Florida Contraband Forfeiture Act
The Florida Contraband Forfeiture Act is found at Sections 932.701-932.706, F.S., which provides for the seizure and civil forfeiture of property used in violation of the Act. The forfeiture procedure uses a two-step process as explained in Dept. of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla. 1991).
The first step is the seizure or other initial restraint on the property. The second step is the forfeiture itself which occurs after it is determined in court that the property can be legally forfeited.
Attorneys in Tampa for Asset Forfeiture
If a law enforcement officer took your money, vehicle or other property in a forfeiture action, then contact an experienced attorney in Tampa, Hillsborough County, FL, to discuss your case. Our attorneys fight forfeiture actions throughout Tampa, FL, and the surrounding areas in the greater Tampa Bay area.
Call us at (813) 250-0500 to discuss your case.
What are the New Forfeiture Laws in Florida?
Effective July 1, 2016, CS/CS/HB 889 amends the requirements that apply to seizure, the review of seizures, and forfeiture procedures in a number of ways, as follows:
- Property seizure is unauthorized until the property owner is arrested for a criminal violation that renders the property a contraband article, or such a criminal violation occurs and one of the enumerated arrest exceptions applies. Once one of these two conditions is met, property may be seized if there is probable cause that property was used in violation of the Florida Contraband Forfeiture Act;
- The seizing agency must petition the court for a finding that the seizure was lawful;
- The court shall order the seized property forfeited to the seizing agency upon proof beyond a reasonable doubt that the property was used in violation of the Act;
- Specified parties in seizing agencies must review forfeiture settlements, perform annual seizure reviews, and review seizures for legal sufficiency. Agencies must address deficiencies raised by a review and create written policies promoting releasing the property;
- Law enforcement officer’s employment and compensation may not depend on seizure quotas;
- Specified law enforcement officers must receive training on seizure and forfeiture;
- The percentage of proceeds that must be donated to specified causes increases from 15 percent to 25 percent for qualifying agencies that acquire at least $15,000 through the Act during a fiscal year;
- Any law enforcement agency that does not comply with the reporting requirements is subject to a civil fine up to $5,000.
What is the Florida Contraband Forfeiture Act?
Sections 932.701-932.706, F.S., comprise the Florida Contraband Forfeiture Act, which provides for the seizure and civil forfeiture of property related to criminal and non-criminal violations of law. Contraband and other property may be seized when utilized during or for the purpose of violating the Act.
Under s. 932.703(1), F.S., any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of the Act or in, upon, or by the means of which a violation of the Act has or is taking place, may be seized.
Property constituting a “contraband article” includes a controlled substance as defined in ch. 893, F.S., or a substance, device, paraphernalia, or currency or other means of exchange that was used, attempted, or intended to be used in violation of ch. 893, F.S. The totality of the facts presented by the State of Florida must clearly establish probable cause to believe that a nexus exists between the article seized and the narcotics activity. s. 932.701(2)(a)1., F.S.
Other types of a contraband article includes:
- Gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, attempted, or intended to be used in violation of Florida gambling laws;
- Equipment, liquid or solid, which was used, attempted, or intended to be used, in violation of Florida beverage or tobacco laws;
- Motor fuel upon which the motor fuel tax has not been paid;
- Personal property that was used or attempted to be used as an instrumentality in, or to aid or abet the commission of, any felony, or which is acquired by proceeds obtained from a violation of the Act;
- Real property that was used or attempted to be used as an instrumentality in, or to aid or abet the commission of, any felony, or which is acquired by proceeds from a violation of the Act;
- Any personal property in the possession of or belonging to any person who takes aquaculture products in violation of s. 812.014(2)(c), F.S.;
- A motor vehicle offered for sale in violation of s. 320.28, F.S.;
- A motor vehicle used in the course of committing a violation of s. 322.34(9)(a), F.S.;
- Photographs, films, or other recorded images, recorded in violation of s. 810.145, F.S., and possessed for amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person;
- Real property which is acquired by the proceeds of Medicaid fraud under ss. 409.920, F.S., or 409.9201, F.S.;
- Personal property in the possession of, or belonging to, any person which is acquired by the proceeds of Medicaid fraud under ss. 409.920, F.S., or 409.9201, F.S.; and
- Under Section 932.701(2)(a), F.S., personal property that is used or attempted to be used as an instrumentality in the commission of, or in aiding and abetting in the commission of, a person’s third or subsequent violation of s. 509.144, F.S.
Specified Criminal and Noncriminal Acts under the Florida Contraband Forfeiture Act
The following specified criminal and noncriminal acts are prohibited under the Florida Contraband Forfeiture Act:
- To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft;
- To conceal or possess any contraband article; and
- To use any vessel, motor vehicle, aircraft, other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
- To conceal, or possess, or use any contraband article as an instrumentality in the commission of or in aiding or abetting in the commission of any felony or violation of the Florida Contraband Forfeiture Act.
