Civil forfeiture is when the government seizes property it claims is connected to illegal activity. It developed under British maritime law, where it was easier for the Crown to seize and prosecute a vessel, rather than its owner who may be across the ocean. Thus, civil forfeiture proceedings are in rem, that is, against the property and not the person.
Historically, this process did not affect anyone unless they owned a ship. However, during the Prohibition era, the law was retooled to seize the property of bootleggers in an attempt to stop the sale and production of illicit alcohol. Then, during the War on Drugs, the Federal government created a rebuttable presumption—meaning they could seize your property first, and you could fight them for it later. When a series of legal changes during the 80s and 90s also allowed law enforcement agencies to fund themselves through the seizer of property, suddenly the forfeiture process grew legs and ran amuck.
In Florida, law enforcement agencies get to keep up to 85% of seized property. Thus, what began as a tool against large scale organized crime was eventually applied against the individual citizen.
What typically happens is during a routine law enforcement stop, if a person is found to be in possession of both illicit drugs and cash, the cash is seized. The origin of the cash does not matter. Nor does the illicit drug—it could be a small amount of marijuana, or a Vicodin that fell out of the bottle months ago and lay forgotten on the floor of the car. But possession of cash can also be suspected in connection to gambling, money laundering, theft or fraud.
The accused crime becomes less important once the property is seized. The process makes it is incumbent upon the owner to take the steps to recover the property, lest a court enter a default judgement. In fact, most seized property is lost to default judgment. So there are several things to keep in mind.
First, if your property has been seized, make certain that law enforcement provides you with a Notice of Seizure.
Second, never sign a “Settlement Agreement and Release”. Sometimes law enforcement will ask an incarcerated person, at their most vulnerable, to voluntarily forfeit the property.
Third, you must request an adversarial hearing, in writing, by certified mail, to either the city or county attorney at the address listed on the Notice of Seizure, within 15 days of the notice.
Fourth, you must attend the adversarial hearing and provide a defense. Typical defenses to civil forfeiture are (1) the lack of criminal activity; (2) the “innocent owner” defense, who had no knowledge of criminal activity; (3) “excessive forfeiture” where the amount of property seized is disproportionate to the crime; (4) “lack of probable cause” where the law enforcement officer did not have a lawful reason for the arrest.
Fifth, an experienced attorney can negotiate the release of your property for the fraction of the time and expense of an adversarial hearing.
Should you find law enforcement suddenly in possession of your property, do not hesitate to contact the attorneys at Boatman Ricci at 239-330-1494.
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