Question: What is forfeiture and seizure?

Benson Varghese: Seizure is the legal mechanism by which a government agency or agent takes property of a person or a business. Forfeiture is a mechanism by which property that has been seized is kept by the government. A seizure can occur in a number of ways.

First, if an officer, during a traffic stop, observes something that leads him to believe that there is probable cause that some of your personal property is proceeds or instrumentalities of a crime, for him to simply take that and then put the burden on you to prove that it is not an instrumentality or proceeds of a crime. Proceeds of a crime are things that were purchased with money that was obtained through a crime. Instrumentalities are things that are possessed to further a crime.

Another way that assets might be seized is through a warrant. If an officer goes to a court and says that you have instrumentalities of crime in your possession, he can ask the court to simply seize that. Understand that probable cause is a very low-level determination. A very low level of facts are required to prove or argue to the court that these are instrumentalities or proceeds of a crime. A great example of that might be a person who is traveling on a highway to go purchase a new car and he has $20,000 on him to go buy that car (money that’s his that he worked hard for). An officer who stops him for a traffic stop might observe the $20,000 in cash in the car, and seize that simply because highways are ways that people commonly travel from one state to another to pick up drugs or from one country to another to pick up drugs. Having cash is something that people who are buying drugs often have. Because probable cause is such a low-level determination and because innocent facts can look criminal when viewed through the right lens, seizures occur very commonly.

You will receive a notice of intended forfeiture after your property has been seized. It is very important, as soon as the property is seized or you get that notice, that you call an attorney. There are very strict deadlines both in a state and federal system, under which if you fail to respond very quickly, the property is theirs and you’ve lost every fight that could be fought on your behalf.