If my kid is arrested for smoking marijuana in my house, can I lose the house?

If the prosecutor has evidence that you knew that illegal activity was taking place in your home and did not try to stop it, you could lose your house. It is unlikely that you would lose your house merely because your child was arrested for using marijuana there.

Under federal and state laws, law enforcement officers can seize property if the property is used to commit a crime (or is purchased with money earned from criminal activity). The seizure is known as “forfeiture,” and it’s done without compensation to the owner. In short, you can lose your house if there’s probable cause (reason to believe) that the property was involved in illegal activity, including drug sales and, in some states, drug use.

The purpose of forfeiture laws is to make sure crime does not pay, but the simple truth is that seizures produce revenue for law enforcement agencies. As a result, some police departments and prosecutors use forfeiture aggressively, even when there is little evidence of illicit activity on the part of the owner.

Forfeiture: Civil and Criminal

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 seizes that property.

For more information on forfeiture in federal criminal cases, see Forfeiting Property in a Federal Criminal Case.

In civil forfeiture, the owner does not need to be convicted of (or even charged with) a crime. Civil forfeiture laws allow law enforcement officers to seize property that they suspect is connected to criminal activity. Then, it’s up to the owner to show that the property has no connection to any crime. In some states, the mere personal use of marijuana will not result in the seizure of real property. Drug sales are a different story, as the following story illustrates.

In 1988, Paul and Ruth Derbacher, a couple in their eighties, lost their Connecticut home after police raided their house and arrested their twenty-two year old grandson for selling drugs. Police found $50,000 worth of marijuana and cocaine in the house. The grandson was convicted of drug charges and sentenced to prison. The Derbachers were also charged with drug possession and were placed on probation. Prosecutors claimed the drugs were kept in plain view and that the Derbachers must have been aware of their grandson’s illicit activities. Although the Derbachers fought the seizure of their home, they ultimately reached a settlement agreement. The house was sold, and the couple split the proceeds of the sale with the government.

Defenses to Forfeiture

Owners can protect themselves. Property cannot be seized if it was not involved in a crime or if an “innocent owner” was not aware of the illegal nature or use of the property (that was the defense raised by the Derbachers). In some states, there is a homestead exemption to forfeiture, which means that property used as a primary residence cannot be seized. Federal law contains no homestead exemption.

In civil forfeiture cases, the burden is on the owner to show that the property should not be seized, and owners sometimes have to first file a lawsuit (an expensive proposition) to raise these defenses.

Getting Legal Advice and Representation

If your property is seized, you should contact a local criminal defense attorney immediately. Forfeiture proceedings can be complicated. You will need an attorney to represent your interests and guide you through the process. With an attorney’s help, hopefully you can protect your property rights.

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