INTERSTATE DRUG STOPS AND CIVIL FORFEITURE: NEBRASKA RECEIVES “C” GRADE IN ASSET FORFEITURE PROTECTIONS

The Institute for Justice has released its report on civil asset forfeiture, giving grades to all 50 states and the Federal government. In the report, Nebraska received a mixed-bag grade of “C” in protecting citizens from civil forfeitures. The good news is that in order for the state to succeed in seizing assets in a civil action, the burden is ultimately on the state to show that the seized assets were being used in violation of Nebraska law. Furthermore, this burden is the highest possible: beyond a reasonable doubt, the same burden required to prove someone guilty in a criminal action. See Neb. Rev. Stat. § 28-431 (4). The bad news is that in order to succeed in getting the property returned, the person claiming the property must prove by a “preponderance of the evidence” that the property was not being used in violation of Nebraska law and that he or she is the rightful owner of the property. This means that the claimant must provide enough evidence to show that it is more likely than not that the seized assets were not involved with criminal activity. The other downside to Nebraska civil forfeiture law is that state law allows for 50% of proceeds from asset forfeiture to be kept by law enforcement in the county in which the assets were seized. See Neb. Rev. Stat. § 28-1439.02. This obviously gives law enforcement motive to seize assets.

The typical scenario plays out everyday on Nebraska interstates and highways: A person is driving through the state with a rental car and/or out-of-state license plates. The person is then pulled over for a minor traffic violation such as following too closely or failing to properly change lanes. As part of the “investigation” of the violation, the officer will ask the driver about travel plans and the contents of the vehicle. Some officers will be friendly and frame the questioning as innocent conversation while a warning is being written but make no mistake, they are listening closely to what the driver says. Next, the officer will ask if the driver is carrying any illegal drugs or large amounts of US currency. Again, the officer may try to play off this questioning as “just standard investigation” or he may say that it’ll be easier on the driver if the driver just turns anything over. Next, the officer will ask if he can search the vehicle or will call for a drug dog to conduct a “sniff test” of the vehicle. If a search is conducted, and drugs or large amounts of currency are found, the driver will be arrested or cited.

Oftentimes, however, interstate drug stops do not result in illegal substance being found, or even criminal charges filed, but assets are still seized subject to what is called a “civil forfeiture.” Essentially, a civil forfeiture is law enforcement taking a person’s personal property without having to prove that the person was doing anything illegal. Law enforcement does this because civil forfeiture allows them to seize property even if the person was not caught breaking any laws when the seizure occurred. For example, if a person is carrying a large amount of US currency in order to buy a car or a piece of property, a law enforcement officer could seize that money and claim he suspects the money is going to be used to buy or sell illegal drugs, even if there is no evidence of any such illegal activity at the time the currency is found. Once the property is seized, such as the currency in the previous example, the claimant has the initial burden of showing that the seized property was not being used to violate Nebraska law. In order to have the property returned, the claimant will have to file a challenge to the seizure in the county in which the assets were seized. An attorney experienced in civil forfeiture can then help the claimant present evidence to show that the assets were not being used in connection with criminal activity. This can be shown in several ways, including receipts, bank statements, paystubs, tax returns, etc. This process can be lengthy and it may be required to dig deep into a claimants personal financial records.

An interstate drug stop is scary enough as it is, and when hard-earned assets are subject to a civil forfeiture, the stop can become a life-changing event. The attorneys at Berry

Law Firm understand the complex process used to recover seized assets and have the experience to help those whose assets have been seized pursuant to an interstate drug stop or

other criminal investigation. If you have any questions about civil asset forfeiture in Nebraska, call the Berry Law Firm at 402.466.8444.

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