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Writs and Reprimands

A Fortunate Forfeiture

            Your liberty isn’t the only thing at stake when you get arrested. All too often, defendants face the possibility of having their property seized as well.

The Background

            Simone Perez (not her real name) was driving her fully paid-for personal car through Ruraltown, Rural County, Texas (not a real place) when she was pulled over for speeding. The local constabulary searched her vehicle and allegedly found narcotics in her glove box. The police arrested Simone, charged her with felony possession of a controlled substance, and impounded her car. For Simone, who had never been in trouble, this was a nightmare – but it wasn’t over yet.

            Several days later, the local DA’s office filed a Notice of Seizure and Intended Forfeiture giving Simone notice that the State of Texas intended to seize and sell her car. The DA’s office and Ruraltown PD would split the proceeds. Simone now faced not only criminal charges, but the very real prospect of losing her vehicle – and with it, her job.

The Law

            Texas law allows the State, acting through local District Attorneys and police departments, to seize “contraband” and sell it. The proceeds from the sale benefit law enforcement. Originally, “contraband” meant the proceeds of drug trafficking – but over the years the definition has expanded. Nowadays, “contraband” includes not only the proceeds from drug trafficking but anything “used or intended to be used” to commit a felony. Unfortunately for Simone, in this case that includes her car, which was allegedly “used” to “possess” a small, but felony-level, amount of narcotics.

            However, the Eighth Amendment to the U.S. Constitution prohibits “excessive fines”. In the case of United States v. Bajakajian, 524 U.S. 321, 334 (1998), the U.S. Supreme Court required that a forfeiture be proportional to the offense alleged. In this case, the maximum fine Simone could be charged with, if convicted, is $10,000, but her car was worth $15,000 – clearly, the seizure would be disproportionate, especially since the amount of drugs Simone allegedly possessed was very, very small.

The Result

            Fortunately for Simone, I had handled dozens of asset forfeiture cases as a prosecutor and quickly identified the Eighth Amendment issue in Simone’s case. When I filed an answer in the forfeiture lawsuit I also filed a Motion for Summary Judgment on the Eighth Amendment issue. A few days later the State dismissed the forfeiture case and acknowledged that a forfeiture would be disproportionate.

            Ultimately, this was a good outcome for everyone involved, including the taxpayers of Rural County. Simone got to keep her car. The DA’s office did the right thing when it recognized that forfeiting Simone’s car would harm her without a corresponding benefit to society. And, the taxpayers of Rural County and the State of Texas benefit because a productive member of society can continue working and contributing to society.