Articles Posted in Forfeiture of Property

Florida, like other states, has a forfeiture law that allows the state to take ownership of people’s property when those people are suspected of committing certain crimes. The forfeiture laws are brutal because the state does not need to prove the suspect committed a crime to take that person’s property. In fact, the state does not even need to make an arrest or file charges, let alone win the criminal case, to take people’s property. Alternatively, the state can proceed to forfeit a person’s property even if the crime committed was minor, and the property has significant value. Additionally, the procedure effectively allows the state to take property and then force the owner of the property to prove the state acted improperly.

In a forfeiture case south of Jacksonville, Florida, the defendant was charged and convicted of two counts of registering a vehicle under a false name. This is a minor misdemeanor charge that almost never comes with jail time. However, because the police really liked the car she registered (a Cadillac Escalade), the state attempted to forfeit the vehicle. That is how forfeiture in Florida often works. The issue really is not enforcing the law or protecting the community or punishment so much as it is a person has property the state wants so the state is going to try to take it.

In this case, the defendant used a false name to buy and register the vehicle. The state took the vehicle and said it was contraband that could be forfeited under the Florida Contraband Forfeiture Act. The court ruled that the state could take and forfeit her vehicle without the case ever going to a jury.

When the police are investigating a crime in Florida and seize property that they believe is proceeds of criminal activity or used to facilitate criminal activity, a forfeiture case might result.  A forfeiture case is a separate case where the state attempts to assume ownership of property that they seize as part of a criminal investigation.  Civil forfeiture cases receive a lot of criticism in Florida and other states, and for good reason.  The forfeiture laws allow the police to take people’s property and hold onto it indefinitely.  There is a low threshold for the state be able to keep the property and, as a practical matter, it is often the job of the claimant to prove the property was legitimate in order to get the property back.  This process can take months or years to resolve.  In many forfeiture cases, it seems more accurate to say the person trying to reclaim his/her property is guilty until he/she can prove innocence, at least in relation to the property at issue.

Another characteristic of forfeiture cases that many people do not understand is that the state does not need to convict a person of a crime in order to be allowed to forfeit the property that is allegedly related to a crime.  A person can be found not guilty at trial or the criminal case can be dropped, yet the state can still successfully forfeit property.  In fact, the police do not even have to arrest anyone and the state does not even have to charge anyone in order to move forward with a civil forfeiture case.  We have handled several cases where an arrest of anyone was never even a consideration, but the state still attempted to forfeit large sums of money.

Needless to say, in practice, the state’s practice of forfeiting property is very questionable.  As favorable to the state as it may be, there is, in fact, a procedure whereby a person can claim and try to recover his/her property.  Forfeiture cases in Florida are considered civil cases.  As a result, the rules of civil procedure apply.  This is good in some respects as it allows for broad discovery (collecting evidence from the other side) procedures.  On the other hand, it is bad for claimants as the state has a lower threshold to win its case.  The state’s burden is a preponderance of the evidence (just greater than 50%) rather than the higher standard of beyond any reasonable doubt in criminal cases.

Florida, like many states and the federal government, has some draconian asset forfeiture laws.  For some reason, the state’s practice of forfeiting property from suspects based on very little evidence does not get much coverage, but taking property from people suspected of committing crimes is a favorite practice of police all over Florida.

As you likely know, when the state accuses someone of a crime, that person is innocent until proven guilty, and the state has the burden of proving guilt beyond any reasonable doubt.  The rules are quite different in forfeiture cases.  In asset forfeiture cases, the police can take a person’s property based on mere suspicion of criminal activity, and the state gets to keep that property while forcing the claimant to jump through a variety of hoops to try to get the property back.  While the state has to prove some connection between the property and criminal activity, as a practical matter the claimant generally has to prove there is no connection between the property and any criminal activity.  In some cases, the state can forfeit a person’s property even where the state acknowledges it does not have sufficient evidence to charge anyone with a crime.

