Asset Forfeiture Attorney Thomas Gallagher provides tips for getting your property back. So find out how.
Police asset forfeiture when investigating criminal cases
Police commonly seize property for forfeiture in these types of criminal investigations:
Types of Asset Forfeiture Cases in Minnesota
Criminal Asset Forfeiture
In these cases the government seizes and forfeits private property from the owner, after a criminal conviction of the owner.
Sometimes we call this “Judicial Forfeiture.” The government may not keep the owner’s property until after the owner’s chance to challenge it before a judge. And if the court grants the government’s request, the government keeps the property without paying.
But a forfeiture attorney can help the owner recover their property in a criminal asset forfeiture case.
Civil Asset Forfeiture – Is possession nine-tenths of the law?
The other kind involves the government seizing and forfeiting property from the owner, after just a paper notice. But this puts the burden on the owner of filing a court challenge. And 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. And there never will be a hearing in court, unless properly requested by the victim-owner.
So a property owner facing police seizure of their car, money or other assets, needs help from a forfeiture attorney.
Constitutional Issues in Asset Forfeiture Cases
Constitutional law influences these cases. And Forfeiture Attorney Thomas Gallagher outlines relevant constitutional provisions:
Fifth Amendment of the United States Constitution
Three issues:
- 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
One issue:
- 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
Two issues:
- Due Process Prior to Deprivation of Property.
- Equal Protection of the laws.
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 Statutes Authorizing Government Taking of Private Property
Two Minnesotas
When an average Minnesotan takes another’s property without paying for it, the laws define that as a crime.
But when the police do it, they call it legal, “Asset Forfeiture.”
So why the double standard? Why allow the government to exempt itself, from its rules for the rest of us?
“Ironically, Minnesota’s General Asset Forfeiture Statute, appears just after ‘Receiving Stolen Property‘ in the Minnesota Criminal Code.“
Attorney Thomas C. Gallagher
Minnesota’s general asset forfeiture statute
Minnesota Statutes § 609.531 is the general asset forfeiture statute. Its language seeks to justify the legal remedy it gives government, and the burden it puts upon the common Citizen.
It gives broad authority to police to seize private property “associated” with a “designated offense” (other than “Controlled Substance” offenses.) And it does so without lawful process or notice beforehand.
It claims that “forfeiture is a civil in rem action and is independent of any criminal prosecution…”
And 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 short-time.
Minnesota’s Drug Forfeiture Statute
Minnesota Statutes § 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.” And it lists limits on that authority.
So your drug forfeiture attorney should be a criminal defense attorney with strong experience with drug cases, like Attorney Thomas Gallagher.
Judicial Forfeiture Statute
Minnesota Statutes § 609.5313 is the Judicial Forfeiture statute. It states a procedure where the Government sues the Private Property, with notice to its Owner.
But under this statute, the Government does not get the Property unless it can first win a trial against the Owner. Traditionally, due process of law requires a pre-deprivation hearing by a neutral and detached magistrate.
Administrative Forfeiture Statute for Drug Cases
Minnesota Statutes § 609.5314 is the Administrative Forfeiture statute for “controlled substance” cases. And the procedures the government must follow when seizing people’s property without judicial approval are in Minnesota Statutes § 609.5314.
But the statute includes a loose definition of “associated property.” So this is its instrumentality justification for taking without compensation (legalized theft).
This statute also gives procedures for property owners to challenge the government’s “taking” their property. So unless the Owner initiates a legal challenge after seizure by the Government, the Government can keep the asset. And 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. And it does so with a short, sixty day statute of limitations.
This is highly unusual in the law; and to the government’s benefit at your expense.
If the property owner properly challenges the administrative taking, the case converts to a judicial forfeiture. But no administrative record exists for review by the court, just a summary seizure by police.
Forfeiture Defenses
Defenses to government forfeiture of your property include statutory defenses, Constitutional defenses, and affirmative defenses.
See our separate page for a deeper look at the most common affirmative defense: The Innocent Owner Defense.
Legalized Corruption: Policing for Profit
“Who benefits?”
See our article: A Greater Evil: The Moral Peril of Minnesota Asset Forfeiture Laws.
Minnesota Statutes § 609.5315 sets forth the Disposition of Forfeited Property. So, “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. After all, money for the police department slush fund is more rewarding than improving public safety, or liberty, or justice.
Requesting Return of Seized Property: Minnesota Statutes §626.04
Minnesota Statutes §626.04 provides a procedure for the owner to ask return of seized property from police.
And that law requires the return of the property within 48 hours of the written demand, exclusive of weekends and holidays. But otherwise, the owner may file a Petition for the Return of the Property with the court. And if the owner does, she will get a court hearing.
Note that this will not work if there has been an administrative forfeiture notice or proceeding. And this procedure also won’t work if the property is evidence in a pending criminal investigation or case. See the statute section for these and other exclusions.
You can download a form for the Petition from the Minnesota Courts website.
Other articles of interest
Innocent Owner Defense < Forfeiture
Crimes | Types of Criminal Charges
Minnesota asset forfeiture posts and articles