Fight Asset Seizure and Forfeiture
The purpose of the asset forfeiture statutes is to take the profits of crime away from the criminal to deter crime. The forfeiture statute allows the state or federal government to take privately owned property without compensating the owners.
Individuals opposed to forfeiture laws argue that these actions invite corruption by law enforcement and that the net is cast too wide.
Forfeiture actions can also involve the seizure of large amounts of cash or other property. Our attorneys are particularly experienced with fighting the seizure of U.S. currency or cash when no arrest occurs, particularly at the airport before a domestic or international flight.
If you have received a Notice of Seizure of Personal Property and Right to Adversarial Preliminary Hearing,
then you must file a request for an adverse preliminary hearing within fifteen (15) days
for state action to preserve your rights.
This article discusses several different types of civil asset forfeiture cases including:
- seizures by local law enforcement agencies at the state or county level usually involving a demand for an adversarial preliminary hearing (APH); or
- seizures by federal agencies usually involving filing a claim for court action or early judicial intervention.
No matter the circumstances, we fight forfeiture cases for the immediate return of your money or property.
Attorney for Asset Forfeiture Cases in Tampa, FL
Your most important right after a seizure and forfeiture action in state court is to hire an attorney to file a written request for an adversarial preliminary hearing or a claim for court action.
In forfeiture actions in state court in Florida, you must make the request in writing by certified mail, return receipt requested, to the city or county attorney at the address listed on the notice of seizure within 15 calendar days of receipt of the notice.
You must include a copy of the “Notice of Violation of Florida Contraband Forfeiture Act” with your written request. After receipt, the attorney for the agency must set a date for the hearing and the hearing date must be within ten (10) days of the request. Don’t wait. When you get the notice, hire an attorney to file a written request for an adversarial preliminary hearing the same day.
At the federal level, the DEA, FBI, ICE, CBP, and Homeland Security Investigations (HSI) Agents seize cash and other valuable property at the airport, bus stations, and ports of entry. Immediately after the seizure, the agent is supposed to provide a receipt.
In federal court, your attorney can file a claim for court action which triggers a 90-day deadline for the Assistant United States Attorney (AUSA) to either return the property or file a lawsuit against the property in federal court.
The attorneys at Sammis Law Firm in Tampa, FL, can help you demand an adversarial preliminary hearing, file a claim for court action, or negotiate the return of your property. We can sometimes help our clients get their property back within hours or days of filing the request for a hearing or court action.
Innocent Owners in Forfeiture Cases
As a preliminary matter, anyone bringing a claim to challenge the forfeiture must have standing. In Hudson v. City of Sunrise, 237 So. 3d 1031, 1034-35 (4th DCA 2018), the alleged claimants were required to prove bona fide ownership of the seized property in order to have standing in a forfeiture proceeding, citing §§ 932.701(2)(g)-(h) and 932.704, Fla. Stat.
In Velez v. Miami—Dade Cty. Police Dep’t, 934 So. 2d 1162, 1166 (Fla. 2006), the court recognized that any persons contesting a forfeiture must demonstrate a proprietary interest in the seized property that is subject to forfeiture.
Other owners of the property including “innocent owners” may also be provided with notice. If you have received notice that the state or federal government intends to forfeit your property, you must act quickly.
You have fifteen (15) days in state actions and ten (10) days in federal actions after receiving notice of the forfeiture to file a request for an adverse preliminary hearing to preserve all of your rights.
The adverse preliminary hearing is one of the fastest and most effective ways to fight for the return of the property and assert any defenses that exist in the case. In far too many cases, the owners of the property do not take the appropriate action within the strict time limits allowed, and the state or federal government holds the property without a fight.
Read more about the Florida Contraband Forfeiture Act. Find more information on the difference between fighting asset forfeiture actions in Pasco County and asset forfeiture actions in Hillsborough County.
Asset Forfeiture Actions by the HCSO and TPD
For forfeiture actions initiated by the Hillsborough County Sheriff’s Office (HCSO) or the City of Tampa Police Department (TPD), even in those cases in which the city or county does have a valid claim to the property, an experienced asset forfeiture attorney can often negotiate the return of the property for a fraction of the asset’s true value.
In other cases, the property can be released without any payment or with a small payment in exchange for signing a “waiver of damages” form.
If you can not afford to lose your asset, whether it is cash, a vehicle, a firearm, or other property, contact an attorney who can explain your rights and devise a plan of attack.
Attempts to Circumvent the Right to an Adversarial Preliminary Hearing
In some cases, the police will attempt to frustrate a person’s right to contest the seizure by focusing them to sign a “Settlement Agreement and Release” sometimes while the person is being in handcuffs and surrounded by several armed law enforcement officers.
The settlement agreement and release purports to assign all rights and interest in the seized property to the city or county agency in Florida.
