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Defenses to Federal and State Asset Forfeiture

December 18, 2020

When an asset forfeiture occurs, police confiscate assets or property they believe have been or will be used in a crime. Thus, the purpose of this is to interrupt criminal activity. However, this does not give law enforcement the right to conduct unlawful property confiscation. Yet due to this tactic being used by police for intimidation purposes, it is crucial that if you are the victim of property confiscation by law enforcement, you immediately hire an attorney skilled in these cases. In doing so, they will analyze your situation, then develop a legal strategy using defenses specific to your case.

Illegal Search and Seizure
For police to conduct a search and confiscate items on private property, they are required to secure a search warrant signed by a judge. To obtain this warrant, the police must submit enough evidence to the judge linking any property for which they are searching with illegal activity. However, if police fail to show a warrant prior to conducting their search, or if they confiscate property that is shown to have no link to the crimes for which you have been charged, your attorney should be able to use this as reasons to have the charges against you dropped.

Failure to Provide 60-Day Seizure Notice
In some situations, asset forfeiture law states a written notice of confiscation must be submitted to a party within 60 days of the seizure taking place. Different from a search warrant, this notice is given to a property owner so they have ample time to file a claim that will protect their assets. If this notice is not provided, your attorney can use this as a viable defense in court. If it is determined no notice was provided, any property confiscated from you should be returned to you by the court. However, if you do receive a seizure notice, always hire an attorney as early as possible before the deadline, since this will give them a reasonable amount of time to plan a defense strategy.

Innocent Owner Defense
A viable defense strategy, this is considered the most difficult defense to prove in asset forfeiture cases. With this defense, your attorney will attempt to prove you were not aware any property owned by you was being used in commission of a crime, or that you never gave consent for the assets to be used in an illegal manner. To succeed with this defense, your attorney will have to carefully examine all aspects of the case, find holes in the allegations against you, then provide evidence showing you were in no way connected to the crimes.

Unreasonable Delay
If your property is confiscated and then held by authorities for an extended period of time, it is a good bet they do not have sufficient evidence against you. In these cases, hiring an experienced attorney can be of great benefit. By doing so, you can then file a lawsuit challenging the delay, which can often force police to admit they do not have sufficient evidence against you, leading to charges being dismissed.

Unreasonable Fines
Since New York law prohibits the government from leaving people in a helpless state due to property confiscation, it is also prohibited from levying unreasonable fines against you. If this has happened to you, your attorney can argue your rights as a property owner have been violated. If all goes well, you not only have the charges against you dropped, but also have your property returned.

Statutory Defenses
In certain situations, authorities may seize bank accounts when charging you with a crime. However, since there are certain types of bank accounts that are exempt from state and federal forfeiture, your attorney can use this as an excellent defense strategy. In doing so, once this is brought to the attention of the court, assets contained in these accounts are usually ordered returned to the defendant.

Since these matters can be extremely complicated and involve a variety of factors, always ensure you hire a lawyer with experience and knowledge handling these cases. By doing so, you give yourself the best possible chance of not falling victim to law enforcement intimidation tactics, as well as having your property returned in a reasonable fashion.



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