What Is Seized?
Television programs often show police seizing expensive sports cars, piles
of cash hidden in vaults or valuable works of art. But asset forfeiture
can happen on a much smaller scale.
- A computer or cell phone suspected to have been used in drug cases
- A car allegedly used to transport drugs
- A bank account purportedly used to cash stolen checks
Assets allegedly used during the commission of a criminal act or those
purchased with proceeds gained from that act could be seized and their
ownership transferred to a governmental agency. In 2014, the Civil, Criminal,
and Asset Forfeiture Divisions of the U.S. Attorney's Office for the
Middle District of Florida collected more than $367 million in forfeitures.
Florida agencies received more than $16 million of that sum from the federal
Federal and state agencies could use your seized assets to pay debts, or
as payments to those who allegedly were physically or financially injured
by as a result of criminal activity. Florida agencies all have differing
rules under the Florida Contraband Forfeiture Act. They range from auctioning
off vehicles and using the assets for their department's use to depositing
the money into special law enforcement funds.
Civil and Criminal Forfeiture in Florida
In the case of civil forfeitures, cases are heard by a circuit court judge
in the civil division. The Florida Rules of Civil Procedure governs civil
seizures. Even if defendants are found not guilty in a criminal case,
the seizing agency still could sue them in civil court.
Legal standards are different in criminal and civil courts. In a criminal
trial, the defendant's involvement in a crime must be proven beyond
a reasonable doubt. In civil trials, however, the standard of proof is
preponderance of evidence. As such, the defendant faces stiffer challenges
in recovering his or her assets even if not held criminally liable.
Perfected Security Interest
Certain properties have a "perfected security interest." In such
cases, federal, state or local agencies begin the forfeiture process by
identifying the owner(s) of the assets. For example, if a suspect allegedly
has been operating a grow house, the bank that holds the mortgage must
be identified. If that home belongs to a relative of the suspect, that
relative must be identified as well. The agency must advertise in a newspaper
where the property was seized several times during a two-week period.
A jury will decide the ultimate disposition of forfeiture unless the defendant
waives that right. All entities or persons established to have an interest
in the assets must plead their case before the court. If the ruling is
in the claimant's favor and the seizing agency decides not to appeal,
that agency must return the property immediately. The agency is not allowed
to assess any charges like administrative or maintenance costs, storage
Defendants' Legal Rights
In Florida, courts and police departments must adhere to all federal laws
and the Florida Contraband Forfeiture Act. The Florida Rules of Civil
Procedure govern all State Court civil cases. No matter the jurisdiction,
the courts must protect the defendant's civil liberties against unreasonable
searches and seizures.
Unlawful stops based on a false pretext cannot be used in a criminal case.
For example, if a police officer sees a person he considers suspicious,
he cannot initiate a traffic stop for no reason. For example, if the officer
claims to have stopped a driver because one of his tail lights was out
- when, in fact, both are proven to have been working - a search of that
vehicle would be illegal.
The courts have held that there can be no true consent in the face of coercion.
If a police officer states that the suspect has no right to refuse a warrantless
search, any evidence the officer finds during the search is not admissible
in court. Even if the suspect agrees freely to the search, the consent
is invalid if that consent was granted as a result of fear and intimidation
tactics. Any search found to be based on suspicions regarding a person's
gender, race, religion or sexual orientation or ethnicity is illegal,
and any evidence collected is inadmissible.
If you or a loved one is faced with a seizure case,
contact Perlet, Shiner, McKamey, Melchiorre & Walsh, P.A. immediately.