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Title: Former Law Enforcement Officer Displays His Ignorance Of The Law In Civil Forfeiture Article
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... civil-forfeiture-article.shtml
Published: Jul 31, 2019
Author: Tim Cushing
Post Date: 2019-08-10 09:08:30 by Deckard
Keywords: None
Views: 97
Comments: 23

from the ignorance-of-the-law-gets-you-a-sweet-position-on-the-nightly-newscast dept

If you're going to be touted as an "expert," the very goddamn least you can do is not make people stupider. May I present to you "Trooper Steve," the resident "traffic safety expert" for ClickOrlando.com.

He comes highly-touted. None other than the Orlando Sentinel called him… well, a "traffic safety expert." Here's the headline:

Former FHP Trooper Steve Montiero brings wealth of knowledge as News 6 traffic safety expert

Underneath the video announcing this triumphant hiring is a sentence that makes my head ache terribly:

Montiero gained fame with the Florida Highway Patrol as a Public Information Officer…

It's really weird that anyone would "gain fame" as a law enforcement officer. Sure, his position was more public-facing than most, but let's not start building a statue in his honor yet.

Here's a bit from his bio at ClickOrlando. [Please hold your vomiting until the end of the quote.]

A Central Florida native and decorated combat veteran, Montiero comes to the station following an eight-year assignment with the Florida Highway Patrol. While there, his responsibilities included patrolling Osceola, Orange, Brevard, Lake, Seminole and Volusia counties, along with the Orlando area of the Florida Turnpike. He was later assigned to the Florida Highway Patrol Motorcycle Unit, where he began doing public speaking engagements and found his passion for community involvement.

From that experience, he became the face of FHP in Orlando. Lt. Kim Montes took Steven under her wing and made him assistant Public Affairs Officer.

Over the last several years, he has become known across the Sunshine State as “Trooper Steve.” He’s spent his time doing everything from corporate events to interviews on WKMG, to just hanging out with kids in hopes of spreading the word about safe-decision making in hopes of saving just one life.

Why am I being so harsh on Trooper Steve? Well, it's a few things. First and foremost, his leap from law enforcement officer to "traffic safety expert" assumes he actually knows how to keep traffic safe. The thing about cops is they are under no obligation to keep the public safe. As the occupation name makes clear, they are there to perform law enforcement, not keep drivers safe. If the two happen to align occasionally, everyone wins. But LEOs have no "duty of care."

More than that, touting someone as an "expert" tends to lead viewers and readers to believe this person knows what the fuck they're talking about. But as this recent column by "Trooper Steve" painfully proves, police PR reps make for terrible "experts."

The question is fairly innocuous: are there any safety tips Trooper "Traffic Safety Expert" Steve could offer travelers roaming around the country with cash in their possession?

Martha, of Champions Gate, asked, “Is there anything I should know when carrying large amounts of cash in the car?

Everything goes off the rails immediately.

Well if you’re up to no good and get stopped by the police and have large amounts of cash on you, you’re going to have something to worry about. Civil asset forfeiture act requires you to show proof of cash when law enforcement is conducting an investigation.

Anything around $5,000 or more you should always have some type of paperwork showing where that money has come from, legally. This is to eliminate the idea that this money was earned or given during criminal activities for which you may be investigated.

First and fucking foremost, there is nothing illegal about cash. Cops presume there is because it puts money directly in the pockets of cops. Civil asset forfeiture tends to benefit the agency performing the seizure, so cops (and troopers) have every incentive to view any amount of cash as suspicious.

Trooper Steve draws the line at $5,000. It's an arbitrary line. Law enforcement officers will gladly seize amounts less than that because they're allowed to keep 85% of everything they seize.

But -- either due to stupidity or as a favor to his law enforcement buddies -- "expert" Trooper Steve shifts the burden of proof to drivers. That is not the law. The law -- following some minimal reform efforts -- lays the burden exactly where Trooper Steve says it doesn't.

Cash seizures still won’t need to be preceded by an arrest, though under the new law, forfeiture of any property won’t be made permanent unless law enforcement can prove “beyond a reasonable doubt” that it is linked to a crime. That’s the same standard of proof required for a criminal conviction.

