Law Increases Burden on Law Enforcement Seeking Civil Seizure and Forfeiture of Assets

Author: Matt Marcellis

Public Act 100-0512, the Seizure and Forfeiture Reporting Act (the “Act”) went into effect January 1, 2019. This Act significantly increases the burden on police departments making a civil seizure and forfeiture of assets pursuant to Article 36 of the Illinois Controlled Substances Act, the Drug Asset Forfeiture Procedure Act, the Cannabis Control Act, the Money Laundering Article, and other laws.

First, in controlled substance cases, a seizure is permissible only if the amount of controlled substance possessed is at least two “unit doses,” although what constitutes a “unit dose” is left to the judgment of police departments or individual officers. As a “unit dose” is left to the discretion of law enforcement, officers must be prepared to defend their definition of “unit dose” in court if need be. The number of unit doses possessed must be included in the forfeiture affidavit. For cannabis possession cases, seizure of property is only authorized if the amount of cannabis possessed constitutes a felony, or if the defendant is chargeable with a felony based on a prior conviction under the Cannabis Control Act. Regarding possession with intent to manufacture or deliver cannabis, the amount possessed must exceed 10 grams.

Furthermore, if an officer effectuates a seizure, he or she must provide an itemized receipt to the defendant. If no one is present during the seizure, the receipt should be left at the location, if possible.

Additionally, the Act now requires preliminary hearings for seizures under the Money Laundering Article. This preliminary hearing must be heard within 28 days. The state’s burden at trial has also been increased from probable cause to preponderance of the evidence for seizures under the Drug Asset Forfeiture Act, Cannabis Control Act, and Money Laundering Article.

Next, money laundering and drug asset forfeitures, along with Article 36 forfeitures will now be administered by the Illinois State Police. A new Asset Seizure and Forfeiture Reporting System is available online that replaces the hard copy ISP Form 4-64. As of January 1, 2019, police departments are required to use the online system to initiate all forfeitures. Drug Asset and Article 36 seizures must be filed on the ISP website within 28 days; money laundering seizures must be filed within 60 days.

Finally, police departments must begin filing an annual report of seized assets that includes the amount of funds and property distributed to the department and the amount of funds expended. This report must be organized into categories listed in the Act. The Department of State Police will develop the format of the report and all annual reports must be submitted no later than 60 days after the end of any calendar year.

Municipal Police Departments should be familiar with the requirements of this Act and begin incorporating them into their procedures immediately.