Forfeiture Law Blog

the source for authority on forfeiture law in Texas
  • .: Welcome to The Texas Forfeiture Law Blog :.

    This site is dedicated to discussing asset forfeiture in Texas and educating both the public and the bar on the many issues that confront and confound those who find themselves in the State’s crosshairs, their property having been seized and in danger of being taken in the name of "law enforcement."

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    “Hey, no fair! My cousin’s neighbor told him that his nephew got a better deal and his case was exactly the same as mine!”

    Posted By on November 2, 2013

    Lawyers hear a version of this complaint from clients on a regular basis. Clients, understandably, seek information from a variety of sources about what the future may hold in their case. They read items on the Internet and they talk to friends and family. Invariably, they hear from “someone” that “someone else” got a “better deal” on their case, and that other case was “exactly the same” as their case. Of course they wonder why their case can’t have the same (which is invariably better) outcome.

    Cases are like snowflakes – no two are exactly alike, though from a distance they may look the same.

    Every case is different. The facts are different. The agencies involved are different. The applicable law may be different or may have changed. The Government’s policies have probably changed. Maybe it was in a different state. There definitely is a different judge and a different prosecutor and, most importantly, the client is different. The client has a different background and acted differently during the encounter with law enforcement. The client offered a different explanation at the time of the encounter. The client made a different claim as to the property involved. There are, literally, hundreds of ways your case is different than any case you’ve heard or read about.

    Still, the client is entitled to understand why these differences do, in fact, make a difference. They are entitled for the lawyer to explain the law and how it applies to the facts of their case. They are entitled for the lawyer to explain the approach to be taken in the case, and what the procedural steps ahead may be. Importantly, they are entitled to the lawyer’s communication about what’s going on in the case and what should, or will likely, happen next.

    While we, as lawyers, can’t always explain why your cousin’s neighbor’s nephew’s case turned out the way it did, we can, and should, explain the issues and the law in your case, and what we think we can do to help and move toward a good result. Or, if the result is likely to be bad, we need to explain that, too, and help you get through it without making it worse.

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    Welcome to the Forfeiture Law Blog

    Posted By on August 8, 2012

    You or a member of your family has been detained or arrested and a lawnoarrest enforcement officer has seized your money, your vehicle, or some other item of property and you have no idea how to get it back. Worse, maybe you’ve been served with legal papers, a “Citation” and a “Notice of Seizure and Forfeiture.” What do you do now?
    <br>
    The State of Texas, every year, seeks to forfeit millions of dollars in currency and property seized by law enforcement agencies. Asset forfeiture is “big business” for the State and for many local law enforcement agencies. The statute authorizing this process is very broad and not very protective of your rights. You will almost certainly need competent, experienced legal counsel to assist you in making the right decisions to protect your property.
    <br>
    This site is dedicated to introducing you to asset forfeiture in Texas and helping you understand the issues you face when the police seize your property and seek to forfeit your ownership of it.
    <br>
    Whether you are charged with a crime or not, or whether you are an “innocent owner” or lienholder in property the State seeks to forfeit, you should understand the issues involved in this legal process and seek competent, experienced legal counsel to assist you in protecting your rights.
    <br>
    The author of this website, Charles B. “Brad” Frye, practices mainly in Houston and Harris and Montgomery Counties in Texas, and the issues of State-sponsored seizure and forfeiture are general to the practice of this hybrid criminal-civil procedure.
    <br>
    Asset forfeiture in Texas is generally covered by the provisions of the Code of Criminal Procedure in Chapter 59, titled “Forfeiture of Contraband.” The law provides for the definition of property subject to forfeiture (called “contraband” in the statute), who may claim the property, and the procedure for the state to seize the property and forfeit it. While forfeiture cases involve issues concerning criminal law, a forfeiture case is a “civil case” in Texas.
    <br>
    Article 59.01 of the Code of Criminal Procedure defines “Contraband” as “property of any nature, including real, personal, tangible, or intangible, that is used in the commission of any first or second degree felony under the Penal Code, any felony listed in the statute, along with a litany of other statutes which may justify forfeiture. And, there are other situations leading to forfeiture that may or may not apply to your situation. Forfeiture cases can arise whether you are charged with a crime or not, and the justification can range from driving while intoxicated to money laundering to evading arrest – and many other offenses in between.
    <br>
    “Contraband” also includes the proceeds gained from the commission of a felony listed in the statute or a crime of violence; or acquired with proceeds gained from the commission of a felony listed in the statute.
    <br>
    Even if you are an “innocent owner” of property, the State can still seek to forfeit it, and the burden is on you to prove that you did not know of the property’s unlawful use and that your interest is free of the taint of criminal activity.
    <br>
    This site has a number of articles that you may find helpful concerning Texas forfeiture law. However, this site is not legal advice – it is designed to help you understand the issues involved in this area of the law and to assist you in choosing a lawyer to help you with your case. You should always consult a competent licensed attorney before taking any action, or making any decision, about your rights in this area of the law.
    <br>
    For a discussion of current issues concerning Texas forfeiture law, visit <a href=”http://forfeiturelawblog.com”>www.forfeiturelawblog.com</a>
    <br>
    For more information about Mr. Frye and the firm of Lindeman, Alvarado and Frye, visit <a href=”http://www.charlesbfrye.com”>www.charlesbfrye.com</a> and <a href=”http://lindemanalvaradofrye.com”>www.lindemanalvaradofrye.com</a>

