Forfeiture: Civil and Criminal

Estimated reading time: 15 minutes

Asset Forfeiture Attorney Thomas Gallagher provides tips for getting your property back. So find out how.

Police asset forfeiture begins early when they are investigating these types of criminal investigations:

DWI

Felony DWI

Criminal Vehicular Operation – Bodily Harm

Fleeing Police in Motor Vehicle

Prostitution

Illegal Drugs

Theft and Property Crimes

Types of Asset Forfeiture Cases

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 9/10s 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.

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

Constitutional law influences these cases. And Forfeiture Attorney Thomas Gallagher outlines relevant constitutional provisions:

Fifth Amendment of U.S. 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 … deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Eighth Amendment of U.S. Constitution

One issue:

1. 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 U.S. Constitution

Two issues:

1. Due Process, Prior to Deprivation of Property.
2. 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.”

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?

“Minnesota’s General Asset Forfeiture Statute, appears just after ‘Receiving Stolen Property’ in Minnesota’s Criminal Code. So government taking of property is associated with stolen property in Minnesota Statutes. They are morally equivalent.”

Attorney Thomas C. Gallagher

Minnesota’s general 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 relaxes the Government’s burden of proof to a civil, “clear and convincing” standard. Of course, the Private Property Owner had the burden of properly challenging it in court, on a short-time frame.

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 have strong experience with drug cases.

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 required a pre-deprivation hearing by a neutral and detached magistrate.

Administrative Forfeiture Statute: 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 benefits the government 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. A deeper look the Innocent Owner Defense is below.

Legalized Corruption: Policing for Profit. “Who benefits?”

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, embedded in the statute. After all, money for the police department slush fund is more rewarding than improving public safety, or liberty, or justice.

Return of Seized Property

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.

The innocent owner defense to forfeiture: What do forfeiture laws have to do with marriage? Imagine that your husband or wife is struggling with alcohol addiction. Your spouse has been sober for an encouraging length of time. But then one day you get a call. A slip; and a DWI arrest of your spouse.

Now the police seize your $40,000 car – the one he was driving at the time – for administrative forfeiture. That doesn’t feel right, does it? Could it be the last straw that stresses and breaks a struggling relationship; leading to another failed marriage?

Innocent owner law & defense

Effective August 1, 2017, as an innocent owner you can challenge the forfeiture of your vehicle; and assert the “innocent owner defense.” And now, you can do so even when your spouse was the DWI driver.

The 2017 law, amended Minnesota Statutes § 169A.63, subdivision 7. And it effectively overruled a 2009 Minnesota Supreme Court case, Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009).

In that case, the court’s majority held that “innocent owner defense” in Minn. Stat. §169A.63, subd. 7(d) (2008), did not apply if one of the joint owners was also the offender causing forfeiture of the vehicle. In that case, the court’s majority ruled that all joint owners of a motor vehicle must be innocent; for any owner to assert an innocent owner defense in Minn. Stat. § 169A.63, subd. 7(d).

Spouses and beyond: Who is the “owner?”

Most innocent co-owners may be spouses. But the law in this area goes beyond spouses.

The innocent owner defense statute defines “owner” as:

“’Owner’ means a person legally entitled to possession, use, and control of a motor vehicle, including a lessee of a motor vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner. For purposes of this section, if a motor vehicle is owned jointly by two or more people, each owner’s interest extends to the whole of the vehicle and is not subject to apportionment.”

Minn. Stat. § 169A.63, subd. 1(e) (2025)

The law creates a “rebuttable presumption” that: “a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner.”

Note that a car title is only prima facie evidence of ownership. In other words, it creates a rebuttable presumption, not conclusive proof. So you can prove ownership by other evidence as well.

What is the innocent owner defense?

Minnesota Statutes 2025, section 169A.63, subdivision 7a “Innocent owner” reads:

