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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

FORFEITURE (042)

Also see Nuisance Abatement Actions; Racketeering.

 

Adherence to procedural requirements

Proportionality; Innocent owners

As related to other proceedings

Criminal forfeiture cases in general

Criminal forfeiture cases - vehicles

Criminal forfeiture cases - money

Criminal forfeiture cases - guns

Criminal forfeiture cases - other property

Civil forfeiture cases

 

Federal forfeiture provisions which may also be used when prosecution is in state court

21 U.S.C. 853 -- Criminal forfeiture.

21 U.S.C. 881 -- Civil forfeiture.

 

Forfeiture of property relating to felony drug offenses - Ohio

R.C. 2925.41 -- Definitions.

R.C. 2925.42 -- Forfeiture of property in connection with felony drug abuse offense or act.

R.C. 2945.43 -- Civil forfeiture action prior to prosecution.

R.C. 2925.44 -- Rights of law enforcement agency seizing property; disposition off or forfeited property.

R.C. 2925.45 -- Motion alleging seizure was unlawful; return of property.

 

Forfeiture of property, criminal cases generally - Ohio

R.C. 2901.01(A)(13) -- "Contraband" defined.

R.C. 2925.13 -- Permitting drug abuse.

R.C. 2933.41 -- Disposition of property held by law enforcement agency.

R.C. 2933.42 -- Offenses involving contraband; forfeiture of property used in committing violation.

R.C. 2933.43 -- Procedure for seizure and forfeiture of contraband; law enforcement agency authorized to use,

destroy, or sell forfeited contraband; distribution of proceeds of sale.

Chapter 2969 -- Recovery of Offender's Profits.

Adherence to procedural requirements

State v. Stults, 195 Ohio App. 3d 468, 2011-Ohio-4328, 960 N.E.2d 1015, (3rd Dist) – Forfeiture is a penalty. Applying the one document rule of State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, a forfeiture order must be incorporated in the judgment entry. Because it was a separate document in this case appeal is dismissed for want of a final appealable order. Compare State v. Walker, 5th Dist. No. 12CA0001, 2012 WL 2050864 (June 6, 2012) – Where the amended entry incorporated the forfeiture order.

State v. Brimacombe, 195 Ohio App. 3d 524, 2011-Ohio-5032, 960 N.E.2d 1042 (6th Dist.) – Defendant charged with rape surrendered his guns as a condition of bail. Following a guilty plea the judge summarily ordered the weapons destroyed. Reversed. Since 2007 statutes addressing disposition of property seized and held by law enforcement agencies have been replaced by Chapter 2981. The procedure spelled out there is mandatory, and were not followed in this case. While the defendant would now be under a disability, and not allowed to own firearms, the claims of third parties must be considered.

State v. Trivette, 195 Ohio App. 3d 300, 2011-Ohio-4297 – Defendant drove her boyfriend to Walmart on two occasions, during which he stole three laptop computers worth about $3,000. She was indicted for complicity to theft and the indictment carried a forfeiture specification seeking her SUV. She pled to complicity but asked for a hearing on the specification. Lead opinion concludes that the state failed to prove the vehicle was an instrumentality subject to forfeiture. Concurring opinion holds the defendant more closely to what she told the court she wished to contest, but finds in her favor that the value of the vehicle was disproportionate to her level of involvement. Opinions, including their account of the trial court’s struggle with the case, can be read as a primer on forfeiture determinations.

In re Forfeiture of Property of Louis, 187 Ohio App. 3d 504, 2010-Ohio-1792 – A municipal police department is not a proper party to a Chapter 2981 civil forfeiture proceeding because it is not a political subdivision of the State of Ohio. The proper procedure would be for the county prosecutor to bring an action on behalf of the City of Dayton.

