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Innocent Owner Defenses to Forfeiture

It's hard to argue that Arizona is one of the more liberty-oriented states in the nation when it comes to the power of the state government over individuals. Arizona is generally a "live and let live" state in its law. It's somewhat surprising then, that Arizona's forfeiture laws give vast power to the state's prosecutorial agencies to seize property from people that have done nothing wrong. Perhaps in an overzealous efforts in the often ill-considered drug war, Arizona law takes a "shoot first and ask questions later" approach to taking property from the parents of children who are involved in relatively minor drug offenses.

For example, a 20 year-old kid might have a small quantity of marijuana in his possession to sell to friends. The kid gets caught speeding on the freeway and the police create a pretense to search the car. Upon finding the marijuana the police and prosecutors can then seize and try to forfeit the car to the state. While the foregoing is the typical situation, the same set of facts can find parents trying to defend their ownership of their home. If the drugs are there, whether in the car or home, the property is subject to forfeiture under Arizona law. If, as is too often the case, the prosecutor doesn't have any common sense, the parents find themselves having to spend money and time (to go to court) to get their car or home returned to them.

Fortunately, we are here to help parents defend themselves against overbearing prosecutors. Arizona law provides an "innocent owner" defense to the type of forfeiture referenced above. The law, set forth in A.R.S. 13-4305, provides that a true owner who "did not know and could not reasonably have known" that the crime was being committed or was likely to be committed.

It's a tough road. The law places the burden of proof on the innocent owner, not on the state. And it can be tough if we're dealing with an unreasonable prosecutor who thinks he can bully the parents or other innocent owner to voluntarily give up their property. But, so long as the basic requirement is met, an innocent owner who has the stomach for the fight can get his property back.

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