The Seizure and the Authority Behind It
Before any forfeiture is decided, the property has to come into government custody. Three different authorities do that work, they require different findings, and real property is carved out of all of them by a statute that forbids seizure before judgment.
The rule in short
Civil seizure ordinarily proceeds on a warrant issued under 18 U.S.C. 981(b) using the procedures of Rule 41, and may proceed without one where an established Fourth Amendment exception applies or where a state or local agency lawfully seized the property first. A criminal seizure warrant under 21 U.S.C. 853(f) requires the additional finding that a restraining order may not be sufficient. Real property may not be seized before an order of forfeiture is entered.
Every forfeiture begins with custody. Before an agency can send a notice, before a complaint can be filed, and before a sentencing judge can order anything, the property has to be in government hands or under a court's control. The authorities that permit that are not interchangeable. A civil seizure warrant, a criminal seizure warrant and a warrantless seizure each rest on a different finding, and real property is removed from all three by a statute written for it alone.
The two seizure warrants
The civil seizure warrant is the ordinary instrument. Under 18 U.S.C. § 981(b) property subject to civil forfeiture may be seized under a warrant obtained in the manner provided for a search warrant by the Federal Rules of Criminal Procedure. The application is made to a judicial officer, the showing is probable cause to believe the property is subject to forfeiture, and the warrant may be issued in a district where a forfeiture action against the property may be filed as well as where the property sits. 21 U.S.C. § 881(b) follows the same pattern for property forfeitable under the controlled substances laws.
The criminal seizure warrant is narrower. 21 U.S.C. § 853(f) allows the government to request a warrant for property subject to criminal forfeiture, and the court may issue it only on two findings: probable cause to believe the property would, in the event of conviction, be subject to forfeiture, and that an order restraining the property under § 853(e) may not be sufficient to assure its availability for forfeiture. The second finding is what distinguishes the section. It requires the government to explain why the less intrusive measure will not work.
That structure pushes most criminal-case property questions toward restraint rather than seizure, because a restraining order leaves the property where it is and merely forbids its transfer or dissipation. The showings required for those orders, and the hearing that may accompany one, differ from the warrant showing described here and are treated separately in the restraint of assets before trial.
Seizing property without a warrant
Section 981(b) also recognizes seizures made without a warrant. Three situations account for nearly all of them. The first is a seizure made after a forfeiture complaint has been filed and the court has issued a warrant of arrest in rem for the property. The second is a seizure supported by probable cause to believe the property is forfeitable where the taking is made under a lawful arrest or search, or where some other recognized exception to the warrant requirement applies. The third is property lawfully seized by a state or local agency and transferred to a federal agency.
The second of those is where the automobile exception does its work. The Supreme Court has held that where officers have probable cause to believe a vehicle located in a public place is itself forfeitable, they may seize it without first obtaining a warrant. The reasoning tracks the exception as it applies to searches: a vehicle is readily movable, so the delay involved in obtaining a warrant creates a risk that the object of the process will be gone, and the privacy interest in a car on a public street is diminished by pervasive regulation and by its exposure to view.
The exception is bounded by its rationale. It addresses a vehicle in a public place, not one parked inside a residential curtilage, and it does not by itself license a search of the vehicle's contents, which is governed by its own line of authority described in the rules governing a vehicle search. Whether the seizure and any accompanying search stand or fall together depends on what the officers relied on for each.
| Authority | Finding required | Who issues or acts | Property it reaches |
|---|---|---|---|
| Civil seizure warrant, 18 U.S.C. § 981(b) | Probable cause that the property is subject to forfeiture | A judicial officer, on Rule 41 procedures | Personal property and funds; not real property |
| Criminal seizure warrant, 21 U.S.C. § 853(f) | Probable cause plus a finding that a restraining order may not be sufficient | The district court on the government's request | Property forfeitable on conviction of the defendant |
| Warrantless seizure under an exception | Probable cause of forfeitability with a recognized exception to the warrant requirement | The officer at the scene | Typically vehicles and items found on a lawful search or arrest |
| Arrest in rem after a complaint | A filed complaint meeting the Rule G pleading standard | The clerk or the court, on the government's request | The defendant property named in the complaint |
| Real property, 18 U.S.C. § 985 | No seizure before an order of forfeiture, absent an exception | The court, on complaint, posting and service | Land and improvements |
What the probable cause must establish
The object of the showing is the property, not the person. Probable cause to believe an individual committed an offense does not establish that a particular item is proceeds of that offense or was used to facilitate it. Where the theory is proceeds, the affidavit must connect the funds or the asset to the unlawful activity. Where the theory is facilitation, it must show a use of the property in the offense, and the government will eventually have to establish a substantial connection at trial rather than a mere probability of one.
Currency raises the tracing problem in its sharpest form, and 18 U.S.C. § 984 answers part of it. For fungible property such as funds in an account, identical property found in the same place within one year of the offense may be forfeited without tracing the specific dollars. The provision reduces what the seizure affidavit must prove about identity, but it does not lower the standard for showing that forfeitable property was there in the first place.
Probable cause is the threshold for taking custody and nothing more. The government still has to prove forfeitability by a preponderance of the evidence in a civil case, or establish a nexus to the offense of conviction in a criminal one. A common misreading treats a validly issued seizure warrant as having settled the merits, when it settles only whether the property could be held while the question is litigated.
Why real property is treated differently
18 U.S.C. § 985 removes land from the ordinary sequence. Real property may not be seized before entry of an order of forfeiture. Instead, the government commences a civil forfeiture action by filing a complaint, posting a notice of the action on the property, and serving notice on the property owner along with any other person having a recorded interest. The owner is not evicted while the action is pending and may continue to use and occupy the property.