Dayton Police Department v. Byrd, 189 Ohio App. 3d 461, 2010-Ohio-4529 – Defendant was charged with trafficking in marijuana after 286 grams was found in the console of his eight year old Pontiac. After he pled to a misdemeanor attempt the police department sought, but was denied forfeiture of the vehicle and $231 in cash. Magistrate denied motion. Department did not provide a written transcript in support of objections as required by Civil Rule 53(D)(3)(b)(iii). (1) Fn. 1 indicates the police department was not a proper party to seek a forfeiture order. (2) There was nothing in the record suggesting the cash was proceeds of criminal activity. (3) The magistrate mistakenly found a misdemeanor conviction does not allow forfeiture, but absent a transcript it can not be concluded whether this was the basis of her decision. The decision might also have rested on a conclusion that the vehicle was not an instrumentality of the crime or that forfeiture would have been disproportionate in the circumstances.

In re Forfeiture of $11,250 in Currency, 121 Ohio Misc. 2d 111, 2002-Ohio-7452 -- Forfeiture action fails for defects in notice and lack of proof property was involved in a felony. But since both driver and owner of car disavowed an interest in the property, it was subject to disposition of lost or abandoned property pursuant to R.C. 2933.41.

State v. Woodbridge, 153 Ohio App. 3d 121, 2003-Ohio-2931 -- State sought seizure of a truck involved in a drug case, but the trial court did not dispose of that claim in the judgment entry. Remand required. Court provides a primmer for the defendant's mother to assert her rights as the vehicle owner.

State v. Thompson, Fairfield App. No. 03CA87, 2004-Ohio-7269 -- Money seized during raid on gambling premises was improperly ordered forfeited during sentencing on a misdemeanor charge of operating a gambling house. Forfeiture requires a petition and proceedings in accordance with R.C. 2933.43(C) unless it has been made part of a plea bargain.

United States v. James Daniel Good Real Property (1993), 510 U.S. 43 -- When the government seizes property not to preserve evidence of criminal wrongdoing, but in order to assert ownership and control, proceedings must comply with the Due Process Clause of the Fifth Amendment. Except in extraordinary circumstances, property may not be seized in forfeiture proceedings without first giving notice to the owner and affording him a reasonable opportunity to be heard.

Hamilton v. Callon (1997), 119 Ohio App. 3d 759 -- Car was ordered forfeited on prosecutor's oral motion after defendant pleaded guilty to misdemeanor soliciting. (1) Procedural requirements of the statute must be strictly adhered to. (2) Forfeiture under R.C. 2933.43 requires a felony conviction.

State v. Conley (July 15, 1991), Preble County No. CA90-11-023, unreported -- (1) Forfeitures are not favored in law or equity, therefore, statutes providing for a forfeiture of property must be strictly construed. Also see State v. Lilliock (1982), 70 Ohio St. 2d 23, 25; State v. Abboud (1985), 27 Ohio App. 3d 209, 210. Consequently, failure of indictment to allege extent of property subject to forfeiture, and of court to find could that it could not reasonably be foreseen that property was subject to forfeiture, fails to meet notice requirement of R.C. 2923.32(B)(4)(a). (2) Even when there has been a guilty plea, in addressing the issue of forfeiture the court must ascertain that property is in fact subject to forfeiture, notwithstanding any agreement entered into by the defendant. Also see United States v. De Ortiz (7th Cir. 1990), 910 F.2d 376, 384; United States v. Reckmeyer (4th Cir. 1986), 786 F.2d 1216, 1222; United States v. Roberts (7th Cir. 1984), 749 F.2d 404, 409-410; United States v. Spilotro (9th Cir. 1982), 680 F. 2d 616, 617-618).

State v. Sutherlin (1996), 111 Ohio Ap. 3d 287 -- Forfeiture reversed as defendant was not present for hearing.

State v. Burkitt (1993), 89 Ohio App. 3d 214, 222-226 -- Seizure of assets related to the defendant having engaged in a pattern of corrupt activity is (or should ordinarily be) controlled by the date of the earliest predicate act charged in the indictment.

Erie County Drug Task Force v. Essian (1992), 82 Ohio App. 3d 27 -- Amended forfeiture statute which expanded time available to conduct hearing on petition held not to apply to pending cases, absent language to that effect in the statute. Presumption of prospective application can only be overcome where the statute states it is to apply to pending cases.

Ohio Department of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St. 3d 532 -- Since forfeitures are not favored by the law, strict compliance with notice provisions is mandatory. Also see Akron v. Turner (1993), 91 Ohio App. 3d 595 where city's claim that the defendant had actual notice was not sufficient to excuse noncompliance with R.C. 2933.43(C).

