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Seizing Property for Forfeiture - Chapter 3 - Asset Forfeiture Law in the United States - Third Edition
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22069
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Originally from Asset Forfeiture Law in the United States, Third Edition
This chapter focuses on seizures for forfeiture. It begins with the statutory authority for seizing property pursuant to a warrant in civil and criminal forfeiture cases, the probable cause standard for issuing the warrant, and the court’s authority to issue a warrant for property located in another district or overseas, and for property under the control of a state court.
It also discusses what is probably the most troublesome issue in this area: Does the Government have the right to seize an entire bank account when the probable cause relates to only a portion of the account, or when it is unclear whether the tainted funds that were deposited into account are still there? In other words, what role does tracing play in the probable cause analysis? Is evidence that tainted funds have been deposited into a bank account sufficient to establish probable cause for the seizure of the account notwithstanding the possibility that untainted funds have been commingled, or that the tainted property has been transferred out of the account in the course of intervening deposits and withdrawals?
The discussion then turns to the Government’s ability to seize property without a warrant in some circumstances, such as during a traffic stop or when a courier is found with currency in his luggage at an airport checkpoint, and to the issues that arise in those cases, such as the probative value of a positive alert by a drug dog, and the Government’s duty to maintain the evidentiary value of the seized property.
The chapter concludes with a detailed discussion of the available remedies for the seizure of property, including motions to suppress, motions for the return of seized property under Rule 41(g) of the Federal Rules of Criminal Procedure, and motions for the release of property pending trial to avoid a hardship.
Stefan D. Cassella, as a federal prosecutor, was one of the federal government's leading experts on asset forfeiture law for over thirty years, and now serves as an expert witness and consultant to law enforcement agencies and the financial sector as the CEO of AssetForfeitureLaw, LLC.
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