Forfeiture of Contraband, Part II
To answer when your seized property can be returned, it is useful to turn the question on its head and ask when can the State keep property that is has seized from the Accused?
When the State Can Keep the Property (i.e. Forfeiture)
To keep the seized property (i.e. to render it subject to forfeiture), the State must first show probable cause, or a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. This means that the State, in our example above, must show there is substantial connection between the pot and the cash. Without this link, the State lacks the authority to seize the property. See $132,265 v. State, 409 S.W.3d 17, 23 (Tex.App.—Houston [1st Dist.] 2013, no pet.).
Next, the State must prove by a preponderance of the evidence (i.e. “51% or more”) that the seized property is contraband and subject to forfeiture. Id. So what is “contraband”? “Contraband” is “property of any nature that is used in the commission of…any felony under Chapter 483 of the Health and Safety Code [dealing with dangerous/Rx drugs]; a felony under 481 of the Health and Safety Code [dealing with controlled substance]; or property that is, or is acquired with, the proceeds of [drug sales].”
The State is not required to prove this by direct evidence, and may use circumstantial evidence to prove the source of the currency. For example, the court may consider (1) the proximity of the cash to the drugs and evidence of drug trafficking or sales; (2) evidence that the money was previously in contact with drugs; (3) evidence of suspicious activity consistent with drug trafficking; (4) the amount of money at issue; and/or (5) the presence of expert testimony indicating there was probable cause to seize the property subject to forfeiture, in that a substantial connection exists between the property to be forfeited and the criminal activity. Id.
The “Innocent Owner” Defense
The Innocent Owner defense protects unwitting third parties from having their property forfeited due to the criminal activity of someone else. The Innocent Owner defense provides that a person’s interest in property cannot be forfeited if person (1) acquired and perfected his interest in the property before or during the act giving rise to the forfeiture; and (2) person did not know, nor should he have reasonably known of the criminal activity giving rise to the forfeiture or that the criminal activity was likely to occur at or before the time he acquire or perfected his interest in the truck. See $18,800 v. State, 961 S.W.2d 257, 260 (Tex.App.—Houston [1st Dist.] 1997, no writ).
Contesting Forfeiture
The most important thing to understand about a forfeiture proceeding is that they are civil proceedings. As such, the usual rules of civil procedure apply.
The State has 30 days from the date of the seizure of property to commence forfeiture proceedings. A forfeiture proceeding commences when the attorney representing the State files a notice of seizure and intended forfeiture with the district clerk in the county where the seizure is made. The notice must include the cop’s sworn statement containing a schedule of property seized, an acknowledgement that the cop has seized the property, and a list of all the cop’s reason’s for the seizure. The owner and/or interest holder in the property must be served with a certified copy of the notice. A person who was in possession of the property at the time the property was seized must be made a party to the forfeiture proceeding.
After receiving the notice, a party wishing to contest forfeiture should file an answer, just as they would in a civil suit. A hearing is held, wherein the state must prove that probable cause, or a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute exists, and then must prove by a preponderance of the evidence that the seized property is contraband and subject to forfeiture. (See above, “When the State Can Keep the Property (i.e. Forfeiture)”)
A Note On Forfeiture & the War On Drugs
“Sed quis custodial ipsos custodies? [Who will guard the guards?]”
“Seemingly, the greatest casualty of the war on drugs is the Constitution. Houston drug enforcement officers hastily seized contraband amounting to an astonishing one one-thousandth of an ounce (0.001 ounce). To accomplish this feat, they raided a Houston home without a warrant and held virtually hostage a surely innocent toddler. While still holding the infant, the government seized not only all of Samuel Mares’ cash in his car, but also wheeled out his home safe and its contents. Based on this 0.001 ounce mountain of evidence, the government steals away with another victory in the war on drugs; the victory is sealed by trampling our most sacrosanct of laws. I respectfully dissent.”
Justice Wittig, dissenting in $165,524.78 v. State, 47 S.W.3d 632, 637-8 (Tex.App.—Houston [14th Dist.] 2001).