Recently in the news here in Nevada was the acquittal of Steven Ficano; you may be familiar with his story as he is the elderly man arrested for possessing much more marijuana than legally permissible under the medical marijuana laws. He was charged with possession, and possession with intent to sell; Mr. Ficano was acquitted by a jury from each charge. However, along with marijuana, the police seized $51,000 in cash and twenty-six guns, which Mr. Ficano’s lawyer claims are antiques.
Given that Mr. Ficano was acquitted, it would be reasonable to assume that the government would return his cash and antique guns, but you may be surprised to know that this may not necessarily happen.((for another example of what is called civil forfeiture in the news, look at this story of Tan Nguyen from Humboldt County, the sheriff’s deputies really turned public opinion against themselves by posing with the seized cash on facebook The Tan Nguyen case)) As it turns out, there is not law in Nevada that determines what should happen to seized property if property owner is acquitted, at least not yet.
The civil forfeiture law currently
The Nevada forfeiture laws are located in chapter 179 of the Nevada Revised Statutes (NRS). First, here is the law permitting law enforcement officials to seize property:
NRS 179.1165 Seizure of property: Requirement of process.
1. Except as provided in subsection 2, property that is subject to forfeiture may only be seized by a law enforcement agency upon process issued by a magistrate having jurisdiction over the property.
2. A seizure of property may be made by a law enforcement agency without process if:
(a) The seizure is incident to:
(1) An arrest;
(2) A search pursuant to a search warrant; or
(3) An inspection pursuant to a warrant for an administrative inspection;
(b) The property is the subject of a final judgment in a proceeding for forfeiture;
(c) The law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(d) The law enforcement agency has probable cause to believe that the property is subject to forfeiture.
(Added to NRS by 1985, 1466; A 1987, 1382)
As you can see, all that is necessary is “probable cause” that the property will be “subject to forfeiture” or that the property is “directly or indirectly dangerous to health or safety.” As in the case of Tan Nguyen, sufficient probable cause can be an officer claiming the smell of marijuana in the car ((irrespective if there actually is any marijuana or marijuana smell in the car)).
Is the civil forfeiture law about to be updated?
Senate Bill (SB) 138, currently working its way through the legislative process((It has been unanimously approved by the assembly and the senate, it is currently awaiting a signature from Governor Sandoval)). In SB 138, the legislature requires police departments to report all forfeitures to the attorney general once a year, so we will now have an accounting of how much property is being seized each year. Additionally, SB 138 addresses what should happen to seized property upon an acquittal. Here is the current law:
NRS 179.1173 Proceedings for forfeiture: Priority over other civil matters; motion to stay; standard of proof; conviction of claimant not required; confidentiality of informants; return of property to claimant.
1. The district court shall proceed as soon as practicable to a trial and determination of the matter. A proceeding for forfeiture is entitled to priority over other civil actions which are not otherwise entitled to priority.
2. At a proceeding for forfeiture, the plaintiff or claimant may file a motion for an order staying the proceeding and the court shall grant that motion if a criminal action which is the basis of the proceeding is pending trial. The court shall, upon a motion made by the plaintiff, lift the stay upon a satisfactory showing that the claimant is a fugitive.
3. The plaintiff in a proceeding for forfeiture must establish proof by clear and convincing evidence that the property is subject to forfeiture.
Below is the update to NRS 179.1173 that has been approve the by the Nevada state assembly and senate. The strikethrough portions are the sections of the old law, deleted by the new one. The underlined portions are the additions to the statute.
NRS 179.1173
1.
[The]Except as otherwise provided in subsection 2, the district court shall proceed as soon as practicable to a trial and determination of the matter. A proceeding for forfeiture is entitled to priority over other civil actions which are not otherwise entitled to priority.2. At a proceeding for forfeiture,
the [plaintiff or claimant may file a motion for]court shall issue an order staying the proceeding[and the court shall grant that motion if a]that remains in effect while the criminal action which is the basis of the proceeding is pending trial. The court shall[, upon a motion made by the plaintiff,]lift the stay[upon a satisfactory showing that the claimant is a fugitive.]after the trial is completed. If the claimant is acquitted during the trial, the property of the claimant must be returned to the claimant within 7 business days after the acquittal.3. If property has been seized and the criminal charges against the owner of such property are denied or dismissed, all such property must be returned to the owner within 7 business days after the criminal charges are denied or dismissed.
4. The plaintiff in a proceeding for forfeiture must establish proof by clear and convincing evidence that the property is subject to forfeiture.
Note in subsection 2 that law enforcement will be required to return seized property after an acquittal within seven business days. The same is true, as stated in subsection 3, for seized property when the criminal charges are dismissed. Providing this guidance in the statute benefits the public and police departments. As of 29 May, the bill has been delivered to the governor. We will have to wait and see if he signs it into law.
For more information about civil forfeiture as a national problem, see New Yorker “Taken”