State v. Mateo (1991), 57 Ohio St. 3d 50 -- The forfeiture provision of the permitting drug abuse statute (R.C. 2925.13) is independent of other forfeiture provisions and establishes its own procedural rules. For other cases on forfeiture of vehicles in such circumstances see In re Forfeiture of 1979 Mazda (1989), 48 Ohio App. 3d 51 (does not apply to juveniles); State v. 1974 Chevrolet Camaro (1983), 7 Ohio Misc. 2d 39.

State v. Golston (1990), 66 Ohio App. 3d 423 -- (1) Delays of seven and eighteen months in seeking forfeiture were unreasonable and contrary to statute. (2) The mere possession of cash, video cassette recorders and other electronic items is not legal, and by itself insufficient to establish it is more probable than not that they are contraband. (3) Error to order the Public Defenders Office to bear the expense of the defendant being brought to court for a forfeiture hearing.

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Proportionality; Innocent owners

Bennis v. Michigan (1996), 516 U.S. 442 -- Wife's half interest in car was forfeited under Michigan law after her husband used the vehicle to entertain a prostitute. Forfeiture of wife's interest held not to violate the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment.

Austin v. United States (1993), 509 U.S. 602 -- In rem civil forfeitures are punishment within the meaning of the Eighth Amendment and are subject to the Excessive Fines Clause. Sale of two ounces of cocaine had led to forfeiture proceedings against defendant's place of business and mobile home. Also see Akron v. Turner (1993), 91 Ohio App. 3d 595, where on remand the trial court was directed to consider the appropriateness of the possible forfeiture of a auto and its stereo under an Akron loud music ordinance.

U.S. v Bajakajian (1998), 523 U.S. 321 -- A non-in rem forfeiture is a fine within the reach of the Excessive Fines Clause. The touchstone of constitutional inquiry under the clause is the principle of proportionality. The amount of the forfeiture must bear some relationship to the gravity of the offense. Review is by application of the gross disproportionality standard articulated in cruel and unusual punishment cases. Forfeiture of the entire $357,000 in cash defendant failed to report upon leaving the country was grossly disproportionate to the relatively minor violation he was convicted of.

State v. Ziepfel (1995), 107 Ohio App. 3d 646 -- Court upholds forfeiture of an expensive motorcycle in a fourth offense OMVI. Opinion discusses excessive fines cases, in personam and in rem forfeitures, and instrumentality and proportionality standards.

State v. Harold (1996), 109 Ohio App. 3d 87 -- Forfeiture of half interest in a $15,000 house upon conviction of two counts of trafficking, involving $60 worth of crack, did not violate the Excessive Fines Clause. Court declined to follow instrumentality test, choosing proportionality standards adopted in United States v. Millbrand (2nd Cir 1995), 58 F. 3d 841 and United States v. ...6380 Little Canyon Rd... (9th Cir. 1995), 59 F. 3d 974. For a Sixth Circuit case see United States v. ...11869 Westshore Drive... (6th Cir. 1995), 70 F. 3d 923.

State v. Hill (1994), 70 Ohio St. 3d 25,29 -- Syllabus: "Forfeiture of property, pursuant to R.C. 2925.42, is a form of punishment for a specified offense and, therefore, is a 'fine' for purposes of Section 9, Article I of the Ohio Constitution and the Eighth Amendment to the United States Constitution. Accordingly, prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an 'excessive fine' prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions."

State v. Shimits (1984), 10 Ohio St. 3d 83 -- Paragraph one of the syllabus: "Where a vehicle used in violation of R.C. 2925.13(A) is seized by law enforcement authorities, and a motion is made by the state to order the vehicle forfeited pursuant to either R.C. 2933.41 or 2925.13, and third parties enter the action claiming to be 'innocent owners' of the vehicle, the trial court has two options: the court may order the vehicle 'forfeited' and follow the dispositional alternatives provided in R.C. 2933.41, or the court may find the third parties to be 'innocent owners' of the vehicle, in which case the forfeiture provisions 'shall not apply' and the vehicle shall be returned to the innocent owners."

