Asset Forfeiture Training for Peace Officers

Training Requirements for Peace Officers

• Under Occupations Code Section 1701.253(g), the commission is required to establish a statewide education and training program on asset forfeiture as part of the minimum curriculum for officers licensed under Chapter 59, Code of Criminal Procedure
• As per Occupations Code Section 1701.402(d), peace officers need to complete an education and training program on asset forfeiture established by the commission under Section 1701.253(g) to receive an intermediate proficiency certificate

Philosophy of Forfeiture

• Forfeiture should not be a form of "extra punishment."
• The main goal is to deprive criminals of profits and instrumentalities of crime, benefiting law enforcement and the state
• Forfeiture is remedial, not punitive
• The 8th Amendment and the Excessive Fines Clause applies
• The amount seized must have some relationship to the gravity of the underlying offense
• Forfeiture should not be a means of oppression and must seek justice
• Proportionality of property to the seriousness of the offense is important
• Jeopardy issues must be considered

Definition of Contraband

• CCP 59.01 defines contraband as property of any nature (real, personal, tangible, or intangible) used in the commission of certain crimes including:
  • Any first or second-degree felony under the Penal Code (PC)
  • Any felony under specific sections and chapters of the Penal Code
  • Any felony under Chapter 43, Penal Code, with exceptions
  • Any felony under The Securities Act
  • Any offense under Chapter 49, Penal Code, punishable as a third-degree felony or state jail felony, if the defendant has three prior convictions under that chapter
• Contraband also includes property used or intended to be used in the commission of:
  • Any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act)
  • Any felony under Chapter 483, Health and Safety Code
  • Any felony under Chapter 20A or 34, Penal Code
  • A Class A misdemeanor under Subchapter B, Chapter 365, Health and Safety Code, if the defendant has two prior convictions under that subchapter
  • Any felony under Chapter 32, Human Resources Code (Medical Assistance Program), or specific chapters of the Penal Code involving health care programs
  • A Class B misdemeanor under Chapter 522, Business & Commerce Code
  • A Class A misdemeanor under Section 306.051, Business & Commerce Code
  • Any offense under Section 42.10, Penal Code
  • Any offense under Section 46.06(a)(1) or 46.14, Penal Code
  • Any offense under Chapter 71, Penal Code
  • Any offense under specific sections of the Penal Code
  • An offense under Section 326.002, Business & Commerce Code
• Proceeds from a felony, specific misdemeanors, or a crime of violence also qualify as contraband

Proceeds Definitions

• CCP Article 59.01(7) defines "proceeds" as income received by a person accused or convicted of a crime, or their representative from:
  • A movie, book, magazine article, recording, presentation, or electronic media related to the crime
  • Sale of tangible property whose value increased due to the crime's notoriety
• The commonly understood meaning of "proceeds" prevails with property derived from an event or transaction
• A conviction of criminal offense is not necessary to classify something as proceeds

Defenses to Forfeiture

• Statutory Defenses (Article 59.02 Code of Criminal Procedure):
  • Innocent Owner Defense (Non-Consensual): Applies if interest was acquired before forfeiture and the owner did not know or should not have known about the act giving rise to forfeiture
  • Property was used or intended to be used without the owner's effective consent
  • Stolen property
  • No spousal defense exists, except in cases of family violence preventing the spouse from stopping the crime
  • Dismissal of acquittal of related charges
  • Community Property

Non-Statutory Defenses

• Controlled Substances Analogue: Denial that a substance is an analogue, but the state only needs to show analogue by structure or effect
• Homestead: Homestead protection is not resolved in Texas
• Community Property: Not a defense
• Legitimate Source of Income: Discovery before trial is essential to prove this; Examination into when, where, how a check was negotiated, whether it was deposited, and how it was converted to cash

Other Issues Related to Forfeiture

• Suppression of evidence in a criminal case: -Different rules apply compared to civil cases
• Should have no effect on the civil case
• Dismissal or Acquittal in Related Criminal Case: -Raises presumption that property should not be forfeited
• Fifth Amendment: -Can be used against a defendant in a civil case
• Invocation of right can be used as a comment on any inference it may support

