What happens to personal property when someone is arrested? The surprising answer is that it is often confiscated by police through a process known as criminal forfeiture. What happens to that property afterward? How does the criminal forfeiture process work in Arizona? We will explore those topics and more within this post.
Property rights and criminal charges may seem odd bedfellows. However, when you dig a bit deeper, the connection becomes clearer. When an individual is arrested for committing a crime, personal property used in the commission of the crime, or obtained illegally through the commission of a crime, is usually forfeited.
For instance, if someone is arrested for identity theft, the property they purchased using that stolen identity (and/or stolen funds) will be forfeited, including cars, homes, and other possessions. The same is true for those convicted of crimes such as dealing drugs – cars, boats, even homes are regularly forfeited by criminals who purchased them with ill-gotten gains. Other types of property that might be seized during or after an arrest include:
In most cases, the property forfeited by a criminal is seized by law enforcement and then sold at auction. The money from the sale goes to the law enforcement agency. No portion is provided to the person who forfeited it, and in most instances, the money may not go to those who were victimized in the crime, either. In fact, under Arizona law, law enforcement is free to keep and spend the proceeds on virtually anything.
A story from the Arizona Capitol Times points out how the Pinal County Sheriff (Paul Babeu), spent over $35,000 on specialty badges and customized coins even as his department approached a record-setting budget deficit. Instead of being censured, at least one authority responsible for authoring the law that allowed this to occur said that the purchase was completely in line with allowable standards.
On the surface, the Arizona criminal forfeiture process seems pretty cut and dried. However, that is an illusion – it is actually very convoluted and there are numerous complications. It is also important to note that the state has some of the most restrictive laws and processes in place, something that property rights and criminal justice reform advocates are fighting to change.
In Arizona (and much of the rest of the nation), property can be seized from those suspected of committing a crime, or if law enforcement officials suspect that the property was part of a crime. Note that all that is needed here is an accusation – until recently, you did not even need to be convicted of a crime for property to be seized and never returned. In fact, you will find many stories throughout Arizona of people being acquitted of crimes, and yet the legal system conspires to strip them of their personal property, including their homes.
The truth is that, while the American justice system preaches “innocent until proven guilty”, it only works that way in some instances. Your property can be seized if you are caught committing a crime, if an officer has reason to believe that you have committed a crime, and even if your property was used by someone else in the commission of a crime. Suppose someone stole your car and then used it in a bank robbery. It would be subject to criminal forfeiture even though you played no role in the commission of the crime. Add to this the fact that Arizona gets a D- from the Institute for Justice on its criminal and civil forfeiture laws due to “the low bar to forfeit and no conviction required, poor protections for innocent third-party property owners, and 100% of the forfeiture proceeds going to law enforcement.”
According to the Institute for Justice, “Between 2000 and 2019, Arizona law enforcement agency forfeited more than $530 million under state law and generated an additional $113 million from federal equitable revenue, for a total of at least $643 million in forfeiture revenue – averaging more than $32 million per year. Arizona ranks 23rd for its participation in the Department of Justice’s equitable sharing program. However, in 2017, the state prohibited federal forfeiture of locally sized property worth less than $750,000 for equitable sharing.”
Arizona law makes it very easy for law enforcement to seize property suspected of being used in illicit activity, including:
For more information, azleg.gov helps break down this complicated area of legislation.
What can property owners do if their possessions are seized by the police? In Arizona, seizure is based on the assumption that the property was involved in the commission of a crime in some way. That carries the idea of property-related guilt, which means that the only way to get your property back is to go to court and literally prove its innocence.
In essence, you have to defend your property’s innocence within a court of law. That can be challenging to do even in the best of times. It also provides no relief for third-party owners whose property was actually used in the commission of a crime through no fault of their own.
AZ Central points out that, “To get their property back, individuals have to prove that the property wasn’t involved in a crime. But it’s difficult to prove a negative, and it’s even more difficult for most people to hire an expensive lawyer to fight the seizure, particularly when the cost of hiring a lawyer is more than the property is worth.”
For instance, if a car is only worth about $5,000, the owner may choose not to even bother moving forward simply because the legal costs incurred would be more than the vehicle is worth. Pursuing a legal solution should be considered on a case-by-case basis.
Arizona’s oppressive criminal forfeiture laws are slowly beginning to change. House Bill 2810 passed in 2020 almost unanimously. According to the Arizona Mirror, “Property rights and criminal justice reform advocates are a step closer to achieving their elusive goal of requiring law enforcement agencies and prosecutors to get a conviction before permanently seizing property allegedly connected to a crime”.
However, there is a lot of controversy surrounding the bill and some of its key elements. Don’t expect it to radically change the legal landscape in Arizona very quickly. With that being said, change is in the air.
If your property has been seized by law enforcement, time is of the essence. You must move to prove your property is innocent, and that requires the help of an experienced attorney. With the right attorney representing you, there is hope of recovering your property rather than letting the state profit from it.