So, it is not up to drivers to prove the cash they have on them is legit. It's up to cops. Of course, this won't stop a seizure, but at least the law says the burden of proof is on law enforcement. Supposed "expert" Trooper Steve says it isn't. He is making people stupider. And perhaps conveniently so, because while you can take a cop out of the force, you can't take the force out of the cop.

Do better with your hiring, ClickOrlando. And clean up after your repurposed public servants when they fuck up. Thanks.

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

#1. To: Deckard (#0)

Of course, this won't stop a seizure, but at least the law says the burden of proof is on law enforcement.

The author's way won't stop a seizure. But the trooper's way will. Simply show where the money came from. Then it won't get seized to begin with.

No receipt? Then the money gets seized and you have to prove later in court where it came from.

misterwhite  posted on  2019-08-10   9:35:30 ET  Reply   Trace   Private Reply  


#2. To: misterwhite (#1)

What if you honestly don't have receipts because you saved it in your own safe for a lifetime? Who gives a shit is your response.

You have a problem with that innocent until proven guilty thing. Along with the 4th amendment which you despise.

A K A Stone  posted on  2019-08-10   9:40:19 ET  Reply   Trace   Private Reply  


#3. To: Deckard (#0)

though under the new law, forfeiture of any property won’t be made permanent unless law enforcement can prove “beyond a reasonable doubt” that it is linked to a crime.

That new law was passed just last month and only applies to the State of Florida.

That’s the same standard of proof required for a criminal conviction.

Correct. Meaning Florida cops will now seize the money AND arrest you for a crime. Why not? If they can prove "beyond a reasonable doubt" that the money was used in a crime, that means that YOU were also involved in that crime.

misterwhite  posted on  2019-08-10   9:52:10 ET  Reply   Trace   Private Reply  


#4. To: A K A Stone (#2) (Edited)

You have a problem with that innocent until proven guilty thing.

Innocent until proven guilty only applies to people, not property. By the way, don't you support locking people up for murder before they have their day in court? They haven't been found guilty, meaning they're innocent, right?

misterwhite  posted on  2019-08-10   9:58:26 ET  Reply   Trace   Private Reply  


#5. To: A K A Stone (#2)

What if you honestly don't have receipts because you saved it in your own safe for a lifetime?

Uh-huh. A safe. Tens of thousands of dollars sitting there for a lifetime drawing zero interest. And the one and only time you took it all out the safe (why?) the cops pulled you over, searched the car, and found it.

Now you expect me to justify the law based on a one-in-a-billion exception? Tell that story to the judge. There's an equal chance he'll believe you.

misterwhite  posted on  2019-08-10   10:06:10 ET  Reply   Trace   Private Reply  


#6. To: misterwhite, A K A Stone (#4)

You have a problem with that innocent until proven guilty thing.

Innocent until proven guilty only applies to people, not property.

In other words if a house has some peeling paint, mis-matched blinds, grass "too long" in the yard ar anything that violates a city code, that house is "guilty of a crime" and can be seized.

Yeah - you're on record as supporting that tyranny as well.

The idea that any property - money or otherwise can be presumed to be guilty of committing a crime is so very Orwellian.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-08-10   11:58:34 ET  Reply   Trace   Private Reply  


#7. To: misterwhite, A K A Stone (#5) (Edited)

What if you honestly don't have receipts because you saved it in your own safe for a lifetime?

Uh-huh. A safe. Tens of thousands of dollars sitting there for a lifetime drawing zero interest. And the one and only time you took it all out the safe (why?) the cops pulled you over, searched the car, and found it.

Is misterwhite claiming here that those who don't trust banks and have money stashed away are guilty of committing a crime?

It sure seems that way.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-08-10   12:00:57 ET  Reply   Trace   Private Reply  


#8. To: Deckard, misterwhite, A K A Stone (#6)

At one time in Florida seizing the assets such as houses, vehicles and other assets of people who weren’t even charged with a crime did happen and it was a substantial source of revenue for LE agencies.

But now in Florida, seizing and bringing a civil forfeiture claim against an owner of property is no longer that easy under Florida Statute §932.703.

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

1. 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.

2. 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..

https://www.floridacriminallawblog.com/pensacola-florida-cannot- seize-property-without-arrest/

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

Gatlin  posted on  2019-08-10   12:44:25 ET  Reply   Trace   Private Reply  


#9. To: Gatlin (#8)

I like the standard of beyond a shadow of doubt.

