Scenario: A 20-year-old female is pulled over for a minor traffic violation by a K-9 officer. The drug-trained dog hits on the trunk and the driver consents to a search. The officer finds a large amount of cocaine, cash, and guns in the trunk

Question

The driver owns the vehicle, but she denies knowledge of the contents in the trunk. During the questioning by the officer, he learns that her boyfriend also uses her car periodically, which includes earlier that same day. The officer has the dispatcher run a check on her boyfriend, which reveals a history of drug arrests. What will the officer likely confiscate?

Answer 1

Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the federal government's war on drugs since the mid-1980s. Most forfeiture activity occurs under federal law, and most of that is connected to trafficking illegal drugs. Many states followed suit by establishing their own civil forfeiture programs. Cities and other municipal governments have cooperated in forfeiture actions under both federal and state drug laws. They have used such laws on their own to deal with local concerns.

Forfeiture comes in two forms—criminal and civil. Nearly all contemporary forfeiture involves the civil variety. Criminal forfeiture operates as punishment for a crime. It requires a conviction, following which the state takes the assets in question from the criminal. Civil forfeiture rests on the idea that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the thing involved in some illegal activity specified by statute. Unlike criminal forfeiture, civil forfeiture does not require a conviction or even an official criminal charge against the owner. This is attractive to law enforcement.

Property for which ownership by itself constitutes a crime, including smuggled goods, narcotics, and automatic weapons, is subject to forfeiture. Property used in the commission of a crime, including vehicles and real estate, is also included. By being associated with the crime, the property is "guilty" of the offense, and subject to seizure. In some cases, the innocence of the owner may not be a defense. Unless provided in a statute, innocence of the owner is typically not a defense. Furthermore, courts interpret the statutory defenses stringently. For instance, courts may apply an objective standard to determine if the owner should have had knowledge of the property's illegal use rather than require proof of actual knowledge. The owner may argue that no crime ever occurred, that the government lacked probable cause, or that the property is not closely enough connected to the crime to be considered an instrumentality or proceeds.

In our scenario, the officer is likely to confiscate the drugs, the money, the guns, and yes, the car. If anyone wants to claim ownership of the items in the trunk, they are welcome to approach the police and do so. As far as the car, the driver will need to argue her side in court. Should her defense succeed, the police need simply return the property to the owner. The agency is not liable to the owner for any damages caused by the property's detention, including damages resulting during the original seizure or a failure to look after the property while in government custody.