- To acquire real or personal property by the use of proceeds obtained in violation of the Florida Contraband Forfeiture Act as specified in Section 932.702, F.S.
Seizures under the Florida Contraband Forfeiture Act
The property specified in the Florida Contraband Forfeiture Act may be seized and forfeited when the property has been used in violation of the Act, or in, upon, or by means of which a violation of the Act has or is taking place.
Under Section 932.703(1), F.S., personal property may be seized when the violation occurs or after the violation, if the person entitled to be notified is notified at the time of the seizure or by certified mail.
A person entitled to be notified includes any owner, entity, bona fide lienholder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry as provided in Florida Statute Section 932.701(2)(e), F.S.
Real property can only be seized by the process of lis pendens after a violation of the Act has occurred, and prior to when the person entitled to notice has been given the opportunity to attend a pre-seizure adversarial hearing to determine the validity of the seizure.
The term “lis pendens” is Latin for “a suit pending.” In the context of a forfeiture action, it means a written notice that a lawsuit has been filed to decide the title to, or property interest in, real property.
Impact of the Seizure in Florida
Under Florida Statute Section 932.703(c), as soon as a seizure takes place, all rights to, interest in, and title to contraband articles used in violation of the Act shall immediately vest in the law enforcement agency that performed the seizure. The term “vested” means that the interest has accrued or become fixed or settled.
Adversarial Preliminary Hearings in Florida Forfeiture Actions
Florida Statute Section 932.703(2)(c) and (d), explains the pre-seizure adversarial hearings.
Under Florida Statute Section 932.703(2)(c), F.S., adversarial preliminary hearings are conducted before or after a seizure to determine whether there is probable cause to believe that the property was used, is being used, was attempted to the used, or was intended to be used in violation of the Act. Only if the court determines that probable cause is established will the court authorize the seizure or continued seizure of the subject contraband.
Forfeiture Proceedings in Florida
Under Florida Statute Section 932.701(2)(c), the seizing agency must promptly proceed against the property by filing a complaint. As provided in Florida Statute Section 932.701(2)(d), a “complaint” is a petition for forfeiture filed in the civil division of the circuit court by the seizing agency requesting the court to issue a judgment of forfeiture.
The complaint must be filed in the circuit court in the jurisdiction where the seizure or the offense occurred. See Section 932.703(2)(a), F.S.
Under Section 932.704(3), F.S., the forfeiture proceedings must be decided by a jury trial unless the claimant waives that right. See Dept. of Law Enforcement v. Real Property, 588 So. 2d 967.
Unlike the probable cause standard used in adversarial preliminary hearings, property may not be forfeited unless the seizing agency proves by a preponderance of the evidence that the owner either knew, or should have known that the property was being used or was likely to be used for criminal activity. See Section 932.703(6)(a), F.S.
Upon clear and convincing evidence that the contraband article was being used in violation of the Act, the court shall order the seized property forfeited to the seizing agency. As provided in Section 932.704(8), F.S., once this occurs, the right, title, and interest in and to such property shall be perfected in the seizing agency, subject only to the rights of bona fide lienholders.
Use and Disposition of Forfeited Assets in Florida
Once a seizing agency has been awarded a final judgment granting forfeiture of property, the agency may do any of the following:
- Retain the property for agency use;
- Sell the property at public auction or by sealed bid to the highest bidder, except for real property, which must be sold in a commercially reasonable manner; or
- As explained in Florida Statute Section 932.7055, salvage, trade, or transfer the property to any public or nonprofit organization.
When the forfeited property has a lien attached to it that is preserved by the court. See s. 932.703(6)(b), F.S. As required by Section 932.7055(3)(a), the agency must either sell the property and apply the proceeds toward satisfying the lien, or satisfy the lien before disposing of the property in one of the ways described above.
Should the seizing agency choose to sell forfeited property, the proceeds may not be used to meet normal operating expenses of the agency. Instead, the proceeds must be distributed with the following priority:
- Satisfaction of any liens preserved by the court during forfeiture proceedings.
- Payment of the cost incurred to the seizing agency for storage, maintenance, security and forfeiture of the property.
- Payment of the court costs incurred from the forfeiture proceeding.
- For the 2015-2016 fiscal year only, the funds in a special law enforcement trust fund established by a municipality may be used to reimburse the general fund of the municipality for advances from the general fund to the special law enforcement trust fund prior to October 1, 2001 as required by Florida Statute Section 932.7055(4).
When the seizing agency is a county or municipal agency, the remaining proceeds from a sale of forfeited goods shall be deposited into a special law enforcement trust fund that may be used only for specific expenses. See Section 932.7055(5)(a), 932.7055(5)(c)1., 932.7055(5)(c)2., and 932.7055(5)(c)3.
The funds may be expended in accordance with the following requirements:
- The funds may only be used for school resource officer, crime prevention, safe neighborhood programs, drug abuse education, drug prevention programs, or other approved law enforcement purposes under Section 932.7055(5)(c)1.
