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Author: [General Discussion] Topic: Property law/criminal law question
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#1
Posted: 2/10/2012 12:18:11 PM
So i'm minding my own in the basement about to take the dog for a walk , when i get a knock on the front door. (we don't use the front door, so it's never a 'friendly'. See a po-9 parked in the driveway, and it's a sheriff. I rush out with the 150lb mastiff and no shirt on and its 35 degrees, so this kid sheriff is looking at me pretty crazy(i love how people ask if the dog is friendly after he's already introduced himself and slobbered all over his gun). Asked if i am "myself" to which i hesitantly said yes. He said, don't worry, you're not in trouble. phew. Had to serve me with paperwork for COMMONWEALTH OF PA vs. xx,xxx U.S currency

I haven't been in any trouble in over ten years, so i figured all this was gone and forgotten, but in 2000, cops busted in my back door without a warrant nor probable cause (said they smelled reefer coming from the basement and shined a flashlight down at us to which i slammed the window in his deal and scurried). Long story short, they tossed the house, harassed everyone, wrote my gf and her friends underage citations and left me sit there without ever being arrested (as far as i can remember)

reading thru the paperwork, it says

5. The property is subject to forfeiture pursuant to Section 6801(A) of the judicial Code, 42 Pa C.S.A 6801(A), based upon the following averment of material facts:

blah blah blah about receiving a complaint of a party with loud music and underage drinking.
   Upon the OFficers arrival at the residence, they observed several individuals inside the residence, under the age of 21, engaged in drinking. Officers also observed mj and ecstasy in plain view inside of the residence, along with drug para. OFficers also located and seized xxxxxx in US curency from (meself)
      (me) indicated to officers that the he was unemployed and had no explanation for where he obtained the money.
     Subsequently, the money was seized as a drug asset



What do i do here? I was never charged with anything, the lawyer i consulted at the time is now our mayor, he hated the "yellow shirts" and disbanding them was the first thing he did once elected (they lied, stole, all the usual garbage from some rogue vice narc cops).  Do i leave well enough alone? Is there some statute of limitations that has passed to where i have nothing to lose (ie. i contest it and they pull the evidence and slap a BS charge on me?)

my dad just lost his job and it would be nice to help my parents out, they could use the money. I'm not sure how i feel about doing anything, expecially if there is any risk involved.

any help from all my numerous lawyer friends that frequent the site?
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#2
Posted: 2/10/2012 12:23:55 PM
BE -- send me a PM
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#3
Posted: 2/10/2012 12:34:50 PM
QUOTE Originally Posted by kaponofor3:

BE -- send me a PM


just friended you
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#4
Posted: 2/10/2012 12:37:34 PM
BE --  I gotta run and do some depositions in a half hour but when I get back I'll check it out. Give me as much info about what the paperwork itself says.
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#5
Posted: 2/10/2012 12:38:40 PM
I don't see a  request from you BE, I sent you one but it still says "pending", you gotta accept me
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#6
Posted: 2/10/2012 12:46:29 PM
be, a few things.  first, this is obviously a forfeiture law related issue.  forfeiture law is technically civil but it is considered pseudo criminal for obvious reason.  however, every state has its own forfeiture laws.  i have dealt with the forfeiture laws in different states and there are a lot fo similarities but i don't know penn. forfeiture law.  i say that because penn may have different forfeiture laws in which case what i say may not apply.  the feds also have their own forfeiture laws but those won't apply to your case. 

i actually used to be the guy who was in charge of forfeitures in atlanta.  i know that doesn't ingratiate me with you.

anyway, here's how it works in the states i know.  again, penn may be different.  the forfeiture laws basically allow the police to seize (i.e. take) any property that:

1.  is being used to facilitate one of the enumerated crimes,
2. represents proceeds from one of the enumerated crimes and/or
3. is in close proximity to contraband (normally drugs). 

these enumerated crimes are typically drug crimes but they can be just about any felony or fraud related crime. 

