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Asset Forfeiture

Most people don't realize that both State and Federal law enforcement agencies have the authority and ability to seize a person's property without even making an arrest or charging that person with a crime. Relying on what is commonly referred to as the Florida Contraband Forfeiture Act, law enforcement officers frequently seize personal property including cash, vehicles, jewelry, boats, and even real estate, that they believe are the proceeds of or in any way associated with illegal activity.  This means that even though authorities may not have enough evidence to arrest someone for a criminal offense, they can still seize that persons assets including their personal bank accounts, retirement accounts, their cars and in some cases even their real estate if they believe there is probable cause that the property is a contraband article.

What makes property a “contraband article”?

Under Florida law a contraband article is defined as any personal property, including but not limited to any vessel, vehicle, item, money, securities, or currency that was used or attempted to be used as an instrument in the commission of any felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act. This includes any real property that was used in the commission of any felony offense or was purchased with the proceeds obtained as a result of a criminal activity in violation of the act. 

Who is subject to having their property seized in forfeiture proceedings?

Under Florida law a “claimant” is any party that has a proprietary interest in property subject to forfeiture. A "claimant" has standing to challenge forfeiture of that property.  This means any owner, lien-holder or titleholder of the property that the government is trying to seize can legally contest the forfeiture and protect their property.  Even completely innocent owners, whose property was obtained through entirely legal and legitimate means can find themselves fighting to regain their rightful property in forfeiture proceedings in the court system. 

Where do forfeitures most commonly occur?

While forfeitures can occur anytime a law enforcement agent has probable cause to believe that property has been used in violation of the Florida Contraband and Forfeiture Act, there are several circumstances where they occur more frequently.  The most common scenario is one where a person is being arrested for a criminal offense such as a narcotics violation or a theft or fraud offense, and property such as cash or jewelry is discovered at the time of arrest.  In this scenario, law enforcement in addition to effectuating an arrest on the person, will frequently seize the property for forfeiture proceedings against the actual property itself.

The second most common scenario occurs when a person is traveling with a substantial amount of currency, specifically cash, either in their pockets or within their luggage.  This happens very frequently at airports where law enforcement agents will stop passengers prior to boarding a flight and question them regarding the contents of their luggage.  If they discover a person traveling with a significant amount of cash, officers will aggressively question the passenger as to the source of the cash and their purpose of traveling with that amount of cash.  While there is nothing illegal about traveling within the country with cash, officers will frequently try to pressure passengers into making inconsistent statements about the currency, so that the agents can use the inconsistent statements as grounds for probable cause to forfeit that money.

The third and less frequent situation where forfeiture occur is when law enforcement officers, while not conducting an arrest, discover property that may be unrelated to any investigation of a criminal offense, but they think is proceeds of criminal activity.  The common example of this is where a person is driving a vehicle and is stopped for a simple traffic infraction such as speeding and during the traffic stop the officer observes a large amount of cash in the vehicle.  In these situations, in addition to aggressively questioning the driver as to the source of the money, officers will also call a canine unit to respond to conduct a drug-sniff on the money, to determine if the canine alerts that the currency has the odor of narcotics.  Again, while this is not a criminal offense that can result in an arrest, it is a common method used by law enforcement to develop probable cause to seize the cash and initiate forfeiture proceedings against it.         

How does the forfeiture process work?

Most, if not all, forfeiture proceedings begin as criminal or quasi-criminal investigations initiated by a state or federal law enforcement agency.  It is a common misconception that law enforcement must make an arrest of an individual for a specific crime or law violation before forfeiture proceedings can be initiated.  The truth is, many if not most forfeiture actions occur without an arrest of the owner or claim holder ever taking place.  Once law enforcement has what they believe constitutes probable cause that the property sought to be forfeited is a contraband article they can legally take or seize the property. 

When a seizure takes place law enforcement officers will issue the property owner or claimant what is known as a property receipt or inventory and return.  The issuance or acceptance of a property receipt is not an admission of guilt or wrongdoing of any kind by the property owner.  Having a property receipt which identifies the specific property seized as well as the law enforcement agency responsible for the seizure is crucial to beginning the legal process of regaining custody of seized property.

