Published on:

In Forfeiture Cases in Florida, the Rules of Civil Procedure Apply but Criminal Motions Are Also Permitted

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.

However, while these are civil cases and the civil rules apply, they obviously have some criminal law characteristics.  As a result, certain mechanisms that are used by defendants in criminal cases can be used in forfeiture cases as well.  One good example is a motion to suppress evidence.  If the claimant can establish that a search or seizure was illegal, the evidence or property that was seized can be suppressed which will often result in the end of the forfeiture case and the return of the property.  A claimant can file that motion in a forfeiture case, force the state to bring in witnesses who were involved in the seizure and have a hearing where the state has to establish the search and seizure were lawful.  The claimant is also entitled to a preliminary hearing.  This is a hearing that takes place early in the case where the state has to establish that there is probable cause to move forward with the forfeiture case.  We have found that many judges do not take these preliminary hearings seriously in forfeiture cases and normally let the forfeiture cases proceed on minimal or questionable evidence.  However, these hearings can be helpful to get information early about the case and sometimes some of the more obviously illegal forfeiture cases will get dismissed.

If you have had property seized by the state that they have not returned, it is important to speak to lawyers early in the process who are familiar the rules and procedure involved in Florida forfeiture cases.  There are deadlines after property is seized that need to be complied with to protect the rights of a claimant.  We have handled civil forfeiture cases in Jacksonville, the Orlando area and throughout Florida involving anywhere from a couple of thousand dollars to millions of dollars.  Feel free to give us a call for a free consultation about your forfeiture case.