If law enforcement has seized your money, vehicles, other personal property or real estate under the forfeiture or RICO statutes, it is important to know your rights and how to respond.
How were they allowed to seize my stuff?
Indiana Code 34-24-1-1 allows the State of Indiana's law enforcement agencies to seize your "stuff" if it can be linked to one of the crimes listed in the statute. For instance, vehicles that are used to transport most drugs, bombs, stolen property over $100, or hazardous waste can be seized. Vehicles can also be seized if they were used by a person to: (A) commit, attempt to commit, or conspire to commit; (B) facilitate the commission of; or (C) escape from the commission of; murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child molesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4), or an offense under IC 35-47 as part of or in furtherance of an act of terrorism.
The State can seize all money and personal property that was: (A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute; (B) used to facilitate any violation of a criminal statute; or (C) traceable as proceeds of the violation of a criminal statute.
The State can seize real estate purchased with money that is traceable as a proceed of a violation of a criminal statute or any real estate used for the commission of most drug dealing offenses. The Statute goes on to list other circumstances where seizures may be lawful. (See IC 34-24-1-1). The state does NOT need to have a criminal conviction to proceed with a civil forfeiture and at a civil hearing they only need to prove the case by a preponderance of the evidence (not beyond a reasonable doubt).
Is this a criminal case? Does Double Jeopardy attach?
NO. The civil forfeiture is technically a civil lawsuit seeking that the court transfer possession of your property from you to the State of Indiana. The State can then use the property (such as vehicles) for a period of time before selling them or simply sell the property outright at a Sheriff's sale. Because it is a civil lawsuit, it is not subject to the protections against double jeopardy. For instance, you can be prosecuted for selling cocaine from your vehicle and have that some vehicle seized in a civil forfeiture arising from the same transaction. Additionally, because it is a civil hearing, you can be called as a witness for the State. It is important that your attorney timely objects to preserve your Fifth Amendment rights against self-incrimination.
If it is a civil case, how will I be notified of when I need to respond?
The State of Indiana has 180 days from the date of seizure to file a civil lawsuit against you. An experienced attorney can make a demand that the State file within 90 days of written notice. This is a strict deadline that the State must adhere to. Once a lawsuit is filed, you can be served through normal service process (i.e. by sheriff, by certified mail, by copy service- leaving a copy at your last known address). You must respond within 20 days of being served. If you fail to timely answer the State's complaint, the State will receive a default judgment and the property will become theirs. You should have an attorney answer the complaint for you because often times the criminal case is still proceeding. You don't want to make any admissions that can be used against you in your criminal case. Many counties in Indiana are on the Odyssey reporting system. Therefore, you can check on your case by going to mycase.in.gov in your web browser.
How can I get my stuff back?
1. Have your attorney make a demand for it. If the State seized property for an offense that isn't covered under the statute, your attorney may convince the State to release it. Alternatively, by making a demand under I.C. 34-24-1-3, the time for the State to file is reduced from 180 to 90 days.
2. Win a suppression in the underlying criminal case. While a conviction is not necessary to pursue the civil judgement, a suppression of evidence which lead to the seizure could be fatal to the State's case.
3. Win on the merits. While the State may receive a presumption that the money found with drugs is "drug money", it is a rebuttable presumption. Be prepared to show how the money or property came from legitimate sources.
4. Negotiate. Some of the pie is better than no pie. Your attorney my be able to negotiate a deal that gives you some of your property back. (i.e. give up the money and get your car back). If there isn't enough to split, sometimes you can enter an agreement to buy back certain property (such as vehicles).
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