FLORIDA’S CIVIL ASSET FORFEITURE LAWS
A recent article in the Washington Post shows how police are using aggressive tactics to take the property of people they suspect of crimes.
Unfortunately many people in Florida have experienced the police seizing their car or cash after an arrest. Like many other states, Florida’s police have the power to seize the property of people suspected of crimes under what’s called “Civil Asset Forfeiture.”
Florida’s Civil Asset Forfeiture Act
Florida’s Civil Asset Forfeiture Act says that any vehicle used in used in the transportation or storage of any contraband article can be seized by law enforcement. Seems simple, right? Well … not really. Let’s look at some of the things that Florida law considers “contraband” that would allow the police to seize your property:
“Any gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, was attempted, or intended to be used in violation of the gambling laws of the state.”
“Any equipment, liquid or solid, which was being used, is being used, was attempted to be used, or intended to be used in violation of the beverage or tobacco laws of the state.”
“Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which was used, is being used, or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting 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.”
And my personal favorite: “Any motor fuel upon which the motor fuel tax has not been paid as required by law.”
Probable Cause is Enough for Seizure
You don’t have to be guilty of a crime for the police to be able to seize the property. Instead, the police just have to have “probable cause” to believe the property is or was being used in violation of the Contraband Forfeiture Act.
If you believe your property was wrongfully seized, you have the right to contest the seizure by demanding an adversarial preliminary hearing. The hearing must be held within 10 days of requesting it. The purpose of the adversarial preliminary hearing is to determine whether there is probable cause to believe the property is or was being used in violation of the Contraband Forfeiture Act.
If no adversarial preliminary hearing is requested, then the seizing state agency will file a complaint against the seized property. The state agency will then have to prove by clear and convincing evidence that the property was being used in violation of the Contraband Forfeiture Act.
New Case Law: Probable Cause Must Exist at the Time of the Adversarial Hearing:
In a recent decision the Fourth DCA held that in the adversarial preliminary hearing it isn’t enough for the seizing agency to show that probable cause existed at the time the property was seized. Instead, the agency must show that probable cause exists at the time the hearing is held.
This is a very important distinction, because it means that the hearing officer isn’t just looking at a snapshot of what the officer thought or believed at the time of the seizure. Rather the hearing officer has to consider other evidence, such as the owner of the property showing that the property wasn’t being used to violate the Act.
The appellate court contrasted the adversarial hearing with a Fourth Amendment challenge:
The focus of this statute is on the evidence of probable cause that exists at the time of the adversarial preliminary hearing, not just what the police officers knew at the time the property was seized. The wording of section 932.703(2)(c) compels the conclusion that, unlike a Fourth Amendment challenge, the pertinent inquiry at the adversarial preliminary hearing is whether there ‘is’ probable cause to believe that a violation of the Act occurred or is occurring, not whether there ‘was’ probable cause to believe that a violation of the Act occurred at the time of seizure. (Internal citations omitted).
The appellate decision is important because it clarifies that the owner of the seized property is able to present evidence and testimony that the property shouldn’t have been seized in the first place.
If you have been arrested and have had your property seized you should consult with an attorney about your options in trying to get your property back. Keep in mind we’re talking about non-illegal property – things like drugs, or drug paraphernalia aren’t getting returned.