Earlier this year, we reported in our blog on HB 2810. The bill was signed by Governor Ducey in May 2021. It sought to rectify the injustice of civil forfeiture. Under the prior law, there were essentially no standards to justify the seizure by the state of property/assets which the state claimed were used in or derived from illegal activity. No hearing was permitted as to the propriety of the seizure. Nor was there even a requirement that criminal charges were filed against the owner of the property, let alone a conviction.
The new law, now codified at A.R.S. 13-2314, requires a conviction in order to justify the forfeiture of property. Unfortunately, there is a lot of property that was seized prior to the passage of the law. The question then becomes whether the owners of the property seized can get their assets back from the state. Thus far, the state resisted attempts to do so.
Recovering Property Seized Prior to 2021
Back in 2016, parents loaned their Volkswagen to their son, who was going on vacation. The son was returning to his home in Washington when he was pulled over by an Arizona DPS trooper because the windows on the car were tinted. To make a long story short, the vehicle was searched, and the police discovered a small amount of marijuana (for personal use) and more than $30,000 in cash. The cash and the car were seized under the then applicable civil forfeiture statute. No one involved in the incident was ever charged with a crime. Yet the police refused to return the money.
Court Rules that the Couple are Entitled to Sue Arizona
The couple eventually sued Arizona to recover their property, claiming that their constitutional rights, due process, and the right to be free from illegal searches and seizures, among others, had been violated. This month the federal 9th Circuit Court of Appeals held that the couple could pursue their claim on constitutional grounds.
In the meantime, the police “voluntarily” returned the car to the couple, ending one aspect of the litigation.
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