Tuesday, November 11, 2014


Perhaps it should come as no surprise that police agencies make wish lists for forfeiture items. But forfeiture of property often occurs despite the fact that the rightful owner of the property is nether convicted nor charged with a federal or Florida crime. In fact across American your tax dollars are used to send police officers to special seminars where they're told which private items are worth taking from the citizens they're supposedly protecting. Jewelry is too hard to sell, computers too common, fast cars are just right. 

The New York Times even describes a sheriff who had his eye on a particularly Italian specimen of fast car which he and his deputies laid claim to after careful strategy and planning sessions to make the necessary arrest. Few would object to the forfeiture of property when linked directly to a criminal act. However, every forfeiture should arise only after charges are filed and then after a conviction is obtained for those charges. 
Police agencies look for personal property subject to forfeiture even without a conviction, hope the Clearwater, Florida cops don't  take my Pumpkin Frappuccino.
Just Don't Take My Pumpkin Frappuccino

In high profile complex criminal litigation the taking of property without a fair hearing before indictment and trial has become an effective and alarming means of depriving the alleged wrong doer of the means to fund an adequate defense. Unfortunately for everyone involved it also makes it difficult for defense counsel to buy that grandee pumpkin spice frappuccino he's had his eye on for the past hour at Starbucks, but let's not make this too personal.

Clearly national standards for federal and state police actions for forfeiture of property should include the following requirements:

  1. A charging document, indictment or in states such as Florida a charging information where no grand jury is necessary for a criminal charge.
  2. An assessment of how the property pertains to the charged misconduct. For example, establishing that the property was the ill gotten gains from a conspiracy to defraud or grand theft to  part of part of the charging document 
  3. The right to an immediate hearing to contest the taking of property.
  4. The burden of any pretrial hearing to be solely upon the government to establish why the property must be taken.
  5. At the formal hearing the property owner should have the right to confront all of the state's witnesses as well as to call to the witness stand any witness including police officers, detectives and administrative officials within the police department who could shed light on the motives of the department for taking the property and their previous actions in other forfeiture hearings.
The goal should be to protect private property by restricting the use of forfeiture by prosecutors and police departments to only those cases where there's absolute necessity for the taking.