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. However, it is highly 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 that 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 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.
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 states that have legalized cannabis, the mere personal use of marijuana probably won’t result in the seizure of real property. And even in states where marijuana is illegal, it’s an unlikely outcome—thanks in part to a specific U.S. Supreme Court decision. In the case, Timbs v. Indiana, a man named Tyson Timbs pleaded guilty to dealing in a controlled substance and conspiracy to commit theft. After his guilty plea, the government moved to seize a Land Rover SUV that Timbs had purchased for $42,000 with his father’s life insurance money—a vehicle worth roughly four times the amount of the maximum fine of $10,000 that Timbs faced for his drug conviction. The justices held that the U.S. Constitution’s ban on excessive fines applies to the states, placing limits on what the authorities can seize in criminal cases. As a result of the Timbs opinion, the forfeiture of the family home would most likely be considered an excessive fine for a charge of simple marijuana possession. (Timbs v. Indiana, 139 S.Ct. 682 (2019).)
Largescale drug sales or cultivation, however, could result in a different outcome. And it’s important to remember that marijuana remains illegal under federal law, so even in states where it has been decriminalized, property can still be subject to forfeiture under federal laws.
Owners can protect themselves. In civil forfeiture cases, however, 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 either of the following defenses.
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. For example, in a recent case that predates Timbs, law enforcement seized a 71-year-old Philadelphia grandmother’s house because her adult son, who was living with her, was selling marijuana from the residence. The son was convicted of possession of marijuana with intent to deliver, but the grandmother was never charged with a crime and argued that she was an innocent owner under the state’s forfeiture laws. The Pennsylvania Supreme Court ruled in her favor, declaring that while law enforcement does have the authority to seize property involved in a crime, they must have strong evidence that a property owner was aware of and consented to the illegal activity before moving to seize the property. (Commonwealth v. 1997 Chevrolet and Contents Seized from Young, 639 Pa. 239 (2017).)
In some states, there is a homestead exemption to forfeiture, which means that property used as a primary residence cannot be seized. Courts in Minnesota, for example, have held that homestead properties are exempt from the state’s drug forfeiture laws. (Torgelson v. Real Property Known as 17138 880th Ave., Renville County, 749 N.W.2d 24 (2008).) Federal law, however, contains no homestead exemption.
If your property is seized, you should contact a local criminal defense attorney immediately. Forfeiture proceedings can be complicated, and you will need an attorney to represent your interests and guide you through the process. With an attorney’s help, you can protect your property rights.