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Asset Seizure 2017-05-26T10:50:39+00:00

ASSET SEIZURE LAWYER WEST PALM BEACH: 

ASSET SEIZURE can be frustrating and confusing.  If law enforcement has seized your property, it is crucial to contact an attorney experienced in asset and civil forfeiture. Orlando Gonzalez represents the Palm Beach County Sheriff’s Office in civil forfeiture related matters and has extensive experience in this area of the law.

When law enforcement officers seize your property, you will be provided with a Notice of Forfeiture which details the parties or claimants with an interest in the property, a description of the property, and the right of the claimant to request an Adversarial Preliminary Hearing within fifteen (15) days of receipt of the notice. In Florida, the most common items to be seized are money and vehicles, though pursuant to Florida Statute 932.703 (1)(a), law enforcement may seize:

Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.

This means any vehicle and even someone’s home can be seized by law enforcement if it is found to be in violation of the Act. If you have received a Notice of Forfeiture, you must make a request for an Adversarial Preliminary Hearing (APH) in writing by certified mail, return receipt requested, to the seizing agency within fifteen (15) days of receipt of the notice. The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter. If you do not request an APH, it is WAIVED. This however, does not mean the property is forfeited, but rather the court may make a probable cause determination that the property was used, was attempted to be used, or was intended to be used in violation of any provision of Florida Statutes Chapter 893 or any felony.

Important facts regarding asset forfeiture and seizure:

INNOCENT OWNER DEFENSE

  • What is the innocent owner defense?

“Hey Mom, can I borrow your car for a few hours? I’m going to hang out with some friends.” “Of course honey, just make sure to be back before dark,” you say to your son that you presume is on the right track in life. What you don’t know is that your son really is going off with his friends to sell, transport drugs, or use the car in the commission of other felonies. The police arrive, arrest your son, and seize your car as personal property used in the commission of a violation of Florida Statutes Chapter 893. Getting your car back that night is the last thing on your mind and you may never see it again at all. This is the reality for many people under the Florida Contraband and Forfeiture Act. The law may be on their side, however.

Florida Statute 932.703 (6)(a) provides:

Property may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.

Florida Statute 932.704 (1) additionally adds:

It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders . . .”

Case law holds that the innocent owner of a motor vehicle has the burden to prove by a preponderance of the evidence that he did not know nor should he have known after a reasonable inquiry that the property was employed or likely to be employed in criminal activity. Gross v. City of Wilton Manors, 487 So.2d 303 (Fla. 4th DCA 1986). In the hypothetical above where Mother allowed Son to use the family car for the day, Mother would have to testify to the court that she did not know nor should she know that Son would use the car to sell drugs. It is likely that Mother will prevail because the scenario shows no indication that Son was involved or had previously been arrested for any drug related charges.

Now assume in our scenario that Son had been previously arrested for a drug related offense and the car was not the shared family car, but one that was simply purchased and titled in Mother’s name, insured under Mother’s policy, parked at Mother’s home, but was frequently used by Son. In City of Daytona Beach v. Bush, 742 So. 2d 335, 337 (Fla. Dist. Ct. App. 1999), a son purchased a Chevrolet Suburban SUV and thereafter titled it in his mother’s name. She claimed to use the vehicle for church activities, though allowed her son to use it one day to apparently pick up some personal belongings since he was moving. During his time using the “borrowed” SUV, Son was pulled over for speeding and loud music. During the traffic stop, the officer noted a strong odor of marijuana and after a search of the vehicle, found illicit narcotics and large sums of currency. The vehicle was seized pursuant to the Florida Contraband and Forfeiture Act.

The Mother used the “innocent owner” defense and claimed she did not have “actual knowledge” that her son was going to use the vehicle in violation of Florida Statutes Chapter 893. The trial court disagreed, finding:

There was also undisputed evidence that Gaethers’ (Son) criminal activity, known to his mother, involved selling drugs and contraband, and use of vehicles. This evidently is his dedicated occupation. Although Mrs. Bush (Mother) said she tried not to know what he was doing “out there,” a person cannot avoid being charged with constructive knowledge, as in this case, by hiding her head in the sand like an ostrich, and proclaim lack of actual knowledge. Id.

  • The burden of proof is on YOU

In almost all aspects of criminal law, the burden is on the State to prove the defendant committed all elements of an offense beyond a reasonable doubt. This is not so in a civil proceeding, especially one involving the innocent owner defense. In a case like this, the burden is actually on the person claiming the defense to prove by a preponderance of the evidence (1) that they legally own the seized property, and (2) their property was used illegally or in the commission of an illegal act without their actual or constructive knowledge.

  • What to do if you are an INNOCENT OWNER

Civil forfeiture is an area of law that is very complex and due to it being both criminal and civil in nature, it takes an attorney with the knowledge and experience Orlando Gonzalez can provide. If you have had property or assets seized from you, do not hesitate to call our office.

THE ADVERSARIAL PRELIMINARY HEARING

  • What is an Adversarial Preliminary Hearing?

Florida Statute 932.701(f) defines Adversarial Preliminary Hearing as a hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Florida Contraband Forfeiture Act. This is a crucial event for anyone who has had their property seized as it affords them the opportunity to be heard and present evidence in their favor. Florida Statute 932.703(c) states:

When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.