State v. Shin (1997), 118 Ohio App. 3d 637 -- State sought forfeiture of a Mercedes driven by husband following his third conviction for driving under an FRA suspension. Car was registered to wife who claimed to be an innocent owner. State focused on wife's knowledge that use of the car was beyond scope of husband's driving privileges, and on her consent to its use, but failed to prove the husband's lack of compliance with FRA laws, nor did it address wife's knowledge of his lack of compliance.

State v. Thrower (1991), 81 Ohio App. 3d 15 -- Spouse of owner of property subject to RICO forfeiture may not interpose dower as basis for sharing in proceeds of judicial sale. Also see State v. Thrower (1993), 85 Ohio App. 3d 729; United States v. Schifferli (4th Cir. 1990), 895 F.2d 987, 989 fn., United States v. Marx (7th Cir. 1988), 844 F.2d 1303, 1305-1306.

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As related to other proceedings

State v. Griffin, 175 Ohio 325, 2008-Ohio-702 – During an initial trip through court the defendant agreed to forfeit a house, cash, and a collection of cars, and further agreed that forfeiture would not be an issue on appeal. Eventually charges were dismissed and he tried to recover his property. Court holds him to prior agreement. Also see State v. Gladden (1993), 86 Ohio App. 3d 287.

United States v. Ursery (1996), 518 U.S. 267 -- Settlement of an in rem forfeiture action against property held not to have constituted a punishment for purposes of baring subsequent prosecution for manufacturing marijuana on the premises. Marijuana cultivation had also been the basis for the forfeiture action.

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Criminal forfeiture cases in general

State v. Markusic, 136 Ohio Misc. 2d 31, 2003-Ohio-7372 -- As long as the defendant is enrolled in an intervention in lieu of conviction program, his property may not be forfeited. If he completes the program and charges are dismissed the property cannot be forfeited. If he fails, conviction may be entered on the guilty plea and the property may be forfeited.

State v. Casalicchio (1991), 58 Ohio St. 3d 178 -- Syllabus: "Where property is ruled contraband pursuant to R.C. 2933.42(B), forfeiture of that property pursuant to R.C. 2933.43 constitutes a separate criminal penalty in addition to the penalty the defendant faces for conviction of the underlying felony." Import is that since state failed to seek forfeiture before sentencing, and forfeiture was criminal in nature, further penalty was a double jeopardy violation. Also see State v. DePue (1994), 96 Ohio App. 3d 513.

Chagrin Falls v. Loveman (1986), 34 Ohio App. 3d 212 -- Headnotes: "(1) Property must be lost, abandoned, stolen, seized pursuant to a search warrant, or lawfully seized or forfeited to trigger disposition pursuant to R.C. 2933.41(D)...(3) It is the circumstances of the person that convert an otherwise lawful possession into one that costs the penalty of forfeiture upon either its acquisition or possession. Personal circumstances include, e.g., a person under a firearm restriction, a person under some sort of legal disability, or a person unfit to possess the property in question. (R.C. 2933.41[C][2], construed.)

State v. Gaines (1992), 82 Ohio App. 3d 467 -- For property to be ordered forfeited pursuant to R.C. 2933.41, there must be competent, credible evidence relating the property to the underlying offense.

State v. Burge (1992), 82 Ohio App. 3d 244 -- (1) Proof by a preponderance of the evidence is the appropriate standard for determining whether property listed in 2923.32 indictment is subject to forfeiture. (2) Treble damage fine must be based on evidence linking amount levied to wrongdoing and not merely funds passing through the defendant's bank account.

State v. Adams (1995), 105 Ohio App. 3d 492 -- Double jeopardy violation found where state pursued criminal forfeiture action against a bobcat carcass after related criminal charges had been dismissed on speedy trial grounds. At p. 498: "...(T)he dismissal of a criminal complaint for speedy trial violations amounts to a dismissal with prejudice, or an acquittal, and bars any further punitive actions by the state based on the same act or omission." Civil forfeiture would not have been banned, though opinion does not address whether it would have been available.

