How to Demand an “Adversarial Preliminary Hearing”
If your property was seized in Florida by a law enforcement officer, then you probably receives a written notice of seizure form. The form advises you that on a certain date and time, an officer seized your property which is described on the form. The notice provides that the property was seized “for a violation of the Florida Contraband Forfeiture Act, Section 932.701-704, Florida Statute.”
The notice also provides that you are “entitled by law to request an adversarial preliminary hearing concerning the seizure of the property.” You must request this hearing within fifteen (15) calendar days of receipt of this Notice of Seizure.
The goal in these cases is getting the court to find that the seizing agency failed in its burden of showing probable cause to allow the forfeiture to proceed. Under Fla. Stat. 932.70(9)(b), the seizing Agency should be ordered to return the property immediately. If the proper must be returned, then the claimant can file a file a motion for attorney’s fees and costs up to the limit imposed under Florida law.
Attorneys for the Adversarial Preliminary Hearing in Florida
If you retain our firm, we will take the following actions on your behalf:
- we will file the demand for the adversarial preliminary hearing on your behalf (a sample form is attached below);
- when the agency’s attorney call us to ask for a waiver of the 10 day requirement, we will deny that request for you;
- if you want, we will present evidence showing that the property was not being used in violation of the Florida Contraband Forfeiture Act (or we might decide not to disclose any information after talking with you about the pros and cons of each approach);
- we will negotiate the return of the property with the attorney for the agency (who might become especially motivated to settle right before the hearing); and
- if no resolution can be reached, we will attend the hearing on your behalf to argue for the immediate return of the property.
Contact an attorney for an asset forfeiture case in Tampa, FL, at the Sammis Law Firm. Our main office is located in downtown Tampa. We also have a second office in New Port Richey in Pasco County.
Our attorneys are experienced in representing clients in asset forfeiture and adversarial preliminary hearings throughout the greater Tampa Bay area including Hernando County, Pasco County, Pinellas County, Manatee County, and Polk County, FL.
What Happens at the Adversarial Preliminary Hearing?
Once the demand for the adversarial preliminary hearing is receive, the attorney for the agency that seized the property must schedule the hearing to be heard within 10 days. The hearing must be conducted in accordance with the provisions of the Florida Contraband Forfeiture Act, Fla. Stat. 932.701-932.706. Specifically, Fla. Stat. 932.702 makes it unlawful to possess, conceal, use or transport, any contraband in a motor vehicle within the State of Florida.
At the hearing, the attorney for the agency will usually call any witnesses to the seizure. Those officers will usually testify about:
- a lawful basis for the stop;
- a lawful basis for the continued detention until the contraband was seized;
- how the contraband was found;
- any statements made by anyone at the time of the seizure;
- other evidence suggesting the property was possessed in violation of the Florida Contraband Forfeiture Action.
The Impact of an Illegal Search or Seizure at the APH
During these hearing, we can often alleged that the property was seized in violation of the Fourth Amendment. An unreasonable search or seizure results in evidence being considered “fruit of the poisonous tree” that must be suppressed. Without that evidence, the warrantless search might not be predicated on probable cause. When the search is illegal, any evidence or contraband discovered by such search cannot stand. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 2d 1081 (1961); Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L.Ed. 307 (1939); Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L.Ed. 652 (1914).
What is “Probable Cause” at the APH?
Under Section 932.701(12)(f), the term “adversarial preliminary hearing” means a hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Florida Contraband Forfeiture Act.
In a forfeiture proceeding, due process requires the state to establish probable cause to believe the property was used in the commission of a crime. Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla. 1991). The state can show probable cause for belief that the property subject to forfeiture “based upon a reasonable ground for belief that it was furnished or intended to be furnished in exchange for drugs.'” Lobo v. Metro-Dade Police Department, 505 So.2d 621 (Fla. 3d DCA 1987). This determination of probable cause involves the question of whether, under the totality of the facts presented, the information relied upon by the government is adequate and sufficiently reliable to warrant the belief by a reasonable person that a violation of the Forfeiture Act has occurred. Id.
It is well settled that “[p]robable cause must be judged not with clinical detachment, but with a common sense view to the realities of normal life,” United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 904 (11th Cir. 1985). To determine whether the facts are sufficient, the court must “weigh not the individual layers but the ‘laminated’ total.” United States v. Sixty-Eight Thousand Five Hundred Eighty Dollars, 815 F. Supp. 1479 (M.D. Ga. 1993) (citing U.S. v. Nigro, 727 F.2d 100, 104 (6th Cir. 1984). “In order to consider the `laminate whole,’ we must include all probative evidence in the calculus . . . . [t]herefore, we review each piece of evidence separately only to determine whether it is probative, not whether it establishes probable cause standing alone.” United States v. $67,220.00 In United States Currency, 957 F.2d 280 (6th Cir. 1992).
This article was last updated on March 25, 2019.