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    Searching Your Vehicle: This is how law enforcement does it. . . .

    Posted By on April 7, 2012

    How does a police officer turn an encounter about a “traffic violation” into justification for a full-blown vehicle search for contraband, without your consent?

    There are two ways to look at the techniques officers employ: either the officer is trying to manufacture a reason to justify a search or, the officer questions you in a manner calculated to confuse you or frustrate you to the point that you say “go ahead and search.”

    The following video provides justification for both points of view. Listen carefully to the officer’s conversation after he shakes hands with the motorist and, supposedly, the encounter for the “traffic stop” is over.

    What is the bottom line takeaway lesson from this video? Do not engage officers in “friendly conversation” and ask, and keep asking, “am I free to go?”

    We will explore in a later post the conversational style and tactics that officers are trained to use to get you to give them justification for a search for contraband which could lead to a forfeiture action against your property. It’s just a few short steps from “may I ask you a question?” to the State filing a Notice of Asset Seizure and Intended Forfeiture.

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    The State’s (Often Wrong) Rationale for Seizing Currency During a Traffic Stop

    Posted By on July 7, 2011

    What are the risks of transporting large sums of cash when you’re traveling? Obviously, you could get robbed or get involved in an accident and lose the money. Your car could catch on fire while you’re buying gas and your currency could go up in smoke. A number of bad things could happen if you carry a large amount of cash on you when you travel. But, one risk that many folks never consider is that a law enforcement officer could decide to seize your cash, even if you are not committing a crime and the officer cannot show any reason to believe that you have committed a crime.

    If you’ve never had a law enforcement officer stop you for a traffic violation and then ask for your “consent” to search your vehicle, you probably find it difficult to believe that you or any other “law abiding citizen” could become embroiled in a criminal case or a forfeiture lawsuit just because you happen to be carrying a large amount of currency. But, it can, and does, happen.

    (more…)

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    Excessive” Forfeitures – When Do Asset Seizures and Forfeitures Run Afoul of the Eighth Amendment?

    Posted By on July 5, 2011

    In Texas, the Fort Worth Court of Appeals wrote an opinion in December of last year that seems to fix something of a mathematical formula in considering whether a forfeiture is “excessive” under the Constitution. As you know, the Constitution prohibits the imposition of “excessive fines” in the Eighth Amendment, and that prohibition extends to asset forfeiture cases. Or, at least that’s what we argue. Even that basic proposition is under attack and not yet well-settled, according to the prosecutors and some courts.

    Basically, the theory of this defensive argument in asset seizure and forfeiture cases is that even if the property is otherwise subject to forfeiture under the law and the facts, the court should restrict the forfeiture because it is “excessive.” However, the law is somewhat unsettled, as is mentioned in the case we discuss below, and, as I mentioned above, there is the threshold argument as to whether the Eighth Amendment argument applies to asset forfeiture cases at all.

    Justice Lee Gabriel of the Fort Worth Court of Appeals wrote the opinion of the court released two days before Christmas, 2010, in a case styled “$27,877.00 Current Money of the United States vs. The State of Texas.” Here are the facts from Justice Gabriel’s opinion:

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    Raking It In …. Forfeiture Funds Making Up for Lean Budget Times

    Posted By on June 29, 2011

    Asset seizures and forfeitures have long been used to supplement law enforcement budgets across the country. But now, in lean economic times, those funds are becoming more and more important.

    In Pennsylvania, at a time of budget-cutting and belt tightening, at least one county account is flush with cash as Northampton County District Attorney John Morganelli announced recently that forfeitures and seizures of cash, cars and real estate related to drug arrests last year totaled $283,000, the most in the county’s history. The funds were funneled into county coffers through direct cash grabs of $150,000 and real estate and car sales of $133,000, Morganelli said. The record year came as a result of big busts in Bethlehem and Easton, according to Morganelli, and a countywide crackdown on gang activity.

