Adversarial Preliminary Hearing – Forfeiture
If your property was seized for forfeiture in Florida by a law enforcement officer at the state or local level, you probably received a written “notice of seizure” form.
The “notice of seizure” form explained that on a specific date and time, an officer seized property being used in violation of the Florida Contraband Forfeiture Act, Section 932.701-704, Florida Statute.
The notice of seizure also provides that the owner of the property is “entitled by law to request an adversarial preliminary hearing concerning the seizure of the property.” The adversarial preliminary hearing in an asset forfeiture case is often called the “APH” or “AP hearing.”
You must request the adversarial preliminary hearing (APH) within fifteen (15) calendar days of receipt of the Notice of Seizure.
Sometimes, people ask us: “Should I request an adversarial preliminary hearing?” The short answer is that there is never a good reason not to request an adversarial preliminary hearing if:
- you have a lawful claim to the property;
- you want the property to be returned to you; and
- You are not worried about incriminating yourself at the hearing, and you do not plan to testify.
Filing the demand for the adversarial preliminary hearing is often the best and quickest way to get your property back, especially if the agency violated your Fourth Amendment rights when detaining, searching, or seizing the property.
An experienced attorney can help you demand the adversarial preliminary hearing (APH) and deliver that demand to the agency within that fifteen (15) day period. From the time the agency receives the demand, it must schedule the hearing within ten (10) days thereafter.
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 or that the seizure was otherwise illegal.
If so, the Court will order the seizing agency to return the property immediately. If the court orders the property to be returned, then the claimant’s counsel has thirty (30) days from entry of the Order in which to file a motion for attorney’s fees and costs.
Florida law changed on July 1, 2016, because now, if the claimant prevails at APH when the court finds no probable cause for the seizure, the Court “shall” order the seizing agent to pay the Claimant’s attorney fees up to a limit of $2,000.
Attorneys for Adversarial Preliminary Hearings in Florida
If you retain an asset forfeiture attorney at Sammis Law Firm in Tampa, FL, we can take the following actions for a seizure under the Florida Contraband Forfeiture Act.
First, we file a demand for the “adversarial preliminary hearing” on your behalf (a sample form is attached below). We serve the demand on the seizing agency by certified U.S. Mail (return receipt requested).
When the agency’s attorney calls us, they often ask us to waive the 10-day requirement for setting the hearing, although we rarely agree to that request. Instead, the present evidence to the agency attorney showing that the property was not being used in violation of the Florida Contraband Forfeiture Act or that evidence was illegally gathered.
We will negotiate the return of the property with the attorney for the agency. That attorney might become especially motivated to settle right before the hearing.
If no resolution can be reached, we will attend the adversarial preliminary hearing (APH) on your behalf to argue for the immediate return of the property.
If the property is not returned as a result of the adversarial preliminary hearing, we can represent you at each stage of the case if the seizing agency files a complaint in court. The stages of the forfeiture case include filing a verified claim, filing an answer and counterclaim, conducting discovery, and going to trial.
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.
Call 813-250-0500.
What Happens at the Adversarial Preliminary Hearing?
Pursuant to 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.
Prior to the APH, the seizing agency must deposit a bond as required by section 932.704(4), Florida Statutes. Under Florida Statute Section 932.703(2)(a), the seizing agency has 10 business days after the date of the seizure to file an application with the court for a determination of whether probable cause existed for the seizure. The application for the probable cause determination must be accompanied by a sworn affidavit and may be filed electronically by reliable electronic means.
Pursuant to Section 932.703(3)(c), when an adversarial preliminary hearing is held, the court shall:
“review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband.”
Pursuant to Section 932.703(7)(a), property may not be forfeited under the Florida Contraband Forfeiture Act “unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.”
Once the seizing law enforcement agency receives the demand for the adversarial preliminary hearing (APD), the attorney for that agency must schedule the hearing to be heard within ten (10) days or as soon as practicable thereafter, as required by Section 932.703(3)(a).
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 any continued detention until the contraband was seized;
- how the contraband was found;
- whether a warrant was issued for the seizure;
- any statements made by anyone at the time of the seizure; and
- other evidence suggesting the property was possessed in violation of the Florida Contraband Forfeiture Act.
At the APH, the court must decide whether there is probable cause to believe that the property was employed or likely to be employed in criminal activity and whether the information supporting probable cause was gathered legally.
When it comes to vehicles, for example, Fla. Stat. 932.702 makes it unlawful to possess, conceal, use, or transport any contraband in a motor vehicle within the State of Florida. Other provisions apply to U.S. currency and other forms of property that might be seized.
Read more about vehicle and property seizures for forfeiture by FHP’s Criminal Contraband Interdiction Unit.
10-day Deadline for the APD
From the time the agency receives the demand for the adversarial preliminary hearing, it must schedule the hearing within ten (10) days.
