Forfeiture Follies in Iowa

When the government seizes property allegedly connected to a crime, the owner has to follow specific procedures to challenge the forfeiture. If he misses a deadline or fills out a form incorrectly, he has no chance of getting his property back. But a recent Iowa case shows that the picayune demands of forfeiture law also can work against the government.

In July 2007, a Pottawattamie County sheriff's deputy stopped Duane Lovelace as he was driving toward San Francisco on Interstate 80 and found marijuana, heroin, and $22,600 in cash. The county took the money and served Lovelace with a "notice of seizure" the same day, but it never served him with a proper "notice of pending forfeiture" indicating its intent to keep the money. Instead it published a misnamed "Notice of Seizure for Forfeiture Under Iowa Law" that did not explain the reason for the forfeiture, and it never served Lovelace personally. After the 90-day window for forfeiture closed, the county contacted the U.S. Attorney's Office, which agreed to pursue forfeiture under federal law, which gives local law enforcement agencies a 60 percent cut when they initiate a seizure.

In 2008 an Iowa district court, while noting that the county attorney's office "did a terrible job in attending to the necessary documents needed to successfully forfeit the funds," nevertheless ruled that nothing barred it from referring the case to federal prosecutors. The Iowa Court of Appeals, in a May 2009 decision (PDF) that the state Supreme Court this week declined to review, disagreed. Once the 90 days allowed by the law for serving a forfeiture notice had expired, the court ruled, the county was legally required to return the money. Furthermore, it said, Assistant Pottawattamie County Attorney Shelly Sedlak knew the forfeiture was legally defective but nevertheless tried to complete it and then, when Lovelace's attorney objected, attempted an end run around state law by taking the case to the feds. The court ordered the county to return Lovelace's money and pay his legal expenses (about $10,000), and it said Sedlak's actions were egregious enough that "sanctions are warranted."

Thanks to Mark Lambert, who notes that Pottawattamie County Attorney Matt Wilber attributes the missteps to Sedlak's inexperience. Sedlak was assigned to the case after the prosecutor who initially handled it was fired for stealing cocaine seized by the police.