a classic example would be a guy driving his car to a drug deal with the drugs in the car.  the cops arrest him and take his car because the car was used to facilitate the sale.  another common example is like your case where the police search a house or a person, find drugs and a lot of cash nearby. 

so, how does it work.  what caught my eye was the date of this search.  here, when the police seize property, they send their file to the prosecutor's office who is responsible for forfeiting (taking ownership of) the property.  in our states, the prosecutor has 30 days or so to send a formal notice to the presumed owner(s) of the property notifying him/them that they intend to forfeit the property.  that starts the forfeiture process.  if they don't send that notice within the required timeframe, they can't forfeit the property.

if they do, the claimant has 30 days or so to make a claim for the property.  the claim has to include a defense such as:

1. the property was not used to facilitate one of the enumerated crimes
2. the money/property came from a legitimate source, not illegal activity (i was amazed at how many drug dealers won the lottery)
3. innocent owner defense-  that's my car, i let fool borrow it, i had no idea he would use it to sell drugs
4. any other defense

at that point, the two sides usually negotiate some settlement.  if they can't come to an agreement, you go to court and each side presents witnesses and a judge decides.

so, in your case, if it is based on the 200 incident, i don't see how they can try and forfeit the fund now, unless penn has different laws on this.  but if they can, you can file a claim and say the money came from another source.  it would help if you had proof.  some judges don'ty like these forfieutres because they see it for what it is.  some law and order judges typically side with the police.

unfortunately, you may need to talk to a lawyer about this.  a lawyer will know the forfeiture laws and procedures in penn and also be familiar with the judge and the cops, etc.  he can tell you what is likely to happen.  depending on how much money was taken, you need to decide if it's worth it.

most decent judges will informally apply a proportion test.  in other words, if you are driving a new mercedes with $20,000 in cash on you and get caught with a joint, it is excessive to take the mercedes and cash even if the laws allow it.  if you are moving 10 kilos of cocaine and are caught with $500,000, a judge may say it's ok to forfeit that kind of money. 

anyway, i say talk to a lawyer for free and see what he says.  make sure it is someone who has experience in not just criminal law but has handled a decent number of forfeitures as well because forfeiture law is its own category.

let me know if you have any follow up questions. 
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#7
Posted: 2/10/2012 12:47:21 PM
looking at your title again, it is not a property law issue.  that's important because if you go talk to a lawyer, don't look for property law, they won't have a clue about this. 
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#8
Posted: 2/10/2012 1:39:11 PM
unfortunately, you may need to talk to a lawyer about this

YES I AGREE

i say talk to a lawyer for free and see what he says

DID HE SAY FREE


i thought that was what i was doing, right now,,,,,,,


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#9
Posted: 2/10/2012 1:50:00 PM
QUOTE Originally Posted by be easy:

unfortunately, you may need to talk to a lawyer about this

YES I AGREE

i say talk to a lawyer for free and see what he says

DID HE SAY FREE


i thought that was what i was doing, right now,,,,,,,




yeah, i can answer any questions you have, but what i meant is you need to talk to a pennsylvania lawyer if you want to fight this because he/she will be able to fill in the gaps about the particular state laws, this judge, this police dept., etc.

as for free, a criminal lawyer should give you a free consultation.  if they try to charge you for just explaining the situation and seeing what they can do for you, move on to the next one.  i'm not aware of any criminal lawyers that charge a consultation fee but again, it may be different there. 
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#10
Posted: 2/10/2012 1:59:41 PM
QUOTE

Originally Posted by ClubDirt:



yeah, i can answer any questions you have, but what i meant is you need to talk to a pennsylvania lawyer if you want to fight this because he/she will be able to fill in the gaps about the particular state laws, this judge, this police dept., etc.

as for free, a criminal lawyer should give you a free consultation.  if they try to charge you for just explaining the situation and seeing what they can do for you, move on to the next one.  i'm not aware of any criminal lawyers that charge a consultation fee

BE: PA has some caselaw (looks like it was adopted from other members of 3rd circuit) that gives pretty significant discretion for forfeiture based on circumstantial evidence. I think it is a little different from the 11th Circuit (Club will know more) that actually seems to require more direct evidence.