Florida’s forfeiture statute provides that an adversarial preliminary hearing is to be held within ten (10) days after the request is received or as soon as practicable thereafter, according to section 932.703(3)(a), Florida Statutes. In Murphy v. Fortune, 857 So. 2d 370 (Fla.1st DCA 2003), the court found the failure to hold a timely adversarial preliminary hearing mandated the return of seized money.
Fourth Amendment Issues Apply to Forfeiture Proceedings
One way to win the adversarial preliminary hearing (APH) is to show that the property was seized in violation of the Fourth Amendment.
If the seizing agency argues that “probable cause” supported the seizure, the claimant might argue that the officer illegally gathered the information used to develop the probable cause. Such evidence must be suppressed as the “fruit of the poisonous tree.”
The Fourth Amendment of the U.S. Constitution applies to forfeiture proceedings. As a result, evidence obtained in violation of the Fourth Amendment must be excluded from the probable cause determination at the adversarial preliminary hearing. Golon v. Jenne, 739 So. 2d 659, 661 (Fla. 4th DCA 1999).
“Indeed, longstanding precedent provides that evidence derived from a search in violation of the Fourth Amendment must be excluded at a hearing determining whether the government has probable cause for forfeiture.” Id.
In Golon v. Jenne, 739 So. 2d 659 (Fla. 4th DCA 1999), the Fourth District reviewed the procedural protections associated with forfeiture proceedings set forth in the Florida Rules of Civil Procedure. The court found “no direct authority for the requirement that a claimant must file a motion to suppress or other responsive pleading in order to raise Fourth Amendment issues at an adversarial preliminary hearing.” Id. at 663.
When the search is illegal, any evidence or contraband discovered by such a search cannot stand. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 2d 1081 (1961).
Because the exclusionary rule applies to forfeiture proceedings, any evidence obtained in violation of the Fourth Amendment must be excluded from the probable cause determination at an adversarial preliminary hearing. See In re Forfeiture of 1999 Dodge Intrepid, 934 So. 2d 669, 670 (Fla. 2d DCA 2006).
In Indialantic Police Dep’t v. Zimmerman, 677 So. 2d 1307, 1309 (Fla. 5th DCA 1996), the court concluded that the “validity of the stop and search are inextricably bound up with the probable cause determination required by the Act.”
If your rights were violated, your attorney can argue the Fourth Amendment violations at the APH. If a complaint is filed, the issues can be raised in a written motion to suppress after completing the discovery process.
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 agency 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).
The courts have concluded that 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.” Beary v. Bruce, 804 So. 2d 579, 581 (Fla. 5th DCA 2002).
In City of Coral Springs v. Forfeiture of a 1997 Ford Ranger Pickup Truck VIN No. 1FTCR10A4VTA62475 FL Tag 3U1 6BDE, 803 So. 2d 847, 850 (Fla. 4th DCA 2002), the court found that the most important question is “whether the information relied upon by the state is adequate and sufficiently reliable to warrant the belief by a reasonable person that a violation has occurred.”
When the State cannot establish probable cause of a statutory violation early in the proceedings, its seizure of the property ends without the delay that would accompany a forfeiture trial. Real Property, 588 So. 2d at 957.
Two Stages of a Forfeiture Case in Florida
To effectuate a forfeiture under the Act, the seizing agency must engage in two (2) stages – the seizure stage and a forfeiture stage.
At the seizure stage, the court must determine “whether there is probable cause to believe that the property has been used in violation of the Act.” In re Forfeiture of: $221,898 in U.S. Currency, 106 So. 3d 47, 49 (Fla. 2d DCA 2013).
The required showing is something “less than a prima facie case, but more than a mere suspicion.” In re Forfeiture of Seven Thousand Dollars U.S. Currency, 942 So. 2d 1039, 1042 (Fla. 2d DCA 2006).
If probable cause exists, the matter then proceeds to a subsequently scheduled forfeiture proceeding, during which “the court or jury determines whether the subject property shall be forfeited.” Velez v. Miami-Dade Cnty. Police Dep’t, 934 So. 2d 1162, 1164 (Fla. 2006).
Due Process Requires Notice of the Forfeiture Action
Because due process requires that anyone with an interest in the property be provided with notice and the opportunity to be heard at each stage of the proceeding.
The Florida Contraband Forfeiture Act gives interested persons the right to litigate the issue of probable cause at an adversarial preliminary hearing. City of Fort Lauderdale v. Baruch, 718 So. 2d 843, 847 (Fla. 4th DCA 1998).
“The focus of the 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.” Sanchez v. City of West Palm Beach, 149 So. 3d 92, 97 (Fla. 4th DCA 2014).
The Rules Must be Strictly Construed in Favor of the Claimant
Indeed, property rights are among the basic substantive rights expressly protected by the Florida Constitution. Art. I, § 2, Fla. Const.
