Court: Forfeited property can be recovered

Friday, Jan. 16, 2004 | 9:30 a.m.

CARSON CITY -- A person whose property was forfeited after his arrest on drug trafficking charges has the right to seek recovery of the money if the criminal charges are dropped, the Nevada Supreme Court ruled Thursday.

The court ordered District Judge Nancy Saitta of Las Vegas to consider whether the state "exercised due diligence" in notifying James Maiola of the administrative forfeiture hearing.

The court said the district court has the authority to hear a motion for return of property even after the money has been ordered forfeited by a court.

Maiola was arrested in February 2000 on a charge of trafficking in drugs and being an ex-felon in possession of a firearm. Police seized $543 from his pockets and a rifle. Forfeiture procedures were started.

An investigator for the Clark County district attorney's office made several attempts to locate Maiola, left notices at the home and mailed two notices to the address. The district court ordered the forfeiture notice to be published in the Nevada Legal News in an effort to notify Maiola.

While the forfeiture notice proceedings were being published, Maiola appeared in court for a preliminary hearing on the criminal charges. But he was not notified of the forfeiture hearing.

Later a judgment was entered forfeiting Maiola's $543 and the rifle. But a year later a district judge granted a motion to suppress all evidence recovered because the search was illegal. And the state dismissed the criminal charges. The court ordered the money returned to Maiola if a forfeiture action had not been commenced.

Maiola petitioned the court for a return of his $543. But Saitta ruled the forfeiture action had been completed and the money reverted to the state. The judge said she had no authority to consider the motion.

But the Supreme Court ruled Saitta could consider Maiola's petition to regain the money. The court said the majority of federal circuit courts have held that the courts can hear motions to return property seized by the government where there are no criminal proceedings pending.