Recently, the Lancaster Newspaper printed a series of articles about the Pennsylvania Drug Forfeiture Law that allows County and State officials to seize and keep money or property connected to the Commonwealth’s drug laws. The articles reported that civil forfeiture proceedings are on the rise in Lancaster County as they are throughout the country with the Lancaster County District Attorney’s Office generating millions in forfeiture proceeds in recent years. Additionally, the articles cited critics of an unchecked increase in forfeiture proceedings such as The Washington Post’s John Yoder and Brad Cates, who maintain that “civil forfeiture has become a fundraising activity for some law enforcement agencies, rather than ‘an even-handed effort to enforce the law.’”

Generally speaking, The Pennsylvania Drug Forfeiture Law allows authorities to seize any money or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance. They can also seize all proceeds traceable to such an exchange. Additionally, real property used or intended to be used to facilitate any violation of the Commonwealth’s drug laws – including structures or other improvements thereon – may be seized if used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of those laws. Once seized, the Commonwealth can then take steps to keep the property through “forfeiture” proceedings.

If left unchecked, the forfeiture process can result in an inherently unfair and unconstitutional taking of property. Normally, the Commonwealth must show a sufficient and substantial link between the property it is seeking to forfeit and the unlawful activity. However, in some cases, the law makes this burden very easy to establish. For example, if money is found in close proximity to controlled substances possessed in violation of Commonwealth drug laws, that money is presumed to be proceeds derived from the selling of a controlled substance in violation of those laws.

What makes this presumption especially troubling is when someone other than the owner of the seized property was committing a violation of the drug laws without knowledge or consent of the owner of the seized property. As noted by the Lancaster News Editorial Board, “those who live with criminals, or care for them, shouldn’t be viewed as guilty by association. And neither should their assets.” In such cases, when the authorities seize and seek to forfeit property from someone who was not involved in the unlawful activity, the property owner is known as an “innocent owner” and is entitled to an innocent owner defense.

Someone wishing to seek an innocent owner defense must show that they have an actual ownership interest in the seized property and that they acquired that property lawfully. Additionally, they must show that they did not participate in the unlawful use or possession of the property and that the unlawful use or possession of that property was without their knowledge or consent. Lastly, their lack of knowledge or consent must be reasonable under the circumstances presented. If they can convince a judge or jury that they have met all of these conditions, the innocent owner is entitled to have her property returned.

Those who defend civil forfeiture argue it is an effective way of stripping assets from drug dealers and of funding enforcement. In the appropriate cases, that is a difficult argument to refute. However, when an innocent owner stands to lose their property due to someone else’s conduct, it is an excessive exercise of power by the Commonwealth and hardly seems justified or constitutional.

LEGAL DISCLAIMER – The information contained in this article is for general guidance on the subject matter only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information in this article. Accordingly, the information in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should NOT be used as a substitute for consultation with a McMahon & Winters Law Firm attorney. Before making any decision or taking any action, you should always consult with a McMahon & Winters Law Firm attorney.