Under New 2016 Law, Florida Police May No Longer Seize Property Without An Arrest

Pensacola Asset seizure

There was a time when seizing the vehicles and other assets of people who were never even charged with a crime was a substantial source of revenue for law enforcement agencies all over Florida, including Pensacola as well as Escambia, Santa Rosa, Okaloosa and Walton counties.

Thankfully, at least here in the Sunshine State, seizing and bringing a civil forfeiture claim against an owner of property on which drugs or contraband was found is no longer that easy under Florida Statute §932.703.

For a list of what is considered contraband see Florida Statute §932.701.

Asset seizure and forfeiture laws were borne out of an effort to add punishment to drug dealers and other people involved with criminal activities above and beyond criminal prosecution. If someone was found to have drugs or other contraband in their cars, homes, boats or on the premises of other property, a law enforcement agency’s attorney on behalf of the county or city could take that property if they could prove their case by a standard of proof called “clear and convincing evidence.”

While the genesis of forfeiture laws may have been relatively laudable, the merits of such laws have become dubious as the laws’ enforcement progressed. In practice, the laws encouraged officers to look for the slightest excuse to pull over certain vehicles – sometimes very high-end, expensive cars – with the hope that they might find any amount of drugs or contraband of some sort.  A “seed and stem” from a marijuana plant would be enough to seize a $100,000.00 Mercedes Benz. It mattered none that the driver was not arrested. (NOTE: interestingly enough, the Law Enforcement lobbyists persuaded the Florida legislature to carve out an exception: this law does not apply to the seizure and forfeiture of “monetary instruments” such as cash or checks).

It was obvious that many “stops” by officers were directed more at seizing property than at making an arrest or preventing crime. The money from the sale of property seized under our forfeiture and seizure laws were, for the most part, put in budgets to help the law enforcement agency. The property, often an automobile, would be seized and a civil action brought against the property even if no arrest of the person driving the car was made. Or, if an arrest was made, the vehicle may have been seized even if charges were dropped or if the driver was found not guilty after trial.

When a law enforcement agency seizes vehicle or other pieces of property, and this could include real estate, the law enforcement agency files a lawsuit that is essentially a civil court action. This requires the owner to retain a private attorney if he or she wants to be represented – a potentially expensive endeavor. Unlike a criminal case, there is no right to an attorney in civil matters under our Constitution. There is no public defender available in seizure proceedings.

Unfortunately, many people who have their car or property seized cannot hire a lawyer to defend themselves; sometimes it wasn’t economically feasible if the car was not worth that much for a person to defend. Therefore, many people in these claims went unrepresented, defaulted and lost their property.

In such cases, if the state wins, the vehicle is taken from its owner, with no compensation, and sold, with the revenue going to the law enforcement agency or local government, etc. There is a lot more to Forfeiture Law than mentioned in this post. Please give us a call at The Jenkins Law firm.

Thankfully, in 2016, a new law was enacted in Florida that makes it harder for law enforcement agencies to take property. There are two primary changes in the law

  • Under the new law, officers must first make an arrest in the case before they can seize a vehicle or other property. There is still no requirement that the arrest result in a conviction.
  • The degree of proof required to forfeit your property is higher. Under the old Florida law, the state had to present “clear and convincing evidence,” but the new law requires the state to prove their case “beyond a reasonable doubt.” Although a seizure case is still a civil procedure, the “beyond a reasonable doubt” standard of proof is the same level required to convict someone accused of a felony in a criminal case..

Although Florida still uses asset forfeiture, it is now a bit more difficult for law enforcement
agencies to use it as an easy way to generate income. Florida and a handful of other states have
implemented similar laws.