THE SPECTRE OF FORFEITURE, by "Ben There" (Access Unlimited, 1990).
The government can take all your property with very little effort. They can do it without ever prosecuting you for, much less proving you guilty of any crime, without giving you the right to confront your accuser, the presumption of innocence, the right to appointed counsel, and without even the right to refuse to give evidence that will incriminate you and result in both the loss of your property and the loss of your freedom. Legislation has been introduced at the Federal level to correct some of these abuses, but its future is unclear, and probably ominous.
At most recent report, the good parts of the bill had been removed and the Government is given even more power to loot from the hapless and the innocent.
Here's how forfeiture stands today:
What can be taken?
Forfeiture laws developed since the mid 1980's allow the government to seize and keep virtually any kind of property which is either connected to a crime (used to 'facilitate' the crime) or purchased with the "proceeds" of a crime. For a person who is growing marijuana this usually means that homes, farms, and other items of real estate used for the cultivation or distribution of marijuana may be seized and forfeited based upon a preliminary showing by the government that the property was used to "facilitate" the crime, or purchased with the proceeds of a crime. So can any item of personal property, such as cash, cars, boats, planes, tools, cellular phones, or even socks and underwear.
Although the innocence of the owner is a defense to this type of forfeiture, federal law and most state laws place the burden of proving innocence on the owner. In the context of a type of litigation where the government can use hearsay, you can't confront the witnesses against you, your property can be taken without your being charged with a crime, much less convicted, and competent counsel (when you can find one who understands this new, fast changing and confusing area of the law) must be retained, usually at great expense, as there is no right to appointed counsel, this burden can be insurmountable even for the innocent.
How to defend yourself:
After the fact, there is only one way: find a lawyer who understands this law and either pay him or her or otherwise persuade them to take the case. The law of forfeiture is far too complex and filled with pitfalls for the amateur or pro se (for himself) litigant. Unlike a criminal case, a lawyer may take a forfeiture case on a "contingency" arrangement whereby s/he is paid a percentage of what is recovered from the government. If the lawyer is ready to take the case on a contingency, that probably means that s/he believes that you will win. If they ask for an hourly fee, it probably means they don't think your chances are too good. If the lawyer is honest about this, ok. If not, get a second opinion from a recognized forfeiture expert.
Valid defenses include defects in the underlying search warrants, the innocence of the owner, the failure of the government to meet its minimal burden to establish probable cause that the property is tainted, failure to comply with developing rules of procedure such as a pre-seizure probable cause hearing within a fixed time period, and a "proportionality" argument that the entire property should not be forfeited as punishment for small crime.
It's not double jeopardy: The argument that forfeiture is punishment and may be prohibited by the double jeopardy clause of the constitution if it has been preceded by a criminal prosecution for the same conduct has been rejected by the United States Supreme Court. The enormous body of case law developed in the brief period of time during which this intellectually and philosophically irrefutable argument held some sway has now been remanded to the Museum of Short Lived Legal Anomalies. Under current law, if they take your property -- even if they leave you and your family penniless and homeless -- because they think you are guilty of some crime, you are not being punished.
In other words, don't look to the courts to help you out if you have something the government or any of its agents covet.
Prior to the seizure, a better defense, of course, is to own very little and to make your real property unappealing to the government by keeping it heavily mortgaged. Keep in mind here that fraudulent ownership documents and fraudulent mortgages are crimes in themselves and will often cause you more trouble than the underlying pot crime.
Where no direct evidence of crime can be uncovered, the government may simply seize all your records in an attempt to prove that you have spent more money than you can legally account for. The difference, the government will argue, is the amount of money you made illegally. And they want it.
The most horrifying aspect of this subject is that the Supreme Court -- the institution whose fundamental job is to protect the unpopular rights of unpopular minorities -- has abdicated here, and that the legislature has been overrun by the executive -- the prosecutors. Not only do the police now have essentially carte blanche to loot, obsession with rifling and seizing the property of others has now clearly perverted the once legitimate goals of law enforcement. Here's a chilling example: Cops now routinely reward their informants not for producing large quantities of drugs, or for removing from circulation significant drug distributors. These goals, arguably, at least, have some foundation in the essential mission of police in a free society -- the protection of the public. Ask any narc or any professional informant. The emphasis now is on seizing property.
(copy+pasted from http://www.1stmarijuanagrowerspage.com/growing-marijuana-8.html)
And yes, as many others have stated, even things such as baggies and kitchen scales can be enough to indicate a criminal operation in the eyes of the government, and warrant seizure of property.
