If law enforcement in Virginia suspect that a property is related to criminal activity, they may be able to take the property. Even if the suspect of the related crime is never charged or found guilty, the police may be able to keep the property or sell it and keep the proceeds. This is known as civil forfeiture and is generally legal. If you have been accused of a crime or arrested for a crime in Virginia, contact an experienced Charlottesville criminal defense lawyer who will fight to protect your rights.
Civil Forfeiture and Criminal Forfeiture in Virginia
In a criminal case, when a property is allegedly used in a crime, such as money, a vehicle, or even a house, the judge can rule the property is forfeited to law enforcement as part of a criminal sentence. However, in “civil” forfeiture, the police may be able to forfeit property if they suspect it is connected with a crime, even if the owner is never charged or convicted.
According to the Virginia Department of Criminal Justice Services, the Forfeited Asset Sharing Program laws allow local law enforcement to receive the proceeds from the sale of items obtained in connection with drug trafficking. Before the law was adopted in 1990, the proceeds from forfeited items were given to the State Literary Fund. Now the proceeds are primarily given to the law enforcement agencies who took the property.
There have been many complaints about the potential for abuse in state forfeiture laws. When the police stop a driver carrying a large amount of cash, they may seize the cash leaving the owner to deal with the long and complex process of trying to prove the money is not related to crime. Examples have included people driving home from a casino after winning big, charitable donations and proceeds to benefit an orphanage, or money from an inheritance.
According to the Institute for Justice, Virginia gets a D- for its civil forfeiture laws. To seize property in Virginia, the government only has to show by a preponderance of the evidence the property is related to crime. However, the individuals claiming the property have the burden to prove that they were not involved in any alleged criminal activity.
Meanwhile, law enforcement keeps 90% of the proceeds from forfeited property with the remaining going to the state's Department of Criminal Justice Services. Between 2010 and 2013, state forfeiture proceeds totaled more than $6 million each year from currency, vehicles, real property, and other forfeitures.
Supreme Court Case Limiting Civil Forfeiture
The Supreme Court has recently ruled on a case involving civil asset forfeiture. In the unanimous decision in Timbs v. Indiana, the Court found the prohibition against excessive fines can apply to forfeiture cases. If the property value of the assets seized is disproportionally high, the government may be prohibited from forfeiting the property.
In the above case, Tyson Timbs pleaded guilty to selling $225 worth of heroin to an undercover officer and was sentenced to one year of house arrest and a fine of $1,200. However, the police also seized Timbs' $42,000 Land Rover, which he'd purchased with the proceeds of his father's life insurance policy. According to Justice Ginsburg, “All 50 states have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality.”
The Supreme Court case will not eliminate civil forfeiture and law enforcement may still take the initial step of seizing the property. The property owners may then have to file a lawsuit against the state or local government in order to get a ruling that the property value is too high and should be returned to the rightful owners.
Before You Let the Police Search Your Vehicle...
Some people say that if you don't have anything to hide, there should be no reason not to let the police search your car. Civil forfeiture is a clear example of how the innocent driver can lose money or property for doing nothing wrong.
If the police search your vehicle and find money, items the police call drug paraphernalia, or expensive computer or video equipment, the officer may suspect the property is related to some criminal activity and take the property, leaving you fighting to prove that the property is unrelated to any crime.