Crime & Traffic

When a crime is committed Includes juveniles in placement in the facility as part of a court order. , the police can take the property that was used in that crime or is somehow related to that crime. For example, if the police catch someone buying drugs, they might take the cash used to buy those drugs. The police can also take property they think was used in a crime. The property can be anything from cash, a car, or even a house. This is called a civil asset forfeiture.

The property doesn't have to belong to the person accused of a crime. The accused criminal might have borrowed or stolen the property and used it in a crime, and the police can still take it. That doesn't mean they can keep it.

If your property was taken because the police believe it was related to a crime, you have to go through a process to get the property back. During this process, the police will have to prove that they have probable cause that the property was used in a crime. This means that the police have enough facts to believe the property was used in the crime.

How do the police decide if the property was used in a crime?

The police consider a lot of things when deciding if property was used in a crime. Sometimes it's obvious. For example, if drugs are found in a car, the police know that the car was being used to transport drugs. Sometimes it's not obvious. If someone accused of being a drug dealer buys a car, the police might not know if that car was used to transport drugs.

However, the police are allowed to assume certain things. If money is found near drugs or drug paraphernalia, that money will be presumed to be related to a criminal activity. If someone is charged with more than one drug-related felony A serious crime that is punishable by more than one year in prison , the police will assume that any property gained between the first felony and the last felony was related to a criminal activity.

What the state needs to prove to keep your property

If your property was used in a crime, the police will take it. However, you can get it back if the state can’t prove that you knew about or helped the criminal activity in any way. The state generally has to prove you:

• Are legally responsible for the criminal conduct;
• Helped the criminal conduct in some way;
• Knew or reasonably should have known about the criminal conduct;
• Benefited from the criminal conduct; or
• Were holding the property for the benefit of the accused criminal.

It's possible you might have bought something, and it was taken by the police after you gave the seller money, but before you could take possession of the property. Or it's possible that the seller knew the police had taken the property and still sold it to you. If someone sold you property after it was already taken by the police, you have to prove you didn't know about or help the criminal activity and that you:

• Are the legal purchaser of the property; and
• Didn't know the police had already taken the property before you paid for it.

Cars in forfeiture cases

When police take property, they usually keep it while you go through the process to get it back. But if the police take your car, you can ask for it back temporarily while the proceedings are going on.

To get your car back during the process, you have to file a motion within 28 days of the preliminary review or finding of probable cause. The Illinois Supreme Court has published a set of forms called "Hardship Motion" that you can use to request to get your car back. 

You will have to prove that not having the car will create a substantial hardship. For example, if you use your car to get to work, not having your car might cause you to lose your job. You have to include sworn, notarized affidavits. This means that you have to write down the reasons for not having the car will be a substantial hardship and then get that document notarized.

The court considers the following when deciding if you can temporarily have your car returned to you:

• The nature of the hardship
• Your access to public transportation
• Other options you have to overcome the hardship

If you prove that you will have a substantial hardship without your car, the court will then decide if that substantial hardship is more important than the state's interest in keeping the car. If they decide your hardship is more important, they will temporarily give you back the car assuming you:

• Are the registered owner or the registered owner's authorized designee;
• Provide proof of insurance; and
• Have a valid driver's license.

The court might place certain conditions on the return of your car. If you violate any of these conditions, the police can take the car back. These conditions might include:

• Not taking the car out of the state
• Not trying to hide the car
• Not damaging the car

Before you can get your car back, you will have to pay a cash security to the clerk of the circuit court The lowest level of court in Illinois . The amount of the cash security will depend on:

• The full market value of your car
• The nature of your hardship
• How often you will be using the car
• Your ability to pay

The return of your car is only temporary. You will still need to go through the process to get it back permanently. If you go through the process and the court decides that the police can take your car permanently, you will have to return the car within 7 days. You should get your entire cash security back unless your car was damaged while you had it. Then you will get your cash security back, minus the amount it will cost to fix the damage.

The court has a few options if you don't return the car within 7 days. If the cash security you paid was the full market value of the car, they can keep the security, but they won't try to retake the car. If the cash security was less than the full market value:

• They can keep the cash security and enter a judgment An official decision by a court that ends the dispute between parties against you for the difference; or
• They can enter an order that any law enforcement agency in Illinois can take the car back and they will keep the security.

