Philadelphia Civil Asset Forfeiture: A Citizen’s Guide

Philadelphia Top Asset Forfeiture Lawyer

As a Philadelphia criminal defense attorney, I get calls from people that are not being charged with a single crime. Yet, they are at risk of losing the roof over their head due to the criminal activity of another. Oftentimes, they know nothing about this criminal activity and are shocked when law enforcement arrive at their door with a notice to forfeit and seal up their home. The officers give them less than ten minutes to gather their most valuable belongings, put them and their young children out on the street and seal up their home. They are scared and don’t know where to turn. We can help. As Philadelphia asset forfeiture lawyers, we have helped hundreds of people get back into their house that was sealed up by police. We have had cars, mechanics tools and thousands of dollars in cash returned to our clients after it was unlawful seized by the government on a mere suspicion of criminal activity.

Under Pennsylvania’s civil asset forfeiture laws, the Commonwealth can legally take property it proves is connected to illegal activity – without even charging (or convicting) the property owner of a crime. In fact, they don’t even have to convict the person they charged with the illegal activity to forfeit the property as the burden of proof in a civil courtroom is substantially lower than in a criminal courtroom. The forfeiture statute is an old law that has made the Commonwealth and the Philadelphia District Attorney’s Office a lot of money. Sadly, it’s a law that, in my opinion, is completely abused by law enforcement and the District Attorney’s Office. Here’s what you need to know if you find yourself at risk of losing your home, your car, or your cash.

Here’s How Philadelphia Asset Forfeiture Works

Here’s a hypothetical that is very close to many cases I have handled: Let’s say you live in a home you own or you rent out a house to a nice couple (perhaps, even a family member). The cops get a tip that drugs are being sold out of the home. After setting up a drug surveillance and watching for a few days, the cops execute a search warrant on the house and arrest someone for selling drugs from the house. Inside the home, the officers find marijuana, cocaine and other drugs along with a couple of loaded guns. The cops also find your locked safe in the attic, which contains your life savings of $10,000 cash. Those arrested get charged with drug and weapons offenses and go off to jail to await trial. The police take all of the drugs and guns. And, also take all of your hard-earned cash. Why take the cash? Police just assume that it is proceeds of illegal drug dealing and think they have the right to confiscate it.
Let’s also assume that you have not been to the house in months so as far as you know there were no problems. No complaints from neighbors. The residents always sent you the rent on time. In fact, on the date of the arrest, you weren’t anywhere near the location!

In this type of case, the Commonwealth will likely move to seize your property, your house and money (and, perhaps the guns if they lawfully belonged to you), within a few days of the filing of criminal charges. The Commonwealth will file a petition for forfeiture along with a “Rule to Show Cause” and obtain a temporary “Lis Pendens” on the property in City Hall. “Lis Pendens” is Latin for “Pending Lawsuit.” This provides notice to anyone who might be interested in the property that there is a complaint or legal action against it. Basically, this makes the property virtually unsellable. Who would want to buy it when it’s tied up in court and could soon be owned by the Philadelphia District Attorney’s Office?

What are My Legal Rights in Civil Asset Forfeiture Case in Philadelphia?

As the owner of the property, the Commonwealth will give you “notice” in one of two ways – the police will either show up early one morning, remove everyone from inside, and board up your home, or they will send you a copy of the Forfeiture Petition via certified mail. If the police show up and kick everyone out of the home, it means they also successfully filed a Petition to Seal the property without you, the homeowner, even knowing or having a right to defend against the order sealing the property.
In our hypothetical example, let’s say that you receive notice via certified mail. The Commonwealth will allege that you knew about the criminal activity and allowed your tenants (or family members) to use your house to sell drugs and protect their drugs with the guns. They will also allege that the $10,000 cash (your life savings) was proceeds from the drug trade.

“But I wasn’t even there”, you say!

It doesn’t matter. If you are the owner of the property, and if the Commonwealth can show that your property is “tied” to a crime, then they can move to confiscate it. The Commonwealth merely needs to show there was a nexus between the property and the illegal activity. The Commonwealth will argue that you knew or should have known that drugs were being sold from your property and did nothing to stop it. It also doesn’t even matter if the Commonwealth ever proves the underlying drug case. Even if the criminal case against the defendant gets dismissed, the Commonwealth can still try to take your property because the criminal and civil case are completely separate and there is a significantly lower burden of proof in civil court.

Don’t Ignore Orders to Appear in Courtroom 478 of City Hall

The most important thing to know is that you don’t have the same Constitutional rights as you would if you were charged with a crime. You don’t have the right to an attorney to be appointed if you can’t afford one. You can’t “plead the Fifth” because you’re not being investigated for a crime. The case doesn’t have to be proven “beyond a reasonable doubt.” In fact, the Commonwealth just has to show, by a preponderance of the evidence (51%) that the property is connected to the crime and eligible for forfeiture.

There are a few important details on the complaint: First, there will be notice for the next court date in the Court of Common Pleas. The first hearing will almost always be scheduled in Courtroom 478 of City Hall. On this first court date, the hearing officer will review the complaint and extend the Lis Pendens to remain until the action is over.

An Assistant District Attorney from the Public Nuisance Task Force will instruct you that you must file an Answer to the Petition for Forfeiture. This will likely be foreign to you and you won’t know where to turn. The prosecutor will also provide you with a list of questions, which they call interrogatories, regarding the property, the cash and any other items police seized. These questions will delve deeply into your personal life, inquiring about your employment, bank accounts, how you know those arrested, how long you have lived at different locations, have you ever been arrested before, and many other details. This is why you need an attorney – to make sure that your answers don’t get twisted around and used against you. It is quite possible that answers that you think are helping you are actually helping to build a stronger case for the government.

Once you receive discovery (for example, police reports, chemical lab report, photographs), the Court will continue the case until both sides have either reached a settlement agreement or are ready for a trial. We don’t suggest you agree to either until you have an attorney review all the options with you.

PA Civil Asset Forfeiture Under Fire!

The Commonwealth has made a lot of money doing this – whether it’s in the form of houses, cars, or cash. But recently the law has come under fire. New legislation (SB 869 and HB 508) has been introduced to reform the law to require that the property owner be convicted of a crime before forfeiture can take place. The proposed reform would also require that law enforcement not be able to profit from enforcing the laws. Get involved and contact your state representative and state senator and ask them to support civil asset forfeiture reform to stop this horrific practice. There was a recent article in the Washington Post that found that the government took more from innocent citizens that burglars did last year.

The line between cop and criminal can be blurry. Let criminal lawyer Brian M. Fishman of The Fishman Firm make the law a bit more clear. And, don’t lose sleep on someone else’s couch when we can help get you back into the house you’ve worked your whole life to own.