When an individual is suspected of criminal activity, police immediately set out to gather as much evidence as they can to obtain probable cause for searches, seizures and arrests, and to maximize the criminal charges they are able to pursue. Police are not, however, able to make an arrest or conduct a search until they have probable cause to believe a crime was committed.
The seizure of property suspected to be involved in criminal activity usually receives less attention than criminal charges themselves, but forfeiture is a serious issue that can affect even those who are never charged with a crime. In some cases, property owners never receive seized items back. To make matters worse, forfeiture is sometimes abused by law enforcement officers. Because the value of the items can sometimes be significant, it would make sense that there should be some limitations.
Asset forfeiture laws exist both at the state and federal level, and changes are—or could be—coming at both levels. At the state level, Democrats in the House of Representatives recently proposed making a change to state law that would switch who has the burden of proof in asset forfeiture proceedings.
Under current law, property owners who have been subjected to asset forfeiture have the burden of proving by a preponderance of the evidence that the property was not connected to a crime. If they cannot do so, they lose the right to the asset. The proposal in the House, though, would change it so that it is the state which has the burden of proving by a preponderance of the evidence that the property was connected to a crime.
The bill proposes other changes as well, which we’ll talk about in our next post, along with a recent clarification of asset forfeiture at the federal level.
Institute for Justice, “Asset Forfeiture Report: Maryland,” Accessed March 5, 2015.
Baltimore Post-Examiner, “Maryland law on police seizure of property in drug trade could be restricted,” Feb. 24, 2015.
Washington Post, “Justice clarifies new limits on asset forfeiture involving local, state police,” Robert O’Harrow Jr. & Steven Rich, Feb. 11, 2015.