How to Get Your Cash Back
The process that you have to go through will depend upon if the cash seizure was done by the federal, state or local authorities. In some cases, you may not know if the forfeiture case is state or federal; however, if it occurs at the border or airport, it is usually a federal case.
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If you have had your cash seized and the police or federal agents have not given it back, this commonly occurs in one of three situations in the US:
Travelers in airports tend to be distracted with various aspects of their trip, so if a federal agent approaches them and asks questions, they may unwittingly give consent to a search. The DEA has the power to do random questioning and search operations in airports, and occasionally they may seize cash because they suspect you are committing some sort of crime.
The DEA can seize your cash under questionable circumstances in virtually any public place, and even in your own home, if they have a warrant. There are many examples over the years of the DEA seizing cash illegally, such as this case where the 11th Circuit Court reversed a DEA $242,000 cash seizure.
US Customs Border Seizures
The US Customs and Border Protection Agency often seize cash at border crossings into the US, both at road and airport checkpoints. There have been many seizures in the last year by US Customs and Border Protection officers, especially at airports. It is important to know that while there is no limit to the amount of currency you can take in or out of the US, you must report amounts that are $10,000 or more.
Even if the state police have seized your cash, they may turn it over to the federal government; they might get a kickback as high as 80% under the equitable sharing program.
If it is a federal case, you will get a notice of forfeiture which will come via registered mail. If you have not gotten this notice yet, you only can wait. The forfeiture law prohibits you from filing a civil lawsuit to get your cash back. Instead, the federal government is supposed to begin the forfeiture process in a reasonable time. If it does not, you can bring an Unreasonable Delay defense later on.
The best thing to do is to just wait; if you want to ask them what is taking so long, you should write them a letter instead of calling. You do not want them to ask you questions about the case or the alleged crimes that led to the seizure. Everything you say can and will be used against you. You also should keep copies of all letters you send so you can use them later for a motion to dismiss.
The common defenses in a cash seizure or asset forfeiture case are:
- Innocent owner: If you can show that you did not know that the property/cash was being used illegally, you will win the case.
- Unreasonable delay: If the federal government waits too long to file the case, you can win if you can prove that the delay was excessive.
- Illegal search and seizure: You can move to suppress any evidence that was taken illegally. The government may not be able to prove its case without that evidence.
- Statutory defenses: Every forfeiture statute may have other defenses that could apply.
- Disproportionality: Forfeiture of property that is disproportionate to the offense committed are against the Constitution.
After you get the notice of forfeiture from the FBI or DEA, you need to file a timely administrative claim. You may also have to post a cost bond, if it is required in your case. That could be 10% of the value of the property. The forfeiture notice will tell you if it is required or not.
You have about 35 days after you get the notice to file the claim. The claim has to be sworn to under the penalty of perjury.
Note that the forfeiture notice could say that you can file a petition for remission or mitigation. This is not advisable as this will be decided by the seizing agency, and probably will not return it. You also cannot appeal that decision.
After you file the claim and cost bond, the US attorney will review the case. If the go ahead with the forfeiture, they file a civil case in the appropriate US District Court and you will be served with a complaint.
You then have 30 days to file your verified claim that states your interest in your property. After that, you have 20 days to file your answer. You have to state if you admit, deny or lack enough information for each allegation in the government complaint. Then you will list one or more of the defenses above. You also need to demand a jury trial in your answer.
A typical cash seizure or forfeiture case can take months or years. You will need to budget accordingly because you could run out of money to pay an attorney; most people who represent themselves end up losing.
While these laws may seem hard to imagine that they could actually be constitutional, they have survived several supreme court challenges. The best advice in one of these situations is to hire an experience cash seizure attorney to fight for you.
Cash Seizures More Common Than Ever
These types of seizures are occurring more and more often. In fact, federal drug agents may be unlawfully seizing cash from innocent travelers in airports, bus stations, train stations at the border. A new report came out recently from the Office of the Inspector General for the Department of Justice that looked into the ‘cold consent’ policy used by the DEA.
In a typical cold consent situation, the person is stopped if the federal agent thinks the behavior of the person is suspicious and/or meets the profile of a drug courier. Or, the agent can stop the person for really no reason at all, according to the Inspector General. The agent will then ask the person that has been stopped if they will consent to being questioned. They sometimes will search their belongings, as well.
The key is for the federal officer to get consent from the person. At that point, they no longer need a warrant to proceed.
However, the Inspector General reviewed DEA’s policies and found that these cold consent situations can raise serious civil rights concerns. In one encounter, the DEA stopped a black woman at an airport and allegedly questioned her aggressively and in a humiliating way. She was a Pentagon attorney who was on a government-paid trip.
It is therefore not surprising that the Department of Justice has found that cold consent encounters are more generally associated with racial profiling than contacts that are based upon information that was acquired earlier.
Federal agents also may seize cash in a cold consent encounter in an airport or at the border, for example. Data from the Institute for Justice found that 50% of all DEA cash seizures were for less than $10,000, from 2009 until 2013.