The purported consideration in such an agreement is the city or county’s agreement not to proceed further with Forfeiture Proceedings. Under such an agreement, it says “I hereby waive my rights to have the settlement reviewed by a judge, mediator, or arbitrator per Florida Statute 932.704(7).”
Even if you were forced to sign such a settlement agreement, you could still request an adverse preliminary hearing to contest the taking of your property subject to the seizure within the time period permitted by law.
Statutes Governing Civil or Criminal Forfeiture
Federal forfeiture actions are governed by the Comprehensive Crime Control Act of 1984. State forfeiture actions are governed by the Florida Contraband Forfeiture Act, Florida Statute Section 932.701-707.
Local governments, such as the City of Tampa, also have their own rules allowing forfeiture. The City of Tampa attempts forfeiture actions under Tampa’s Code of Ordinances, Section 14-27, which governs the forfeiture of the vehicle used to facilitate prostitution and drug-related crimes.
The Difference Between Civil and Criminal Forfeitures
Two procedures exist for forfeiture actions – criminal forfeiture or civil forfeiture. Civil forfeitures are becoming the increasingly common way for the state or federal government to attempt to take property because the rules for civil forfeiture actions are often easier for the state or federal government because no criminal prosecution or conviction is required.
In other words, even if you are never arrested for or ultimately exonerated of the criminal offense, the civil forfeiture may still succeed.
In a civil forfeiture proceeding, the state or federal government can bring suit against the property, instead of suing the owner of the property. The owner of the property becomes a third party who asserts a claim to the property. To succeed, the state or federal government must first make a sufficient probable cause showing for the forfeiture of the property.
If that showing can be made, the owner of the property must prove by a greater weight of the evidence that probable cause does not exist to forfeit the property. A civil forfeiture proceeding does not depend on the outcome of the criminal case. On the other hand, in a criminal forfeiture action is dependent on a conviction because the criminal forfeiture proceeding is intended as punishment for the individual accused of a criminal act.
On December 22, 2008, the United States Attorney’s Office in the Middle District of Florida, Tampa Division announced that it seized nearly $19 million dollars in cash, vehicles, and other assets during 2008.
The United State’s Attorney’s Office intends to distribute from the forfeiture fund over $8 million to various law enforcement agencies throughout the Middle District of Florida. The Pasco County Sheriff’s Office will receive $160,000.
Adverse Preliminary Hearing in State Court Forfeiture Actions
Hire an Attorney to request an Adverse Preliminary Hearing in State Court Forfeiture Action. Owners of seized property in state actions have more rights and a greater chance of getting the property back than if the property is subject to forfeiture by the federal government.
After an adverse preliminary hearing is requested in Florida State Court, the burden is on the city or county to prove that the property seized is adequately connected to the alleged criminal activity to constitute “contraband” under the forfeiture act. The city or county must meet this burden by clear and convincing evidence.
Vehicles Forfeitures are Common
The seizure and attempted forfeiture of vehicles are common by law enforcement officers, particularly in Hillsborough County or in the City of Tampa. In Hillsborough County forfeiture actions can be initiated by the Hillsborough County Sheriff’s Office or the City of Tampa Police Department.
If it can be alleged that your property was used to transport drugs, such as a car, truck, semi-tractor or another vehicle, the state or city can attempt to forfeit the property as punishment to deter crime and as a means of compensating the government entity for the crime.
Even if you are the owner of the property, and you were not involved in the crime, the property may still be forfeited under certain circumstances unless you assert your rights within strict time periods.
Local law enforcement agencies in the Tampa Bay Area of Florida may also attempt to hold your vehicle through an “investigative hold,” and require you to pay $25.00 a day in storage fees while the “investigative hold” is pending. You have certain rights under Florida Statute Section 713.78 for a statutory lien for towing and storage to receive notice.
You can also file a complaint in County Court where the vehicle is being held if you believe the “investigative hold” is improper under Florida law.
Upon filing the complaint, the owner or lienholder may have her vehicle released upon posting a cash or surety bond equal to the number of charges for towing and storage to ensure payment in the event his lawsuit does not prevail.
Upon posting the bond and payment of clerk fees, the clerk of the court shall issue a certificate notifying the lienor of the bond and directing the lienor to release the vehicle. When the vehicle is released, the owner should give a receipt to the company that towed or stored the vehicle listing any claims for damages to the vehicle.
Defenses to Seizures for Civil Asset Forfeiture
The law provides for legal mechanisms that can force the return of your property. Defenses to forfeiture actions can include the following:
- The true owner of the property is an “innocent owner” who had no knowledge of the criminal activity
- The forfeiture is disproportionate to the crime alleged (excessive)
- The law enforcement officer that seized the property was without probable cause
Florida is one of eighteen states that permits criminal forfeiture of assets. Florida criminal forfeiture laws attempt to deter several crimes, including:
- Money Laundering;
- Drug trafficking;
- Prostitution; and
- Theft or Fraud.
