Seizure for Forfeiture in Orange County, FL

Under state or federal law, law enforcement agencies in Orange County, FL, seize property for forfeiture. The agency that seizes the property issues a receipt to the person from whom the property was seized, and all claimants must be served with a “notice of seizure.” The “notice of seizure” explains which agency seized the property and its legal authority for doing so. The seizure notice also explains the claimant’s right to contest the forfeiture and assert affirmative defenses.

Under state law, within ten (10) business days of the seizure, the seizing agency must file an application for an ex-parte order finding probable cause for the seizure as required by section 932.703(2)(a), Florida Statutes. The Application for Seizure Probable Cause Determination and accompanying sworn affidavit.

Under section 932.703(3), Florida Statutes, the agency must provide notice of the right to an adversarial preliminary hearing (APH) and that such a hearing may be required before filing a complaint. The agency has a 45-day deadline to file a formal civil action as required by section 932.703(2)(a), Florida Statutes. The formal civil action is called a “complaint for forfeiture.” After being served with the complaint, the claimant has 20 days to file an answer and assert defenses.

Most of the seizures for forfeiture in Orange County, FL, are conducted by law enforcement officers with the Orange County Sheriff’s Office or the Orlando Police Department. Those officers might also work on a federal law enforcement task force.

Attorneys for Forfeiture Seizures in Orlando, FL

The attorneys at Sammis Law Firm can help you send a written request for an adversarial preliminary hearing. After receiving the request for an APH, the law enforcement agency in Orange County, FL, will schedule the hearing and provide notice within ten (10) days of receiving the written request.

Our civil asset forfeiture attorneys can represent you in Orlando and throughout Orange County, FL, by sending your demand for the Adversarial Preliminary Hearing (APH). During the negotiations, we fight to avoid any towing charges, storage fees, administrative costs, and maintenance costs under Section 932.703(1)(d)2, F.S.

If a complaint for forfeiture is filed by a law enforcement agency in Orange County, FL, including the Orlando Police Department, our attorneys can help you file a verified claim and answer to the lawsuit. We also handle cases involving the seizure of U.S. Currency at the Orlando International Airport MCO.

Call 813-250-0500.

Seizure for Forfeiture by Orlando Police

The Orlando Police Department seizes property, including U.S. Currency and vehicles, for forfeiture. As of May 22, 2024, officers with the Orlando Police Department must follow standard operating procedures listed in Chapter 1106.8 for Contraband, Seizure, and Forfeiture. The purpose of the standard operating procedures is to create an orderly process for the seizure and forfeiture of personal and real property by the police in Orlando, FL, under the Florida Contraband Forfeiture Act, Sections 932.701-932.7062, Florida Statutes (hereinafter the “FCFA”).

The Orlando Police Department (OPD) uses forfeiture “to the fullest extent possible to impact criminal activity, provide law enforcement with economic benefit, and protect the substantive and procedural due process rights of all interested persons.” Law enforcement is supposed to be the principal objective of asset forfeiture.

The Orlando Police Department acknowledges the potential for revenues from forfeitures must not override fundamental considerations such as:

• public safety;
• the safety of law enforcement officers;
• the investigation and prosecution of criminal activity; and
• respect for the rights of individuals as provided by law.

In most cases, an arrest is required for a seizure. For example, a seizure may occur if the property owner is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under Fl. Stat. 932.701. The most commonly cited exception to this rule is when the property is U.S. Currency (cash or money) or another type of monetary instrument.

At trial, the burden of proof in a forfeiture case is “beyond a reasonable doubt.” Florida law provides an “innocent owner” with an affirmative defense to forfeiture. An affirmative defense operates to defeat the forfeiture action, even if the facts supporting the forfeiture action are proven true.

After seizing property for forfeiture, the Orlando Police must ensure timely notice is provided to all interested persons. The notice must advise interested persons that they have the right to request an adversarial preliminary hearing within 15 days.

If the officer fails to give the Notice of Forfeiture to the owner(s) on the scene, the Police Legal Advisor at the Orlando Police Department is required to send notice to all interested persons by certified mail.

Seizure Procedures for Orlando Police Department

Supervisory personnel with the Orlando Police Department must authorize both vehicle and currency seizures. Officers may seize personal property for forfeiture if there is probable cause to believe that the property is subject to forfeiture or authorized by other statutes permitting forfeiture in accordance with the Florida Contraband Forfeiture Act.

The Florida Contraband Forfeiture Act permits the seizure of the contraband article at the time of the violation or at some later time.