Your case seems to have a lot of negative circumstantial evidence.

Before meeting your future lawyer, I suggest having a plausible explaination for how you acquired that money.

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#11
Posted: 2/10/2012 4:53:12 PM
be, i tried to respond to your message.  it wouldn't let me because we aren't friends.  i sent you a friend request.  i had this same problem with jersey and it didn't get resolved.

dj and wallstreet need to upgrade the software on this site.  i'm not getting my money's worth. 
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#12
Posted: 2/13/2012 10:48:33 AM
Before meeting your future lawyer, I suggest having a plausible explaination for how you acquired that money.

Does my explanation for having the money have to trump the illegal search and seizure, or is the court so just that they don't have to have any reason as to how they acquired the monye?  I had enough credits to graduate HS by 10th grade, so 11th and 12th grade i worked FT, and can pay the IRS a bundle to send me filings from 1996-1999.
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#13
Posted: 2/13/2012 10:49:50 AM
QUOTE Originally Posted by ClubDirt:

be, i tried to respond to your message.  it wouldn't let me because we aren't friends.  i sent you a friend request.  i had this same problem with jersey and it didn't get resolved.

dj and wallstreet need to upgrade the software on this site.  i'm not getting my money's worth. 


i sent you a message and accepted your FR,,,,,,

the 30 days should be from when i recieved the notice, not from the 21 days ago that they issued it, no?
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#14
Posted: 2/13/2012 10:51:55 AM
(ii)  No property shall be forfeited under this
            paragraph, to the extent of the interest of an owner, by
            reason of any act or omission established by the owner to
            have been committed or omitted without the knowledge or
            consent of that owner. Such money and negotiable
            instruments found in close proximity to controlled
            substances possessed in violation of The Controlled
            Substance, Drug, Device and Cosmetic Act shall be
            rebuttably presumed to be proceeds derived from the
            selling of a controlled substance in violation of The
            Controlled Substance, Drug, Device and Cosmetic Act.


Seeing as how they already possess the currency, does it matter that they obtained it with an illegal S&S



Can i represent myself here?
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#15
Posted: 2/13/2012 11:24:29 AM
but in 2000, cops busted in my back door without a warrant nor probable cause (said they smelled reefer coming from the basement and shined a flashlight down at us to which i slammed the window in his deal and scurried). 
__________________________

You say it was an illegal search.  The first thing you need to find out is if you are right.  If a cop walks by an open window, smells mj, looks inside and sees people smoking and other items (possibly other drugs, pipes, money, etc.), that sounds like probable cause to me.  

You said you had to shut the window in their face....obviously they saw something.  

What in the heck where they doing in your yard and walking by your window?  
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#16
Posted: 2/13/2012 11:53:29 AM
be, the problem with the illegal search and seizure argument is that there is how it happened and then there is how the cop wrote it up and will testify.  those two versions will not be the same.  so, if a cop thinks you have drugs in your house and goes right in without a warrant or consent, that is an illegal search.  however, on the report, you or someone with authorization gave consent.  or they went in for some other emergency reason and saw the drugs in plain view on the coffee table. 

you can tell the judge your version, but the cop and his friends will have a different version.  for the judge to rule in your favor, he has to call the cop(s) a liar, which he probably isn't inclined to do too many times if he doesn't want an opponent in the next election.  of course, the more liberal your county, the better chance you have of having a judge willing to see through the bullshit and call it like it is.

in my state, the 30 days starts the day they take the property.  they have 30 days to send you a notice that they intend to forfeit the property.  and then you have a certain period of time to file a response indicating you intend to make a claim for the property.  again, it may be different in PA.
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#17
Posted: 2/13/2012 12:25:30 PM
they used to have a vice unit here called "the yellow shirts". They were known for B&E and all types of stick up garbage that anyone that didn't have the protection and privilege of the state would be doing years in prison for. So maybe that's one thing i have going for me, is that the cops that were involved were shady as hell, and many of them were nudged out at the time the unit was disbanded.

