Notice of Seizure and Notice of Forfeiture
If you have had property, including cash, seized from you by the United States Government, there are certain procedures that you must follow to attempt to recover your property. Numerous agencies are empowered to seize property under United States law. While the basic procedures for seizure, forfeiture and ultimate recovery of property are similar, most authorized agencies’ procedures vary. For the purposes of this entry, I will examine the procedure regarding seizures by the Drug Enforcement Administration of cash in the possession of certain persons traveling.
The Drug Enforcement Administration often seizes property under the auspices of 21 U.S.C. § 881. For many years, DEA has operated task forces at various travel terminals such as airports. When an agent assigned to such a detail receives intelligence regarding a certain traveler, or observes behavior by a traveler that is considered suspicious, the agent may intercept that person and question them regarding the circumstances of their travel. That questioning may result in either a consent search or a “probable cause” search of an individual and his or her belongings. If the agent identifies a large sum of cash that the agent reasonably believes is a result of illegal activity such as drug trafficking, the agent may seize the cash and give the suspect a receipt for the cash.
The seized cash is then transferred to the custody of the United States Marshall Service and the agent will inform the DEA Forfeiture Counsel of the facts and circumstances of the seizure. DEA must then issue, within 60 days of the seizure, a “Notice of Seizure” to the person who was in possession of the cash. The person who possessed the cash may then respond to the Forfeiture by filing a Petition for Remission or Mitigation of the seizure, which must be filed within 30 days of the date of the Notice. In addition to, or in lieu of the Petition, the person may also file a formal claim with the Forfeiture Counsel in the form of a sworn statement by a date certain which is shown on the Notice. Should the person file a formal claim, Forfeiture Counsel then must forward the claim to a United States Attorney for a determination as to whether to proceed with the forfeiture in the appropriate U.S. District Court. The United States Attorney must make that determination within 90 days of the date the claim Forfeiture Counsel received the claim. If the US Attorney does not act within the 90 day period, the cash must be returned to the claimant. If the US Attorney decides to proceed, he will file a formal action in federal court. The claimant then has the right under the Federal Rules of Criminal Procedure to obtain detailed information regarding probable cause for the seizure and the case will proceed to a trial to determine whether the asset must be returned.
The asset seizure laws tend to be onerous to the person whose property is seized. The government liberally applies those laws and procedures to routinely seize property. Those challenging actions have been mitigated somewhat with the passing of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), which more clearly defines the limits to the government’s powers and has also provided the defendant the opportunity to recovery attorney fees and costs when the government has wrongly seized assets. There also have been a number of court cases since 2000 interpreting CAFRA to make such seizures and proof to retain the assets more burdensome on the government. If you have had assets seized by the government, you should contact counsel proficient in seizure matters to determine your rights under the law.