No Attorney Fee/Costs Unless We Recover
The Florida Contraband Forfeiture Act is the set of laws that regulates Civil Asset Forfeiture in the State of Florida. To understand its place in Civil Asset Forfeiture, you must remember that the American system of justice has two distinct legal systems: The Federal system and the State system. Federal law is litigated in U.S. District Court; whereas state law is litigated in the courts in each of the fifty states.
The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) regulates Civil Asset Forfeiture in U.S. District Court (Federal Court). Whereas the Florida Contraband Forfeiture Act regulates Civil Asset Forfeiture in Florida’s state courts.
When does the Florida Contraband Forfeiture Act apply?
Knowing what laws apply is essential. To determine if the Florida Contraband Forfeiture Act applies to your case, we ask the following questions:
- Which law enforcement agency sent you a “Notice of Seizure”?
- Did prosecutors or law enforcement attorneys file a forfeiture complaint in State or Federal court?
- Who is the seizing agency? Is it a Federal, State, or Local law enforcement agency?
- Who is litigating the asset forfeiture? Federal, State, or Local law enforcement attorneys?
- Does the case involve a Federal, State, or Local criminal investigation?
Answering these initial questions will give tremendous insight into the direction your forfeiture case may take or has already taken.
What can be forfeited under the Florida Contraband Forfeiture Act?
The Florida Contraband Forfeiture Act broadly specifies large categories of property that may be forfeited. They include the following:
- Money, currency, monetary instruments, securities
- Motor vehicles, aircraft, marine vessels
- Real property used to commit a felony
- Personal property used to commit a felony
- Any controlled substance
- Gambling paraphernalia
- Equipment used to violate beverage or tobacco laws
- Motor fuel when the motor fuel tax has not been paid
The Legal Process
Naturally, the first step in any forfeiture, whether Federal or State, is the seizure of private property. The term “seizure” simply refers to when the Government or its agents, such as police, take possession of private property. Police may have seized your property when they raided your house, stopped your vehicle in traffic, or searched your baggage at the airport.
Law enforcement may have also seized your money if you used FedEx or UPS to ship it.
Step 1: Notice of Seizure
The Government has a duty, pursuant to Fl. Stat. 932.701, to send you a formal “Notice of Seizure” after they take your property. The notice must identify the seized property and advise you of the right to demand an Adversarial Preliminary Hearing, pursuant to Fl. Stat. 932.703(3)(a). You must request a hearing in writing and send it by certified mail within 15 days of receiving the Notice of Seizure or else your right to an Adversarial Preliminary Hearing will be waived.
Below is an actual notice of seizure from a real case (yours may look similar):Notice of Seizure (redacted)
Step 2: Probable Cause
The next step requires a judge to determine if probable cause exists for law enforcement to continue to hold your property. If you request an Adversarial Preliminary Hearing, the judge will hear any evidence or argument you wish to present as well as any evidence and argument law enforcement wishes to present.
If you do not make a request for an Adversarial Preliminary Hearing, law enforcement will file a motion with the Court asking it to find probable cause. However, this request is one sided and is usually made without your knowledge. In such cases, the judge makes a ruling from chambers without a hearing. Therefore, you will not have the opportunity to present evidence or make oral argument.
Like first appearance court after an arrest, an Adversarial Preliminary Hearing is not a trial and it is not the ultimate end of the case. Rather, it is a check and balance on Government power by having a judge determine if the minimum requirements to continue to hold on to your property exist.
In first appearance court, a judge determines if probable cause exists for your continued detention in jail, pending the outcome of your criminal prosecution. In an Adversarial Preliminary Hearing, a judge determines if probable cause exists for the continued retention of your property by law enforcement, pending the outcome of your Civil Asset Forfeiture case.
The Government will be allowed to retain the property pending the outcome of the case if the judge finds there is sufficient probable cause. However, the property must be returned if the judge finds that there is no probable cause. Additionally, if you win the Adversarial Preliminary Hearing, the Government will have to pay you up to $2,000 in attorneys fees and costs.
Step 3: Discovery
In all likelihood, the judge had ruled that probable cause does exist for the continued retention of your property. If the judge ruled otherwise, odds are law enforcement would return the property to you at this stage.
Regardless, if law enforcement is still proceeding with forfeiture, the next step is Discovery. During this phase, the parties will depose each other’s witnesses, demand documentation back and forth, demand answers to interrogatories, and otherwise prepare their case for trial.
Step 4: Jury Trial
Jury trial is the next step in the litigation process, assuming the case has not been dismissed or settled out of court. During trial, a jury will be picked and they will first hear the evidence presented by the Government. This evidence will be used to prove that your property was either the proceeds of crime or was used to commit a crime.
Like a criminal prosecution, the Government must prove its allegations beyond a reasonable doubt.
This is where a talented Civil Asset Forfeiture Attorney comes in. Mounting an aggressive and evidence driven defense is everything.
You will have the opportunity to challenge every single Government witness, ask them any relevant question you like, present your own evidence, testify on your own behalf, call your own witnesses, and mount as strong as a defense as possible.
Additionally, the power of effective cross-examination may surprise you. Sometimes a “sure win for the Government” falls flat on its face when its witnesses give bad answers to tough questions posed by your Civil Asset Forfeiture Attorney.
Step 5: The Verdict
The end game of every jury trial is a verdict. If the jury verdict is for the Government, ownership of the property formally transfers to the Government. Alternatively, if the jury verdict is for you, not only do you get your property back, but you are entitled to attorneys fees and costs in cases where there is evidence that the Government acted in bad faith or abused its power.
Questions? Contact Us!
Have a question about the Florida Contraband Forfeiture Act? Call us: 954-462-3636