“(a) An asserting person may bring an innocent owner claim by notifying the prosecuting authority in writing and within 60 days of the service of the notice of seizure.
(b) Upon receipt of notice pursuant to paragraph (a), the prosecuting authority may release the vehicle to the asserting person. If the prosecuting authority proceeds with the forfeiture, the prosecuting authority must, within 30 days, file a separate complaint in the name of the jurisdiction pursuing the forfeiture against the vehicle, … filed in district court or conciliation court and the filing fee is waived.
(c) A complaint filed by the prosecuting authority must be served on the asserting person and on any other registered owners. Service may be made by certified mail at the address listed in the Department of Public Safety’s computerized motor vehicle registration records or by any means permitted by court rules.
(d) The hearing on the complaint shall, to the extent practicable, be held within 30 days of the filing of the petition. …
(e) At a hearing held pursuant to this subdivision, the prosecuting authority must:
(1) prove by a preponderance of the evidence that the seizure was incident to a lawful arrest or a lawful search; and
(2) certify that the prosecuting authority has filed, or intends to file, charges against the driver for a designated offense or that the driver has a designated license revocation.
(f) At a hearing held pursuant to this subdivision, the asserting person must prove by a preponderance of the evidence that the asserting person:
(1) has an actual ownership interest in the vehicle; and
(2) did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the asserting person took reasonable steps to prevent use of the vehicle by the alleged offender.”

Minn. Stat. §169A.63, subd. 7a (2025)

Problems of Proof for the Innocent Owner

Under the forfeiture statute, the burden of proof is on the owner petitioning to get their car back. And this includes the “innocent owner.” So the innocent owner must prove by “a preponderance of the evidence” (more likely than not) either that:

• she “did not have actual or constructive knowledge that vehicle would be operated contrary to law” or
• that she “took reasonable steps to prevent use of vehicle by alleged offender.”

“Constructive knowledge” is a legal term. “Constructive” means circumstantial evidence of “knowledge.” The prosecutor may argue that knowledge of past “vehicle use by the offender that is contrary to law” is constructive knowledge that the offender would do so in the future. But the length of time that had passed, and other circumstances could influence a judge’s determination of “knowledge” in the case of another DWI.

But, I would point out the difference between “knowledge” and “reasonably should have known.” Those terms are common in the laws, with distinct and different meanings, often paired in many statutes: “knew or reasonably should have known.” But in the this statute, the standard is “knowledge.” And that is much more than “reasonably should have known.” And the legislature repealed the “should have known” language from a previous version of the statute, which had once said a vehicle is subject to forfeiture “only if its owner knew or should have known of the unlawful use or intended use.” Minn. Stat. § 169A.63, subd. 7(d) (2002) (repealed). See, Grove v. ONE 2000 OLDSMOBILE, nonprecedential, A03-1380 (Minn. App. 2004).

A Greater Evil: Moral Peril of Asset Forfeiture Law

In short, Minnesota’s current law on asset forfeiture (government takes your money):

1. Seizure: The government (police) take your property they deem suspicious, though innocent. Then, on a practical level, “possession is 9/10s of the law.”
2. Lack of due process: Current law places the burden is on you, not them, to get a judge to look into it.
3. Presumed guilty: If you do nothing, they keep your property. So you lose, without a judge ever knowing.
4. Unequal Justice, Barriers to Justice: If you want justice, you pay lawyer and court fees. But your taxes pay the government lawyer. And the law exempts government from paying court fees.
5. Corrupt motive, Conflicts of Interest: The police agency that takes it keeps 70% of the cash they “seize,” influencing, biasing their investigation. Policing for Profit.

The King vs. Lords vs. The People

Property rights for common people are individual human rights, against the government or the king.

In 1066, William the Conqueror seized nearly all the land in England. He exercised complete power over the land. And he granted fiefs to landholder stewards; who paid fees and provided military services as a condition for use of the King’s land and the King’s people.

But centuries later, the Magna Carta asserted that the government must pay cash payments to the people for takings of land. Over time, tenants held more ownership rights rather than only possessory rights over their land.

The Third Amendment to the United States Constitution says:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”Third Amendment, United States Constitution

This amendment was to prevent soldiers taking over private property. The British armed forces had done so in Colonial America under the Quartering Act, before the American Revolutionary War.

Property rights for the common people?

The Fifth Amendment to the United States Constitution says:

“No person shall be … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”Fifth Amendment, United States Constitution

A goal was to destroy lingering feudalism. Under feudalism, the government owns the property. And the common people own nothing, except at the discretion, whim or caprice of the government.

But the third, fifth, eighth and fourteenth amendments of the United States Constitution all attempt to further destroy feudalism.

And yet history shows us that the struggle for individual property rights, against government theft, seizure or taking continues — including over asset forfeiture laws. The common people have gained and lost. And we have gained again over the years, both in politics and in law.

Robbery vs. forfeiture: the small distinction

Imagine that you are peacefully driving down the road. Then, people in a vehicle with weapons stop you. They hold you against your will. These people question you in a controlling manner. And then they ask for your “consent” to search; though they act as if it will happen regardless.

