Beating the Charge and Reclaiming Your Confiscated Property
Part of a police officer’s duty to protect and serve is the officer’s right to seize contraband, property that is associated with illegal activity. A great aspect of the American criminal justice system is that the accused is innocent until proven guilty. In all criminal cases, it is the State’s burden (legal responsibility) to prove each element of a crime beyond a reasonable doubt.
You’re arrested. There’s a trial and the court dismisses the charges against you. Because the State failed to meet its burden, the negative consequences that follow from a criminal arrest and charge are eliminated.
This is NOT what actually happens. In reality, your legal hurdles are not finished. A dismissal1 (or nolle prosequi) is just that. There has been no trial determining guilt or innocence. The State is choosing, voluntarily, not to proceed with prosecuting you on that particular charging document. This voluntary dismissal is no legal detriment to that State. The State can still prosecute you for the alleged actions on a new charging document. The State, however, cannot use a dismissal as a legal strategy to essentially get more time to build a case against you. There are two limitations built in the law to prevent this from happening, which are: 1) your constitutional right to a speedy trial and 2) the requirement that misdemeanors must be prosecuted within a year and if not, the government is prohibited from bringing the charges against you.
So what does this mean? This means that you can find yourself in a situation where you were arrested and officers confiscated your property (electronic devices, money, and so forth). Because the charges against you were dismissed, you are no longer the subject of a criminal proceeding and your property seized by law enforcement is not evidence to be used in that criminal proceeding. However, you may still be subject to further proceedings and the State’s interest in the property may still exist.
So how do you navigate such a situation? For starters, by law, the authority that seized your property, must, either within 90 days after the seizure or within a year after the final disposition (ruling) on the criminal charge, with limited exceptions, file a complaint for forfeiture.
Nonetheless, you, as the property owner, still have the right to reclaim (or attempt to reclaim) your property. If no forfeiture proceedings by the State have begun, you must provide notice to a specific law enforcement official or entity. The exact person or entity that must be provided with notice (written or oral) depends on the offense. Making an affirmative request for the return or your property is important, even when it is unclear whether or not the State will bring future criminal proceedings against you. Under the law, it is looked poorly upon and you may even be penalized2 by what is known as a waiver (lose right to take certain action by a knowing and intentional delay in asserting that right) of right to reclaim property for not acting quickly in retrieving property following a dismissal.
An additional hurdle is that, even if you attempt to make an appropriate and timely request to reclaim your property as described in the forfeiture statutes, you run the risk of having to engage in your own investigative process to locate your property. Speaking from experience, the forfeiture laws provide a method for property owners to retrieve their property from the government. Nevertheless, this process is seemingly not followed by the court and prosecutors. This means that you, as the person seeking to reclaim your rights in your property, may have to do more (or something differently) than what is provided in the law, including contacting the arresting officer to have your property returned.
So now what? Contact Fred Antenberg, an attorney in Howard County, Maryland, who has handled criminal cases for over 30 years in Howard County and surrounding counties in Central Maryland for help with retrieving your property. Call (410) 730-4404 now for a Free Initial Consultation.
1 A dismissal is different than a finding of not guilty or an acquittal
2 See Md Code Crim Proc §§12-304(d)(3)(i) - (ii)