State v. Wegmiller (1993), 88 Ohio App. 3d 68 -- (1) No double jeopardy problem where forfeiture petition was filed after plea was entered but before sentencing. State v. Casaliccio (1991), 58 Ohio App. 3d 178, distinguished. (2) Forfeiture was proper where defendant was found to be the actual owner of car titled in his father's name in order to save on insurance. Compare In re Forfeiture of Certain Real Property (1994), 99 Ohio App. 3d 565 finding a double jeopardy violation where petition seeking forfeiture was filed after guilty verdict, but before sentencing, though house in question was otherwise subject to forfeiture.

State v. Lawson (1992), 79 Ohio App. 3d 228 -- Though R.C. 2933.43 refers to an underlying felony offense as a prerequisite for forfeiture, a felony conviction is required for property to be forfeited. Forfeiture is unavailable where defendant has been convicted of a misdemeanor. Also see State v. Horton (1993), 91 Ohio App. 3d 464.

State v. Smith (1997) 117 Ohio App. 3d 656 -- By entering into an agreement to plead no contest, and voluntarily relinquishing the forfeited property, the defendant waived any procedural or due process right with respect to the forfeiture order.

State v. Gladden (1993), 86 Ohio App. 3d 287 -- Under plea agreement, defendant pleaded guilty to a misdemeanor and agreed to forfeiture of his auto. Forfeiture upheld as statutes do not provide that the property involved in illegal drug activities may only be forfeited according to their provisions.

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Criminal forfeiture cases - vehicles

State v. Posey (1999), 135 Ohio App. 3d 751 -- Defendant's car was seized upon repeat arrest for OMVI within a six year period. When he pled guilty, the car was ordered forfeited, but before he was sentenced he was permitted to withdraw his guilty plea. At trial he was found not guilty. Court ordered car returned conditioned upon payment of more than $4,000 in towing storage and repair costs. (1) Vacating the guilty plea voided the forfeiture. (2) There was no authority for requiring defendant to pay costs of repairs city undertook before putting car to use as an undercover police vehicle. (3) As applied to owners who have been acquitted of OMVI, R.C. 4511.195 violates due process. Car must be returned without payment of any costs.

In re Forfeiture of Property of Williams (2001), 144 Ohio App. 3d 606 -- Motorist was charged with OMVI and having weapon under disability. Prosecutor sought forfeiture of the car citing only the OMVI charge, which did not provide a proper basis for forfeiture. As time went on, motorist pled to the weapons charge, and this fact was included in the stipulated facts filed in lieu of a hearing. After this the prosecutor amended the petition to cite the weapons charge as the basis for forfeiture. No due process violation found. Amendment was allowed. City gets 15-year old station wagon.

State v. Teman, Van Wert App. No. 15-03-13, 2004-Ohio-1949 -- Defendant told officer she had been driving around smoking crack. Indictment for drug abuse included a specification as to forfeiture. Vehicle properly forfeited as having been used to facilitate the commission of a felony drug offense.

State v. Jones (1993), 90 Ohio App. 3d 456 -- Defendant was convicted of possession of an open container of beer, a minor misdemeanor, and his $10,000 pickup was ordered forfeited. Forfeiture under a bootlegging statute, R.C. 4301.45 was precluded as a minor misdemeanor is not an arrestable offense. Forfeiture under R.C. 2933.41(C) was not possible as the defendant's possession of the truck was lawful.

In re Forfeiture of One 1986 Buick Somerset (1993), 91 Ohio App. 3d 558 -- (1) Time limit for holding forfeiture hearing runs from date of guilty plea or verdict and not date of sentencing. (2) The defendant has a right to be present at the forfeiture hearing. (3) Car which the defendant used to transport a weapon, which he was under a disability to possess, was subject to forfeiture.

State v. Lilliock (1982), 70 Ohio St. 2d 64 -- Van used to transport stolen property not subject to forfeiture. Compare State v. 1974 Chevrolet Camaro (1983), 7 Ohio Misc. 2d where drug sale was made from car ordered forfeited; State v. Conroy (1988), 50 Ohio Misc. 2d 15.