This stage is an effective and often the quickest way to return seized property to the owner. In many cases, the claimants fail to request a hearing or do not do so in a timely manner, which waives their right to a hearing. As noted previously, when someone does not request or waives their right to an Adversarial Preliminary hearing, Florida Statute 932.704(b) provides:

If no person entitled to notice requests an adversarial preliminary hearing, as provided in s. 932.703(2)(a), the court, upon receipt of the complaint, shall review the complaint and the verified supporting affidavit to determine whether there was probable cause for the seizure. Upon a finding of probable cause, the court shall enter an order showing the probable cause finding.

Many times, claimants do not have the funds available to hire an attorney to contest the forfeiture at the Adversarial Preliminary Hearing stage, though The Florida Contraband Forfeiture Act provides that the claimant is entitled to reasonable attorney’s fees under Florida Statute 932.704(10) if they prevail at this stage:

The court shall award reasonable attorney’s fees and costs, up to a limit of $1,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause. When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion. The court may order the seizing agency to pay the awarded attorney’s fees and costs from the appropriate contraband forfeiture trust fund.

  • What Happens if the Court Finds Probable Cause?

After the court makes a probable cause determination, the case moves forward with the same concepts as other civil cases in Florida and are governed by the Florida Rules of Civil Procedure. This means a claimant will be subject to discovery requests by the seizing agency which include interrogatories, request to produce, and the taking of depositions. Claimants can be required by the court to provide tax returns, banking records, employment information, titles to personal property, and any other information that can lead to relevant information. The case will then go to trial where a jury will determine upon clear and convincing evidence that the contraband article was being used in violation of the Florida Contraband Forfeiture Act. The court shall order the seized property forfeited to the seizing law enforcement agency.

  • What this means to YOU

If you have received a Notice of Forfeiture, entitling you to your right to schedule an Adversarial Preliminary Hearing, do not hesitate to contact an experienced civil forfeiture attorney. Orlando Gonzalez has specialized in this area of law for years and has attended over 85 Adversarial Preliminary Hearings.

EIGTH AMENDMENT ISSUES

  • How Does the Eighth Amendment Relate to Civil Forfeiture?

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” -8th Amendment of United States Constitution

Since the inception of the Florida Contraband and Forfeiture Act, it has been challenged on numerous grounds. One of the most notable ones is the violation of the 8th Amendment to the United States Constitution. In Florida, crimes can be punished by imprisonment, fines, or both. The Eighth Amendment prohibits excessive fines against criminal defendants, but it has raised the question in civil forfeitures when a person is arrested in possession of a misdemeanor amount of narcotics in their vehicle and it is seized pursuant to the Florida Contraband and Forfeiture Act. The maximum punishment for a first degree misdemeanor in Florida is one year in jail and fines up to $1,000. The question is how the Eighth Amendment applies to individuals charged with crimes that allow for monetary fines that are much lower and disproportionate to the amount of assets seized.

Florida courts have adopted a hybrid analysis by which the validity of the forfeiture is determined under two parts. First, there is an “instrumentality test” which looks at the connection between the property and the offense to determine whether the property had a close enough relationship to the offense to warrant its forfeiture. Secondly, there is a proportionality test under which the court will determine whether, considering the Eighth Amendment prohibition against excessive fines, the value of the property forfeited is excessive in relation to the offense for which the owner is being punished.

There is no absolute specific guideline in Florida, but rather this two-part test that courts must apply. Florida courts have only indicated that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of a defendant’s offense.

While not adopting a definitive checklist of relevant factors for purposes of the proportionality inquiry, the courts have considered such factors as:

  • the culpability of the claimant;
  • the gravity of the crime;
  • the sentence that could be imposed on the perpetrator for the offense; and
  • the nature and value of the property forfeited.

Notable Cases

In re Forfeiture of 2006 Chrysler 4-Door, 9 So. 3d 709 (Fla. Dist. Ct. App. 2009) A man’s vehicle was subject to forfeiture after being convicted of his third driving under the influence (DUI) charge. The court found that forfeiture of defendant’s automobile valued at $17,000 was not grossly disproportionate to his repeated driving under the influence (DUI) and therefore did not violate Excessive Fines Clause of Eighth Amendment.

In re Forfeiture of 1990 Chevrolet Blazer, 684 So. 2d 197, 199 (Fla. Dist. Ct. App. 1996) Defendant was driving his 1990 Blazer when he was stopped because he had no tail lights. The officer conducting the stop smelled marijuana. A search was conducted whereby officers discovered twenty-seven grams of marijuana, a third-degree felony punishable by imprisonment of no more than five years and by a fine of no more than $5,000.00. The value of the Blazer was $10,000.00. The court applied the above-mentioned instrumentality test, and found that the car did provide a means of carrying illegal drugs and a private area in which to smoke the marijuana, which was sufficient to meet the instrumentality test. The court then applied the proportionality test mentioned above and found the value of the Blazer was double the amount of the fine that could be imposed for the offense. The case facts, combined with the somewhat attenuated relationship between the property and the offense under the instrumentality test, lead the court to hold that the forfeiture of the Blazer did violate the Excessive Fines Clause.

What This Means to You

It should be noted that since there is no bright-line rule as to what is considered excessive, it is very important to contact an attorney like Orlando Gonzalez that is experienced in Civil Asset Forfeiture and the relevant issues and defenses available to a claimant who is on the wrong side of a forfeiture case.

Contact Asset Forfeiture and Seizure Attorneys Orlando Gonzalez  /  Call (561) 500-4529 Available 24 hrs a day or (habla espanol) 

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