Imagine driving your car to the bank to cash your paycheck or withdraw $3,000 to buy a nice 70 inch television that you have had your eye on for months, and you’ve been saving up your money to buy it until you finally had enough. Your friend who was in your car over the weekend decided to leave a little baggie of marijuana in your cup holder or ashtray that you didn’t see. All of a sudden, a Montgomery County Police Officer pulls you over and says you have been speeding. The officer spots the marijuana that he/she believes is over 10 grams and not for personal use, places you under arrest, and seizes your entire $3,000 as contraband because it was located in close proximity to the marijuana. Did you know that under these facts and under the current law, you may be out of luck and could potentially have to forfeit your hard-earned $3,000 to the government, and maybe even your vehicle? That’s right, the government can LEGALLY take your $3,000 in cash just because they found it next to some marijuana, AND they can take your car in some circumstances.
Maryland Code, Article 27 § 297 is what the law calls a “civil in rem forfeiture” statute. Forfeiture laws can also be found in Titles 12 (drug related crimes) and 13 (non-drug related crimes) of the Maryland Code of Criminal Procedure. The federal counterpart is 18 U.S.C. § 983. Essentially, in forfeiture proceedings, your money is the party which is proceeded against. The Complaint that the government files to keep your money would have a heading that would read something like, “Department of Finance, Montgomery County, Maryland v. U.S. Currency $12,000.” In 1996, the United States Supreme Court re-affirmed that “it is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted and punished. The forfeiture is no part of the punishment for the criminal offense.”
Property that becomes subject to forfeiture is characterized as either contraband per se or derivative contraband. Contraband per se simply means that the property is inherently illegal, like drugs, and thus subject to forfeiture. Derivative contraband is not as simple. Derivative contraband can be either legal or illegal to possess depending on the circumstances. In our earlier example, your $3,000 in cash to go buy a television is not, in and of itself, an inherently illegal product to which you have no legal right of possession. Currency may or may not have a lawful purpose. But since the money was found NEAR or in close proximity to illegal drugs, it is PRESUMED to be derivative contraband subject to forfeiture and you have to rebut that presumption.
So what does all of that mean in plain English? It means the government can take your property by alleging it is associated with criminal activity, file a case against the property, it is presumed to be subject to forfeiture and have you come to court and prove the innocence of your belongings WITHOUT YOU EVER BEING CHARGED WITH OR CONVICTED OF A CRIME! Not only that, but the burden of proof that the government needs to satisfy is only by a preponderance, that is more likely than not (50.1%) that the property was involved directly or indirectly with criminal activity.
The good news for you, and all of us, is that a bill (SB 528) was introduced in the Maryland legislature by three state senators – Michael Hough, a Republican from Frederick; Jamie Raskin, a Democrat from Montgomery; and Robert Zirkin, a Democrat from Baltimore – which would end the current practice of civil asset forfeiture. A bill passed last year which would scale back the civil asset forfeiture program, AND place the burden of proof back on the government instead of requiring you to prove your property is innocent. Governor Larry Hogan vetoed the bill following recommendations from the Maryland State’s Attorneys’ Association and the Maryland Sheriffs’ Association. State law enforcement agencies have received more than $85 MILLION since 2007 through civil forfeitures. Anyone see the glaring conflict of interest? SB 528 is up for a veto override vote 1/21/2016. Stay tuned for updates to the forfeiture law in Maryland.
Answers to some frequently asked questions:
What is a civil forfeiture?
A civil forfeiture, in a nutshell, is a court ordering transfer of ownership of property (real estate, farms, vehicles, equipment, and even money) to the federal, state or local government. It is independent of any criminal proceedings and is not deemed to be a form of punishment under the law. Forfeiture of motor vehicles is subject to different showings that must be made, see § 297(i). Courts have interpreted the forfeiture statute to be a harsh law that is supposed to serve as a deterrent, but it is not a punitive law. Interesting interpretation of the law, isn’t it?
How long does the government have?
Generally, if money has been seized the government will have to file their Complaint and Affidavit Application for Forfeiture of Contraband Money within 90 days after the seizure of the money, or within 1 year after the final disposition of any criminal charges that have been filed. They can file it in District Court or Circuit Court of the county where the money was seized. Md. Crim. Pro. §12-303. If the property is not money, the Complaint will be filed in Circuit Court If the property seized is a motor vehicle, the government only has 45 days to file the complaint. Md. Crim. Pro. §12-303 and §12-304. You must then be served with the complaint within 20 days after they file it, or if they have made reasonable efforts to serve you and couldn’t find you, they will post a Notice at the courthouse.
How long do you have to file an answer? What happens after I file my answer?
Under Maryland Rule 2-321, you have 30 days to file an Answer to the Complaint. If you fail to timely file an Answer to the Complaint, the court may order forfeiture of the property. If you file an answer, if must comply with the Maryland Rules for answers, must contain a response stating your interest or right to the property, how you got the interests and rights to the property, and a request for relief and a hearing. A Maryland asset forfeiture lawyer will be able to help you file an answer that complies with all of the rules. If you file a timely answer, a hearing will be scheduled to determine whether the property will be forfeited or returned to you.
What are your defenses to a complaint for forfeiture of your property?
In some cases, the constitutionality of the forfeiture law has been unsuccessfully challenged. See Boyd v. Hickman, 114, Md.App. 108 (1997). Federal courts and state courts have repeatedly ruled that the forfeiture laws are constitutional. Additional defenses you or your Maryland forfeiture lawyer can assert include alleging an excessive fine in violation of the Eighth Amendment to the US Constitution, asserting the money belonged to an innocent owner that had nothing to do with the illegal contraband found, challenging the entity filing the complaint as an improper “forfeiting authority” under Md. Crim. Proc. § 12-101, double jeopardy, and failure to mitigate the forfeiture under Md. Crim. Proc. Code Ann. § 12-401.
Can anyone help me get my property back?
Absolutely! The Modarres Law Firm has forfeiture lawyers in Montgomery County, Maryland that can fight the agency that seized your property and fight to get it back for you.
Give us a call to talk about your Maryland forfeiture case today (202) 780-9590.
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