How to get your property back

After the police take the property, the court has 14 days to decide if there was probable cause, and the state then has 28 days to tell you that the property is being kept. The first step will be a preliminary review that will occur within 14 days after the property is seized. If the court decides there is probable cause that the property may be kept, they will tell you. A notice will be sent to you letting you know that the police think they are allowed to keep your property. After you receive this notice, you can respond if you think that you can prove you didn't know about or help the criminal activity and you want your property back.

Wait for notice

You will be given a notice that tells you there is a pending forfeiture of your property. This notice will tell you:

• Which property is subject to forfeiture
• The estimated value of the property
• When and where the property was taken
• Why the property was taken
• The process to ask for your property back
• Your rights during this process

If the police know your address, the notice will be sent to you by personal service or by certified mail A document delivery service such as the US Postal Service that sends a party a receipt as proof that the documents were mailed and delivered . If the police do not know your address, they will publish the notice in the newspaper for 3 weeks. To make sure you receive the notice in time to respond to it, notify the police that took the property and tell them what your current address is. If you move after you receive the notice, you can notify the State's Attorney A lawyer who represents the state in a criminal case about that change of address.

It's important that you keep the police and State's Attorney updated about your address and that you respond to all communications quickly because if you don't respond after 45 days of getting the notice, you can't get your property back. If your property was seized when someone else had it, you should call the State’s Attorney in your county to give them your address to make sure you receive notices.

Respond to the notice

After you are notified that there is a pending forfeiture of your property, you will need to respond. How you respond depends on what kind of property was taken, what kind of criminal activity caused the property to be taken, and how much that property costs. You have to respond within 45 days of getting the notice. Otherwise, the police will keep your property.

If your property is worth a lot or if the police took your house or a building you own, you won't have to file a claim to begin the process. The court will automatically start the process. You also don’t have to file a claim if the property was taken in connection with an offense other than a drug offense or money laundering, i.e., if the property is taken in connection with a driving offense like driving under the influence The operation of any vehicle while under the influence of alcohol or narcotics. or virtually any other offense including burglary The entry or attempted entry of any fixed structure, vehicle, or vessel used for regular residence, industry, or business, with or without force, with intent to commit a felony or larceny and other offenses. You will not have to file a claim if your property was:

• Real property, such as a house or building;
• Worth more than $150,000; or
• Worth more than $20,000 and taken because of a crime related to money laundering; or
• Your property was seized for an offense other than a crime related to drugs or money laundering.

Otherwise, send a letter filing a claim with the State’s Attorney’s office that sent you the notice. You can use this ACLU of Illinois sample letter form to file your claim. Make sure to include:

• Your name
• Your address
• The caption of the proceedings, which can be found on the notice
• Why you have an interest in the property
• When you got the property
• How you got the property
• Who gave you the property
• Who else has an interest in the property
• That you didn't know about or help the criminal activity at all
• Facts to help prove that you didn't know about or help the criminal activity
• That you want your property returned to you

After you file your claim and post your bond, the State's Attorney will have 28 days to file their complaint.

Next step will be filing an Answer to the Complaint. The Illinois Supreme Court published a set of forms that you can use to answer a complaint in forfeiture cases that do not involve drugs or money laundering. In Cook County, you can also use this approved Answer form. The information you must include in the Answer is the same as the information in the claim:

• Your name
• Your address
• The caption of the proceedings, which can be found on the notice
• Why you have an interest in the property
• When you got the property
• How you got the property
• From whom you got the property
• Who else has an interest in the property
• That you didn't know about or help the criminal activity at all
• Facts to help prove that you didn't know about or help the criminal activity
• That you want your property returned to you

You will have 45 days to file your answer. Otherwise, the police will be able to keep your property.

The hearing

A hearing When the parties in a case present their sides of a case to a judge or other officer will be held within 60 days of filing the answer unless the court has good cause A legally acceptable reason to do something to postpone the hearing.

At this hearing, the State will argue first and try to prove by a preponderance of the evidence Anything used to show that something is true that the property is subject to forfeiture. They will try to show that you either knew or should have known about the conduct that led to the forfeiture (or provide other evidence of your involvement, as explained below). Preponderance of the evidence means that it is more likely than not that the property was used in a crime or was related to a criminal activity and that you knew about it. Even if it's just 51% likely, that's enough. 

