The Fifth Amendment to the U.S. Constitution states in part that no person shall be deprived of property “without due process of law.” Just don’t think this will keep an honest officer from walking off with that envelope of cash sitting on your passenger seat.
What Can Be Forfeited?
Criminal forfeiture involves government seizure of property as part of a sentence following a conviction in court. Utah’s civil forfeiture scheme, on the other hand, requires no criminal conviction, nor even suspicion that the property owners themselves directly engaged in wrongdoing.
Sometimes, the items taken in forfeitures are contraband (property that is inherently illegal to possess). Items in this category may include illegal drugs, certain types of weaponry or stolen property. But, in many instances, officers confiscate completely innocuous items – like cars registered in the driver’s name, tools, even real estate – on the belief that they have been used in some criminal enterprise.
How the Government Gets, and Keeps, Your Property
A reasonable belief based on facts that can be articulated (a standard known as “probable cause” in the courtroom) that items have been involved in a crime is all it takes for officers to rightly confiscate any piece of property.
As an illustration, imagine that an officer pulls a car over for a routine traffic offense, like speeding. During the course of the stop, the officer smells what he believes is recently burned marijuana. He also notices a precision measuring scale and an envelope with cash spilling out on the passenger seat. While the officer might not have enough evidence to arrest the driver, he may have probable cause to seize the scale and envelope as possible instrumentalities of a drug deal.
Of course, there could be perfectly innocent explanations for what the officer observed. But, it is difficult to prove cash was obtained legitimately, and once property has been seized, getting it back can be next to impossible without the help of a skilled Salt Lake City asset forfeiture lawyer. To hang on to your property (and eventually sell it at a profit), the state must only show it is more likely than not (a preponderance of the evidence standard) that the property was involved in a crime. This is a far lower burden of proof than that required to secure a criminal conviction, and is typically not a difficult standard for prosecutors to meet.
Zealous Law Enforcement Officers, Or Backdoor Taxmen?
Because seized property is sold to augment the public coffers, civil forfeiture has been widely criticized as a revenue-raising ploy artfully disguised as a crime fighting tool. Indeed, Utah has contributed substantially to the 250 percent rise in the total value of forfeited items reported by the Justice Department between 2003 and 2010.
In 2010 alone, Utah forfeitures totaled $2.08 million. For the time being at least, forfeiture does not appear to be going anywhere in the Beehive State, to the detriment of Utahans caught in the wrong place, at the wrong time, with the wrong property.