    (more…)

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    Of Course, the Judge Matters!

    Posted By on June 28, 2011

    Lawyers in every type of case want to believe that who the judge is shouldn’t matter to the outcome of their case. We want to believe that the facts and the law will decide the case, not the personality of the person in the black robe on the bench. That’s what we want to believe, but it’s not always true.

    In forfeiture cases, the judge’s philosophy is supremely important in a number of ways. Some judges approach the case as a direct adjunct to a criminal case – “punishing” a criminal by taking property or, at the very least, denying a “criminal” the proceeds of their unlawful acts. Some judges approach the case as a balancing act – balancing the State’s interest in obtaining contraband against the respondent’s interest (sometimes innocent interest) in the property. Some judges don’t want to fuss with all of the rules of a civil case, and some judges are scrupulous about putting the State to its proof. And then, rarely, there are judges who mistrust the State and its motives and take nothing at face value in the State’s case.

    (more…)

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    Vehicle Inventory Searches in Texas

    Posted By on March 18, 2011

    This general memorandum should provide you a basic understanding of the area of law defining proper “inventory searches” of motor vehicles by law enforcement officers. Should you have questions about how a search of your vehicle may affect your legal rights – or how it may affect your rights in a pending criminal case – you should consult with an experienced criminal defense attorney.

    Very often, when law enforcement seizes a vehicle and intends to initiate a forfeiture action, the vehicle is “inventoried.” When the contents of the vehicle are inventoried, law enforcement may find additional evidence of a crime or “contraband.”

    Generally, law enforcement authorities who have lawfully acquired possession of a vehicle have the right to inventory its contents as part of their “caretaking responsibility.” Often, law enforcement authorities use the “caretaking responsibility” as an excuse to get around the probable cause and warrant requirements for searches. The issue of probable cause is irrelevant to a true inventory search. This is because the supposed “good faith administration” of “reasonable police regulations” relating to inventory procedures satisfies the requirements of the Fourth Amendment to the United States Constitution.

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    The Feds Go Big Time in Asset Seizure and Forfeiture – The Camp Zoe Case

    Posted By on December 4, 2010

    While it hasn’t happened in Texas – yet – the Federal Government is seeking to seize a 350 campground that it alleges has been used as a drug users’ and dealers’ playground.

    Filed in U.S. District Court in Missouri, the U.S. Attorney’s Office is filing suit to try to seize Camp Zoe, a 350 acre campground that hosts music gatherings – most notably Schwagstock – after a four year long investigation allegedly found widespread drug use and sales on the property. The Government’s allegations are supposedly supported by investigations conducted by the Drug Enforcement Administration and the Missouri State Highway Patrol.

    According to a complaint filed in early November the United States District Court for the Eastern District of Missouri, “over the past several years law enforcement agents have specifically observed the open sales of cocaine, marijuana, LSD (acid), ecstasy, psilocybin mushrooms, opium and marijuana laced food products by individuals attending the music festival and made multiple undercover purchases of illegal drugs.”

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    Yes, It Used to Be Your Money. But, We’ve Got It. Come and Get It. If You Can.

    Posted By on November 9, 2010

    From the Edwardsville Intelligencer (theintelligencer.com), this article published Monday, November 1, 2010 11:47 a.m., CDT: “Man may lose $22,870 to law enforcement after recent stop,” by Steve Horrell, we learn that yet another wayward traveler has had their currency seized from their vehicle after what started as an otherwise routine traffic stop.

    “One day last month, Jerome Chennault was pulled over by a Granite City police officer for following another car too closely. Chennault told the officer he had spent two weeks visiting his son in Philadelphia and was on his way home to Henderson, Nev.

    “But in court records that were filed later in the case, the officer wrote that he became suspicious “due to his inappropriate laughing and his changing story as to his route.” The officer asked for permission to search Chennault’s 1992 BMW, and in the back seat he discovered $22,870 in the side pocket of a black travel bag.

    “Since then the Madison County State’s Attorney’s Office has filed paperwork to have the cash forfeited, and to get his money back Chennault will have to return to Edwardsville, probably several times, and fight the case.”

    “After the money was found, Chennault told the officer that he had been in South Carolina intending to use it to buy a house, according to a Verified Complaint for Forfeiture issued by the State’s Attorneys’ Office. A narcotics dog was brought in, which “gave a positive response to the bag . . . and on the currency itself.”"

    (more…)

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