I know the mayor abhors them and their actions, he was the top criminal defense lawyer in lancaster for decades, and is well liked. Not sure how the judges view them and their actions, but do i even go before a regular judge in Civil court?

Club and others, does it sound as if this is at least pursuing even a little bit, or best to leave well enough alone and purge the whole deal from my memory, yet again

and if to lawyer up, would it liekly be a criminal defense lawyer that i'd look for?
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#18
Posted: 2/13/2012 12:54:13 PM
i think it's worth pursuing.  you need to find a criminal lawyer with specific experience in forfeiture cases.  nothing less than that.  some criminal lawyers don't know forfeiture.  it ain't rocket science but it's always better to have someone with experience because there may be particular rules and deadlines you don't want to miss.  also, someone with experience will be in a better position to negotiate with the state.

you may be able to find a lawyer who will take it on contingency, meaning he'll take a percentage of what he recovers.  if not, he'll tell you his fee and you can decide if it's worth it.

you should have a civil judge who ultimately decides this issue if it goes that far. 
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#19
Posted: 2/13/2012 1:10:03 PM
They said they smelled weed and shined a flashlight down there.  And you even say it you slammed the "window" on him....sounds like it maybe was the shudders? 

Even so, they got a look in the window.  

Once again I'll ask:  How are you going to get around the alleged smell of weed as well as the fact that they looked through the window?  You can argue all day long that they didn't see anything.  They can just say that you did.  Who do you think they are likely to believe?

BTW, if this was 10 years ago, is anyone even going to be around to testify for the state?  If not, it would be your testimony vs. a report that is almost 12 years old.  That would in a sense be a slam dunk one would think.  Especially if the mayor was aware of some of the shenanigans of cops during that time.
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#20
Posted: 2/13/2012 1:45:02 PM

Good luck to you Be easy

I hope it works out in your favor

I do not have any legal advice but I hope you can find a lawyer who will not rip you off and do nothing.

My last two lawyers took thousands of dollars from me and did nothing. I fired the last one in mid process of the case even after I paid her 

Tina Yoo in Dallas is a crook. She took my money did not file the proper paperwork in my case. Missed 2 court dates that resulted in me being a no show for court.(she told me to just go to work and not worry about it, she is handling it.) Reset my court date 4 times telling me bullshit excuses. But I was getting the real story from the court clerks and my bondsman. They would call me with the threats of getting in trouble on these days in question, they would be telling me if my lawyer does not respond by 5 pm on that day. I would be fucked. I would call my lawyers office and not be able to get ahold of her. The clerks would tell me she would call in about 4:45 and try and do it over the phone. I better stop here before I write 20 pages. My point is get the right lawyer

My advice is what club already touched on which was finding the correct lawyer with the right experience in forfeiture.

And I am planning on getting a mastiff this year hopefully. Bad behind dogs

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#21
Posted: 2/13/2012 1:59:21 PM
QUOTE Originally Posted by be easy:

(ii)  No property shall be forfeited under this
            paragraph, to the extent of the interest of an owner, by
            reason of any act or omission established by the owner to
            have been committed or omitted without the knowledge or
            consent of that owner. Such money and negotiable
            instruments found in close proximity to controlled
            substances possessed in violation of The Controlled
            Substance, Drug, Device and Cosmetic Act shall be
            rebuttably presumed to be proceeds derived from the
            selling of a controlled substance in violation of The
            Controlled Substance, Drug, Device and Cosmetic Act.


Seeing as how they already possess the currency, does it matter that they obtained it with an illegal S&S



Can i represent myself here?

I will tell you what was told to me by a lawyer. It made sense to me.

On the topic of representing myself in a case where I had in writing by the owners of the establishment that the allegations made by the police were false. (The charges I was facing was 1.5 years in jail.)

