ASSET FORFEITURE CASES

The concept of asset forfeiture is based upon the government alleging that persons engaging in criminal conduct should not profit by illegal proceeds of their crimes. Items or monies possessed are often allegedly obtained by illegal conduct, and are vulnerable to being taken by the government. This permissible taking, however, often involves a great deal of potential overreaching by the government, where they may take assets that are in no way connected to any such allegations. People are often deprived of assets that they may need or have come into legitimately.

Within our criminal system, there are several ways the government can take and keep property belonging to anyone accused of criminal wrongdoing. Though the taking of one’s assets usually occurs if a crime is charged, individuals and/or businesses do not have to be charged with any crime before the government can come in and seize assets it intends to forfeit permanently.

How are assets seized?

Assets, which can be defined as physical objects such as cash, vehicles, homes, jewelry and even bank accounts can be seized in different ways. Many times, items are taken by police pursuant to a search warrant or a search pursuant to any circumstance that allows such police action without a warrant. For example, a search can be conducted without a warrant if a person has been arrested and is present in police custody in an area where the item is located. The police, of course, through a lawful search may take any illegal items such as drugs and drug paraphernalia.

Assets may also be seized by procedures provided for in a variety of statutes permitting the government to engage in these seizures. The government can request the court permit the service of a warrant to search and seize assets upon a showing of probable cause that the items to be seized are proceeds of criminal activity. In other words, the items possessed by the individual were obtained using funds that came from unlawful conduct. In these instances, the police can take and hold items such as vehicles, cash or jewelry; and/or the government can “constructively” seize assets by placing liens on homes or perhaps freezing bank accounts.

What can I do if this happens to me?

If you are facing asset forfeiture and the government has either physically or constructively seized property or money belonging to you, it is essential that you file a claim to have property returned. It is also incumbent upon the government that you are given written notice of their intent to forfeit the assets in issue. There are very specific procedures and requirements governing this process and it is important to consider having an experienced attorney assist you. The Gillespie Law Firm, P.C. is able to provide solid legal assistance to help you in your attempt to have your property returned.

Arizona Revised Statutes sections 13-2301, and its subparts; and 13-4301 and its subparts generally govern the complex procedures and requirements that must be followed when making a claim to have property returned.

Doesn’t the prosecutor have to prove a crime before my property can be taken and forfeited?

No. Forfeiture proceedings are treated as civil matters. All a prosecutor needs to establish is that the assets were “more likely than not,” obtained through criminal conduct. Additionally, if an individual has been found guilty or plead guilty to the crime, that person cannot deny the allegations in the forfeiture proceedings. A.R.S. section 13-4310.
If it is so easy for the government to take and keep my property, why should I even consider hiring an attorney?

The decision to hire an attorney is a very personal one. No one can tell you that having an attorney, however experienced he/she may be will ultimately mean you will get your property back. However, there are a large number of defenses that can be raised and many times successfully argued. In fact, the law sets forth these defenses, and solid legal guidance can often be invaluable in raising a defense. The defenses to these actions are specifically set forth in A.R.S. section 13-4304.

The complexity of asset forfeiture law, along with what can be a confusing maze of procedural requirements, should be handled in a careful and professional manner. Often, people fighting to get their property back are understandably stressed and upset. Professional, competent representation in this arena is something we can offer at The Gillespie Law Firm, P.C. to help you get through a very tough area of Arizona law.



The Gillespie Law Firm, P.C. is a leading Phoenix, Arizona DUI and criminal defense law firm dedicated to the aggressive representation of clients involving all aspects of vehicular crimes and criminal litigation. We handle cases in Federal, State, Municipal, Juvenile, and Appellate Courts throughout the greater Phoenix Metropolitan Area and all of Arizona.