Asset Forfeiture in Minnesota Drug Cases | Civil and Criminal
Drug Forfeiture Attorney Thomas Gallagher provides tips for getting your property back. Find out how. And call Attorney Gallagher for help at 612 333-1500.
Types of Asset Forfeiture Cases in Minnesota
Criminal Asset Forfeiture
In these cases the government seizes and forfeits private property from the owner, after the owner has been convicted of a crime.
Sometimes we call this “Judicial Forfeiture.” The government may not keep the owner’s property until after the owner has a chance to challenge the case in front of a judge. If the court grants the government’s request, the government keeps the property without paying.
A drug forfeiture attorney can help the owner recover their property in a criminal asset forfeiture case.
Civil Asset Forfeiture
The other kind involves the government seizing and forfeiting private property from the owner, after a notice of claim to the owner; and putting the burden on the owner of filing a court challenge. That burden includes court filing fees and lawyer’s fees.
Sometimes we call this “Administrative Forfeiture.” The government takes the owner’s private property with a brief notice of claims. There never will be a hearing in court, unless properly requested by the victim-owner.
A property owner facing a police seizure of their car, money or other assets, needs help from a drug forfeiture attorney.
Constitutional Issues in Asset Forfeiture Cases
Constitutional law influences these cases. Drug Forfeiture Attorney Thomas Gallagher outlines constitutional provisions that affect forfeiture cases:
Fifth Amendment of the United States Constitution
- Double Jeopardy.
- Due Process Prior to Deprivation of Property.
- Taking of Private Property Only with Just compensation.
“No person shall be … deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Eighth Amendment of the United States Constitution
- The government may not impose Excessive Fines.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Fourteenth Amendment of the United States Constitution
- Due Process Prior to Deprivation of Property.
- Equal Protection of the laws to all persons.
Section 1. “No state shall make or enforce any law which shall … deprive any person of … property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Minnesota State Statutes Authorizing Government Taking of Private Property
Ironically, Minnesota’s General Asset Forfeiture Statute, appears just after the Section for the crime of “Receiving Stolen Property” in the Criminal Code.
When an average Minnesotan takes or receives another’s private property without paying for it, the laws define that as a crime. But when the police do it, they call it legal “Asset Forfeiture.”
Is this another double standard, where the government excuses itself from living by the same rules it demands that the rest of us live under?
Minnesota’s general asset forfeiture statute
Minnesota Statutes Section 609.531 is the general asset forfeiture statute. Its language attempts to morally justify the legal remedy it provides the government, and the burden it lays upon the common Citizen.
It provides a broad authority to the police to seize private property “associated” with a “designated offense” (other than “Controlled Substance” offenses) without process or notice beforehand.
It provides that “forfeiture is a civil in rem action and is independent of any criminal prosecution…” The law also sets a reduced, civil “clear and convincing” standard for the Government’s burden of proof. Of course, the Private Property Owner had to properly challenge it, in time.
Minnesota’s Drug Forfeiture Statute
Minnesota Statutes Section 609.5311 is the forfeiture statute for “controlled substances.” It provides a broad authority to the Government (police) to seize private property “associated” with a “controlled substances offense.” It lists limitations on that authority.
Your drug forfeiture attorney should be a good criminal defense attorney with strong experience with drug cases, like Attorney Thomas Gallagher.
Judicial Forfeiture Statute
Minnesota Statutes Section 609.5313 is the Judicial Forfeiture statute. It states the procedure where the Government sues the Private Property with notice to its Owner.
Under this statute, the Government does not get the Private Property unless it can first win a trial against the Owner who contests it. Traditionally, due process of law required a pre-deprivation hearing by a neutral and detached magistrate.
Administrative Forfeiture Statute for Drug Cases
Minnesota Statutes Section 609.5314 is the Administrative Forfeiture statute for “controlled substance” cases. The procedures the government must follow when seizing people’s property without judicial approval are in Minnesota Statutes §609.5314.
The statute includes a loose definition of “associated property.” This is its instrumentality justification for taking without compensation.
This statute also gives procedures for property owners who wish to challenge the government’s “taking” of their property. Unless the Owner initiates a legal challenge after seizure by the Government, the asset can be legally kept by the Government. The owner’s legal challenge must be: “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION 609.5314, SUBDIVISION 3 …”
The deadline is: “Within 60 days following service of a notice of seizure and intent to forfeit under this section…” This administrative law places the burden of initiating court action on the true owner with a short, sixty day statute of limitations for doing so. Highly unusual in the law, and to the government’s benefit at your cost.
If the property owner properly challenges the administrative taking, the case converts to a judicial forfeiture. No administrative record exists for review by the court, just a summary seizure by police.
Legalized Corruption – Policing for Profit
Minnesota Statutes Section 609.5315 sets forth the Disposition of Forfeited Property.
“70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the Police Agency that originally took the Private Property.
The law has a conflict of interest. Money for the department slush fund is more rewarding than improving public safety or liberty or justice.
Minnesota Statutes Section 626.04 provides a procedure for the owner to ask return of seized property from police.
That law requires the return of the property within 48 hours of the written demand, exclusive of weekends and holidays. Otherwise, the owner may file a Petition for the Return of the Property with the court. If the owner does, he or she will get a court hearing.
Note that this will not work if there has been an administrative forfeiture notice or proceeding. This procedure also won’t work if the property is evidence in a pending criminal case. See the statute section for these and other exclusions.
A form is available for such a Petition on the Minnesota Courts website.
It would be wise to consult a drug forfeiture attorney, such as Gallagher, before going ahead with this procedure.
Question? Call Drug Forfeiture Attorney Thomas Gallagher about getting your property back at 612 333-1500