After the seizure, the seizing officer is required to make diligent efforts to determine ownership of the property, including the identification of the registered owner, title holder, any bona fide lien holder, or other interested party.

If anyone on the scene denies ownership of seizable currency or property, the officer might request the person the “Disclaimer of Ownership of Currency or Property” Form. Even if you signed the disclaimer of ownership form, you can still fight to get the property back if you have a lawful claim to the property by:

• requesting an adversarial preliminary hearing (APH); or
• by filing an answer to the forfeiture complaint.

The officer must provide additional information to their agency including the names and addresses of persons who may be entitled to notice regardless of whether the person claimed an ownership interest at the time of seizure. Under Section 932.701(e), “persons entitled to notice” are “any owner, entity, bona fide lien holder, or person in possession of the property…when seized.”

Notice of Seizure Issued by Orlando Police

The officer must complete the “Notice of Forfeiture and Property Receipt” Form at the time of the seizure. The officer will request the claimant sign the form. If the claimant refuses to sign, the offer will note the refusal on the form. This form is available in the Quartermaster Unit of the Orlando Police Department.

The Florida Contraband Forfeiture Act requires the agency to provide written notice to all persons entitled to notice within five (5) days of the seizure. This requirement can also be satisfied if there is a single owner and the officer provides the Notice of Forfeiture and Property Receipt to the owner on scene.

Any delays in submitting the forfeiture summary and available paperwork may prevent the ability to go forward with forfeiture. That paperwork includes the Original Incident Reports, Charging Affidavits, and supplemental reports.

The officers must handle seized property as required by the Orlando Police Department directives relating to property, evidence control, vehicle storage, and inventory. All receipts, inventory forms, disposition sheets, and red tags are marked: “hold for forfeiture.” In some cases, the officer might also allege that the property is subject to an ongoing evidence hold, sometimes called a “dual hold.”

Seizure of Vehicles for Forfeiture by Orlando Police

The Police Legal Advisor (PLA) at the Orlando Police Department must approve a vehicle seizure unless an exception applies. The Orlando Police may only seize vehicles if:

1. There is probable cause for a qualifying offense; AND
2. The vehicle was used as an instrumentality of that offense, or purchased with proceeds of criminal activity, AND
3. An arrest was made of the driver or owner for that offense.

The Police Legal Advisor (PLA) at the Orlando Police Department will also consider the following factors:

1. Whether the value of the vehicle is over $10,000;
2. Whether there is a lien on the vehicle;
3. There can be no “innocent owners” or people with a property interest that are not aware of the crime being committed. •

Supervisory personnel at Orlando Police Department must authorize all vehicle seizures. After a vehicle is seized, the officer must run a last lien and data check and reflect that information on the forfeiture summary form. Whenever possible, a hard copy of the last lien and data will be attached to the forfeiture paperwork to be submitted to the Police Legal Advisor.

When a vehicle or property is seized, the officer must submit a “Vehicle and Property Seizure and Forfeiture Summary” form, with the Notice of Forfeiture and Property Receipt Form and a copy of all reports or Charging Affidavits.

The VIN number of the vehicle should be verified by means other than a cross-reference of the license tag number. The VIN must be accurately and legibly recorded on all appropriate documents.

Possession and transportation of a controlled substance in a vehicle is sufficient for seizure and forfeiture of the vehicle, if possession and/or knowledge of said possession can be imputed to the vehicle’s owner.

In cannabis cases, there must be possession of a felony amount (greater than 20 grams), or evidence to establish probable cause of possession with intent to sell, or other felony. The purchase or sale of a controlled substance from, in, or on a vehicle subjects the vehicle to forfeiture.

A vehicle used to transport a suspect to and from a drug transaction or negotiation site is subject to seizure and forfeiture without showing that a controlled substance was actually possessed or transported within the vehicle. A vehicle used to transport a suspect to the scene of a felony is subject to seizure and forfeiture, if it can be proven that the suspect had the intent to commit the felony during the time he/she traveled in the vehicle.

For example, where a suspect drives to a location with no plan to commit an offense, but commits an offense on the premises sometime after the arrival (such as an aggravated assault in a bar or a subsequent purchase of narcotics), the suspect’s vehicle is not subject to seizure on those facts alone. If, however, it can be established that the individual had the intent to commit the offense at the time he/she used the vehicle, then the vehicle is subject to seizure.  Examples might include:

• driving a vehicle to a prearranged drug transaction;
• driving a vehicle around looking for drugs to buy; or
• using a vehicle in a kidnapping.