In theory, at least, if the state wants to forfeit a person’s property, the state generally has to establish that the property represents proceeds from certain illegal activity (i.e. drug sales proceeds) or the property was used to facilitate certain criminal activity.  A recent case south of Jacksonville, Florida shows just how little the state needs to do to proceed with a forfeiture of a person’s vehicle.  In this case, the police were executing a search warrant and found a pipe with Methamphetamine residue inside a nice vehicle.  Often, the standard for whether the police decide to proceed with asset forfeiture is how much they like the property and whether it is paid off.  New vehicles that are paid off are good forfeiture targets.  Older vehicles or vehicles with large loan payments are not.  In any case, this was a nice vehicle that contained a small pipe with a small amount of Methamphetamine residue in it.  The police seized the vehicle for forfeiture.

Many states have laws that allow the police and other law enforcement agencies to take a person’s property with very little evidence of criminal activity. In fact, it is not uncommon for the police to obtain ownership of a person’s property, referred to as forfeiture under Florida law, without ever even charging the property owner with a crime. It is also possible for the state to forfeit a person’s property when the state does charge the person with a crime related to the property, but the defendant wins the case either by having the criminal charges dropped or winning at trial.

When the government makes the laws, the government makes the laws very favorable to themselves.

The forfeiture laws in Florida give the police and other law enforcement agencies a lot of authority to take the property of people they suspect are involved in criminal activity. The forfeiture laws are also set up to provide property owners few quick and efficient options to retrieve their seized property even when the evidence supporting the seizure is weak.

A practice of the government, normally the federal government but sometimes state and local law enforcement as well, many people may not be aware of is the freezing of a defendant’s assets before he/she has ever been convicted of a crime. For instance, a law enforcement agency might contact the financial institution of a suspect and have his/her accounts frozen in conjunction with an arrest. Of course, we all know the Constitution provides that a person is innocent until proven guilty. Therefore, at the arrest stage, everyone is innocent under the law. However, the government is still allowed to freeze a person’s assets based on a presumption of guilt rather than the Constitutionally mandated presumption of innocence.

More concerning is the fact that law enforcement may not just seize bank accounts or assets that they believe are directly linked to the crime. They often will seize any and all accounts and assets of a defendant without regard to whether they can prove those assets are related to, or proceeds of, a qualifying crime.

This practice obviously has several very significant and negative ramifications for a defendant. If the defendant cannot access his/her assets, he/she may not be able to pay bills, operate a business if business accounts are frozen, hire a criminal defense lawyer to develop a proper defense to the criminal charges or raise the money necessary to bond out of jail. Of course, the government is not going to care about these problems even though, again, the Constitution tells us we are dealing with an innocent person at that stage in the process.

As we have mentioned many times before on this website, we have seen many cases where a Florida law enforcement agency has taken money or other property from a person without any indication that the person or the property was involved in criminal activity. The Florida forfeiture laws allow the police to take property from people in a variety of circumstances, even when the police do not have sufficient evidence to make an arrest. In these situations, it is important for the property owner to contact a forfeiture attorney to assert his/her rights and take the proper steps to recover that property. We have represented people who have been the victims of outright theft of hundreds of thousands of dollars by the police under the forfeiture laws in Florida, and we often do it at no upfront cost to the claimant.

It looks like the Miami Dade Police Department is no different than many others in Florida that will take a person’s cash without any regard to a lack of evidence and perhaps ask those questions later. In a recent case in South Florida, an individual was traveling to Miami from Colombia with about $120,000 in cash. When he went through customs, the police stopped him and asked him questions about the cash. He said he was coming to Miami to buy cell phones to resell at his store in Colombia. The police took his cash anyway and initiated forfeiture proceedings to keep the cash. In the forfeiture pleadings, the state alleged that the individual was using the cash to buy illegal drugs. However, the state offered no specific evidence to support that allegation, and no criminal arrest was ever made.

On the other hand, the claimant was able to present witnesses who would testify that the claimant was in the electronics business and had purchased cell phones in the past from legitimate electronics businesses in Miami for resale in his home country. The claimant also presented receipts for past purchases of cell phones for resale in Colombia. In any case, it was the state’s burden to establish probable cause that the cash was the proceeds of illegal activity or used in connection with legal activity. The state failed completely in doing so.