State v. Vitanovich (1994), 97 Ohio App. 3d 494 -- Forfeiture of Chevy Blazer rebuilt from wrecks upheld. Highway Patrol officer inspecting vehicle when new title was sought saw signs of tampering with VIN plates. Shop owner was not entitled to recover parts added to the vehicle.

State v. Knox (1995), 102 Ohio App. 3d 147 -- Defendant was convicted of felony drug abuse and auto was forfeited pursuant to R.C. 2933.43, the general forfeiture statute. Though forfeiture would not have been possible under the drug offense forfeiture statute (R.C. 2933.42), language in that statute excluding felony drug abuse offenses is not contained in the general forfeiture statute. Eighth Amendment excessive fine issue found not ripe for review.

State v. Garcia (1993), 89 Ohio App. 3d 161 -- Car used by the defendant to drive elsewhere and arrange for delivery of five pounds of marijuana was subject to forfeiture, even though it was never used to transport drugs or drug money.

State v. Barker (1983), 8 Ohio St. 3d 39 -- West Virginia Chevrolet salesman used dealership's car while jacklighting deer in Meigs County. Car forfeited under R.C. 1533.161.

Thurber v. Ohio State Highway Patrol (1985), 27 Ohio App. 3d 311 -- Headnote "In an action for replevin against the state for an automobile seized as evidence in a criminal prosecution, the plaintiff is only entitled to those parts of the vehicle to which he can prove ownership. (R.C. 4505.11[D] and R.C. 2933.41[A] and [C][2], applied.)

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Criminal forfeiture cases - money

State v. Cruise, 185 Ohio App. 3d 230, 2009-Ohio-6795 R.C. 2981.13 specifies how proceeds from forfeiture may be distributed. Since the list does not include court costs and attorney fees, the trial court erred by directing proceeds go first to pay such expenses, with the remainder to be divided between the police and prosecutor.

Cleveland v. Fulton, 178 Ohio App. 3d 451, 2008-Ohio-4702 – Defendant sought return of gun following acquittal. Court refused. Because of acquittal, criminal forfeiture does not apply. Timing was such that new Chapter 2981 should have applied, but the parties agreed to have the case decided under former civil forfeiture provisions. Gun should have been returned. It is not contraband per se because it was unregistered. Ordinance covering possession of unregistered guns provides for fines and jail time, but not confiscation. Fact that the judge would have found the defendant guilty of another offense if charged does not warrant confiscation.

State v. Standen, 173 Ohio App. 3d 324, 2007-Ohio-5477 – On suspicion of illegal gambling, the bar the defendant operated was raided and $46,485 was seized from a safe. He initially obtained an order releasing some of the money, but the state appealed and won. After he pleaded guilty to the gambling charge, the state sought forfeiture of the money. It dropped a claim under R.C. 2933.43 because it could not prove the money was contraband. The court properly denied an alternative claim under R.C. 2933.41, which claimed the currency had been used in the commission of a criminal offense. The defendant had a possessory interest in the money and had done all he needed to assert that interest by previously seeking its return. Unable to prove a connection between the money and the crimes the defendant was convicted of, the state for the first time on appeal claimed it was being used in connection with money laundering. The suggestion that the money may have been hidden from the defendant‘s wife during a divorce is not enough to establish money laundering.

State v. Clark (1989), 63 Ohio App. 3d 52 -- Resident entitled to return of cash seized in unsuccessful drug raid, even though he had been convicted of a weapons charge arising from the same raid. Also see State v. Gaines (1990), 64 Ohio App. 3d 231 (cash and prosecution relating to dog fighting).

State v. Roberts (1995), 102 Ohio App. 3d 514 -- Defendant was entitled to return of $24,000 found in trunk of his car at time of arrest as the money was not shown to be linked to any of the crimes for which he was convicted.

State v. Ali (1997), 119 Ohio App. 3d 766 -- $15,000 cash was found in car of person initially stopped for having a suspended license. Efforts of dope dog led to discovery of minute quantities of crack and marijuana and a narcotic odor on the money. Forfeiture held improper. Defendant was charged with drug abuse and PCT, not trafficking. Even if he had been charged with trafficking, there was not enough evidence linking money to trafficking. Testimony was that the cash had been loaned for purchase of second hand clothing for resale.