A vehicle used to possess the fruits or instrumentalities of a felony (i.e., stolen property > $750, burglary tools, etc.) is subject to seizure and forfeiture.

All vehicles seized for forfeiture shall be towed to the Primrose substation of the Orlando Police Department. The seizing officer must contact the Watch Commander to arrange for an employee with access to the Primrose substation to meet the tow truck operator and collect the keys to the vehicle, before giving supervised access to the locked parking area at the Primrose substation. Vehicle keys will be marked and labeled to identify the corresponding vehicle and placed in a secure location.

Pursuant to Fla. §932.703(1)(d)(2), the seizing agency is responsible for any damage to the property and any storage fees or maintenance costs applicable to the property, unless expressly agreed to in writing. The seizing or assisting officer shall complete a Vehicle Disposition Form. The Vehicle Disposition Form shall be placed at the Information Desk before the seizing officer’s tour of duty ends. “Red Tag” procedures will be followed, and the tags must be marked for forfeiture.

In cases where the owner may be unaware of the seizure, the officer is trained to notify Communications of the seizure of the vehicle. This avoids unnecessary stolen vehicle reports and complies with policy. The inventory section of the Vehicle Disposition Form must be completed.

When a vehicle is seized in Orlando, FL, your civil asset forfeiture attorney will ensure that the correct procedures were used during the inventory, including:

• the entire vehicle must be completely inventoried, including any containers within the interior of the vehicle, the trunk, and glove compartments;
• all items of great or unusual value (currency, firearms, cameras, compact disc collections, jewelry, etc.) that are not considered evidence or part of the vehicle itself must be removed and submitted to the Property and Evidence Unit for safekeeping as personal property;
• any personal property in the vehicle that an employee believes may be evidence of a crime must be removed from the vehicle for investigative purposes.

Once this investigation is concluded, such personal property shall be placed in the Property and Evidence Unit as evidence or personal property. The employee shall follow current policies regarding handling and storage of the property during the investigative process.

Evidence numbers must be recorded on the Vehicle and Property Seizure and Forfeiture Summary form, and the Property and Evidence card shall be marked to indicate that said property is related to the forfeiture case.

Seizure of Vehicles Used to Commit Felony Traffic Crimes

The Act also defines “contraband article” as “any personal property…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….”

The Act permits officers to seize property for forfeiture, including vehicles, which are used in:

• DUI manslaughter;
• vehicular homicide;
• felony DUI cases;
• leaving the scene of an accident with personal injury cases;
• racing on highway cases (2nd offense);
• weapons used in armed offenses (e.g. firearm used in robbery);
• fleeing to elude;
• a violation of §322.34(5) for being a Habitual Traffic Offender (but only in specified circumstances);
• any other property where such property is a necessary element of a felony offense.

The Police Legal Advisor should approve any forfeiture seizures for the driving offenses listed above.

Seizure for Forfeiture of U.S. Currency by Orlando Police

Currency employed as an instrumentality in the commission of, or in aiding and abetting the commission of, any felony, is subject to seizure and forfeiture. Unlike vehicle seizures, arrest is NOT required for currency seizures. Typically, currency seizures are for amounts greater than $1,500. Supervisory personnel must authorize all cash seizures. When cash is taken from a claimant for forfeiture, the officer is required to issue the claimant a Notice of Forfeiture and Property Receipt (Attachment B).

A diligent effort to determine the identity of the owner is required by the statute. If anyone on the scene denies ownership of seizable currency or property, the officer shall have the individual(s) sign the Disclaimer of Ownership of Currency or Property Form (Attachment A).

Currency used in violation of the drug laws found in Chapter 893, Florida Statutes, is subject to seizure and forfeiture. The mere presence of a large quantity of currency alone is not sufficient to justify forfeiture seizure. Instead, there must be evidence sufficient to establish probable cause to believe the currency was used, or was attempted to be used, or was intended for use, in furtherance of a drug transaction.

When determining whether probable cause exists for Orlando Police to seize currency for forfeiture, the following factors may be considered:

1. the proximity of the currency to illegal drugs;
2. the quantity;
3. denomination;
4. packaging of the currency;
5. residue on the currency;
6. a “hit” by a drug dog for the presence of a controlled substance on the currency; and
7. inconsistent statements about the currency from the owner or other involved individuals.

