Request an Adverse Preliminary Hearing
The owner of the personal property is entitled to notice at the time of the seizure or may be noticed by certified mail, return receipt requested. If noticed by certified mail, notice must be mailed within five (5) working days after the seizure. Whether delivered in person or by certified mail, the notice must state that a person entitled to notice may request an adversarial preliminary hearing within fifteen (15) days after receiving such notice. To request an adversarial preliminary hearing, the claimant must timely make the request in writing, and send it by certified mail, return receipt requested, to the seizing agency. There are no formal requirements for the form of the request for an adversarial preliminary hearing. It is recommended that you attach a copy of the Notice of Seizure and identify in your request the person claiming an interest in the property and the property seized. You should also verify that you are sending the request to the correct seizing agency.
The Seizing Agency will set the Hearing
Once the seizing agency has received a request for an adversarial preliminary hearing, the hearing must be held within ten (10) days after the request is received or as soon as practicable thereafter. The burden is on the seizing agency to schedule this hearing. This hearing is intended to be held within ten (10) days and if it is to be held at any time beyond that, the seizing agency must show good cause for the delay.
State must show Probable Cause
Under Florida Statute A?932.703(2)(c), 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 seized 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. Any felony can be grounds for forfeiture. Florida Statute A?932.703(2)(c). The initial burden is on the state to show probable cause for the forfeiture. City of Coral Springs v. Forfeiture of A 1997 Ford Ranger Pickup Truck, 803 So.2d 847, 850 (Fla. 4th DCA 2002). In most cases, the seizing agency will present testimony from the officers who conducted the investigation to establish probable cause.
Cross examine and challenge
If the seizing agency meets its initial burden and the trial court determines that probable cause for forfeiture exists, the burden shifts to the claimant to rebut the probable cause showing or establish that the forfeiture law was not violated. In re Forfeiture of One Hundred Seventy-One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d 1269 (Fla. 3rd DCA 1998). Probable cause is a very low standard and if established, the Court shall authorize the seizure or continued seizure of the subject contraband. The Court is required to provide a copy of its finding of probable cause to any person entitled to notice.
Consider the outcome
Given the relatively low burden on the seizing agency to obtain Court authorization for continued seizure, it is difficult to prevail at adversarial preliminary hearings. However, valuable information can be gathered at this proceeding. Since it is the burden of the seizing agency to come forward with evidence to support their claim that the property was being used in violation of the Florida Contraband Forfeiture Act, this is an opportunity to gather early discovery. In most cases, the seizing agency will present testimony from the officers who conducted the investigation. You are entitled to cross-examine these officers and lock-down their statements at a stage much earlier than you would normally be able to depose them in the criminal case. This is only the first step in the process and even if you loose, you can continue to fight the forfeiture.