State v. Argea (1989), 60 Ohio Misc. 2d 11 -- Headnote: "Money in the pockets of persons who are either playing poker or are in the proximity of a poker game may not be confiscated by the state and forfeited pursuant to R.C. 2933.41(C) unless the state proves by a preponderance of the evidence (1) that the money was being used in the commission of an offense, or (2) that the nature of the money or the circumstances of any of the defendants were such as to conclude that possession of the money was illegal."

Eastlake v. Lorenzo (1992), 82 Ohio App. 3d 740 -- Defendant did not claim possessory interest in $32,000 found in the trunk of her car. Therefore she is not entitled to return of money. Third party claimant failed to show possessory interest. Police are not entitled to the money since it was not proved to be contraband. City should claim funds according to opinion.

State v. Keith (1991), 81 Ohio App. 3d 192 -- Mom pleaded to RICO charge premised on promoting prostitution and agreed to forfeiture, including a custodial savings account opened in daughter's name. Applying the Uniform Gifts to Minors Act (R.C. 1339.32), the account was not opened with the necessary donative intent.

In re Forfeiture of $10,030 in U.S. Currency (1990), 68 Ohio App. 3d 536 -- Applying R.C. 2933.43(C), contraband subject to forfeiture must be returned if charges are not filed within 30 days of seizure.

In re $37,000 (May 23, 1988), Greene County No. 87-CA-85, unreported -- Motion for return of cash seized during execution of search warrant should have been sustained when link between claimed owner and criminal activity was not established, not was link between cash and other residents allegedly involved in criminal activity.

United States v. Smith (8th Cir. 1981), 659 F.2d 97 -- Defendant not entitled to return of $25,000 advanced on purchase of phone books he thought were hashish.

State v. Adams (1984), 14 Ohio App. 3d 341 -- Headnote: "Public policy dictates that money used in a bribe not be returned to the briber regardless of whether the bribe is successful or unsuccessful."

State v. Penrod (1992), 81 Ohio App. 3d 654 -- Defendant not entitled to interest on seized funds for time they remained in the hands of the prosecutor after court ordered they be returned.

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Criminal forfeiture cases - guns

State v. Clark, 173 Ohio App. 3d 719, 2007-Ohio-6235 – Third party sought return of guns involved in a negligent homicide. Trial court refused return, but compliance with R.C. 2933.41 was problematic. That statute has been superseded by R.C. 2981.01 through 2981.14, which are to be applied retroactively. Case remanded for further proceedings in compliance with those provisions.

State v. Whitmore, 162 Ohio App. 3d 659, 2005-Ohio-4018 -- Gun was seized when the defendant was arrested for use of a weapon while intoxicated and other offenses. Charges were later dismissed. Court denied motion for release of the weapon. State claimed there had been an agreement to dismiss in exchange for surrender of the weapon. Absent an acknowledgment that this was the case or a signed plea agreement, the gun must be returned.

State v. King (1999), 137 Ohio App. 3d 172 -- Though a police report indicated that one of defendant's six guns may have been used during an incident of domestic violence, due process required the court to conduct a hearing before ordering the weapons forfeited.

United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354 -- Acquittal on charge of dealing in firearms without a license did not collaterally estop government from seeking forfeiture of weapons seized during search of defendant's house.

State v. Acoff (1998), 131 Ohio App. 3d 657 -- Since improper handling of a weapon in a motor vehicle is not a traffic offense, the weapon may not be returned to the owner.

State v. Kennedy (1996), 114 Ohio App. 3d 221 -- Defendant convicted of trafficking in marijuana sought return of $305 and a gun collection which were not the subject of a forfeiture action. Court sidesteps trial judge's desire to have defense counsel find out what federal authorities had in mind and remands for hearing on whether guns were "firearms" defendant was entitled to possess in view of his convictions, and to determine whether cash was contraband.

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Criminal forfeiture cases - other property

State v. Keith (1991), 81 Ohio App. 3d 279 -- Contractor had performed work on a building forfeited in a RICO prosecution premised on promoting prostitution. Mechanics lien was filed after indictment, hence did not have priority over corrupt activity lien notice. Nor was contractor an "innocent victim" within the meaning of the RICO statutes.

