We have written a couple of articles in the last year about civil asset forfeiture. It is a procedure under which the government seizes property allegedly used in connection with criminal activity. Until a year ago, forfeiture in Arizona was utilized where the police “suspected” illegal activity. One of the problems with the law as it then stood, was that many people whose property was seized were never even charged with a crime; nevertheless, they were unable to get their property back.
In our blog in May of last year, we reported on a new Arizona law which changed the forfeiture rules substantially. We also wrote, in our blog of October 25, 2021, that the state was still holding on to assets seized prior to the enactment of the new law. Apparently, the efforts of the legislature to change the law are meeting stiff resistance among the law enforcement community.
Burden of Proof on the State
In August 2020, a man traveled by plane from North Carolina to Phoenix to purchase a truck for use in his business. He had with him almost $40,000 in cash. The Phoenix police determined, on their own and without the benefit of any judicial oversight, that the man was a “probable drug courier.” Based upon this conclusion, the police officers seized the funds. Even though the man was never charged with a crime, the state refused to give back his money. The man then requested a hearing in Superior Court.
The trial judge ruled against the man, holding that he had failed to prove that he owned the money. The case was seen by many as a violation of due process. The Court of Appeals, reviewing the decision of the lower court, agreed, and held last week that the burden of proof was on the state to show that the assets – $39,000 – were connected to a crime.
The case, while appearing to right the wrong perpetrated on the man, may finally be over. On the other hand, the state has 30 days from the date of the decision to appeal to the Arizona Supreme Court.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004