The statute allows a narrow exception. Real property may be seized before judgment where the court finds probable cause and finds that measures less restrictive than seizure would not suffice to protect the government's interests in the property, and the seizure is then followed by a prompt post-seizure hearing. Business premises open to the public are subject to a further qualification. The design of the section reflects a judgment that the interests attached to a home or a place of business justify a court's involvement before possession changes hands, a contrast with the personal property routes compared in the three routes federal forfeiture can take.
What follows immediately after a seizure
The seizure starts the notice clock in a nonjudicial proceeding and fixes the property's status while the government decides which route to use. Custody is not neutral in its effects. A held vehicle depreciates, a frozen account halts payroll, and inventory left in storage may lose value or be sold under an interlocutory order. The statutory answer to some of that is the hardship provision described in the release of property pending a forfeiture case, which is unavailable for most currency and for property to be used as evidence.
A separate and older remedy sits alongside it. Federal Rule of Criminal Procedure 41(g) permits a person aggrieved by an unlawful search and seizure of property, or by the deprivation of property, to move for its return in the district where the property was seized, and requires the court to receive evidence on any factual issue necessary to decide the motion. Courts differ on whether such a motion survives the end of the criminal case as a civil equitable action, and on whether sovereign immunity bars any money remedy where the property no longer exists.
Points to carry away
- A civil seizure warrant issues on probable cause to believe the property is subject to forfeiture, using the procedures of Rule 41.
- A seizure warrant under 21 U.S.C. 853(f) also requires a finding that a restraining order may not be sufficient to assure availability.
- Property may be seized without a warrant where a recognized exception to the warrant requirement applies to the seizure.
- The Supreme Court has held that a forfeitable vehicle in a public place may be seized on probable cause without a warrant.
- 18 U.S.C. 985 forbids seizure of real property before an order of forfeiture is entered, and the owner is not evicted during the action.
- Probable cause at the moment of seizure is a lower showing than the preponderance the government must later carry.
Questions readers ask
Does a lawful arrest by itself justify taking a car?
Not on its own. An arrest supplies authority to search in some circumstances, but the seizure of a vehicle for forfeiture rests on probable cause that the vehicle itself is forfeitable, which is a separate question from probable cause that its occupant committed an offense. Where the vehicle was used to transport a controlled substance, the two findings often rest on the same facts. Where the theory is that the vehicle is proceeds or a substitute asset, the arrest supplies little, and the record has to show the connection independently.
What is an adoptive seizure?
It is the transfer of property already seized by a state or local agency to a federal agency, which then forfeits it under federal law. Federal statute permits seizure without a federal warrant where the property was lawfully seized by a state or local agency and transferred to a federal agency. The arrangement is one of the contested features of the system: seizing agencies describe it as a way to reach conduct that crosses jurisdictional lines, while some state legislatures have restricted participation in it by their own agencies.
Is there any way to get property back while the case is pending?
Two routes exist. A statutory hardship release covers property whose continued retention would cause substantial hardship, subject to five conditions and a list of excluded categories that includes most currency. Separately, a motion for return of property is available to a person aggrieved by an unlawful seizure or by a deprivation of property, filed in the district where the property was seized, and the court must receive evidence on any factual issue necessary to decide it. Neither route resolves the forfeitability of the property.
Sources
- 18 U.S.C. § 981 — Civil forfeitureLists the property subject to civil forfeiture and the circumstances permitting seizure with and without a warrant.
- 21 U.S.C. § 853 — Criminal forfeituresSupplies relation back, restraining orders, substitute assets and the third-party ancillary proceeding.
- 18 U.S.C. § 985 — Civil forfeiture of real propertyBars seizure of real property before judgment and sets the complaint, posting and notice sequence.
- 21 U.S.C. § 881 — ForfeituresIdentifies the conveyances, proceeds and real property forfeitable under the controlled substances laws.
- Fed. R. Crim. P. 41 — Search and SeizureSubdivision (g) supplies the motion for return of property and the evidentiary duty it triggers.
- 18 U.S.C. § 984 — Civil forfeiture of fungible propertyAllows forfeiture of identical fungible property without tracing, within one year of the offense.
Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Asset Forfeiture
Standing to Contest a Forfeiture
A claimant must show a colorable ownership or possessory interest in the property to satisfy Article III, and bare assertion is not enough. The statute defines an owner to include a leasehold, lien, mortgage, recorded security interest or valid assignment, and to exclude a nominee who exercises no dominion or control, a general unsecured creditor and an unexplained bailee. A motion to strike puts the burden of establishing standing on the claimant by a preponderance.
Proportionality Review and the Excessive Fines Question
Under 18 U.S.C. § 983(g) a claimant may petition the court to determine whether a civil forfeiture is constitutionally excessive. The court compares the forfeiture to the gravity of the offense giving rise to it. The claimant must establish gross disproportionality by a preponderance of the evidence at a hearing without a jury, and if the standard is met the court reduces or eliminates the forfeiture to avoid violating the Excessive Fines Clause.
The Innocent Owner Defense and Its Two Forms
Under 18 U.S.C. § 983(d) an innocent owner's interest is not forfeited under any civil forfeiture statute, and the claimant carries the burden by a preponderance of the evidence. An interest held before the conduct is protected by lack of knowledge or by reasonable steps to terminate the use. An interest acquired afterward is protected only by bona fide purchaser status, with a narrow exception for a primary residence taken by marriage, divorce, separation or inheritance.