A significant source of local law enforcement funding , Arizona’s forfeiture laws, codified primarily at ARS § 13-4301 et. seq, sweeping in nature, and in some ways broader than its federal corollaries, have garnered some recent media attention. Below are a few things worth noting.
First, no arrest or criminal investigation is necessary for initial seizure or forfeiture proceedings. ARS § 13-4305 allows law enforcement to seize property without a warrant, without an arrest, or even open criminal investigation. We have seen local law enforcement do this on multiple occasions. The State can then hold the property indefinitely, subject to few limitations.
Second, although the seized property or res is supposed to be associated with some form of illicit activity—either as “proceeds” or “facilitation”—the statutes are particularly broad, including a host of “racketeering” offenses that include simple theft. We have seen forfeiture cases based on threadbare evidence or dismissed cases involving shoplifting and pawnshop violations. Many have no relation to drug and organized crime offenses, as the federal system generally requires.
Third, any “claimant” wishing to recover her property must timely and correctly file a “claim” which complies to the letter with ARS §13-4311(G). Failure to do so results in loss of the claim, even if the property may have been wrongfully seized. For example, a claim must be “verified” by the claimant. In one famous published case, a claim verified by the claimant’s attorney was disallowed, as was a claim verified on the wrong date.
Arizona law does provide some recourse for an aggrieved property owner. First, pursuant to ARS §13-4310(B) a person who’s property is seized without warrant may petition the court for return of property. If done properly and timely (15 days from seizure), the Court sets a hearing at which the State must establish “probably cause” that the property is forfeitable under law. If the State fails to make a showing, the property must be returned.
Second, if the property owner prevails in the forfeiture proceedings, attorney’s fees and costs may be available. For example pursuant to ARS § 13-2314(A) in a racketeering forfeiture, the prevailing party is entitled to attorney’s fees. Moreover, ARS § 12-349 provides for fees if the court determines that the government’s seizure was not substantially justified.
Michael has handled many Arizona forfeitures, some of which have garnered media attention.