Whether probable cause exists depends on the totality of the circumstances; rarely will one factor alone be enough. For example, a large sum of currency plus a drug dog “hit” alone is not sufficient to justify a seizure. A large sum of money, found with one piece of crack cocaine, is not subject to forfeiture absent additional factors. If a subject has a large amount of unexplained currency upon which a drug dog has “hit” and the subject possesses individually wrapped pieces of crack cocaine that seem to be packaged for sale, the money is subject to forfeiture seizure. It is critical to look for and record all available factors.

If cryptocurrency is being seized for forfeiture, the legal advisor must be contacted prior to any freeze or transfer of cryptocurrency.

Seizure of Vessels or Aircraft by Orlando Police

Vessels or aircraft seized for forfeiture shall be transported to a secure location until further arrangements can be made. It is the responsibility of the seizing officer’s section commander to ensure that the vessel or aircraft is secured and protected. Reasonable efforts shall be made to maintain the property in the time-of-seizure condition.

Seized items shall not be used for any purpose until such rights, interest, and title are perfected pursuant to the Florida Contraband Forfeiture Act (FCFA). This section does not prohibit use or operation necessary for reasonable maintenance of seized personal property. If special maintenance is required to maintain seized personal property in time-of-seizure condition, as may be necessary with aircraft or vessels, the Orlando Police Department shall ensure that such maintenance is provided within a reasonable time after seizure, with such care continuing through the pendency of the forfeiture action.

Various statutes permit the forfeiture of motor vehicles, boats, or engines where the VIN, hull, or serial numbers have been altered, removed, or defaced. No vehicle, vessel, or aircraft shall be forfeited under the Florida Contraband Forfeiture Act (FCFA) when the owner unknowingly, inadvertently, or neglectfully altered, removed, destroyed, covered, or defaced the vessel hull ID number (§328.07(3)(b), Fla. Stat.).

Seizure of Real Property Orlando Police

The Orlando Police Department may seize real property, including any right, title, leasehold, or other interest in the whole of or any lot or tract of land, in real property for forfeiture under the Act when:

• probable cause exists to believe that the real property, or the interest therein, is subject to seizure; and
• the real property was used, is being 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; or
  • acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act (FCFA).

The “homestead exemption” provisions of the Florida Constitution prohibit the forfeiture of one’s home, regardless of the criminal activity being conducted in it. Therefore, unless an exception applies, officers in Orlando, Florida, may only seize real property if:

• the property is not homestead property;
• probable cause exists for a qualifying offense;
• the property was used as an instrumentality of that offense; and
• the owner was arrested for that offense.

If the owner is not the person arrested, there must be proof that the owner had actual knowledge that the arrested person was committing that offense.

Notification to appropriate social service agencies shall be made as soon as reasonably possible if the real property is:

• currently occupied; or
• houses dependent children, medically deficient persons, or persons otherwise infirm are to be removed.

Before the Orlando Police Department seizes the real property, it must make a diligent effort to determine the ownership of the seized property, including the owner and the bona fide lien holder of record, and shall schedule any pre-seizure hearings as appropriate. If the Orlando Police Department decides not to proceed with forfeiture based upon innocent-owner or other considerations, the property shall be released to the lawful owner or designated agent.

Prior to seizing any real property, an attorney from the Police Legal Advisor’s office must determine whether there is probable cause to believe that the real property was used in violation of the Florida Contraband Forfeiture Act (FCFA) or other applicable statutes.

Once probable cause has been established, the following factors may be considered prior to any recommendation or final decision to seize real property:

1. Whether the seizure is cost effective and/or serves other law enforcement objectives.
2. The availability of alternative methods of forfeiture such as joint or adoptive forfeiture ventures with federal officials.
3. The impact of forfeiture on co-owners and lien holders and the relative merit of any claims or defenses they may have.
4. The impact of forfeiture on the public health, safety, and welfare, particularly where environmentally sensitive lands may be involved.

Reasonable efforts should be made to maintain the real property in such a manner as to minimize loss of value.

Seizure of a Firearm for Forfeiture by Orlando Police

When the firearm itself is “contraband,” it is regarded in the same way as other contraband, like illegal narcotics. If a firearm is merely concealed in a vehicle, but is otherwise lawfully possessed, the vehicle is regarded as “merely incidental” to the offense and, therefore, not subject to seizure.

A vehicle is not subject to forfeiture only because a concealed firearm is inside. Instead, the weapon must have been used in an independent felony, or the firearm must otherwise be “contraband.” In those cases, the vehicle is subject to forfeiture because it was used to transport or conceal that contraband. Examples include possession of a firearm by a convicted felon or possession of a firearm used in the commission of a felony or when the firearm is the fruit of a felony.

This article was last updated on Friday, September 13, 2024.