Once law enforcement has taken custody of property to be forfeited, the law requires the seizing agency to proceed promptly against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or offense occurred.  The law in Florida also requires the seizing agency to pay court costs and post a bond in the amount of $1,500, which is payable to the claimant should he or she prevail in the forfeiture proceedings. 

If the seizing agency proceeds with a forfeiture and files a complaint in the circuit court, the next step in the proceedings involve what is known as an adversarial preliminary hearing.  The adversarial preliminary hearing is the claimant's, or property owner's, first opportunity to challenge the continued seizure of their property in a court of law.  At the adversarial hearing, the seizing agency is required to present evidence to a judge that rises to the level of probable cause that the property is subject to forfeiture.  It is at this point in the proceedings that it is crucial to have the assistance an experienced forfeiture attorney to challenge the evidence and seek to have the court find that there is insufficient probable cause to support the forfeiture and order that the property be immediately return to the claimant.  Additionally, if a claimant is successful at the adversarial preliminary hearing and the court determines there is no probable cause, Florida law specifically allows the court to award attorney's fees and costs of up to $2,000 to the claimant.

In the event the court finds there is probable cause to support the forfeiture at the adversarial preliminary hearing, that only means that the seizing agency is permitted to the continued seizure of the property while the forfeiture case is litigated.  It is during this litigation that a claimant has the right to engage in what is known as the discovery process, in which the claimant can present evidence of their claims of ownership and the sources of any property subject to forfeiture.  This process also allows the claimant to demand copies of any and all documentation or other evidence that the seizing agency intends to use as evidence in the forfeiture case.  Additionally, claimants have the right to depose any officers or other witnesses that may have information relevant to the property that is the subject of the forfeiture.  This process is crucial to successfully defending against a wrongful forfeiture and frequently results in dismissals of forfeiture actions or in reaching favorable settlement agreements.

If after going through the discovery process, the complaint is not dismissed and a settlement agreement is not reached, the case then proceeds to a jury trial.  While many forfeiture cases are resolved prior to trial, it is crucial to have an aggressive, experienced forfeiture attorney to represent the property owner's interest at a trial.  At a trial, the seizing agency has the burden of proof of proving to a jury that the contraband article was being used in violation of the Florida Contraband Forfeiture Act.  If after a trial the jury finds that the seizing agency did not prove that the property was used in violation of the act, the claimant is entitled to the immediate return of the property and may also be entitled to all attorney's fees and costs associated with litigating the forfeiture action.

What to do if you are facing a forfeiture of your property by law enforcement?

The first thing to remember is that although forfeiture proceedings are civil in nature and not criminal, you always have the right to remain silent and consult with an attorney before making any statements to law enforcement officials.  Law enforcement will frequently question property owners while they are seizing property as to the source or origin of the property in question.  Although many people think they will be able to “talk themselves out of” forfeiture proceedings, they should always consult with an attorney experienced in forfeiture law before making any statements.  This is important because any statements made to law enforcement, even if made while under the stress and fear of having your property taken from you, can be used in later proceedings against you.

It is also important not to fight or actively resist law enforcement officers investigating the forfeiture, because although forfeitures are civil in nature, if a claimant physically resists the investigation it could result in potential criminal charges for obstruction of justice or resisting an officer.

The best thing to do if you find yourself facing forfeiture of your property, is to invoke your right to remain silent and not make any statements regarding the property without consulting with an attorney first.  It is also important to request a property receipt from the law enforcement agency that is seizing the property and to keep all paperwork which documents what was taken, when it was taken, and the agency is was taken by. 

Finally, the next step is to consult with an attorney who is experienced in handling forfeiture cases as soon as possible.  There are strict time frames and deadlines that must be adhered to in contesting forfeiture cases or you could risk waiving or in some cases losing your rights to regain your property. Immediately meeting with an attorney is vital to protecting your property interests. If you are facing the forfeiture of your property, contact us by clicking the button below.

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