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.