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.
There is one remedy available to property owners who have had property unlawfully taken by the state. However, it comes very late in the process, and it is a difficult remedy to obtain. The following case illustrates how this remedy can work.
In a forfeiture case south of Jacksonville, Florida, the police were investigating the manufacture of marijuana. They executed a search warrant and found marijuana plants and other marijuana paraphernalia and growing implements in the house. They also found a small amount of marijuana and rolling papers in the suspect’s vehicle. They arrested the suspect for manufacturing marijuana and also seized his vehicle for forfeiture. When a person has property seized for forfeiture, that person does have a right to a preliminary hearing within a relatively short period of time. However, many judges see this preliminary hearing as a rubber stamp, and very rarely do they dismiss a forfeiture case at that stage. In this case, the judge noted that the evidence for forfeiture of the vehicle was weak but allowed the forfeiture case to proceed. As a result, the police were authorized to keep the suspect’s vehicle for a much longer period of time until the forfeiture proceedings played out.
Approximately two years later, the state finally conceded that they did not have sufficient evidence to prove the vehicle was used to facilitate the marijuana crime or was bought with proceeds from marijuana sales. As a result, the state had no legal basis to keep the vehicle. The vehicle was released to the suspect, but he lost the use of it for almost two years.
This was a common example of how the police can take a person’s property to forfeit it with very little, if any, evidence to support the forfeiture under the law, but a claimant has very little recourse to remedy the problem for a long time. The preliminary hearing to which a claimant is entitled somewhat quickly is often just a formality, as it was in this case.
The criminal defense and forfeiture lawyer for the claimant filed a motion for fees, costs and damages (as the vehicle was damaged while in police custody). The Florida forfeiture laws do allow a successful claimant to recover reasonable attorney’s fees and costs if the state failed to act in good faith at any point in the process or its conduct was a gross abuse of discretion. One could argue that the state taking possession of a person’s vehicle without an evidentiary basis and keeping it for two years is the definition of bad faith and an abuse of discretion. However, to actually get an award of fees and costs, the forfeiture attorney has to get the judge to agree. Some judges do not like to make that kind of finding against another governmental agency.
In this case, the judge did not agree that the police and the state acted in bad faith because the state voluntarily dismissed the forfeiture case, although it took almost two years. The judge found that this meant the claimant did not technically prevail in the case, as the statute requires. The judge also found that the two year delay was not in bad faith.
This was one of many examples of the government having extraordinary authority to take people’s property, and the people having limited options to address the issue. We have seen this happen all too often. However, there are ways to put pressure on the government and make the process go as quickly as possible. If you have been involved in any type of forfeiture matter and have questions about your rights, feel free to contact us for a free consultation.