- The funds may not be used to meet normal operating needs of the law enforcement agency as required in Florida Statute Section 932.7055(5)(c)2.
- Any local law enforcement agency that acquires at least $15,000 through the Act within one fiscal year must donate at least 15 percent of the proceeds for the support of any drug treatment, drug abuse education, drug prevention, crime prevention, safe neighborhood, or school resource officer programs under Florida Statute Section 932.7055(5)(c)3.
Effect of the 2016 CS/CS/HB 889
The bill, 2016 CS/CS/HB 889, restricts the methods by which a seizing agency may seize and forfeit property. Pre-conditions must be met before a property seizure may occur, as follows:
- The owner of the property must be arrested for a criminal violation that renders the property a contraband article; or
- A criminal violation must occur and one of the following arrest exceptions must apply;
- The owner of the property cannot be identified after a diligent search;
- The owner of the property is a fugitive from justice or deceased;
- An individual who does not own the property is arrested for the criminal violation that renders the property a contraband article, and the owner of the property had actual knowledge of the criminal activity;
- The owner of the property agrees to be a confidential informant; or
- The property is a monetary instrument.
The term “monetary instrument” means coin or currency of the United States or any other country; a traveler’s check; a personal check; a bank check; a cashier’s check; a money order; a bank draft of any country; an investment security or negotiable instrument in bearer form or in other form such that title passes upon delivery; a prepaid or stored value card or other device that is the equivalent of money and can be used to obtain cash, property, or services; or gold, silver, or platinum bullion or coins.
If either pre-condition exists, the property may be seized if it has been used in any violation of the Act, regardless of whether the violation of the Act is connected to the criminal violation.
Within 10 days of the seizure, the agency must petition the court for a finding that one of the pre-conditions has been complied with and there is probable cause to believe that the property was used in violation of the Act. If the court finds that the seizure was lawful, the agency can hold the property pending the completion of proceedings under the Act.
If the court finds that the seizure was unlawful, the seizure and any restraint on the property must be released within five days of the court finding. If the owner of the property or another aggrieved party files a petition for an adversarial preliminary hearing and the court finds that probable cause does not exist, the seizing agency is liable for reasonable attorney fees and costs, up to $2,000.
After a lawful seizure occurs, the seizing agency must promptly file a petition to forfeit the property. The seizing agency must pay a filing fee of $1,000 and a bond of $1,500 to the clerk of court at the time the petition is filed. The bond is payable to the aggrieved party if the court does not award the forfeiture to the seizing agency.
If 90 or more days have elapsed since the seizure of the property and the owner of the property cannot be located, the property may be deemed contraband and subject to forfeiture. The court shall order the forfeiture of the property when the seizing agency proves beyond a reasonable doubt that the seized property was being used in violation of the Act.
The bill, 2016 CS/CS/HB 889, amends the reporting and review requirements that apply to property seizure and forfeiture, as follows:
- The head of the seizing agency or a subordinate must review all forfeiture settlements;
- Seizing agencies must review the seizures annually, at a minimum;
- If a review reveals deficiencies, the seizing agency must take prompt action to comply with the Act;
- The employment, salary, promotion, or other compensation of a law enforcement officer may not depend on seizure quotas;
- A supervisor must promptly review the probable cause supporting a seizure. The legal counsel for the seizing agency must be notified of all seizures as soon as possible and must review the seizure for legal sufficiency;
- Seizing agencies shall adopt and implement written policies and procedures promoting the prompt release of seized property in specified circumstances and review each claim of interest in seized property;
- The settlement of any forfeiture action must be consistent with the Act and the seizing agency’s policy; and
- Law enforcement officers that perform property seizures must receive training and continuing education as required by the Act, and each seizing agency must retain records of compliance.
The bill increases the percentage of proceeds that must be donated from 15 percent to 25 percent for local law enforcement agencies that acquire at least $15,000 through the Act within one fiscal year. It also requires law enforcement agencies to submit reports to the Florida Department of Law Enforcement (FDLE) as follows:
- All law enforcement agencies must submit annual reports to FDLE regarding whether the agency has seized or forfeited property under the Act;
- All law enforcement agencies that received or expended forfeited property or proceeds of forfeited property must submit an annual report by October 10 documenting the receipts and expenditures;
- The report must specify the type, approximate value, court case number, type of offense, disposition of property received, and amount of any proceeds received or expended;
- Any law enforcement agency that does not comply with the reporting requirements is subject to a civil fine up to $5,000. The fine will not apply to agencies that substantially comply with the requirements within 60 days of receipt of the notice of noncompliance from FDLE;
- The bill requires FDLE to submit an annual report to the Office of Program Policy Analysis and Government Accountability (OPPAGA) compiling the data in the annual reports submitted by the law enforcement agencies;
- The bill corrects statutory references and reenacts a section of statute to reflect the changes made by the bill.
This article was last updated on Monday, November 11, 2016.