The lawyer said......Salty, you used to be a golf pro right? i said yes.

So he said, so you can play right? I said sure, sometimes

He said he is not a very good golfer, he shoots about 100. So If me and him went to play a round, I would beat him badly. It would be too easy for me on the golf course. Because I know what I am doing there in the area of golf.

But if I represent myself in the court of law. The prosecuter is the pro and I(salty) am the 100 shooter. Even with the proof in hand in writing, since I do not know all the legal jargain and processes in court. The lawyers would eat me alive in a trial. They would know how to keep me from presenting evidence that would clear my name. So no matter what I had. Since I do not know the stupid behind book of court procedures. There would be a great chance that me taking it to trial representing myself would be disasterous.

So I hired another lawyer to pick up mid-case. I paid that guy 2 G's and he did not get anything changed from the original plea bargain which was a joke. I decided to just take the plea bargain because my lawyer wanted another 3 grand to take it to trial.

I had no trust for anyone in Texas at that time. Do your research on lawyers...that is all i can say

 

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#22
Posted: 2/20/2012 12:27:44 PM
QUOTE Originally Posted by HutchEmAll:

They said they smelled weed and shined a flashlight down there.  And you even say it you slammed the "window" on him....sounds like it maybe was the shudders? 

Even so, they got a look in the window.  

Once again I'll ask:  How are you going to get around the alleged smell of weed as well as the fact that they looked through the window?  You can argue all day long that they didn't see anything.  They can just say that you did.  Who do you think they are likely to believe?

BTW, if this was 10 years ago, is anyone even going to be around to testify for the state?  If not, it would be your testimony vs. a report that is almost 12 years old.  That would in a sense be a slam dunk one would think.  Especially if the mayor was aware of some of the shenanigans of cops during that time.


none of that matters

this is a matter to be decided in a civil court, and the statute of limitations has passed on the criminal end. Holding my breath that the statute of limitations has passed on the state for having rights to claim my property

You also seem kinda confused on the ability of cops to enter someone's residence

Question for you lawyer types, the guy offered an amount as retainer and said we would bill hourly against that. I declined, to which he countered with an almost 50% discount on the retainer. I still walked, so i guess he wasn't the best salesman. Sucks the way our system is setup, where i must decide who it feels best to be extorted by. The lawyer standing in the way of me and the information that could help serve justice, or the cops that will kick in your door and beat you in the head with the .44

So if he never offered to work on contingency, what would be a fair % for me to offer him, when i counter offer with taking it on as a contingency case? 15% too little?


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#23
Posted: 2/20/2012 1:29:11 PM
with lawyers, as with most things, everything is negotiable.  there are generally three ways lawyers bill clients.  flat fee, hourly with a retainer, and contingency.  there are obvious pros and cons to each.  the last few i did were hourly but they were (i'm assuming) more complicated and involved more money than this one. 

if the lawyer is honest, hourly is the fairest way to do it.  however, if the lawyer is not honest, hourly will work a lot better for him than for you.  the good thing about contingency is you know your maximum cost and there is an incentive for the lawyer to get the most money possible.  of course, some lawyers are happy to do a minimal amount of work, settle the case quickly and take their percentage.  anyway, 30%-33% is fairly standard for a contingency fee in civil cases although that may go up or down depending on the strength of the case and the amounts involved.  also, i would accept less in forfeiture cases because the costs aren't as high as in normal civil cases and they are usually finished much more quickly. 
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#24
Posted: 2/20/2012 4:25:15 PM
You also seem kinda confused on the ability of cops to enter someone's residence
_____________

Then it sounds like it's a slam dunk for you.  So if a cop is walking somewhere, smells weed, looks down into a window and sees drugs and other items, they can't enter your house?

What exactly is probable cause then?
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#25
Posted: 2/21/2012 9:11:22 AM
What exactly is probable cause then?

AFAIK, it is what the police use to obtain a search warrant


clubdirt-

you lost me when you conflated "honest" and "fair" when describing lawyers
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