You see it on the news - a police agency posing with drugs and cash seized in a rai - or you hear about massive amounts of drug money confiscated. This money is then repurposed and used to help fight crime or pay for military style equipment for law enforcement. Our local police departments even have vehicles "wrapped" to proudly proclaim they were seized from a local drug dealer because it is not just the El Chapos of the world; the Government can and does try to forfeit money and vehicles on a wide variety of felony offenses.
At Delgado & Romanik, we have fought felony forfeiture of:
In the last few years, the Legislature has made it harder for the Government to take your stuff. The burden of proof was raised to "beyond a reasonable doubt" and there was an increase in the amount of attorneys fees that would be awarded if the Government lost an initial hearing. But in late February, the United States Supreme Court handed down a victory for individual liberty in the decision Timbs v. Indiana, 139 S. Ct. 682 (2019).
Justice Ginsberg recently delivered an opinion on Mr. Tyson Timbs’s argument regarding Indiana’s ability to seize his SUV, which he allegedly used while dealing a controlled substance. The Court recognized that the seizure of his $42,000 SUV was a violation of the Eighth Amendment’s Excessive Fines Clause. The justification for this ruling was that the maximum fine Mr. Timbs faced for his drug dealing conviction was $10,000. Thus, the seizure of his vehicle amounted to a fine in excess of four times the maximum statutory fine. The Supreme Court recognized that the grossly disproportionate fine was unconstitutional.
While the U.S. Supreme Court did not invalidate a law enforcement agency’s ability to seize a suspect’s assets which are allegedly used to facilitate criminal activity, this ruling will help limit the broad sweeping application of forfeiture proceedings across the country. This holding should be equally applicable to Florida.
We know that the Supreme Court’s ruling has opened the door to challenge excessive government overreaching. However, the decision did not outright invalidate law enforcements’ ability to seize and work towards the ultimate forfeiture of an accused party’s property.
Although the police presented evidence that Mr. Timbs had used his SUV to facilitate dealing in heroin, Mr. Timbs presented evidence that he had purchased the SUV with legitimately obtained insurance proceeds. If the facts were such that the government was able to establish the vehicle was purchased with drug proceeds, the Supreme Court may have rejected Mr. Timbs’s claim, especially if the government had presented evidence that the value of the SUV was equal to or less than the value of proceeds derived by Mr. Timbs drug dealing.
Facts matter in every case, but when the courts analyze something like “excessiveness,” a subjective concept, it makes the facts matter even more. So, Mr. Timbs’s case is helpful in the defense of asset forfeiture cases because under certain sets of facts that show disproportionate government action, the Eighth Amendment’s ban on excessive fines will act as a shield from the government’s unconstitutional behavior. As time goes on, we can expect to see more challenges to seizures, especially when the value of the amount seized is disproportionate to the maximum fine for the charge for which a person was arrested, or is greatly outweighed by the insignificance or the seriousness of the crime.
In most instances, the cops can only seize your property if you have been arrested for a felony, and in connection with your arrest they find you in possession of personal property (cash, guns, vehicles, boats, etc.) which they believe was used to facilitate a crime, or if they have evidence that other property (house, boat, electronics, etc.) was obtained through criminal conduct. If you are arrested for trafficking in drugs and it is alleged that a vehicle assisted in the drug trafficking, the cops can seize your vehicle. However, if you are arrested for misdemeanor DUI, the only way your vehicle is subject to forfeiture is if at the time of the DUI arrest your license was suspended for a prior DUI arrest (this is a new change! and a potentially devastating one).
Another easy way to have your car seized by a law enforcement agency is to use it while you are fleeing and eluding a traffic stop. If you have any equity in your vehicle, meaning you owe less for the car loan than the vehicle is worth, the government may very well seek to seize the eluding party’s vehicle. The same thing goes for houses purchased with ill-gotten proceeds, or cash received from dealing in stolen property or drug transactions. Any property that is free and clear is at risk for forfeiture including real estate, although the homestead laws may provide some protection. The government is less likely to try to claim a vehicle that has a significant lien, meaning you owe money on it.
Shut up! This applies to any time you are arrested. The book containing things people say that helps their case is the shortest book you will ever read. The more you run your mouth, the easier you make it on the government to prevail in taking your property forever. If you have heeded the advice of invoking your right to remain silent, then it makes it easier on your attorney. Hiring an attorney is the next most important thing you can do if your property is seized. There is a limited amount of time to contest a forfeiture. Allowing too much time to pass may forfeit your ability to contest the forfeiture.
Once the police have left, you need to contact an experienced Florida forfeiture attorney who can help you navigate the process. There are strict time frames within which the government must take action, including specific notice to property owners or those who may have an interest in the property. From there, there is an initial hearing to determine if there is probable cause to support forfeiture - if the government loses this hearing your attorney can tag them for up to $2000. If a judge finds probable cause, the case proceeds with the government filing a complaint for forfeiture and otherwise unfolds like a standard civil trial, albeit with a jury and heightened burden of proof.
It is important to know there are many defenses to forfeiture, including the "innocent owner" defense and the proportionality issue that the U.S. Supreme Court wrote about. The innocent owner defense can be asserted by anyone who takes the position that they are innocent of the crime and were not using their property to facilitate a crime, or did not obtain the property as a result of criminal behavior.
At Delgado & Romanik, PLLC, we have decades of experience contesting civil asset forfeiture and we have won major victories against the government, including one case in which we won 100% of all forfeited currency (over $100,000) because the government made a small and technical mistake which we acted upon.
Often times, the law enforcement agency will settle with the defendant, which will result in the law enforcement agency keeping some of the property seized as a compromise. However, it is your right to hold the government to its burden and seek what is called an adversarial hearing. At this hearing, the government must establish probable cause to justify the seizure. If you win, the Court can award you up to $2,000 towards your attorney’s fees.
If you lose the adversarial hearing, the fight is not over. The government must prove beyond a reasonable doubt that the property was used in connection with a crime. Due to the high burden and high stakes (if you lose, your property is forfeited to the government forever) the parties often settle. However, fortune favors the bold, and holding the government to task can yield the great reward of a win which results in the return of your property.
The police may try to get you to sign a document on scene to "settle" the case or "buy back your property." Do not sign such an agreement without talking to an attorney - you can call us 24/7 and we will assist you in making the right decision, not the panicked decision. You work hard for your stuff - don’t just give it up because you are intimidated, nervous, or uncertain of your rights.
We frequently handle forfeiture cases on a contingency basis, meaning we only get paid if and when we recover money for you. Other times, we work on a blend of contingency and hourly rates, and if we win we can seek our attorneys fees from the government. Additionally, we may be able to help you recover seized funds and use them to pay for your legal defense. If you have any questions about the process, please give us a call.
Since we opened our doors, we have been fighting to protect the rights of citizens like you. We care about keeping the government in line and protecting our constitutional rights. We also believe in due process. Let us fight for you. If you or someone you know has had property taken from them by the government, call us - we may be able to help them get their property back. The call is free. Your rights and freedom are priceless.