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Civil Asset Forefiture in Arizona
Believe it or not, you don't have to be a criminal for the police to take your property, and keep it. It doesn't matter if your cash is hidden in your luggage, stored in a safe, or even in a safety deposit box at the bank—if the police know it's there, they will take it, and often times, without effecting an arrest or issuing a citation.
In March, 2010, the Institute for Justice published Policing for Profit, an article that discusses the forfeiture laws of each state, and grades each state based on the police incentives for abuse. The article shows that despite the varying degrees of police incentives in each state, every state promotes the seizure of property by granting the seizing agency a stake in the property they seize for forfeiture.
Background: Forfeiture Actions are Civil in Nature
To understand these civil actions, picture a stack of cash with eyes, ears, and a mouth, and the ability to commit crimes. If, for example, your able-bodied stack of cash starts selling drugs, it becomes "tainted with criminality," and its right to liberty may be infringed upon by the government, e.g. seized. Once the stack of cash is arrested and incarcerated, like a criminal defendant, a bond can be posted for its release, or the owner can wait around for the State to initiate a forfeiture action, as they would a criminal action against a person.
Since these actions are civil in nature and against the property, rather than the property owner, the property owner is not entitled to the same constitutional protections as criminal defendants. Instead, the constitutional protection most often recognized is the property owner's right to due process. It is important for the property owner to assert his due process rights at every opportunity. For example, the property owner can assert his due process rights by a simple letter to the seizing agency demanding the property be released immediately.
Requesting the immediate release of property from the seizing agency is appropriate until the State of Arizona serves the property owner with one of two documents: "Notice of Seizure for Forfeiture" or "Notice of Pending Forfeiture." These two documents are specifically referenced by statute and implicate the strict time periods for contesting the forfeiture of the property.
Notice of Seizure for Forfeiture
A common problem that arises after the property is seized, is waiting around for the State to bring a forfeiture action. In Arizona, the State has seven years to bring such an action, but nothing precludes the property owner from demanding the property's release at any time. However, if the State serves a "Notice of Seizure for Forfeiture" (NSF) the property owner must follow the statutes to claim the property.
The first deadline implicated by the NSF is the property owner's right to request a hearing on the sole issue of whether probable cause then exists to believe the property is subject to forfeiture. This request must comply with the requirements of A.R.S. §13-4311(E) and (F), and must be served within 15 days of the NSF. This hearing is the first step to challenging the forfeiture action, and is the first opportunity to hear the seizing officer testify as to the probable cause to believe the property is subject to forfeiture.
Notice of Pending Forfeiture
The second deadline implicated by the NSF is, within sixty (60) days, the State must file a "Notice of Pending Forfeiture" (NPF), or complaint. When the seizing officer serves the NSF, the State tends to overlook this sixty day deadline, which can be used to obtain the quick release of your property. [In re $3,636.24, 198 Ariz. 504, 11 P.3d 1043 (Ct. App. 2000).]
The State has sixty (60) days to commence a forfeiture action from the date of the Notice of Seizure for Forfeiture. The State will usually commence forfeiture by serving a Notice of Pending Forfeiture. However, the State can also commence forfeiture by filing a complaint with the court. As soon as you receive a Notice of Pending Forfeiture, you must act quickly.
Filing a Claim
The property owner has thirty (30) days to file a "Verified Claim" demonstrating ownership to the property. The court is precluded from allowing any extensions of time to file the claim. The claim of ownership must comply with the requirements of A.R.S. §13-4311 (E)-(F). A.R.S. §13-4311 can be found here. The claim must be mailed to the seizing agency and to the attorney for the State. Depending on the specific facts of each case, the claimant must be careful to avoid exposing him- or herself to unnecessary criminal liability. Assistance from an experienced attorney when filing a claim to seized property is critical.
Once a claim has been filed, the claimant will have preserved his or her interest in the property. At this point, this is an excellent time to retain an experienced attorney to litigate the claim. This article only outlined the procedures for forfeitures brought by Arizona (including city and county) officials, and does not outline procedures in other states or by the federal government.
