There was an interesting decision handed down from the Iowa Court of Appeals at the end of May. The case arose out of the seizure of $22,600 cash during the July 2nd arrest of Duane Lovelace by the Pottawattamie County Sheriff’s office on drug charges.
The same day that Lovelace was arrested he was given a notice of seizure pursuant to Iowa Code section 809A.6(2). On July 26th the Pottawatamie County Attorney filed a second document they titled "Notice of Seizure for Forfeiture" and served notice on Lovelace by publication on August 15th . The case was dormant for over 90 days, during which time Lovelace was never given notice of a pending forfeiture proceeding or served and In Rem Complaint pursuant to Iowa Code section 809A.8.
Anyone who defends a fair amount of drug cases or does a lot of forfeiture work can see where this is headed, but for the lay people or the attorneys that don't practice these areas much I'll give you a little primer.
Property that is "seized for forfeiture" is kind of like a person that is arrested. The "notice of seizure" is just the initial notice to the claimant that the police believe the property is subject to a later forfeiture proceeding. It is kind of like a preliminary complaint for property instead of a person. Once that the property is seized it is considered to be held in the custody of the District Court. It can be kept for as long as it is needed as evidence for the prosecution of a related criminal case, or as long as they as long as nobody asks to have the property returned.
If somebody asks for the property to be returned, the County Attorney has to file a forfeiture complaint within ninety days from the date of seizure. This is like the Trial Information of forfeiture proceedings. If the County Attorney fails to file the complaint within ninety days the property MUST be returned to the claimant if he or she has requested its return.
The catch here is that the return of the property doesn't mean that the County Attorney is barred from filing a forfeiture complaint past the 90 days. They have up to five years from the last date of conduct giving rise to forfeiture to commence the In Rem proceeding (Iowa Code Section 809A.20 - Statute of limitations). The only effect returning the property would have, is that while they are deciding what to do, the property is in the possession of the claimant.
SO...the defense attorney in this case was smart and waited until after 90 days had passed. He knew that the prosecutor never filed the In Rem Complaint so the the request for the property to be returned, would have to be granted. That is, it gets granted if everyone is playing by the same rules.
Instead we come to the really interesting part of this case. The prosecutor not only chose to disregard the law and ignore the request to return the property; they used some downright underhanded tactics to illegally forfeit the property to the State.
The day after being personally served a letter by the claimant's attorney requesting return of the property due to the procedural defects, the prosecutor prepared an order forfeiting the property that misstated the prosecutor's compliance with the requirements for forfeiture. The prosecutor then got a judge to sign the order without claimant's attorney being present. When the claimant's attorney got a copy of the order about a week later, the shit hit the proverbial fan. A series of motions were filed and the claimant asked for sanctions to be imposed for the prosecution's tactics. The Court of Appeals found that the prosecutor's actions strongly suggest an intent to deceive the District Court and the claimant.
The second low blow was dealt when the County Attorney's Office contacted the Feds and had them file their own In Rem proceeding. Ordinarily, referring a case to the Feds is within the right of the County Attorney, but in case the Court found it to be more than a coincidence that the referral came only AFTER a hearing was set on the claimant's Motion to Vacate. What's more, had the proper procedure been followed, the claimant's money would have been returned six weeks before the referral ever occurred.
The Court of Appeals ordered $22,600 in substituted funds to be paid to the claimant and held that the prosecutors actions warranted sanctions being imposed. The case was reversed and remanded for a determination on the amount of attorneys fees and costs to asses to the State.
What criminal defense attorneys need to take out of this case is the need to be familiar with the procedural requirements of Chapter 809A. They can be somewhat confusing, especially if you don't practice this type of law regularly. Apart from Polk County, I've found a general lack of knowledge about chapter 809A among prosecutor's offices. If you keep your eyes open you can use this unfamiliarity to your advantage.
My guess is that even though there is a five year limit on forfeiture actions, the County Attorney would be barred from filing the In Rem Complaint due to several factors (forfeiture statutes are disfavored, prosecutorial misconduct, and the previous procedural defects).
The case is also another fine example of one of the "good guys" thinking that the ends justify the means.
