Procedures in Florida Contraband Forfeitures

The Florida Contraband Forfeiture Act (FCFA)1 authorizes law enforcement agencies to seize contraband articles, vessels, motor vehicles, aircraft, other personal property, or real property used in violation of the FCFA.

Property may only be seized if the owner of the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article, or if one of the following circumstances applies:

The property is a monetary instrument.
The owner of the property agrees to be a confidential informant;
An individual who does not own the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article, and the owner of the property had actual knowledge of the criminal activity;
The owner of the property is a fugitive from justice or is deceased;
The owner of the property cannot be identified after a diligent search, or the person in possession of the property denies ownership, and the owner of the property cannot be identified by means that are available to the employee or agent of the seizing agency at the time of the seizure;

Ten Day Application for Probable Cause Determination

If a law enforcement agency seizes property, it must apply to a court for an order determining whether probable cause exists for the seizure of the property within 10 days of the seizure. If a court finds that probable cause exists for the seizure and determines that the owner was arrested for a qualifying offense or an arrest exception applies, the law enforcement agency may initiate a forfeiture proceeding.

Forty-Five Day Complaint for Forfeiture

A seizing law enforcement must promptly initiate forfeiture proceedings within 45 days of the seizure by filing a complaint in the circuit court in the jurisdiction where the seizure or offense occurred.

Upon proof beyond a reasonable doubt that the contraband article was used in violation of the FCFA, the court must order the seized property forfeited to the seizing law enforcement agency.

What Happens to Forfeited Property?

After the property is forfeited to the seizing law enforcement agency, the agency may:

Retain the property for the agency’s use;
Sell the property; or
Salvage, trade, or transfer the property to any public or nonprofit organization.

If the seizing law enforcement agency is a county or municipal law enforcement agency, the proceeds from a forfeiture must be deposited into a trust fund established by the county or municipality, and such proceeds may be used for school resource officer, crime prevention, safe neighborhood, drug abuse education and prevention programs, or may be used for other law enforcement purposes except for meeting the normal operating expenses of the agency.

If the seizing agency is a state agency, the proceeds are deposited into the General Revenue Fund unless such agency has a dedicated trust fund
created by statute to accept proceeds from a forfeiture.

What is the Civil Asset Forfeiture Proceeding’s Connection to a Criminal Case?

Under current law, a civil forfeiture action is a separate court proceeding from a defendant’s criminal case and may proceed during the pendency of the criminal case. As such, the outcome of the forfeiture action is not dependent on the outcome of the criminal proceeding. In some cases, a defendant may
have his or her property forfeited, but subsequently be found not guilty or have charges dismissed in the related criminal case.

Burden of Proof in Federal Civil Asset Forfeiture Proceedings

Federal law also authorizes asset forfeiture in specified circumstances. Federal asset forfeiture laws differ from Florida’s asset forfeiture laws in that the burden of proof required to forfeit property is lower. Federal law only requires the federal government to demonstrate the connection between seized property and a crime by a preponderance of the evidence, rather than beyond a reasonable doubt.

This difference in the burden of proof explains why some property that may be forfeited under federal law may not be forfeited under state law.

Federal Adoption of Property Seized in Florida

Federal law authorizes specified agencies, such as the Department of Justice and the Department of the Treasury, to share federally forfeited property with participating state and local law enforcement agencies in two ways:

through the process of “adoption;” or
by participating in a joint task force or investigation with the federal government.

Florida does not currently restrict a state or local law enforcement agency from sharing proceeds of property that has been forfeited under federal law.

Current law authorizes a state or local law enforcement agency to seize property from a person arrested for violation of state law and subsequently turn such property over to the federal government for forfeiture under federal law through the process of adoption if the conduct giving rise to the seizure
is also in violation of federal law and where federal law provides for forfeiture.

Once the seized property is forfeited under federal law, the federal agency may transfer up to 80 percent of the proceeds from such forfeiture back to the state or local agency that originally seized the property.

A state or local law enforcement agency may also receive a share of the proceeds from forfeited assets if such agency participates in a joint task force with the federal government. Generally, any property seized as the result of a joint task force is subject to forfeiture under federal law. The amount of
forfeiture proceeds that a state or local law enforcement agency receives from its participation in a joint task force varies depending on the level of such agency’s involvement in the joint task force, but may be specified by a pre-arranged agreement.