Request the “Adversarial Preliminary Hearing”
If your property was seized for forfeiture in Florida by a law enforcement officer at the state or local level, then you probably receives a written “notice of seizure” form.
The “notice of seizure” form advises you that on a certain date and time, an officer seized your property “for a violation of the Florida Contraband Forfeiture Act, Section 932.701-704, Florida Statute.”
The notice of seizure also provides that you are “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 APH or AP hearing within fifteen (15) calendar days of receipt of the Notice of Seizure.
Make sure you immediately hire an attorney to demand the adversarial preliminary hearing (APH) within that fifteen (15) day period. That is the best and quickest way to get your property back, especially if the agency violated your Fourth Amendment rights when seizing the property.
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.
Under Fla. Stat. 932.70(9)(b), the Court might order the seizing agency to immediately return the property. 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 up to a limit of one thousand dollars ($1,000.00) as provided in Fla. Stat. 934.04(10).
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 on your behalf for a seizure under the Florida Contraband Forfeiture Act:
- we file the demand for the “adversarial preliminary hearing” on your behalf (a sample form is attached below);
- the agency’s attorney will then call us asking for a waiver of the 10-day requirement (we never agree to waive the 10-day requirement);
- if you want, we can 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;
- if the property is not returned at the adversarial preliminary hearing, we can represent you at each stage of the case thereafter.
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 (APD) is received, the attorney for the law enforcement 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.
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; and
- other evidence suggesting the property was possessed in violation of the Florida Contraband Forfeiture Act.
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.
The Impact of an Illegal Search or Seizure at the APH
During these hearings, we can often allege 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 a search cannot stand. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 2d 1081 (1961).
The Fourth Amendment applies to forfeiture proceedings. As a result, evidence obtained in violation 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.
If your rights were violated, your attorney can file a motion to suppress evidence illegally seized before the adversarial preliminary hearing. If the court denies the motion, that issue can be brought up on appeal.
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).
Innocent Owners in Asset Forfeiture Cases
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?
The Florida 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 any . . .vehicle of any kind . . .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
In Re: Agency #: 2020——-
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 law enforcement officers involved in taking the seized property include _________, __________, and ________.
- 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 seize property including the U.S. currency.
- 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 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 hereby requests an Adversarial Preliminary Hearing for the seized property described herein.
/s/ Leslie M. Sammis
Leslie M. Sammis
SAMMIS LAW FIRM, P.A.
1005 N. Marion Street
Tampa, Florida 33602
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 _____, 2020.
/s/ Leslie M. Sammis
This article was last updated on Friday, June 19, 2020.