Saturday, September 6, 2014

If my kid is arrested for smoking marijuana in my house, can I lose the house?

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Under federal and state laws, law enforcement officers can seize property if the property is used to commit a crime (or is purchased with money earned from criminal activity). The seizure is known as “forfeiture,” and it’s done without compensation to the owner. In short, you can lose your house if there’s probable cause (reason to believe) that the property was involved in illegal activity, including drug sales and, in some states, drug use.

The purpose of forfeiture laws is to make sure crime does not pay, but the simple truth is that seizures produce revenue for law enforcement agencies. As a result, some police departments and prosecutors use forfeiture aggressively, even when there is little evidence of illicit activity on the part of the owner.

Forfeiture: Civil and Criminal

Forfeiture can be civil or criminal. In criminal forfeiture, the defendant is first convicted of a crime that allows for forfeiture, such as drug trafficking or money laundering. Then, if the prosecutor can prove that the defendant’s property was earned from or used in illegal activity, the government seizes that property.

For more information on forfeiture in federal criminal cases, see Forfeiting Property in a Federal Criminal Case.

In civil forfeiture, the owner does not need to be convicted of (or even charged with) a crime. Civil forfeiture laws allow law enforcement officers to seize property that they suspect is connected to criminal activity. Then, it’s up to the owner to show that the property has no connection to any crime. In some states, the mere personal use of marijuana will not result in the seizure of real property.

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