Over the years, handling asset forfeiture cases in Florida and Georgia, we have seen some eye-opening practices of police and other law enforcement agencies designed to take property from people for their own benefit. It is not uncommon for law enforcement agencies to take large amounts of money or other property from people when there is virtually no evidence a crime was committed and no hint of criminal charges. The forfeiture laws allow law enforcement agencies to do this, and they do so with the idea that they can either work out a settlement down the road or, in the case of smaller amounts of cash, the claimant will not bother to pursue the property or will not know how to pursue it. We have even seen cases where the police seize bank accounts without having a basis to arrest anyone but threaten arrests later for leverage during settlement negotiations.

Why do law enforcement agencies squeeze citizens this way and take their property with little to no regard for the laws and Constitution? Profit. Few things excite a police officer more than the prospect of forfeiting a nice car that is paid off that can be used as an undercover vehicle or some other purpose by that law enforcement agency. As long as these law enforcement agencies can directly profit from taking property away from people, they are going to do it. A lot.

Therefore, the obvious remedy to curb these abuses is to attack the motive, the profit motive. If it is so obvious, why hasn’t this happened yet? Well, it is difficult to get the government to limit itself, particularly when the thing they desire most ($$$) is at stake. In the past, federal law enforcement agencies were not allowed to directly profit from their seizures and forfeitures. That changed in the 1980’s, and as expected, the number of forfeitures increased significantly.

As criminal defense and asset forfeiture attorneys in the Jacksonville, Florida area, we have seen the many different ways the government will take and forfeit someone’s property under the state or federal asset forfeiture laws. These cases have ranged from questionable searches seemingly designed to seize and forfeit certain property to cases where property is taken but no criminal arrests are ever made to outright thefts by the government of a person’s property. Unfortunately, the government’s taking of property is an area that has not received the attention that it deserves. When the police go and take a person’s cash because he/she is carrying a large quantity of it without even contemplating an arrest and with no indication that the person committed any crime, that should get some scrutiny. But, it rarely does.

Attorney General Eric Holder recently made an announcement about a rule change regarding certain asset forfeitures. The new rule prohibits federal agencies from adopting state asset forfeiture cases, except for those cases involving public safety, i.e. guns, explosives, child pornography. After the new rule was published, we saw a lot of articles on the Internet indicating this is the end of asset forfeitures, in some form of another. It isn’t. Not even close.

First, let’s talk about what this new rule does not address. Before we do that, it is important to understand two terms. Seizure – when the police seize one’s property, the police are taking possession of that property. Forfeiture – when the police forfeit one’s property, they are assuming ownership of that property. If the government successfully forfeits property, that property now belongs to them. Asset seizures and forfeitures are conducted by police and other law enforcement agencies at the local, state and federal levels. State asset forfeitures laws apply to the state and local law enforcement agencies; federal asset forfeiture laws apply to the federal agencies.

While people normally have a pretty good familiarity with criminal laws, they do not always understand how the forfeiture laws work. The federal government has forfeiture laws that allow the government to seize and keep the property of people for a variety of reasons. The government can take and hold someone’s property with very little evidence and judicial oversight for a long period of time. The burden of proof on the government to forfeit property is considerably lower than the “beyond a reasonable doubt” standard that applies in criminal cases. Therefore, the government can seize a person’s vehicle or a company’s operating account based on very little evidence and without a meaningful day in court for the claimant and then forfeit ownership of that property using the same low standard as in civil lawsuits. The state of Florida has similar forfeiture laws and procedures.

We have handled many forfeiture cases where the government or the state has seized property from clients based on assumptions and speculation alone and no specific evidence. In some of those cases, the claimant was not arrested, and criminal charges were never even considered. In other words, the government took their property with little or no evidence of criminal activity and no formal charges. In one case, more than a million dollars was taken from a bank account. We were able to recover the assets for our clients, but the process can be lengthy due to the advantages the forfeiture laws provide to the state and federal governments.

To put it another way, the forfeiture laws heavily favor the government, at least in the beginning of a case. There are avenues for a person or company to get his/her/its property back, but it is important to act quickly and consult a law firm that understands the law and procedures to properly handle a forfeiture case, whether in Florida state court or federal court.