forfeiture is distinguished from criminal forfeiture because it is viewed as a proceeding brought against property rather than the person. This element of civil forfeitures characterizes them as proceedings with the "offending inanimate objects" as defendants.⁹⁵

Before or after the commencement of litigation regarding real property for which seizure or forfeiture is sought, the prosecuting attorney or seizing agency must file a notice of seizure with the office of the clerk and recorder of the county where the property is located. A notice of seizure of real property expires within 70 days after filing unless an action is filed in court for abatement or forfeiture. A notice of seizure must contain (1) a description of the property for which seizure and forfeiture is sought, including the street address and legal description, (2) the date and location of the seizure if the property has already been seized, (3) the identity of the seizing agency and prosecuting attorney, and (4) the name of any person who is an owner of record of the property or is known to have, or has asserted an interest in, the property. The notice of seizure must also contain a statement giving notice that seizure or forfeiture of the property may be sought and that any interest acquired in the property after the filing of the notice of the seizure is subject to the forfeiture action in the event the property is forfeited.⁹⁶

The allegation of the complaint must be established by a preponderance of the evidence.⁹⁷ If property is not per se connected to the criminal activity, the government has the burden of establishing a nexus between the property for which the forfeiture is sought and the criminal activity.⁹⁸ The nexus required by the statute is that the items be traceable to the illegal activity.⁹⁹ Once the People's burden is met, the burden shifts to the defendant to establish that his or her possession of the property is not unlawful.¹⁰⁰ The homestead exemption is not applicable in a forfeiture action.¹⁰¹

Title to real property subject to forfeiture vests in the state and the seizing agency at the earliest of (1) the time of the filing of a notice of seizure, (2) the time of the filing of a notice of lis pendens, or (3) the time of the issuance of court process for seizure of property, as...