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  • What is Forfeiture?

    Posted on by JACK MKHITARIAN

    forfeitureForfeiture is a term you often hear in civil cases, where a judicial order allows a party or company to seize assets from a private party. Criminal forfeiture exists too. These laws allow law enforcement to take your property, including home and vehicles, if they were purchased through illegal means.

    Sadly, it is easy for the police to claim civil forfeiture, even if the property was not directly associated with criminal activity. Even worse – you may have nothing to do with the crime – but be punished for the criminal acts of a family member by losing your personal belongings.

    Forfeiture laws are complicated, and if you have had property taken from you, but were not involved in a crime, you may not receive that property back – especially if you do not have an attorney working on your case.

    Search and Seizure: How Does It Work in New Mexico?

    Regardless of whether or not law enforcement suspects that you are guilty of a crime, your home still holds powerful Constitutional protections against search and seizure. Police officers must have a valid search warrant to enter your residence and search, let alone take property from your home.

    The only exception to this rule is when officers can demonstrate that circumstances allowed them to enter without a warrant.

    What is a Search Warrant?

    A search warrant is a court order. A judge must issue and approve a court order that grants police officers permission to enter your home and search for evidence specific to a crime. The warrant permits officers to confiscate evidence that is identified by location in the official order.

    To be granted a warrant, officers must meet three demands:

    1. They must present their request to a neutral and disinterested judge.
    2. They must demonstrate to the judge that there is probable cause to suspect the person of a crime and that evidence exists inside their home.
    3. The must describe the objects they are searching for, along with the location of those items.

    There is no such thing as a blanket warrant. Officers cannot enter your home and just take anything they wish.

    Finding a Neutral Judge

    The most important requirement is a neutral judge. The judge is independent of law enforcement, but if a judge is not detached from the case or agency requesting it, the court could deem the warrant illegal.

    Probable Cause

    Next, the officers must show that they have probable cause. Sadly, this can be as simple as an affidavit or sworn statement establishing probable cause. The affidavit can be based on the officer’s sole knowledge or through an informant. Most are based on the officer’s exclusive information.

    Any information from an informant in New Mexico must have facts that establish a basis for believing these statements are credible. Therefore, a witness’s word alone is not enough for probable cause.

    A Warrant Must Be Precise

    Lastly, the order must be specific, which means the officers must describe a place that will be searched and the items that they seek. While they can be somewhat vague, they still must specify what they are looking for and why. Any evidence seized that is not listed on the warrant, or in the area indicated by the warrant, will be inadmissible in court.

    Were You the Victim of an Illegal Search and Seizure?

    In New Mexico, acts of search and seizure are not taken lightly. If police officers suspect you of a crime, contact a criminal defense attorney immediately. Furthermore, if officers search your home and seize property for alleged crime, you still have rights.

    Talk to an attorney from New Mexico Criminal Law Offices today by calling our office at 505-375-4664 or request your consultation online.