Saturday, September 27, 2014

"Civil" Asset Forfeiture

Civil Asset Forfeiture is when the government through law enforcement seizes private property (such as cash, vehicles, or even real property) that is alleged to have been used in an illegal transaction, often related to controlled substances or gang activity. So, for example, if police find a large quantity of drugs in the back of a person's vehicle they might seize and then auction off the vehicle alleging that it was being used to transport the illegal drugs. 

The problem with this process is that it is not part of a criminal proceeding - indeed, criminal charges do not actually even have to be filed to start a forfeiture. This means the burden of proof is not "beyond a reasonable doubt" as it would be in a criminal case. Rather it is simply by a preponderance of the evidence, a much lower burden of proof, that can result in innocent people losing their property based on little more than suspicion. 

I recently tried a case where there were no drugs found in the defendant's vehicle. He was not charged with any drug-related crime (simply a speeding offense as I recall, which was what gave rise to the initial stop). While there was vague circumstantial evidence the defendant was involved in the drug trade (police dog alerting to presence of drugs, car registered in another person's name, inconsistent statements by the driver as to destination) there was no hard evidence, only some $17,000 in cash found in the car. The police seized the money and eventually moved to forfeit same as being involved in the distribution of narcotics. 

While the case was lost at the trial level, I was successful in getting the decision overturned on appeal and the client was eventually returned his money. Unfortunately between my fees, court costs, and other expenses the client wound up spending nearly 3/4 of the money he sought to be returned. This is a sad fact of the forfeiture process, where a person charged with no criminal act related to controlled substances can nevertheless have his/her property taken by the state regardless. has an excellent video describing some of the abuses of this process, which I have linked below. Civil forfeiture is rife with abuse and most defendants are unable to fight the process due to lack of funds. This is a law which surely needs to be reformed.

Thursday, September 18, 2014

Suppression Motions - the remedy for illegal searches and seizures

In order to search your home or seize one's property law enforcement must have probable cause that a crime has been (or is being) committed. They must swear to the facts supporting this before a MDJ (Magisterial District Judge) in order to receive permission to do so. The document that is produced is commonly referred to as a warrant and provides the authorization for the police to search and seize.

The warrant may seem like a technical requirement but it is a fundamental part of our criminal justice system, and the first check on police power.

There are times, however, when police overreach and go beyond their authority. In those instances the remedy is to file a suppression motion to exclude the illegally seized evidence from being used at trial against the accused.

I will explore some of the more common suppression motion types and rationales in the coming blog posts.

Monday, September 15, 2014

Alimony, APL and Spousal Support - What are the differences?

Alimony, APL (Alimony Pendente Lite) and Spousal Support are all mechanisms to provide monetary support to the dependent spouse before, during, and after a divorce action is filed.

Spousal support is paid to the dependent spouse prior to a divorce action being filed. This happens in situations where one spouse leaves the marital residence, but no divorce action has yet been filed. Spousal support is technically unlimited in duration, so if the parties never file for divorce the support payments could continue indefinitely.

The formula for determining spousal support is fairly straightforward, the dependent spouse is entitled to 40% of the difference in the net incomes of the spouses. See this link for more detailed explanation:

APL is computed in the same way, but it is the term for support that is paid after a divorce action has been initiated. APL can also last a long time, although many local jurisdictions schedule review hearings perhaps every year or two to check on the progress of the divorce. It is expected that divorces should proceed in a timely and efficient manner, and if one party is unnecessarily delaying the divorce process there may be sanctions imposed. Such sanctions could include the extension or even revocation of the right to APL.

Alimony is perhaps the most complicated form of support. There is no simple calculation for determining how much in Alimony should be paid, or for how long. There is a wide disparity between the local jurisdictions in Pennsylvania as to whether Alimony is for life or a short duration; whether it is equal to the support figures computed above or is based on some other formulation; and whether it depends on certain factors between the two parties such as the existence of children or the commission of adultery.* This is an area where anyone considering a divorce should contact an attorney ahead of time to ensure he or she is properly informed as to his/her rights and entitlements following the completion of the matter.

Of course, these types of support can be drastically altered by the payment of child support, as well as other factors.

*Adultery is technically still a fault ground for divorce in Pennsylvania, although it has no affect on the distribution of property in a divorce and as such, is rarely filed. It is still one of about a dozen factors to be considered in whether to award alimony to the dependent spouse.