Asset Forfeiture

Law enforcement officers seize cash and property during traffic stops on the roadways throughout Utah. These forfeitures are regularly conducted in violation of motorists' constitutional rights. These aggressive law enforcement tactics must be fought by an aggressive lawyer.

The attorneys at Brown, Bradshaw & Moffat, LLP in Salt Lake City, Utah, fight to get the money back - often without the owner ever returning to Utah. In some cases, courts have ordered the money to be returned with interest and an award of attorneys' fees. We have successfully forced the government to return the property in both federal and state court.

In Utah, law enforcement is actively seizing property of citizens using the civil forfeiture system. The government does not have to charge you with a crime in order to take your property.

The most common scenario is a motorist traveling through Utah being pulled over for no reason or at best a purported minor traffic offense such as speeding or not using a turn signal. The trooper will then use the alleged traffic violation as the means to conduct a full-scale investigation into every aspect of you, your vehicle and your travel.

Using intimidation, drug dogs and the threat of prosecution, the officers will seize your property and try to scare you into just walking away. You, however, have rights that can be asserted - often without ever coming back to Utah!

Attorneys for “Asset Forfeiture” in Salt Lake City and throughout Utah

The criminal defense attorneys at Brown, Bradshaw & Moffat, LLP represent clients throughout Utah after a law enforcement officer takes their property and keeps the property under Utah’s asset forfeiture laws or the corresponding federal versions of these statutes. If your property was seized, act quickly, because if you miss a filing deadline, then you could lose your chance to get back the property that was taken from you. 

Even if you are not charged with a crime, you need an attorney with experience in forfeiture cases. Our attorneys for asset forfeiture defense will provide you with a free, strictly confidential initial consultation. All information is protected by attorney-client privilege. You can learn your rights without any risk.

We have substantial experience representing clients involved these cases, and we know what your rights are and how to aggressively defend them. We handle many cases based upon a contingent fee basis, meaning you pay only at the time the property is recovered.

Call (801) 532-5297 today.


Recent Changes to Asset Forfeiture Actions in the State of Utah

In late 2013, the Utah Legislature used 2013 HB384 to eliminate many of the reforms to civil forfeitures laws that were approved by Utah voters via referendum back in 2000. The changes make it much easier for Utah police and prosecutors to take property away from the state’s citizens even if the person is never arrested for a crime.

In many of these cases, an officer with a drug task force will pull over suspicious looking vehicles, bring in drug dogs, and then seize any cash they find during a search. In many of those cases, the officers will ask the person to sign over the cash to the police or threaten to arrest the person for a crime and impound their vehicle. 

Although forfeiture is often justified as a way to strip big-time drug traffickers of assets, in practice, officers typically take small amounts of cash and vehicles. Most people never contest the taking. As a result, officers benefit from illegal asset forfeitures involving innocent people.

As a result, corruption in these cases is common. Recent reforms passed by the Utah Legislature in 2013 means that prosecutors can keep property tied up for months. Also, unless the property or cash is worth more than $10,000, many people have a hard time finding an attorney willing to fight for the return of the property when the attorney's fees are expected to exceed the value of the property seized.

The incentive for “policing for profit” often leads to corruption and unjust forfeitures involving the taking of property from innocent owners. The attorneys at Brown, Bradshaw & Moffat, LLP understand how to counteract these corrupt practices and fight for a return of the property or assets seized.


Subsection 24-4-114(1)(a) for Asset Forfeitures in Utah

Utah’s 24-4-114(1)(a) provides that seizing law enforcement agencies or prosecuting attorneys may not transfer property for forfeiture to any federal agency unless:

  • the conduct giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify the transfer;
  • the property may only be forfeited under federal law; or
  • pursuing forfeiture under state law would unreasonably burden prosecuting attorneys or state law enforcement agencies.

Utah’s 2013 HB 384 had the effect of limiting a citizen’s ability to obtain court oversight when the taking was not supported by sufficient evidence and otherwise illegal. Subsection 24-4-114(1)(b) provides that in making a determination about whether property should be turned over for federal forfeiture, “a court may conduct an in camera inspection of evidence provided by the prosecuting attorney or seizing agency.” 

