Getting caught with a lot of cash can raise suspicions, and money is often legally seized when it might be connected to criminal activity. Read on to find out when the police can take your cash or other property, and how to get it back when the government has no right to keep it.
There are a few ways the police or other law enforcement agents can get their hands on your cash, and they often involve an arrest or search. Let's say you've been pulled over for speeding and as the officer is writing the ticket, they see some drugs on the center console. In that scenario, the officer would likely have probable cause to search the car for drugs. If they encountered a roll of cash in the glove compartment during the search, they could probably confiscate it as possible evidence of drug trafficking.
Another situation in which the police can grab someone's cash is when they're arrested and booked. When the police place an arrested person in custody, they remove everything in the person's possession, such as keys, wallet, money, and so on. When they book those items into the arrestee's "personal property," they can seize anything they believe is connected to a crime.
Law enforcement officers can also seize someone's money under state or federal "forfeiture" laws (much more on that below).
Money booked as personal property after an arrest should be returned when the person is released, unless the police have probable cause to believe it's connected to criminal activity.
Money that's related to crime is often evidence in a criminal case, which won't be returned to its owner while the case remains active. For example, the cash roll found in the glove compartment discussed above could be kept to use as evidence in a drug sales case.
Also, when money or other property is connected with criminal activity, the government often gets to keep it through forfeiture laws.
Under forfeiture laws, if the police reasonably believe that property (including cash and other assets) is obtained by or involved in criminal activity, they can seize the property, and then seek to keep it through forfeiture proceedings. For example, if the police reasonably suspect that someone's money or other property was earned through organized crime or financial fraud, they can usually seize those assets under federal and state forfeiture laws.
Forfeiture can be civil or criminal. In criminal forfeiture, the defendant is first convicted of a crime that allows for forfeiture, such as drug trafficking or money laundering. Then, if the prosecutor can prove that the defendant's property was earned from or used in illegal activity, the government gets to keep the property. The idea is that someone who obtains property through crime, or who uses it to commit crime, is considered to have "forfeited" (given up) their right to that property.
In civil forfeiture, the property owner doesn't need to be convicted of (or even charged with) a crime. Civil forfeiture laws allow law enforcement to keep property that they suspect is connected to criminal activity unless the owner can show that the property has no connection to any crime.
Historically, civil forfeiture was based on the idea that the seized property itself was tainted, so it was irrelevant whether the property's current owner was involved in criminal activity. For example, smuggled goods were subject to forfeiture, regardless of the owner's innocence. This theory makes sense when applied to certain goods that are always prohibited, such as heroin or stolen property. Even if these items came into the hands of an innocent person, most people would agree that the government could legitimately seize the contraband.
Although forfeiture is intended to deter criminal activity, the truth is that many prosecutors and other law enforcement agents like it because it produces revenue for them.
Civil forfeiture was originally intended to stop large criminal organizations by seizing the assets they needed to continue their operations. While it started out with good intentions, over the years, the focus has become more and more about generating free money for law enforcement agencies, leading to some questionable police practices.
Modern civil forfeiture laws allow police departments to seize money or other property if officers merely suspect that the money is associated with illegal activity like drug trafficking, money laundering, or organized crime. If they can develop enough evidence to support their suspicions (and sometimes even if they can't), they might initiate forfeiture proceedings.
Civil forfeiture has been criticized because many innocent people have had their property taken when they've done nothing wrong. The press has reported on several cases involving civil forfeiture of money found during traffic stops where no crime was proven and the property owner maintained their innocence. The ACLU considers some of the civil forfeiture practices in the U.S. to be civil liberty violations.
Carrying a lot of cash can be a risk when traveling on roads that are often used by narcotics traffickers. In these areas, some officers stop cars with out-of-state plates for the slightest infraction, suspecting that the driver may be a cash-laden trafficker—or a hapless innocent who's carrying a lot of money. After stopping a driver for something as simple as improper lane changing, the officer asks how much cash they have and if they'll consent to a search. Many people agree to a search when they know they are innocent (which as noted below, is not necessarily a good idea). When a lot of cash turns up, the driver is held for an hour or so, and then threatened with charges if they don't cooperate with a civil forfeiture of their money.
This police tactic often works because people who are pulled over in another state typically find they don't have the time or resources to defend themselves. Far from home and in unfamiliar surroundings, people often will do whatever it takes to avoid being arrested and taken to jail. So, many owners have consented to searches and signed away their property after the police threaten to file charges. Often, they never recover their money.
As noted above, unless the police are keeping the money as evidence or have instituted forfeiture proceedings, a person's personal property should be returned to them when they're released from custody. Also, many jails have a policy that allows personal property to be released to a friend or family member at the incarcerated person's request.
When money is subject to forfeiture proceedings related to a criminal case, and the person isn't convicted of the crime, the money should be released to them (unless civil forfeiture proceedings are initiated). If the government doesn't release it, the person (usually through an attorney) might have to file a motion to get the judge to order its return. If the person is convicted of a crime, they can only get their money back if the prosecutor fails to prove that the money wasn't connected to that crime.
In civil forfeiture proceedings (which can even occur even after someone is acquitted of a crime), the person has to prove that the seized property was not used in, or obtained by illegal activity. They usually do this by filing a petition for return of the property, and then going to court to prove their case. The procedures will vary in each jurisdiction: The federal government and each state will have its own rules governing forfeiture proceedings.
Generally, property can't be legally forfeited if it wasn't involved in a crime or if the "innocent owner" was not aware of the illegal nature or use of the property. But as noted above, in civil forfeiture cases, owners sometimes have to file a lawsuit (an expensive proposition) to raise these defenses.
If your property is the subject of forfeiture proceedings (and/or if you're charged with a related crime) you should contact an attorney with forfeiture experience immediately. Many criminal defense attorneys who handle cases involving organized crime, drug trafficking, and white-collar crime will be familiar with both criminal and civil forfeiture proceedings. Forfeiture can be very complicated and is often aggressively pursued by law enforcement agencies and prosecutors. The sooner you get an attorney the better.