They take your personal valuables. And they seize your vehicle. But there is no court process. It’s just gone. And they have it now. You no longer do. You work hard. But they take it, claiming the law.

What would you call this? Armed robbery? But what if the “people in a vehicle armed with weapons” stopping you were police officers of the State of Minnesota; acting under the color of the laws of Minnesota?

Now what do they call it? “Administrative Asset Forfeiture.” And what does that mean?

Asset forfeiture laws are a type of government “taking” of private property. And they have been around a long time. But they have degenerated in recent years from “Judicial Asset Forfeiture” after conviction or other judicial review; into “Administrative Asset Forfeiture” on a police officer’s mere suspicion.

What’s the difference? First, a little background and context.

Do two wrongs make a right?

Does the thief claim their crime justified? The government claims two justifications for laws permitting it to take and keep private property it suspects having a connection to crime:

• instrumentality, and
• criminal proceeds.

Instrumentality: If a burglar uses special tools to commit a burglary; then the government seizes and keeps those, as “instrumentalities” of the crime. And this may disable the burglar from committing a similar crime. Almost all asset forfeiture seizures in Minnesota are of this type.

The instrumentality rationale for property forfeiture, however, has been stretched wafer thin. The state most commonly uses it in cases of suspicion of prostitution, DWI, and prohibition drugs possession.

Criminal proceeds: This type of forfeiture case is rare. And it involves efforts to trace (“equitable tracing”) the source of the funds used to purchase an asset to crime. These usually involve larger dollar amounts only, well over $100,000 per case. The type of crime alleged is less important.

Is the Property Guilty? The Owner?

Nothing Personal: “In Rem” Jurisdiction. Few asset forfeiture cases ever make it into court. But for those that do, the legal pleadings caption the name of the owner vs. the property (not the thief.)

“Rem” is Latin meaning “thing.” So when courts exercise “in rem jurisdiction,” they assert authority over a thing, not a person. And like much in the law, there are historical reasons for this.

If the justification for the “taking” of another’s property is the property’s connection to crime; should we be certain that the owner really did commit a crime in connection with the property?

Should police be able to seize and keep your vehicle or other property even though you’re “presumed innocent?” And before you get “a hearing before a fair and neutral magistrate?”

Reversing the burden: In Minnesota, police can now seize your vehicle or other property under circumstances they see as suspicious. And then they can keep it, sell it and keep the cash; unless you file a court challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION …” within 60 days.

You’ll need money for lawyer and court filing fees – just to get a day in court, about the government taking your property.

Asset forfeiture: government crime

Conflicts of interest: The money they get from your property after they sell it? “70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the same Police Agency that originally took your Private Property. This is Minnesota’s current “administrative” asset forfeiture scheme.

What is “Judicial Asset Forfeiture?”

Judicial asset forfeiture affords more procedural due process. It affords the right to notice and a hearing before a neutral magistrate before the government can keep your property.

Who the victims of asset forfeiture laws?

Targeting unbanked, low-income people: The salt of the earth, the common people of modest means, have disproportionately been the victims of government abuse, negligence and shoddy practices in criminal law. And when it comes to asset forfeiture laws, it is no different.

It’s reverse Robin Hood. The rich government steals from the poor. But their laws say it’s o.k. …

Modern age feudalism: Might makes right. Police officers on an asset forfeiture treasure hunt take cash. And they take gold, vehicles, other valuables from a person never charged, never convicted of any crime.

And what is the cost-benefit ratio for that person to fight for return of the property in court? Could they even afford to (hire a lawyer, pay a court filing fee) if they wanted to? Can they do all that within the 60 day deadline? Would that cost too much relative to what police stole from them, to be worth it? Do they have enough faith in the legal process to believe it would be fair, anyway?

The innocent are victims of asset forfeiture laws: Sometimes the innocent owner is not accused of having any criminal association. But police suspect a mere association with another who is suspected, such as a spouse, parent or employer. This is an anti-marriage law, that encourages the divorce of a troubled spouse. These laws are anti-family: people, children suffer as a result.

Is the Minnesota government corrupt; preying upon the weak? And are its laws a corrupting influence on our good police officers?

Change the laws; curb government abuse

Has the time has come to reform (or repeal) asset forfeiture laws in Minnesota? Call your legislator. The Institute for Justice is an organization helping lead this fight.

The author, Thomas Gallagher, is a criminal defense attorney in Minnesota.

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