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Property Seizures and Forfeitures

Many people are uncertain of their rights when they are pulled over by the police and arrested for a drug crime. Do they have to answer the officer's questions? When can the police search their vehicles? What rights do the police have to seize property following a drug stop?

General 4th Amendment Laws

At both the state and federal level, search and seizure laws control law enforcement conduct and limit the extent to which police officers may invade citizens' privacy rights. The 4th Amendment to the US Constitution protects American citizens from unreasonable searches and seizures, but it does not protect them from reasonable ones.

To conduct a search, police must usually have a warrant allowing them to do so. In order to get the warrant, officers must be able to demonstrate to a judge probable cause that they will find illegal contraband or evidence related to the commission of a crime. If the judge agrees that there is sufficient probable cause, then he or she will issue a warrant to search a particular place and/or person.

But the law also makes exceptions to this rule; there are certain circumstances when the police do not have to have a warrant prior to conducting a legal search. Known as the "warrantless exceptions," they include:

  • Searches incident to an arrest: once a person is under arrest, the police have the right to search the individual and their immediate surroundings
  • Consent: if an individual gives knowing and voluntary consent to the police, they may perform a warrantless search
  • Plain view: if evidence of a crime or illegal contraband (like drugs) are in plain view, then the police can conduct a search
  • Hot pursuit: if the police are chasing someone, or in "hot pursuit" of a suspect, they may enter a private home without a warrant to pursue the individual
  • Emergencies: if the time it would take to obtain a warrant would jeopardize public safety or lead to loss of important evidence, the police can search property and/or a person without a warrant

If the police do not have a valid warrant or a warrantless exception does not apply, any evidence they seize directly from the illegal search or indirectly because of the illegal search is not admissible in court.

Traffic Stops and Vehicle Searches

Generally, when the police pull someone over they do not have to have a warrant to search the occupants or the vehicle. Rather, the police must have probable cause that they will find illegal contraband or evidence of a crime that has been (or will be) committed.

If the police have the requisite probable cause, they may search anywhere it is reasonable that the evidence or illegal contraband could be hidden, including:

  • The driver
  • The passengers
  • The passenger compartment of the vehicle
  • The backseats
  • The trunk
  • Any sealed packages or closed containers in the car
  • Bags and purses of the driver and/or occupants

The police also may search a vehicle when they arrest the driver and/or passengers. One of the warrantless search exceptions allows for searches incident to arrest. If the arrest is for a drug crime, the police also may seize the car and impound it. If the car was used as part of the drug business ?to deliver drug shipments, for instance ? or if the car was bought with money from drug sales, the vehicle may be permanently forfeited to law enforcement officials.

In an important ruling the US Supreme Court held that the police may not search a vehicle as part of a routine traffic violation stop without probable cause that a crime has been or will be committed. Thus, if an individual is stopped and issued a citation for failing to stop at a red light, this alone is not enough to give the police the right to search the vehicle. But if the police see drug paraphernalia sitting on the passenger seat when they pull over a driver for running a stop light, then they can search the vehicle.

When the police do not have sufficient probable cause to justify a vehicle search, they may try to get the driver to consent to a search. Since consent is one of the warrantless exceptions, they may simply ask the driver to give permission for the search. Many drivers are unaware of their rights to say "no" if the police ask them to search their vehicles. They may feel that they have done nothing wrong or there is nothing for the police to find. Whatever the circumstances may be, drivers do not have to consent to a search and it usually in their best interests not to, even if the police say otherwise.

Property Forfeiture Following a Drug Crime

State and federal forfeiture laws provide that law enforcement officials may permanently seize certain property from those who have been convicted of drug crimes. In some cases, the person does not have to be convicted of the crime before their property can be seized.

In Tennessee, the law permits the state to seize any property that has a connection to an illegal activity, including drug crimes. Some of the types of property that may be seized include:

  • All drugs and paraphernalia
  • All materials used to make, process, deliver, export and import the drugs, including containers
  • All records associated with the drug business
  • All modes to transport the drugs or otherwise involved in the crime, including automobiles, motorcycles, planes and boats
  • All money made from the sale of the drugs, including bank accounts and cash
  • All proceeds, negotiable instruments and securities traced to the sale of the drugs
  • Any land used in connection with the crime, including to grow or farm drugs
  • Any land or other property acquired with money from the drug crime, including the family home

To seize the property, the state generally must prove by a preponderance of the evidence that the specific property has a substantial connection to the drug crime or otherwise can be traced back to the drugs. For example, if the state can prove that proceeds from the sale of illegal drugs were used to purchase a car, the vehicle then can be seized under the forfeiture laws.

Additionally, a person does not necessarily have to be convicted of a drug crime before his or her property can be subject to forfeiture. In some cases, the state can begin a civil forfeiture proceeding against a person who has not yet been convicted of a crime. In Tennessee, however, there must be a criminal conviction before land or real estate can be seized.

Sometimes the police may wrongfully seize property in connection with a drug crime that actually belongs to an innocent person, like a spouse who knew nothing of the illegal activity. In these cases, the person can petition the court to have the property returned. The state has a duty to return property that has been wrongfully taken under the forfeiture laws. This process, however, can be frustrating and it can take a long time before the property is returned. If the property is part of the state's evidence in the drug crime case, the property will not be returned until after the case is over.

Conclusion

When the state seizes a person's property in connection with a drug crime, it can freeze bank accounts, take away family homes and cars and make it very difficult for the accused to take care of his or her family or even pay for an attorney. If you have been charged with a drug crime and have questions about property forfeiture, contact an experienced criminal defense attorney today.

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