Forfeiture

Any personal or real property used, attempted to be used, or intended to be used in the commission of a crime, or in the aiding or abetting of a crime, or to facilitate a crime may be subject to forfeiture by governmental entities.

Fort Lauderdale, Broward County, attorneys at William Moore Criminal Defense provide years of experienced legal representation and knowledge that is aggressive and skilled in the art of criminal defense. If you or a loved one has just been arrested for a crime resulting in Forfeiture of your property in Fort Lauderdale and now face criminal charges, Contact William Moore Criminal Defense for immediate legal answers and available representation in Broward County.

Florida has enacted the Contraband Forfeiture Act, 932.701-932.706, which controls the forfeiture subjects and procedures. It is important to note that even if a Fort Lauderdale criminal defendant is ultimately found innocent on all charges, their property may still be subject to civil forfeiture. This is because there are different evidentiary standards, also known as different burdens of proof, for the criminal proceedings and the civil forfeiture proceedings. In criminal proceedings, the trier of fact must find the defendant guilty beyond a reasonable doubt. However, in civil forfeitures, the standard is by the preponderance of the evidence, which is interpreted as more likely than not that the property was used in the commission of a crime or obtained through the proceeds of crime.

The United States Supreme Court has held that the Excessive Fines Clause of the Eight Amendment which prohibits cruel and unusual punishment applies only to fines imposed as punishment. As interpreted, civil forfeitures are not subject to the Excessive Fines Clause. However, civil forfeitures cannot be grossly disproportionate to the offense. Criminal attorneys often explain that contraband articles which are subject to forfeiture, includes but is not limited to the following:1. Any controlled substance, or any substance, device, paraphernalia, or currency that was attempted to be used or intended to be used in violation of Florida’s drug laws, if the totality of the facts presented by the state establishes probable cause to believe that a nexus exists between the article seized and the narcotic activity regardless of whether the contraband can be traced to a specific transaction2. Any personal property that was used, attempted to be used an instrumentality in the commission or a felony, or used in aiding or abetting a felony3. Any real property was used in the instrumentality in the commission of a felony, or in aiding or abetting the commission of felony or which is acquired as a result of a violation of the Florida Contraband Forfeiture Act.

Any real property acquired by proceeds obtained a result of Medicaid fraud. Also any personal property belonging to any person which is acquired by proceeds obtained a as result to Medicaid fraud. Procedural Implications of the Florida Criminal Contraband Forfeiture Act Upon proof that an item has been used in violation of the Florida Contraband Forfeiture Act, the seizing agency can take the property, however, cannot use the seized property for any purpose until the rights to the property, any interest, and title are perfected in accordance with the applicable statute. The seizing agency must use reasonable efforts to maintain seized property in such a manner as to minimize loss of value. If the court finds probable cause that the property was used in violation of the Florida Contraband Forfeiture Act, the court must order the property to be stored in the lease restrictive means to protect against further disposal, waste, or continued illegal use of such property until the forfeiture proceedings are adjudicated. The court may order the claimant to post bond or adequate security which is equivalent to the value of the property.

Forfeiture proceedings must be initiated within 45 days or the claimant may institute an action to recover the property interest. Criminal defense lawyer William Moore often explains that forfeiture actions are to be tried in the appropriate circuit court by a jury, unless the claimant waives that right. Claimants have twenty days to answer the complaint with an answer which includes responsive pleadings and affirmative defenses. The seizing agency is required to conduct a diligent search as to discover the owner of the property subject to forfeiture. All persons known to hold an ownership interest must be served with a copy of the complaint and the seizing agency also must publish notice of the forfeiture complaint once per week for the duration of two weeks in a newspaper of general circulation in the county where the seizure occurred.

If a settlement is reached between the seizing agency and the claimant, the settlement agreement executed between the two parties must be reviewed by the court or by a mediator or arbitrator agreed upon by the parties. If the claimant prevails, notes attorney Moore, that the seizing agency cannot charge any storage fees or administrative costs to the claimant. The trial court will require the seizing agency to pay the claimant the reasonable loss of value of the property plus any lost income of the seized property if the claimant prevails at trial or on appeal. However, the seizing agency does have the right to appeal and that decision is made by the chief administrative official of the seizing agency. If the seizing agency obtains a judgment in their favor, they have several options as it pertains to the disposition of the seized property. These options include: retention for future use, sale of personal property at public auction, to list real property on the commercial real estate market, or to trade or transfer the property to a public or non-profit organization. If there are any applicable liens on the property, those liens must be satisfied. If the seizing agency is a county or municipal agency, any remaining proceeds shall be deposited into a special law enforcement trust fund.

Procedures in Fort Lauderdale criminal cases if Property UnavailableThe court can order the forfeiture of any other property of a claimant, excluding lienholders, up to the value of any property subject to forfeiture under this section if any of the property:(a) Cannot be located;(b) Has been transferred to, sold to, or deposited with a third party;(c) Has been physically moved beyond the jurisdiction of the court;(d) Has been substantially diminished in value by any act or omission of the person in possession of the property; or(e) Has been commingled with any property which cannot be divided without difficulty.Implications of Third Party Interests in Property in Fort Lauderdale criminal actionsThe burden is on the seizing agency to prove, by preponderance of the evidence, that the owner of the property either knew or should have known after a reasonable inquiry that the property was being employed in criminal activity or likely to be employed in criminal activity. A lienholder’s interest which is properly perfected may not be subject to forfeiture unless the seizing agency can prove by preponderance of the evidence that the owner of the property had actual knowledge that the property was being employed in criminal activity or likely to be employed in criminal activity.

The same standard of actual knowledge applies to motor vehicles rented from a company engaged in the business of renting or leasing vehicles.Jointly owned property held between husband and wife cannot be forfeited unless the seizing agency establishes by a preponderance of the evidence that the co-owner either knew or should have known after a reasonable inquiry that the property was being employed in criminal activity or likely to be employed in criminal activity. Any interest held by co-owners, other than property held jointly between husband and wife, may not be forfeited unless the seizing agency establishes by a preponderance of the evidence that the co-owner either knew, or had reason to know, after reasonable inquiry, that the property was employed or was likely to be employed in criminal activity. When the interests of each culpable co-owner are forfeited, any remaining co-owners will be afforded the opportunity to purchase the forfeited interest in the property from the seizing law enforcement agency. If any remaining co-owner does not purchase such interest, the seizing agency may hold the property in co-ownership, sell its interest in the property, or liquidate its interest in the property, or dispose of its interest in the property in any other reasonable manner.

It is an affirmative defense to a forfeiture proceeding that the nexus between the property sought to be forfeited and the commission of any underlying violation was incidental or entirely accidental. The value of the property sought to be forfeited in proportion to any other factors must not be considered in any determination as to this affirmative defense.Seizure of Personal PropertyThe owner of personal property and other persons with an interest in the personal property are not constitutionally entitled to notice and a hearing before the property is seized. Thus, property may be seized at the time of the statutory violation, however, persons found to have an ownership interest in the party must be notified. After receiving notification, claimants have fifteen days to request an adversarial preliminary hearing to determine if probably cause exists to support the seizure. Seizure of Real PropertyAs it pertains to real property, notice and opportunity to be heard at a pre-seizure hearing must be given before the seizure occurs. The real property owner must be notified of the adversarial preliminary.