• Civil forfeiture is a device, a legal fiction, authorizing legal action against inanimate objects for participation in alleged criminal activity, regardless of whether the property owner is proven guilty of a crime—or even charged with a crime.
• [IC 34-24-1-1, one of the forfeiture statutes,] permits the State to seize money or property that is used to commit or attempt to commit certain crimes.
Nature, function, and purposes
• Forfeiture actions have characteristics of both civil and criminal actions; however, forfeiture is properly classified as civil in nature.
See Mesa v. State, 5 N.E.3d 488, 494 (Ind. Ct. App. 2014), reh’g denied, trans. denied(quoting Katner v. State, 655 N.E.2d 345, 347 (Ind. 1995))(“Forfeiture actions are ‘properly classified as civil in nature.’”)
• Because of its significant and potentially severe punitive function, one might assume that a forfeiture action is criminal in nature. Forfeiture is, however, actually a civil action.
• Serving more than a punitive purpose, civil forfeiture proceedings advance diverse legislative interests—while punishing and deterring those who have engaged in illegal drug activity, forfeiture simultaneously advances other non-punitive, remedial legislative goals. First, forfeiture creates an economic disincentive to engage in future illegal acts. It also serves another significant, albeit secondary, purpose. Forfeiture advances our Legislature's intent to minimize taxation by permitting law enforcement agencies, via the sale of property seized, to defray some of the expense incurred in the battle against drug dealing. It is these broad remedial characteristics which support our Court of Appeals' determination that forfeiture actions are civil in nature.
Property that may be seized: In general
• The types of property most often seized are vehicles and any proceeds of criminal activity, such as money.
• For an exhaustive list of the types of property that may be seized, please review IC 34-24-1-1.
Property that may be seized: Nexus requirement
• Our statute . . . requires more than an incidental or fortuitous connection between the property and the underlying offense.
Serrano v. State, 946 N.E.2d 1139, 1143 (Ind. 2011)(quoting Katner v. State, 655 N.E.2d 345, 348-49 (Ind. 1995))(“[W]e held that our statute ‘requires more than an incidental or fortuitous connection between the property and the underlying offense.’”)
Cantrell v. Putnam Cnty. Sheriff's Dep't, 894 N.E.2d 1081, 1084 (Ind. Ct. App. 2008)(quoting Katner v. State, 655 N.E.2d 345, 348-49 (Ind. 1995))(“The Court concluded that the forfeiture statute ‘requires more than an incidental or fortuitous connection between the property and the underlying offense.’”)
• In Katner v. State, 655 N.E.2d 345 (Ind. 1995), this Court held that to sustain a forfeiture [of the instrumentalities of criminal activity rather than the proceeds of criminal activity] the State must demonstrate that the property sought in forfeiture was used to commit one of the enumerated offenses under the statute.
• For an exhaustive list of the enumerated offenses under the statute, please review IC 34-24-1-1.
• This nexus best articulates the threshold of proof that the State must achieve before succeeding in a forfeiture action . . . .
See Serrano v. State, 946 N.E.2d 1139, 1143 (Ind. 2011)(citing Katner v. State, 655 N.E.2d 345, 349 (Ind. 1995))(“This nexus, we said, best articulates the statute's requirement of proof by a preponderance that the property is subject to forfeiture.”)
Burden of proof: Text
• At the hearing, the prosecuting attorney must show by a preponderance of the evidence that the property was within the definition of property subject to seizure under [IC 34-24-1-1].
Burden of proof: Interpretations of the text
• The State need only show that facts supporting forfeiture exist “by a preponderance of the evidence.”
See Davis v. State, 819 N.E.2d 863, 869 (Ind. Ct. App. 2004), trans. denied(citing Willis v. State, 806 N.E.2d 817, 821 (Ind. Ct. App. 2004))(“The State is required only to show that the facts supporting forfeiture exist by a preponderance of the evidence—a civil burden of proof.”)
Burden of proof: Consequences of failing to meet the burden of proof
• If the prosecuting attorney fails to meet the burden of proof, the court shall order the property released to the owner.
Time limits on filing a complaint for forfeiture: Text
• The prosecuting attorney for the county in which the seizure occurs may, within ninety (90) days after receiving written notice from the owner demanding return of the seized property or within one hundred eighty (180) days after the property is seized, whichever occurs first, cause an action for reimbursement of law enforcement costs and forfeiture to be brought by filing a complaint in the circuit or superior court in the jurisdiction where the seizure occurred.
• The action must be brought:
(1) in the name of the state or the state and the unit that employed the law enforcement officers who made the seizure if the state was not the employer; and
(2) within the period that a prosecution may be commenced under IC 35-41-4-2 for the offense that is the basis for the seizure.
