Illinois Drug Forfeiture Law-Chicago Criminal Attorney
June 24, 2012
If the government is seeking forfeiture of your property, an experienced criminal attorney can fight for the return of your money and property in court by filing a claim.
The Illinois General Assembly passed the Drug Asset Forfeiture Procedure Act (725 ILCS 150/2) to establish uniform procedures for the seizure and forfeiture of drug-related assets.
The Forfeiture Act is based on the federal civil forfeiture statute, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §881 et seq. (2000)). To begin judicial forfeiture proceedings, the State must file a complaint. The Act simply requires that after a review of the facts surrounding the seizure, the State’s Attorney must be of the opinion that the seized property is subject to forfeiture. The complaint must allege facts that provide reasonable grounds for the belief that a nexus, or connection, exists between the currency or property and illegal drug activity. A complaint is insufficient if it merely alleges suspicions of law enforcement that amount to drug-carrier profiling. A forfeiture complaint must identify the misconduct giving rise to the forfeiture. For example, in an Illinois supreme court case, the court held that a complaint failed to state a cause of action for forfeiture in alleging that police discovered the cash in the search of a van and that the currency was furnished or intended to be furnished in exchange for drugs, or was the proceeds of drug dealing. In that case, the supreme court concluded that the complaint did not provide adequate facts that connected the currency found in the van to narcotics. The supreme court noted that the State’s naked allegation that the seized currency is drug-related does not reasonably inform an owner of the nature of the evidence that will be presented. An aggressive criminal lawyer can file a Motion to Dismiss the State’s complaint if it lacks reasonable grounds for the belief that the property is tied to drugs or marijuana.
The State carries the initial burden of demonstrating probable cause for the forfeiture of the real
property or money recovered from illegal drug activities. When a complaint has passed the pleading stage, the State must establish whether probable cause exists for the forfeiture of property such as a house or vehicle that is believed to have been purchased with drug proceeds, an analysis that depends on the totality of the circumstances. A skilled criminal lawyer can show that probable cause is lacking through effective cross-examination of the State’s witnesses, usually police officers. Although the State is not required to tie the property seized to a specific drug transaction, a suspicion of general criminal activity is not enough; the government must have probable cause to believe that the property is connected specifically to drug activities. Accordingly, the discovery of a large sum of cash alone is insufficient to establish probable cause. For example, in a case involving the seizure of currency from an individual’s person or baggage, the factors weighed in the “totality of the circumstances” analysis include: (1) the positive alert of a drug-sniffing dog; (2) the individual’s inconsistent or false explanations about the source of the funds recovered and the reasons for travel; (3) the originating and destination cities of travel; (4) inconsistencies in the individual’s responses when asked about his or her travel; and (5) the payment of cash for travel and the timing of the purchase of tickets. The first two factors are the most important. The right criminal lawyer can use those factors to the advantage of the rightful owner of the property.
At trial, the government must prove the property is forfeitable. If the government meets its burden, the claimant/owner must then prove, by a preponderance of the evidence, that the property is not subject to forfeiture. Being represented by a criminal lawyer well-versed in forfeiture law will help you recover what is yours. If the State is seeking forfeiture of your money or property, contact John McNamara.
CRIMINAL DEFENSE
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