Pre-Seizure Planning Considerations

• Must know the property owner
• Community vs. Separate Property
• Leased vs. Owned
• Liens and mortgages
• Businesses
  • Leases of real property and liens against inventory
• Equity over mortgage, risks, liabilities, and costs
• Rented and owner’s consent to criminal activity
• Bank Accounts
  • Identify account numbers and signatories and determining the best time to seize
  • Know whether it is collateral for a loan

Methods of search and seizure

• Without a Warrant
  • When the owner, operator, or agent knowingly consents
  • Incident to search consented to where the property is subject to prior judgement of forfeiture
  • Incident to lawful arrest
• Probable cause of seizure
  • A reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statute
• Exceptions to Warrant Requirement
  • Plain view
  • Emergency searches (exigencies)
  • Area within immediate control at the time of arrest
  • Safety sweep
• With a Warrant
  • Rules apply from Chapter 18 Code of Criminal Procedure
  • Contraband warrant must also show in affidavit the specific felony offense committed and the described property compiles with the definition of contraband from CCP 59.01
• An action cannot be committed construed as inducing a person to waive their rights to their seized property (official oppression)

Post Seizure Procedures

• The Peace Officer who seizes property has custody

Procedures After Seizure

• The attorney representing the state must be provided with a sworn statement containing:
  • A schedule of the property seized
  • Acknowledgment that the officer seized the property
  • A list of reasons supporting the seizure
• Within 72 hours after seizure:
  • Property must be placed under seal
  • Property must be moved to a place ordered by the court
  • Law enforcement agency must take custody of the property and move it to a proper location
• Currency must be deposited in an interest-bearing account in the jurisdiction of prosecuting attorney
• Petition requirements:
  • All property seized must be included -All owners or interest holders must be included -Lien Holders -Person who had custody of property when seized -Does not necessarily include spouses -Affidavit supporting forfeiture
• Affidavit requirements:
  • Probable cause - A reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity (CCP 59.023) -Location of seizure -Date of seizure -Identify the owner of property -Identify who was in possession of the property -Identify all essential parties -Establish the affiant as an expert

Forfeiture Proceedings

• Governed by Article 59.04 Code of Criminal Procedure
• Civil Proceeding:
  • Civil rules apply
  • Preponderance of evidence (for now)
  • Respondent is not entitled to appointed counsel
  • Same rules of evidence as in criminal trials -Everything filed is a public record
• Only a felony prosecutor can file
• Generally, filing done only in the County where the property is seized
• The District Attorney must begin proceedings within 30 days of seizure date
• If seized by federal agents and then given to a local agency, 30-day timeframe begins when the local agency gets the property

Other Considerations

• Civil Discovery
• Interrogatories
• Depositions Settlement offers negotiations
• Trial
• Local agreement
• Federal adoption
• Drug trafficking
  • Drug profits moving through the U.S. financial system were estimated at $100 Billion in 2005
  • The trade in illicit drugs was estimated at $400 Billion in 2005

Proceeds Use

• Proceeds from seizures are governed by State Law and Inter-local Agreements
• Must be spent on a “law enforcement purpose”
  • Made for an activity of a law enforcement agency that relates to the criminal and civil enforcement of the laws of the state
• "Official purpose of an attorney's office"
  • Relates to the preservation, enforcement, or administration of the laws of the state
• Includes:
  • Equipment
  • Supplies
  • Investigative and training-related travel expenses
  • Crime prevention and treatment programs
  • Facility costs
  • Witness related costs
  • Audit costs (related to forfeitures)
  • Legal fees
  • State Bar and legal association dues

Restrictions for Proceeds Use

• Forfeiture money cannot be used for: (CCP 59.06 (d-1)) -Political campaign donations -Donate to any entity, except as provided by subsection (d-2) -Travel expenses for training that would violate generally applicable restrictions established by the governing body. -To purchase alcoholic beverages -Make any expenditure not approved by the commissioners’ court or governing body of the municipality, as applicable, if the head of a LE agency or attorney representing the state holds an elective office and: (Instructor – see details of -CCP 59.06 (d-1) (6)(A) and (B)). -Increasing salaries, unless approved by the governing body.