Motions to suppress evidence are appropriate in civil forfeiture proceedings because the seizure and subsequent civil forfeiture of assets implicate the Fourth Amendment. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965) (holding that the Fourth Amendment is applicable to civil forfeiture proceedings).
As a result, motions to suppress are appropriate in civil forfeiture cases….” United States v. $ 80,633.00, 512 F.Supp.2d 1196, 1202 (M.D. Ala. 2007).
Types of Property Subject to Forfeiture
Property that can be subject to forfeiture can include the following:
- Contraband such as illegal drugs and weapons
- Objects used to commit the crimes, such as a vehicle used to transport drugs
- Proceeds derived from the criminal activity, such as houses, vehicles, business accounts allegedly funded or purchased with the proceeds and profits from illegal activities.
Property and assets can also be subject to a Florida Civil Forfeiture Proceeding under certain conditions including:
- Vehicle forfeiture for any automobile used to transport drugs for any drug transaction.
- Vehicle forfeiture for any automobile purchased with the proceeds of an illegal act, such as a drug crime.
- Vehicle forfeiture for any automobile used in the course of a felony, such as a sexual assault, armed robbery, or burglary.
- Asset forfeiture if the automobile, vessel, boat, or aircraft was used to transport or conceal certain items of contraband.
- Asset forfeiture if a private home, residence, business or warehouse used to store stolen merchandise or illegal drugs.
- Vehicle forfeiture if the vehicle was driven by a habitual traffic offender.
- Vehicle forfeiture if a vehicle was driven by an individual who is driving on a suspended or revoked driver licenses that resulted from a prior conviction for driving under the influence (“DUI”).
- Asset forfeiture of other property used in a drug transaction or is the proceeds of a felony drug offense such as the following: (a) Money or U.S. Currency; (b) Drug paraphernalia, marijuana / cannabis grow house equipment, drug scales, safes; or (c) Guns or firearms.
A civil forfeiture proceeding can begin even after the criminal forfeiture proceeding has started. Although Florida law provides for a board range of property subject to seizure, many protections to the owner of the property are also provided in the Forfeiture Act.
Florida Contraband Forfeiture Act
According to Florida Statutes Section 932.701-706, “Florida Contraband Forfeiture Act,” the stated purpose of the Act is to provide certain set procedures allowing law enforcement to seize and attempt forfeiture of assets, such as cash monies, automobiles, vessels, real property, aircraft, and other items.
Under the statutes, contraband can include controlled substances, drug paraphernalia, and money that has some connection to a criminal drug crime.
Contraband can also include any personal item which has been used as an instrument of any felony offense such as a vehicle, vessel, aircraft, or money gained from the proceeds of a criminal act defined under the Florida Contraband Forfeiture Act.
Contraband can include real property, such as a house or land, including a lease or other interest in real property if the property was used during the commission of a felony, or is proceeds of a criminal act defined under the Florida Contraband Forfeiture Act.
If your property is subject to forfeiture in Tampa, Hillsborough County, Polk County, Pasco County, Manatee County, or Sarasota County, contact an experienced attorney in Hillsborough County for Asset Forfeiture cases to fight for the return of your assets and property. Hire an experienced criminal defense attorney that can also fight for the return of your property in a forfeiture action.
Forfeiture Chapter 2016-179
Effective July 1, 2016, CS/CS/HB 889 amended the requirements that apply to seizure, the review of seizures, and forfeiture procedures in a number of ways. The new forfeiture rules extensively amended Sections 932.701 – 932.7062 relating to civil forfeiture.
The most important provisions in the new legislation allow for the seizure of property only if the owner of the property is arrested for a criminal offense that forms the basis for determining that the property is contraband.
The exceptions are that the owner of the property cannot be identified after a diligent search, the owner is fugitive from justice or is deceased, an individual who does not own the property is arrested for the criminal offense and the owner of the property had actual notice of the criminal activity, the owner of the property has agreed to be a confidential informant, or the property is a monetary instrument.
This statutory change is important in cases where the defendant may move for the return of the property, and there is an issue of whether the law enforcement officer has properly begun forfeiture proceedings. The bill also contains many new procedural and administrative requirements for the seizing agency.
Forfeiture Endangers American Rights Foundation – An American nonprofit organization dedicated to reform of federal and state asset forfeiture laws to restore due process and protect property rights.
The Looting of America – Civil Asset Forfeiture – Visit the ISIL website to find a network of individuals and associations in over ninety (90) countries dedicated to building a free and peaceful world through the ideal of free markets, social tolerance, and individual responsibility. This article on the ISIL website was authored by Jarret B. Wollstein. The article describes how over two hundred (200) civil asset forfeiture laws enable police to confiscate a person’s home, bank accounts & business without a trial.
This article on forfeiture was last updated on Friday, September 18, 2020.