The state will be allowed to call witnesses to testify To answer questions under oath about the case, including law enforcement officers. You can also ask the state’s witnesses questions. You will be allowed to call witnesses as well, and you can testify on your own behalf if you choose. You can also present any documents you think will help your case. 

Continuances

If the judge sets the case for hearing and the police officer is not there on the day of the hearing, the judge may continue or reschedule the case. If you need a continuance When the judge gives additional preparation time before or during a trial , you may also request one.

Discovery

In certain cases, before the hearing or trial When the issues of a case are heard in court and decided by a judge or jury , the court may allow you and the state to ask for discovery. You may be asked to produce documents and answer questions about your ownership of the property and other issues. You can ask the state to produce documents and answer questions also. 

Learn more about discovery and how to use it during a court case.  

How does the criminal case affect forfeiture?  

The judge will typically not schedule a hearing until after the criminal case is over. The criminal case will be finished after the accused person:

• Is released because the charges were dropped,
• Pleads or is found guilty, or
• Is found not guilty.

Even if the charges are dropped, it doesn’t mean that the forfeiture process will stop or change. This is because the standard of proof needed to keep your property is lower than the standard of proof needed to find someone guilty of a crime. However, if the person is found not guilty or the charges are dropped, the State's Attorney can ask to have the property returned to you. Also, if the defendant The person or organization being sued in a lawsuit in the criminal case is found not guilty at trial or if the state receives an adverse finding during a preliminary hearing and does not get an indictment, then the state’s burden of proof The standard required to to prove something at the forfeiture trial becomes higher. This higher standard is called “clear and convincing evidence.” 

Innocent owner hearing

If you do not want to wait for the criminal case to be resolved, you have the option to request an innocent owner hearing. After the case is started and you have filed your answer, you can file a motion with a supporting affidavit explaining that: 

• You are the true owner of the property, 
• You were not legally responsible for the conduct in question, 
• You did not solicit or attempt to commit the conduct, 
• You did not know about the conduct, and 
• You did not hold the property for the benefit of the person arrested. 

You have to include specific facts to support each of the statements above. See examples of these statements. The state may have an opportunity to obtain “discovery” before a hearing on the motion, including asking you about your ownership and control of the property. There will then be a hearing that will only focus on the issue of innocent ownership. At the hearing, you have the burden of showing by a preponderance of the evidence that you did not know of the conduct. If you meet your burden, you get the property back. If you do not meet it, then the case will continue, and the state still must meet its burden of proof at trial to show you knew about the conduct.

What happens when your property is also evidence of a crime

When a crime is committed, the police collect evidence. Sometimes police take property to use as evidence, and that property is also related to criminal activity. Therefore, the police can keep that property as a forfeiture. The forfeiture process will not begin until after the property is no longer needed as evidence.

Settling in a forfeiture case

In any civil case, you have the option to settle To resolve a case before finishing a trial . This means you can reach an agreement with the State's Attorney and you will put that agreement in writing. For example, you can agree to pay a certain amount for the return of your property.

A settlement might be a good option to consider. In a settlement, you have more control over the outcome because a judge is not making the final decision. Moreover, the forfeiture process could take a long time, especially if the court postpones the hearing until the criminal process is finished. Settling could mean getting your property back sooner.

Forfeiture forms and other resources

Sample claim letter by the ACLU of Illinois. Use this form to file a claim with the State’s Attorney’s office that sent you the forfeiture notice. 

The Illinois Supreme Court has published some forms that may be helpful in your forfeiture case, including: 

• Appearance A form that lets the plaintiff and the court know the defendant is participating in the case. It can also be when a person shows up to their court hearing. (Civil Asset Forfeiture)
• Hardship Motion forms: for use when your car has been taken by the police and you need it back due to a substantial hardship 
• Answer to Complaint for Forfeiture: for cases that do not involve drugs or money laundering

You can find the forms and instructions on the court's approved statewide civil asset forfeiture forms page. 

ACLU of Illinois Know Your Rights Civil Asset Forfeiture.