Thursday, July 30, 2009

Two Forfeitures, Two Results

there are a lot of things happening here so it's taken me this long to get to it. Let the follies begin. There are a couple of important forfeiture cases.

In re Property Seized From Lamaak, no. 08-1706 (Iowa Ct. App. July 22, 2009)

Lamaak owned two homes which were searched pursuant to a warrant. In the newer of the two homes police seized marijuana, methamphetamine type stuff, guns three concealed bags with $28,000 in them, and $1,143 from Lamaak's person. The older house had evidence of a marijuana grow operation. On January 8, 2008 the state served notice of seizure of the cash under Iowa Code section 809.3 and on February 7, notice of pending forfeiture of $19,143. An amended notice correcting the amount to $29,143 was filed on February 11. Lamaak filed a resistance, saying that it was all his property, not used or acquired as a result of a drug related offense, and he was an innocent owner.

Hearing was set of May 5, 2008 but no hearing took place. On June 6, the state filed an in rem forfeiture action for the cash alleging it was part of a drug transaction and Lamaak filed an identical response. On August 28, the state moved for judgment and on September 2 Lamaak moved to dismiss alleging that the 90 day limit in the Code had been exceeded. The court forfeited the money and Lamaak appealed.

The court of appeals reversed, finding that because the state failed to comply with the 90 day deadline, the district court erred in denying Lamaak's motion to dismiss. The state's late filing under the statutory scheme was fatal to its request for forfeiture.

In re Property Seized From Young, no. 08-1369 (Iowa Ct. App. July 22, 2009).

Young's pistol was seized in March, 2002, was convicted, and his appeal on his charges was dismissed in 2003. On October 15, 2007 the state filed an in rem forfeiture action for the pistol. Young filed a motion to dismiss. The motion to dismiss was denied and Young was allowed 30 days to file a claim for the property and an answer to the state's complaint. He failed to do so and the court entered judgment for the state.

Young argued that the complaint was past the 5 year statute of limitations. The Court noted that the state's forfeiture filing was within the deadline.

Young also argued that the property was seized on the date of his arrest, but there was no seizure for purposes of forfeiture until 2007, when the state filed its in rem complaint.

Both of these cases are closely related to the applicable deadlines contained in Chapter 809A. One is the hard requirement for hearing to be had within 90 days, and the other is the 5 year statute of limitations, which, it seems, does not start until the forfeiture action is filed. The takehome's clear. Don't file for forfeiture of contraband until you want to start the 90 day clock ticking, and then, be ready for court before it elapses.


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