The Florida forfeiture statute allows the government to take the property of people when that property was used in conjunction with certain criminal activity or represents the proceeds of certain criminal activity. As an example, if the police arrest someone immediately after a drug transaction and the defendant is found with $10,000 in cash upon the arrest, the police are going to take that money and attempt to forfeit by claiming it is the proceeds of illegal drug activity.
The government will attempt to forfeit a person’s property in many other situations, even when they do not even make any arrests or bring any criminal charges. If the state can establish by a preponderance of the evidence (50+%) that the property was used to facilitate certain criminal activity or is the proceeds of certain criminal activity, they may be entitled to keep that property.
What happens when the state believes a person made money from criminal activity but cannot actually trace that money that is the proceeds of the criminal activity? In those cases, the state will look for any other assets the suspect has and try to forfeit them as substitute assets.
For instance, in a recent forfeiture case near Jacksonville, Florida, the police arrested several pharmacy employees for selling Oxycodone to people providing fraudulent prescriptions. The police determined that the suspects made approximately $150,000 selling the Oxycodone. The police sought to seize and forfeit those proceeds from the illegal sales, but they could not trace the money from those sales. Instead, the police seized the bank accounts of the various defendants and intended to forfeit those funds, up to $150,000, as substitute assets. Substitute assets are basically assets of the defendant/suspect to be seized to make up for the fact that the government cannot find the specific assets that were the result of the criminal activity. For instance, if the police claim a person stole $75,000 through fraud and cannot find that money but know the suspect owns a $75,000 vehicle, the police can try and forfeit the vehicle as a substitute asset.
In this forfeiture case, the state could be allowed to seize the substitute assets but not before the state actually won the case, or obtained an order from the judge indicating that the state could forfeit assets of the defendants/suspects. If the state has probable cause to believe specific assets were connected to criminal activity, the state can seize them while the forfeiture cases is pending. However, if the state cannot find such assets and wants to rely on substitute assets, the state can only go after the substitute assets once the state has successfully won the forfeiture case.