In Shriners Hosps. for Crippled Children v. Zrillic, 563 So. 2d 64, 68 (Fla. 1990), the court found that article I, section 2 protects all incidents of property ownership from infringement by the state unless regulations are reasonably necessary to secure the health, safety, good order, and general welfare of the public.
Forfeiture is penal in nature and must be strictly construed in favor of those against whom the penalty is to be imposed. See In Re: FORFEITURE OF $37.388.00, 571 So. 2d 1377 (Fla. 1st DCA 1990).
The Innocent Owner Defense in Asset Forfeiture Cases
The seizing agency is not necessarily required to overcome an innocent owner defense at the adversarial preliminary hearing.
At trial in a forfeiture case, however, the seizing agency must not only prove that the property was in fact being used to conceal, transport or possess contraband, it must also prove that the owner or owners knew or should have known that the property was being used or was likely to be used for an illegal purpose.
Innocent Owners of Vehicles Seized for Forfeiture Proceedings
What happens if the owner of the property is NOT served with a notice of the seizure? The Supreme Court of Florida has held that, with respect to motor vehicles being forfeited under the Florida Contraband Forfeiture Act, the term “owner” includes the person who has obtained a title certificate issued pursuant to Chapter 319. Cobbs v. Johnson, 605 So. 2d 1322 (Fla. 1st DCA 1992).
The trial judge will consider who holds the certificate of title to the motor vehicle in their name (even if another person is considered to be the de facto owner) and whether the knowledge of the unlawful use of the vehicle was sufficient to allow the forfeiture.
The First District in Cobbs held that Florida’s civil asset forfeiture statutes do not allow a distinction between de facto and de jure owners and that, for purposes of the Forfeiture Act, the owner is the person identified in the certificate of title.
Therefore, Florida law is clear that the person named on the certificate of title must be considered the sole owner of the vehicle, and the seizing agency has the burden to demonstrate that the owner is not an “innocent owner.”
What is the Florida Contraband Forfeiture Act?
Florida’s Contraband Forfeiture Act provides that contraband articles shall be seized and forfeited as follows:
Section 932.703 Forfeiture of contraband articles; exceptions. (1)(a) Any contraband article . . . motor vehicle . . . other personal property . . .used in violation of any provision of the Florida Contraband Forfeiture Act . . .may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.
Section 932.701(2)(a) of the Florida Statutes defines the term “contraband article” as follows:
Short title; definitions . . .
(2) As used in the Florida Contraband Forfeiture Act:
(a) “Contraband article” means: “Any personal property, including, but not limited to ….which was 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, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
Sample Form Requesting an Adversarial Preliminary Hearing
IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT
IN AND FOR _______ COUNTY, FLORIDA
CIRCUIT CIVIL
In Re: Agency #: 2022——
Civil Asset Forfeiture of
_________________________,
_____________________________/
NOTICE OF APPEARANCE AND
DEMAND FOR ADVERSARIAL PRELIMINARY HEARING
COMES NOW, ______________, (hereinafter “the Claimant”), as the person having a possessory, legal, and beneficial interest in $_______ in U.S. Currency or other property described as ___________, by and through the undersigned counsel, who hereby files this Notice of Appearance and Demand for Adversarial Preliminary Hearing.
In support of this notice and demand, the Claimant states the following:
- On [date and time], several officers with [name of the law enforcement agency] seized $______ in U.S. Currency or other property described as ________________ (hereinafter “seized property”).
- The seized property is owned by and belongs to the Claimant.
- The seized property was taken from the Claimant at [address] which is located in _______ County, FL.
- The following law enforcement officers were involved in taking the seized property: [name each officer].
- The taking of the seized property was without probable cause or other sufficient legal basis under the Florida Contraband Forfeiture Act.
- After the seized property was taken, the Claimant received a “Notice of Seizure” for a violation of the Florida Contraband Forfeiture Act (attached as Exhibit “A”).
- Claimant hereby demands an Adversarial Preliminary Hearing for the seized property.
- This demand for the Adversarial Preliminary Hearing is made in compliance with the fifteen (15) day requirement set forth in the Notice.
- Please be advised that Leslie M. Sammis, on behalf of Sammis Law Firm, P.A., hereby enters its appearance in the above-styled cause as the attorney for the Claimant in this forfeiture case and for purposes of any criminal investigation related to the seizure and directs that copies of all notices, pleadings, and proceedings be served upon it.
WHEREFORE, the Claimant requests an Adversarial Preliminary Hearing for the seized property described herein.
Respectfully Submitted,
[[insert signature line]]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Request for Adverse Preliminary Hearing has been furnished by First Class U.S. Mail, certified return receipt requested, to the following address listed in the notice: _____________________, on this __ day of _____, 2023.
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This article was last updated on Friday, September 15, 2023.
