Jacksonville Criminal Lawyer Blog
As we have mentioned many times before on this website, we have seen many cases where a Florida law enforcement agency has taken money or other property from a person without any indication that the person or the property was involved in criminal activity. The Florida forfeiture laws allow the police to take property from people in a variety of circumstances, even when the police do not have sufficient evidence to make an arrest. In these situations, it is important for the property owner to contact a forfeiture attorney to assert his/her rights and take the proper steps to recover that property. We have represented people who have been the victims of outright theft of hundreds of thousands of dollars by the police under the forfeiture laws in Florida, and we often do it at no upfront cost to the claimant.
It looks like the Miami Dade Police Department is no different than many others in Florida that will take a person’s cash without any regard to a lack of evidence and perhaps ask those questions later. In a recent case in South Florida, an individual was traveling to Miami from Colombia with about $120,000 in cash. When he went through customs, the police stopped him and asked him questions about the cash. He said he was coming to Miami to buy cell phones to resell at his store in Colombia. The police took his cash anyway and initiated forfeiture proceedings to keep the cash. In the forfeiture pleadings, the state alleged that the individual was using the cash to buy illegal drugs. However, the state offered no specific evidence to support that allegation, and no criminal arrest was ever made.
On the other hand, the claimant was able to present witnesses who would testify that the claimant was in the electronics business and had purchased cell phones in the past from legitimate electronics businesses in Miami for resale in his home country. The claimant also presented receipts for past purchases of cell phones for resale in Colombia. In any case, it was the state’s burden to establish probable cause that the cash was the proceeds of illegal activity or used in connection with legal activity. The state failed completely in doing so.
After approximately eight months, as the forfeiture case was slowly moving through the system, the state still had not produced any evidence that the individual or the money was connected to illegal drugs in any way. Finally, a judge dismissed the case, and the individual received his money almost nine months later (minus what he had to pay his criminal defense/forfeiture lawyer after recovering the money).
After winning the case, the forfeiture lawyer filed a motion to recover attorney’s fees from the state. The Florida forfeiture statute does allow the prevailing party to recover attorney’s fees, but the standard is fairly high. It is not enough for the prevailing party to show he/she won the case. The prevailing party must also show that the state did not act in good faith in any stage of the forfeiture proceedings or that the seizing agency grossly abused its discretion when seizing the property. This is a high standard, and it can be difficult to get a local judge to make such a finding against a local district attorney’s office and/or a law enforcement agency.
However, the award of attorney’s fees in such blatant abuses of the forfeiture laws is critical as it is the only deterrent to prevent government agencies from stealing people’s property under the Florida forfeiture laws. Otherwise, the state can seize property, file forfeiture pleadings in court, force the claimant to hire an attorney, if he/she can, and drag the case out through the normal litigation process in the hopes of getting a good result or a settlement. That process can be demanding, expensive and time consuming for innocent owners of seized property. If the worst thing for the state would be the return of property at the end of the process, that provides no disincentive to steal property from people under the forfeiture laws. If anything, it encourages the state to take property without evidence of criminal activity and abuse the system as some people may not be able to afford a forfeiture lawyer or may be forced to settle before the process ends due to financial pressures. The prospect of the state having to pay large attorney’s fees for the claimants in the many abusive cases that occur in Florida is at least some deterrent against forfeiture abuse. It is important that judges award those fees where appropriate as the forfeiture statute allows.