The government can take all your property with very little effort. They can do it without ever prosecuting you for, much less proving you guilty of any crime, without giving you the right to confront your accuser, the presumption of innocence, the right to appointed counsel, and without even the right to refuse to give evidence that will incriminate you and result in both the loss of your property and the loss of your freedom. Legislation has been introduced at the Federal level to correct some of these abuses, but its future is unclear, and probably ominous.
At most recent report, the good parts of the bill had been removed and the Government is given even more power to loot from the hapless and the innocent.
Here's how forfeiture stands today:
What can be taken?
Forfeiture laws developed since the mid 1980's allow the government to seize and keep virtually any kind of property which is either connected to a crime (used to 'facilitate' the crime) or purchased with the "proceeds" of a crime. For a person who is growing marijuana this usually means that homes, farms, and other items of real estate used for the cultivation or distribution of marijuana may be seized and forfeited based upon a preliminary showing by the government that the property was used to "facilitate" the crime, or purchased with the proceeds of a crime. So can any item of personal property, such as cash, cars, boats, planes, tools, cellular phones, or even socks and underwear.
Although the innocence of the owner is a defense to this type of forfeiture, federal law and most state laws place the burden of proving innocence on the owner. In the context of a type of litigation where the government can use hearsay, you can't confront the witnesses against you, your property can be taken without your being charged with a crime, much less convicted, and competent counsel (when you can find one who understands this new, fast changing and confusing area of the law) must be retained, usually at great expense, as there is no right to appointed counsel, this burden can be insurmountable even for the innocent.
How to defend yourself:
After the fact, there is only one way: find a lawyer who understands this law and either pay him or her or otherwise persuade them to take the case. The law of forfeiture is far too complex and filled with pitfalls for the amateur or pro se (for himself) litigant. Unlike a criminal case, a lawyer may take a forfeiture case on a "contingency" arrangement whereby s/he is paid a percentage of what is recovered from the government. If the lawyer is ready to take the case on a contingency, that probably means that s/he believes that you will win. If they ask for an hourly fee, it probably means they don't think your chances are too good. If the lawyer is honest about this, ok. If not, get a second opinion from a recognized forfeiture expert.
Valid defenses include defects in the underlying search warrants, the innocence of the owner, the failure of the government to meet its minimal burden to establish probable cause that the property is tainted, failure to comply with developing rules of procedure such as a pre-seizure probable cause hearing within a fixed time period, and a "proportionality" argument that the entire property should not be forfeited as punishment for small crime.
It's not double jeopardy: The argument that forfeiture is punishment and may be prohibited by the double jeopardy clause of the constitution if it has been preceded by a criminal prosecution for the same conduct has been rejected by the United States Supreme Court. The enormous body of case law developed in the brief period of time during which this intellectually and philosophically irrefutable argument held some sway has now been remanded to the Museum of Short Lived Legal Anomalies. Under current law, if they take your property -- even if they leave you and your family penniless and homeless -- because they think you are guilty of some crime, you are not being punished.
In other words, don't look to the courts to help you out if you have something the government or any of its agents covet.
Prior to the seizure, a better defense, of course, is to own very little and to make your real property unappealing to the government by keeping it heavily mortgaged. Keep in mind here that fraudulent ownership documents and fraudulent mortgages are crimes in themselves and will often cause you more trouble than the underlying pot crime.
Where no direct evidence of crime can be uncovered, the government may simply seize all your records in an attempt to prove that you have spent more money than you can legally account for. The difference, the government will argue, is the amount of money you made illegally. And they want it.
The most horrifying aspect of this subject is that the Supreme Court -- the institution whose fundamental job is to protect the unpopular rights of unpopular minorities -- has abdicated here, and that the legislature has been overrun by the executive -- the prosecutors. Not only do the police now have essentially carte blanche to loot, obsession with rifling and seizing the property of others has now clearly perverted the once legitimate goals of law enforcement. Here's a chilling example: Cops now routinely reward their informants not for producing large quantities of drugs, or for removing from circulation significant drug distributors. These goals, arguably, at least, have some foundation in the essential mission of police in a free society -- the protection of the public. Ask any narc or any professional informant. The emphasis now is on seizing property.
(copy+pasted from http://www.1stmarijuanagrowerspage.com/growing-marijuana-8.html)
And yes, as many others have stated, even things such as baggies and kitchen scales can be enough to indicate a criminal operation in the eyes of the government, and warrant seizure of property.
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