Asset Forfeiture in Drug Cases | “Civil” and Criminal

Types of Asset Forfeiture Cases in Minnesota

7280790074_a471b26397_bCriminal Asset Forfeiture
These are cases involve the government seizing and forfeiting (or keeping private property without paying for it) private property from the owner, after the owner has been convicted of a crime.  Sometimes this is called “Judicial Forfeiture” since the owner is provided criminal due process before their private property can be taken without just compensation.

Civil Asset Forfeiture
The other kind involves the government seizing and forfeiting (or keeping private property without paying for it) private property from the owner, after giving some sort of notice to the owner of the proposed action, putting the burden on the owner of filing a court challenge (and paying a court filing fee, lawyer’s fees, etc.); and without any criminal charge or conviction necessary. Sometimes this is called “Administrative Forfeiture” since the owner’s private property is taken by the government based on some minimal notice of claims, with no hearing at all unless properly requested by the victim owner.

Constitutional Issues in Asset Forfeiture Cases

Fifth Amendment of the United States Constitution
Three issues:

  1. Double Jeopardy.
  2. Due Process Prior to Deprivation of Property.
  3. Taking of Private Property Only with Just compensation.

“No person shall be held to answer for a capital, or otherwise infamous crime … ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; … , nor 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
One issue:

  1. Excessive Fines shall not be imposed.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Fourteenth Amendment of the United States Constitution
Two issues:

  1. Due Process Prior to Deprivation of Property.
  2. 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 in the Criminal Code Chapter just one section after the Section for the crime of “Receiving Stolen Property.”  Perhaps because the government writes the laws, 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 Government does 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 with?

Minnesota Statutes Section 609.531 is the general asset forfeiture statute.  Its language seems to attempt to morally justify the legal remedy it provides the government, and the burden it bestows upon the lowly Citizen.  It provides a broad authority to the Government (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…” as well as for a reduced, civil “clear and convincing” standard for the Government’s burden of proof (once the Private Property Owner has properly challenged it, if they have done so in time).

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,” with listed limitations on that authority.

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 Judicial forfeiture, 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 requires a pre-deprivation hearing by a neutral and detached magistrate.)

Minnesota Statutes Section 609.5314 is the Administrative Forfeiture statute for “controlled substance” cases.  The “associated property” as loosely defined there, seized by the Government, can be legally kept by the Government unless the Owner initiates a legal challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION 609.5314, SUBDIVISION 3, YOU LOSE …”  This must be done “Within 60 days following service of a notice of seizure and intent to forfeiture under this section…”

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.  (A conflict of interest is built into the law.)

Requesting Return of Seized Property under Minnesota Statutes Section 626.04

Minnesota Statutes Section 626.04 sets forth a procedure for the owner of property seized by police to request its return.  If it is not returned within 48 hours exclusive of weekends and holidays, the owner may file a Petition for the Return of the Property with the court, and get a court hearing.  Note that this will not work if there has been an administrative forfeiture notice or proceeding, 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 criminal lawyer, such as Gallagher, before going ahead with this procedure.