Time limits on filing a complaint for forfeiture: Interpretations of the text
• The Statute does not expressly provide the State with an optional filing date as the State contends. Filing of an action by the State is covered by one of three time period deadlines: (1) ninety (90) days after receiving written notice; (2) one hundred eighty (180) days after the property is seized; and (3) before the statute of limitation . . . runs for prosecuting the offense. The last time period deadline will only occur when less than 180 days exist between the seizure and the limit to prosecute set forth in the Statute. These time period deadlines do not offer any options to the State. The deadlines are mandatory. We find no ambiguity.
• A written motion for the return of seized property filed in a related criminal case constitutes written notice that shortens to ninety (90) days the time limit for filing a forfeiture action.
Defenses: Innocent owner
• [W]e note that our statutes . . . contain “innocent owner” provisions.
• If the property seized was a vehicle, the prosecuting attorney must also show by a preponderance of the evidence that a person who has an ownership interest of record in the bureau of motor vehicles knew or had reason to know that the vehicle was being used in the commission of the offense.
• An analysis of our seizure of property statute reveals that our legislature intended for the statute to be applied at the time of the vehicle's seizure. As a result, the prosecuting attorney must show by a preponderance of the evidence that a person who has an ownership interest of record in the bureau of motor vehicles at the time that a vehicle is seized knew or had reason to know that the vehicle had been used in the commission of an offense.
Defenses: Bona fide purchaser
• If property that is seized under [IC 34-24-1] (or IC 34-4-30.1-4 before its repeal) is transferred:
(1) after its seizure, but before an action is filed under [IC 34-24-1-3] of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under [IC 34-24-1-3] of this chapter (or IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an ownership interest of record as a bona fide purchaser for value. A person is a bona fide purchaser for value under this section if the person, at the time of the transfer, did not have reasonable cause to believe that the property was subject to forfeiture under [IC 34-24-1].
• Thus, IC 34-4-30.1-4(e) contemplates that seized property can be transferred validly before a forfeiture complaint is filed or while a forfeiture action is pending.
Defenses: Lack of possession
• [I]n addition to demonstrating that [a criminal wrongdoer] used or intended to use her vehicle to facilitate the transportation of stolen property, the State also carried the burden of demonstrating [that the criminal wrongdoer] was “in possession” of the vehicle at the time.
• By failing to demonstrate that [the criminal wrongdoer] was “in possession” of the vehicle as contemplated by Indiana Code section 34-24-1-1, the State was not entitled to forfeiture of the vehicle.
What to do in court: When needing to determine whether there is a forfeiture hold on a piece of property
1. Visit https://mycase.in.gov/default.aspx, and click on the link titled “Civil, Family, & Probate Case Records.” On the resulting web page, select “party” from the drop-down menu next to “Search By:”, and search using the defendant’s name. Most of the time, a forfeiture case will have an “MI” designation in the cause number.
2. If a forfeiture case has been filed, follow up with the forfeiture unit to find out exactly what property is subject to a forfeiture hold. If no forfeiture case has been filed, proceed to step 3.
3. Call the property room at (317) 327-3454 ext. 0, and ask property room personnel if there is any forfeiture hold under the agency number. Property room personnel can tell a prosecutor that there is a forfeiture hold and what property is subject to that hold.
What to do in court: When defense counsel makes an oral or written demand for the return of seized property
Object on the basis that the trial court has no jurisdiction to return property subject to a forfeiture hold.
Object in a way that gives the State time to reflect on the forfeiture statutes, or file a written response.
2. If the demand is in writing, draft and file a written response.
When drafting and filing a response to a written demand for the return of seized property, please use the template available here. The template should, of course, be tailored to the facts of each particular case.
3. If the court grants the demand for the return of seized property, draft and file a State's Motion to Vacate the Return of Property Order. When drafting and filing the motion, please use the template available here. The template should, of course, be tailored to the facts of each particular case.
4. Note that a written demand shortens the time by which a forfeiture action must be filed.
A written demand for the return of seized property reduces the relevant time limit to ninety (90) days. For more information, please review the section of this web page titled "Time limits on filing acomplaint for forfeiture."
5. Immediately notify the Marion County Prosecutor's Office Forfeiture Division of any oral or written demand for the return of seized property.
What to do in court: Plea agreements
• Plea agreements in criminal cases may not resolve the disposition of seized property in related forfeiture cases.
• Since the primary purpose of forfeiture is not punitive, the criminal case and the related forfeiture case must remain two separate actions.
What to do in court: Ethical considerations
• Prosecutors should not take forfeitures into consideration when resolving a related criminal case. In other words, a prosecutor should not extend favorable treatment to a defendant in exchange for the defendant's forfeiture of property or the defendant's agreement not to contest a related forfeiture action.
• Similarly, a prosecutor should not agree to a lesser charge in exchange for the defendant's forfeiture of property or the defendant's agreement not to contest a related forfeiture action.