Section 24-3-104 provides procedures whereby a property owner may petition the court for the return of the property seized as evidence. In practice, it takes an experienced Utah attorney focused on fighting asset forfeiture acts to effectively navigate this complicated area of the law.


Protections for Innocent Owners of Seized Property in Utah

The protections for innocent owners include language which indicates that property used to facilitate criminal activity may only be forfeited if it is proportional. 


Utah’s Asset Forfeiture Laws Don’t Always Provide Adequate Notice 

Under 2013 HB 384, Utah no longer has the responsibility of tracking down the owners of the property. Although some individuals attempt to deflect or avoid criminal liability and prosecution by knowingly providing false information about their involvement in criminal activity or their residence, many innocent owners just don't understand their rights and fail to take the appropriate action at the appropriate time. An attorney focused on asset forfeiture cases in Utah can help you assert your rights in the most effective manner. 

Under HB 384, notice of the forfeiture is sent to the address that is provided by the individual from whom property is seized. When individuals provide false information to law enforcement in the course of a criminal investigation and disclaim any knowledge of property, the law enforcement officer is no longer required to continue to seek out and notify the individual about the disposition of the property.

Officers sometimes use these new rules to avoid providing notice after an illegal seizure in an attempt to frustrate an innocent owner to the point that they give up in their quest to get the property back. Don't make that mistake. Contact an attorney who can help you understand your rights and the best way to fight for the return of your property.


Longer Times Limits for Forfeitures under 2013 HB 384

In 2013, HB 384 expanded the time for law enforcement officers and prosecutors to file a civil forfeiture complaint from 60 days to 90 days.  

Prosecutors still can file a forfeiture action in the criminal case at any time, however, most forfeiture actions to not involve anyone arrested for a crime. The attorneys at Brown, Bradshaw & Moffat, LLP in Salt Lake City, UT, know the quickest ways to fight for the return of property taken under Utah's civil and criminal asset forfeiture provisions in both state and federal court.


Caps on Attorney Fees in Forfeiture Actions

One of the most problematic aspects of HB 384, passed in 2013, was the limits it placed on the amount that an attorney could obtain if the attorney prevailed in the forfeiture action. 

Previously, the asset forfeiture statute allowed prosecutors who litigated forfeiture cases on behalf of the State of Utah to obtain attorney’s fees in an amount up to 20% of the amount forfeited. 

2013 HB 384 now applies this cap to the claimant’s attorney. The cap effective eliminates a citizen’s ability to find an attorney willing to fight the forfeiture in an attempt to keep the litigation cost prohibitive. An experienced attorney can help you understand the ways to minimize the attorney fees that you must pay while still having effective representation during every stage of the forfeiture proceeding.


History of Utah’s Asset Forfeiture Laws

Asset forfeiture laws rely on a legal fiction that property can be guilty of a crime. Asset forfeiture provision date back to English Common Law. The goal of asset forfeiture laws was to prevent criminals from benefiting from illegal activities and ill-gotten gains. Historically, asset forfeiture required a conviction for a criminal offense and was limited to the taking of property directly obtained through the commission of the crime. 

As the war on drugs began in the 1980s, law enforcement officers started to rely on civil asset forfeiture provisions. For civil asset forfeiture, the government began to seize and forfeiture property merely by insinuating it was associated with a crime. The law then required the property owner to prove that he earned the property legitimately. For most people, especially those acting without an attorney, it can be very difficult to meet that burden. Judges make the process time consuming and expensive. An attorney can help you level the playing field so that you can obtain justice in your particular case.

Today, the civil asset forfeiture provisions used in Utah allow the police and prosecutors to take the property without the need to ever charge the property owner with a crime. To make matters worse, the proceeds from the seizures go back to the law enforcement officers who engaged in the taking and sometimes to the prosecutor’s office. The federal government started using the civil asset procedures in the 1980s, and many states followed quickly behind. 