Rice v. Logan County Board of Commissioners (1996), 114 Ohio App. 3d 198 -- Wife signed over her interest in property in exchange for dismissal of a drug trafficking indictment, but later filed suit to block sale of property by the county, claiming the transfer was fraudulently obtained. Trial court properly blocked sale. Transfer was a part of criminal proceedings, and the court had before it competent credible evidence that the absence of the procedural safeguards of R.C. 2925.42 warranted relief.

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Civil forfeiture cases

State v. $765 in United States Currency, 181 Ohio App. 3d 162, 2009-Ohio-711 – Gang unit targeted property owner suspected of drug trafficking. No charges were filed, but four cars, a set of wheels, and cash were seized. Common pleas court granted request for civil forfeiture on premise the property owner did not have the means to acquire the property honestly. Reversed as judgment was based in innuendo and stacked inferences, not direct evidence.

Thomas v. Cleveland (2000), 140 Ohio App. 3d 136 -- Forty-five day delay in instituting R.C. 2933.43 forfeiture proceedings is reasonable.

Baxter v. Jones (1992), 83 Ohio App. 3d 314 -- A guilty plea or verdict for violation of the criminal racketeering statute is not a prerequisite for the filing of a civil forfeiture action by a county prosecutor pursuant to R.C. 2923.34.

In re Forfeiture of $2,367 U.S. Currency (1993), 91 Ohio App. 3d 384 -- Once felony drug abuse charges have been filed, related civil forfeiture proceedings must be stayed.

United States v. $405,089.23 U.S. Currency (9th Cir. 1994), 33 F.3d 1210, amended on denial of rehearing en banc, (9th Cir. 1995), 56 F.3d 41, cert. granted, (U.S. Jan. 12, 1996), 64 U.S.L.W. 3161, 58 Cr.L. 3133 -- Double jeopardy violation found where criminal prosecution and civil forfeiture action arising from the same offense were not brought in a single proceeding. Compare United States v. Milan (2d Cir. 1993), 2 F.3d 17; United States v. Smith (8th Cir. 1996), 58 Cr.L. 1417 (both cases commenced and resolved within a few days of each other).

State v. One Harley Davidson Motorcycle (1998), 128 Ohio App. 3d 132 -- Civ. R. 41(A)(1) required notice to state of intention to dismiss forfeiture action following nonappearance at a hearing.

Simmons v. Dayton (1992), 82 Ohio App. 3d 385 -- Cash was seized by city police officers at the airport and the person carrying it was advised it would be turned over to the feds for forfeiture. Failure to make timely claim for return of money under federal statutes barred civil action to recover money from the city.

In re Forfeiture of 1988 Ford Tempo AWD (1994), 97 Ohio App. 398 -- Passenger had a crack pipe. State sought forfeiture of the vehicle. Whether vehicle was subject to forfeiture hinged on whether there was a felony drug abuse offense. Possession of the pipe was at most a misdemeanor. Though the pipe might be deemed a criminal tool, a charge of possessing criminal tools still would not have constituted a felony drug abuse offense within the meaning of R.C. 2925.01(H).

In re Forfeiture of 1986 Renault (1992), 79 Ohio App. 3d 469 -- Since even a felony drug abuse offense is excluded from the statutory definition of "felony drug abuse offense," car defendant was sitting in at time of drug purchase was not subject to forfeiture.

In re Forfeiture of 363 Durfee Drive (1996), 111 Ohio App. 3d 89 -- Newspaper publisher used money stolen from his employer to renovate his residence. House and adjacent vacant lot were subject to forfeiture. Related case: State v. Lake (1996), 111 Ohio App. 3d 127.

In re Forfeiture of Certain Real Property by Action in Rem (1996), 112 Ohio App. 3d 249 -- Prosecutor sought civil forfeiture of office building of physician whose Ohio license had been suspended, but who continued to practice and write prescriptions. Though wife sometimes worked as receptionist, state failed to prove complicity, thus her interest in the building was protected as an innocent owner.

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