LEGAL GUIDE
Written by attorney Christopher Hayden Brown | Jul 19, 2010

Forfeiture- What is a "Notice of Forfeiture" and what can I do about it?

The Federal Government invented the concept of trying to take the belongings of criminal defendants and make them its property. The Government passed statutes that made the proceeds of crimes, or items used to commit crimes subject to "forfeiture." The idea was that, yachts, planes, homes, etc., bought with, say the proceeds of narcotics trafficking, could be taken by the government and sold to help finance their war on drugs. These proceedings are separate, civil cases, that are not dependent on the outcome of the criminal trial. The standard of proof is much lower (preponderance of the evidence as opposed to reasonable doubt) and you can literally be acquitted of your criminal charges and still lose your property (or the converse). Not wanting to miss out on free money, the states began passing their own forfeiture statutes; and forfeiture law is now overused to rob the little guy and not just the rich fancy drug kingpin. Florida has a very broad statute that allows the government to take anything associated with a crime and try to keep it. Each sheriff and police department has civil counsel on retainer to handle these matters for them. The departments are now training their road patrol officers to ask the owner of a car in which even a small, personal use amount of marijuana is found, if he "owns it free and clear or whether he is still paying it off." If a proud owner says, "It's all mine. Bought and paid for," then the officer will then call in the tow truck and hand the owner a "notice of forfeiture," to add insult to the injury of the criminal arrest. These agencies do not go after items on which money is owed to a bank, as they do not want to get into a legal battle with a bank! Now, what can be done about it? First, the government is counting on the fact that most defendants are poor and clueless and will not retain an attorney (a Public Defender cannot legally help you with the forfeiture aspect of your case) and that the hapless defendants will just give up and not contest the issue. Therefore, the car, or cash or boat, etc., simply belong to the Sheriff. On the other hand if you have counsel who knows what he/she is doing; the law enforcement agency can be tied into legal knots and the billable hours the police are paying their attorneys will start building up to the point where it may become counterproductive to try and keep your item. Once you have counsel representing you (a good criminal defense attorney will offer to do this as part of the criminal case against you and build it into his fee), counsel on the other side will often want to "settle" the case early to avoid a long and costly legal battle over a car that may only be worth a few thousand dollars. Next, there are legal defenses, even though the standard of proof is lower! First, you are entitled to a probable cause hearing and should demand one. They must bring in enough evidence to convince the judge they can even hold your item during the pendency of the legal battle. Second, even if they can prove the item was involved in a crime, the value of the item must be proportionate to the severity of the offense or it could be considered an "excessive fine" under the 8th Amendment of the US Constitution. It is not reasonable to keep a Lamborghini, because 4 grams of pot was found in it. There are also "innocent owner" defenses. For example if Junior is out driving Mom and Dad's car and gets caught with dope, Mom and Dad can certainly contest the forfeiture of the family car, even if Junior was guilty of doing something wrong. There are also procedural ways to fight these cases, including tight deadlines by which these agencies must file their complaints in civil court, etc. The law in this area is very complex and it is becoming a bigger issue every day, as these departments see this as an easy and rich source of revenue during tough budgetary times. Some departments are essentially employing professional car theives (officers roaming listening for calls that sound promising so they can show up at the scene of the traffic stop and try to get the car for their sheriff/chief) If you are arrested and get one of these notices, get a criminal defense attorney fast and bring him your forfeiture notice. If he doesn't know what to do about it, you may question whether he should be handling your criminal charges.

Additional resources provided by the author

If you have any further questions you can find me at http://www.swfloridalawfirm.com/ or email me at [email protected]

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