Utah’s Voter Initiative in 2000 for the Forfeiture of Property

After a series of high-profile instances of abuse came to light, momentum to reform the laws in Utah took hold. The 2000 voter initiative in Utah required local law enforcement agencies to pay the court costs of any property owner who successfully challenged a forfeiture in court.

Another reform in the 2000 ballot measure required prosecutors to file promptly in forfeiture cases so that the process was not dragged out for longer than necessary. The voter initiative also passed reforms that required the forfeited property to go to an education fund or a general fund instead of back to the law enforcement agencies that seized it.

The initiative was created in large measure to prevent law enforcement agencies from directly profiting from the property they seized, as this financial opportunity created an incentive to seize property. The legislature amended the law in 2004 introducing some minor changes, including allowing proceeds from seized property to be funneled back to the agencies through the Commission on Criminal and Juvenile Justice instead of being deposited in the Uniform School Fund.


Equitable Sharing Programs of the Justice Department

After the reforms in 2000, law enforcement officers either ignored the law or went around the voter initiative by using federal law. 

In Utah, law enforcement agencies have entered into the Justice Department’s “equitable sharing” program. In this program, when a law enforcement officer comes across assets that could be seized, the local law enforcement officers call in federal law enforcement officers with the DEA or AFT. Those federal officers play a cursory role in the investigation but their involvement makes the case a federal case controlled by federal law. The federal laws give the federal government 20% of the asset off the top and the rest is returned to the local law enforcement agency. 

Although the Utah voter-backed initiative in 2000 included a provision that prohibited local law enforcement agencies from using equitable sharing to get around the legal reforms, the Utah legislature eliminated that provision in 2004. As explained in 2013 by Nick Sibilla,

Utah Made It Easier For Cops To Seize Innocent People's Property. And Not A Single Lawmaker Voted Against It

As explained in that article, the impact was immediate: 

"The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF).  In FY 2002, that number plunged to $3,357.  The very next year, it was $0.

But after SB 175 rolled back Initiative B in 2004, equitable sharing proceeds soared. In FY 2008, the most recently available year, Utah police received over $1.5 million."


Legislative Changes to Asset Forfeiture under HB384 Passed in 2013

Although the 2000 Voter Initiate passed by 69% of the vote, the substantial restrictions on asset forfeiture contained within the initiative were then overturned unanimously by the legislature in 2013. Lawmakers who voted for the charges were told that the bill was a simple “re-codification.”

The Utah legislature also passed a bill that eliminated the provision to reimburse property owners who successfully win in court and to require prosecutors to file forfeiture cases in a timely manner. The new changes will also make it easier for local law enforcement officers in Utah to participate in the equitable sharing program.

The 2013 legislative changes can be found in HB384 which altered forfeiture law in a fundamental way that effective overturned many protections contained in the 2000 initiative. 


What Does Utah's Asset Seizure Notification Form Say?

ASSET SEIZURE NOTIFICATION FORM 

Name: _________________________________________________________________________ DOB: ___ / ___ / ___                                           

Address: _________________________________________________________________________________________ 

Date of Seizure: _____________________________           Agency Case Number: ________________________________

Location of Seizure: ________________________________________________________________________________

In accordance with Utah Code Ann. ' 24-4-103(1), you are hereby notified that the following property has been seized for forfeiture and will be held pending further order of the court or a final determination of forfeiture: ________________________________________________________

This property was seized because a peace officer had probable cause to believe that the property was used to facilitate the commission of a federal or state offense or is proceeds of criminal activity as provided in Utah Code Ann. ' 24-4-102.  As outlined in Utah Code Ann. ' 24-4-103(2) the seizing agency shall present a written request for forfeiture to the prosecuting attorney. 

Thereafter, the prosecuting attorney may elect to file a forfeiture action against the seized property as part of a criminal case or in a separate civil complaint.  If the forfeiture action is filed as a criminal notice of forfeiture, it will be included in the criminal information or indictment in the associated criminal case.  You will receive notice of the criminal forfeiture proceeding if criminal charges are served upon you or by publication.  

