Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Forfeiture Cases

People who are charged with an offense and arrested can face a number of serious consequences besides imprisonment and fines. But the penalties and punishments don’t just end with the person now.

The law-enforcement officers now have the authority to seize the personal property of suspects that are charged with an offense. Examples of personal property include money, cell phones and personal possessions, motor vehicles and even real estate property.

Even people who have not been charged with a crime can get their properties seized under asset forfeiture.

State Legislation

Illinois state laws concerning seizure and asset class forfeiture were signed into law recently in 2017.

Civil asset forfeiture now allows the police to seize property that is suspected of having been connected to a crime even if the owner has not been convicted of a crime.

Criminal asset forfeiture involves cases where the owner is charged with an offense and the property is believed to have been used in committing the offense.

Previously the burden of proof lied on the property owner to prove that he or she should be allowed to keep the asset. The burden now lies on the state to show that the property was used for an offense. The new law also removes the need for paying cost bonds on the owner.


There are certain conditions that must be fulfilled for asset forfeiture. The law-enforcement agencies can only seize property that is believed to have been used for the purpose of committing an offense. The owner of the property gets the right to make an appeal before the courts to get the property back.

In order to get their property back the owner must prove the following.

  • The owner was not personally involved in or aiding the criminal activity.

  • The owner was not aware of the criminal activity for which the property was being used. The burden lies on the owner to prove that they could not have known about the criminal conduct.

  • The owner did not personally benefit from the criminal use of the property.

  • The owner are not acting as a front man and simply holding the property in their name for the benefit of the accused offender.

Currently, there are two types of asset forfeitures in Illinois.

Examples and Court Cases

Consider the following scenario. A thief steals a computer and tries to sell it to you through an online listing’s site. You have no reason to suspect that the computer is stolen and agree to purchase it legally. Just as you are meeting the seller to make the exchange, the police arrive on the scene and take the thief into their custody. They also seize the computer and the money you have paid for purchase of the computer.

The police would have the right to seize both the computer and the money you have paid to the thief. In order to get your money back, you would have to appeal in court and prove that you were not aware about the stolen origins of the computer.

This can be difficult in a case where the computer is being sold by the thief at a significantly lower value than the market price. The state could argue that you should have had reasonable assumption that the computer was stolen given its much lower selling price.

Take the example of Stephany Walker, a single mother and care worker for a disabled child. In 2016 her boyfriend at the time used her car to run an errand. He was pulled over by the police on suspicion. A background check on the vehicle revealed that the license plates did not match the registration number.

The police found a small bottle with cough syrup in the car and impounded the vehicle. Neither Stephany nor her boyfriend was charged with any crime.

Statistics show that the value of forfeited property in 2016 averaged less than $1,700. Most cases of forfeited property involve seizures of a few hundred dollars from lower income groups. The officers who seize these properties often retain a portion of the money and the owners don’t even get a notice about how to get their property back.

The Procedure of Asset Seizure and Filing a Claim

Once a property has been seized by the police, the court has 14 days to inform the owner that there was probable cause that justified the seizure. The state will get another 45 days to inform the owner that his or her property will be kept by the state.

The notice will inform the owner about the following information.

  • The property that is subject to seizure
  • The property’s estimated value
  • Why the property was seized
  • When and where the property was taken from
  • The process to appeal for the property to be returned
  • The appellant’s rights during the appeal process

Once the owner has been sent the notice of probable cause by the court, the owner can choose to appeal in court.

Possible Legal Defenses

Defendants charged with asset forfeiture have a few possible avenues open for defense.

The first is to argue for the lack of probable cause. In order to stop and search a vehicle for instance, the police must identify probable cause that led to the search. If the vehicle was stopped or seized without any cause the forfeiture may be dismissed by the courts.

Another defense open in civil forfeiture cases is to argue that the owner was not involved in or aware of the offense. The owner may be able to get their property back if it can be proved that they had nothing to do with the offense.

The 4th amendment protects every citizen from illegal search and seizure. If the law-enforcement officers conducted their search without warrant or seized some property in violation of the 4th amendment protections, the owner can argue for the property to be returned.

The 8th amendment may also be invoked in civil forfeiture cases. This amendment protects people against excessive fines. If the forfeiture of a property is determined to be disproportional to the severity of the crime, the courts may dismiss the forfeiture and assign a lower fine to the defendant.

The law requires the state to give the owner reasonable notice and time to respond to property forfeiture charges. This provision allows the defendant the ability to fight and claim his or her property back. In a case where the owner has not been given proper notice or time to response, they may be able to claim the property back.

Defendants, whose property gets seized, may also get charged with offenses where the property has been used for an illegal purpose. Depending on the circumstance, the defendant may need to follow a different strategy. They may either defend against the criminal charges specifically against them and foregoing the property, or challenge the basis of the whole case to get their name cleared and the property returned.