In drug cases, the State can seek the forfeiture of certain assets. Forfeiture is a civil proceeding. It is not considered a punishment for a drug crime. Rather, it is regarded as a way to prevent individuals from benefiting from criminal activity.

Forfeiture Statues

The forfeiture statutes allow the State to seek title to (or ownership of) contraband. Obviously, if the police seize illegal drugs, those drugs will not be returned regardless of the outcome of the criminal case. Forfeiture statutes go beyond illegal drugs, however, to define contraband as:

  • Any property used or intended to be used in the commission of a drug felony. “Property” could include land, buildings, vehicles, weapons, and any other property that facilitates a drug crime.
  • The proceeds gained from the commission of a drug felony. “Proceeds” are generally the money made from selling drugs.
  • Property acquired with the proceeds gained from the commission of a drug felony. If money made from selling drugs was used to buy a car, for example, the car can be classified as contraband.

What Happens Once Property is Seized

When property is seized as contraband, the owner can file a claim for its return and is entitled to a hearing. The property will be returned if it is not contraband. If the property was clearly used in the commission of a drug crime, however, the owner may not want to admit ownership of the property. Doing so might give the prosecution evidence that would help it prove a criminal charge.

Sometimes, if the police search a vehicle and find a bag full of money but no drugs, the police will seize the money on the theory that the money came from drug sales. Even if no criminal charges follow, the State can keep the money if it can show a substantial connection between the money and a drug crime. If money was seized from someone who can show a legitimate source for the funds, that person may be in a good position to seek the recovery of forfeited money.

Since making a claim for alleged drug money may carry risks, however, whether the owner of the money will want to file a claim is a decision that should only be made in consultation with a lawyer.

An innocent owner (that is, one who did not consent to have his or her property used in the commission of a drug crime) is in the best position to recover forfeited property. If the property was connected to a drug crime, however, the burden is on the innocent owner to establish that he or she did not know that the property would be used for an illegal purpose.