If the forfeiture action is filed in the district court as a civil, in rem, complaint for forfeiture, it will be filed within 90 days of the date the property was seized for forfeiture.  A copy of the complaint and a summons will be served on you either by mail (at the address you have provided above), personal service, or publication. 

You will then have 30 days to file an answer to the complaint with the court and the prosecuting attorney.  Thereafter the prosecuting attorney will send you a request for information about the seizure of property, which you will be required to answer in detail within 30 days.  If a judgment of forfeiture is entered by the court against all or part of the listed property, the property will be turned over to the Utah Commission on Criminal and Juvenile Justice for distribution through the State Asset Forfeiture Grant Program. 

In an asset forfeiture proceeding, you have the following rights and obligations:

  • An innocent owner's interest in property may not be forfeited.
    • You may petition the court for expedited release of some, or all, of the above property for hardship reasons, if good cause can be demonstrated.
    • You may be able to obtain release of some, or all, of the above property, by posting a surety bond with the district court that is equal to the fair market value of the property.
    • You have a civil right of action if the property is destroyed, lost, damaged, or otherwise injured while in the possession or custody of the agency.
    • You have the right to a trial by jury in forfeiture proceedings.
    • If you contest the forfeiture proceeding and lose, you, or your property, may be held liable for all costs associated with the legal proceeding, including costs of maintaining and storing the property, pending the final outcome.  

Signature of Notifying Police Officer: _________________________________    Contact Number: _________________

Date Served: _____________________              Method of Service: ____________________________________________

Signature of Claimant: _____________________________________________________ 


REAL RESULTS IN REAL CASES

State v. $171,800.00, Case No. 110917247 filed in the Third District Court of Salt Lake County, Utah. The out-of-state driver stopped by the Utah Highway Patrol on I-80. Cash was located after the drug-sniffing dog allegedly "hit" on the trunk. After litigation, the Third District Court ordered the return of all money taken, along with interest, and with an award of attorneys fees. More information

U.S. v. $303,581.82 in United States Currency seized from Wells Fargo Bank Account # [REDACTED]0434 in the name of [Redacted business name], Case No. 2:08CV00670-DB-DN, filed in the U.S. District Court for the District of Utah. After litigation, the Court ordered the return of all funds to the business. More information

State of Utah v. $20,850.00, Case No. 110916161, filed in the Third District Court of Salt Lake County, Utah. The out-of-state driver stopped by the Utah Highway Patrol on I-80. Cash was located after the drug-sniffing dog allegedly "hit" on the trunk. All money seized was returned to the out-of-state motorist.

State v. $17,000.00, Case No. 090901593, filed in the Third District Court of Salt Lake County, Utah. All money was returned, and the Court ordered the State to pay attorney's fees.

State v. One 1998 Acura, Case No. 100924674, filed in the Third District Court of Salt Lake County, Utah. The out-of-state driver stopped by the Utah Highway Patrol on I-80. Cash was located after the drug-sniffing dog allegedly "hit" on the vehicle. The court ordered the car to be returned to the out-of-state motorist.

State v. $109,700.00, Case No. 110917357 filed in the Third District Court of Salt Lake County, Utah. The out-of-state driver stopped by the Utah Highway Patrol on I-80. Cash was located after the drug-sniffing dog allegedly "hit" on the vehicle. Settlement reached and most cash was returned to the out-of-state motorist.

State v. $96,230.00, Case No. 110917833, filed in the Third District Court of Salt Lake County, Utah. The out-of-state driver stopped by the Utah Highway Patrol on I-80. Cash was located after the drug-sniffing dog allegedly "hit" on the vehicle. Settlement reached and most cash was returned to the out-of-state motorist.

U.S. v. Real Property Located at [REDACTED], Case No. 1:07CV-0006 filed in the U.S. District Court for the District of Utah. Settlement reached, and most funds and real property returned to owners.


This article was last updated on Monday, November 21, 2016.

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