A K A Stone  posted on  2019-08-10   12:47:33 ET  Reply   Trace   Private Reply  


#10. To: Deckard, misterwhite, A K A Stone (#7)

Is misterwhite claiming here that those who don't trust banks and have money stashed away are guilty of committing a crime?

It sure seems that way.

Nah ...

But admittedly - it can perhaps irrationally seem that way to a warped libertarian mind.

But to those with intelligence - It seems that you are simply making a falsely irrational conclusion.

IOW - You are making shit up ...

Gatlin  posted on  2019-08-10   12:54:44 ET  Reply   Trace   Private Reply  


#11. To: A K A Stone (#9)

I like the standard of beyond a shadow of doubt.

I can understand why you do.

Gatlin  posted on  2019-08-10   12:56:07 ET  Reply   Trace   Private Reply  


#12. To: Gatlin (#8)

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.”

Good on Florida - misterwhite will be displeased.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-08-10   13:05:31 ET  Reply   Trace   Private Reply  


#13. To: Gatlin (#10)

Deckard:

Is misterwhite claiming here that those who don't trust banks and have money stashed away are guilty of committing a crime?

It sure seems that way.

Gatlin:

It seems that you are simply making a falsely irrational conclusion.

Perhaps you haven't read any of paulsens's posts on the topic of asset forfeiture - he believes that houses may be legally seized for having grass too long in the yard or for a six dollar tax bill.

I suggest you do some basic research before spewing any more flatulance from your gaping maw.

Here's a good place to start: The Grass GESTAPO Is Out of Control: 30K in Fines and Potential Foreclosure for a Too-Long Lawn

BTW - your irrational hatred of anything "libertarian" has crossed in to chronic obsessiveness.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-08-10   13:17:25 ET  Reply   Trace   Private Reply  


#14. To: Deckard, misterwhite (#13)

Perhaps you haven't read any of paulsens's posts on the topic of asset forfeiture - he believes that houses may be legally seized for having grass too long in the yard or for a six dollar tax bill.
I have read those posts and I can see nowhere that he believes any such thing.

Gatlin  posted on  2019-08-10   13:32:43 ET  Reply   Trace   Private Reply  


#15. To: Deckard (#13)

BTW - your irrational hatred of anything "libertarian" has crossed in to chronic obsessiveness.
It appears that you have a problem with me exercising my freedom of speech.

GOOD …

Gatlin  posted on  2019-08-10   13:33:19 ET  Reply   Trace   Private Reply  


#16. To: Gatlin (#15)

It appears that you have a problem with me exercising my freedom of speech.

Nah - just concerned about your mental health and well-being.

Your psychotic rants against libertarians could make you a candidate for some Red Flag Law intervention.

You're all for those, right?

Wouldn't that be ironic - Parsons hoisted on his own petard.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-08-10   13:40:31 ET  Reply   Trace   Private Reply  


#17. To: Deckard (#16)

=You need to get back to me when you can display some intelligence and make some semblance of sense.

Gatlin  posted on  2019-08-10   13:57:19 ET  Reply   Trace   Private Reply  


#18. To: Deckard (#6)

The idea that any property - money or otherwise can be presumed to be guilty of committing a crime is so very Orwellian.

400 years ago when civil asset forfeture was first implemented by the British, George Orwell didn't exist.

misterwhite  posted on  2019-08-11   10:06:02 ET  Reply   Trace   Private Reply  


#19. To: Deckard (#7)

Is misterwhite claiming here that those who don't trust banks and have money stashed away are guilty of committing a crime?

The people aren't guilty of anything. And if they keep their money in a safe forever, the money won't be guilty either.

misterwhite  posted on  2019-08-11   10:08:36 ET  Reply   Trace   Private Reply  


#20. To: Gatlin (#8)

Florida and a handful of other states have implemented similar laws.

Florida is THE state that should have such a law. That just made a lot of drug dealers richer. Like Deckard cares.

misterwhite  posted on  2019-08-11   10:14:04 ET  Reply   Trace   Private Reply  


#21. To: A K A Stone (#9)

I like the standard of beyond a shadow of doubt.

When it comes to scumbag drug dealers I agree with Robert Mueller -- I like the standard which requires exoneration.

misterwhite  posted on  2019-08-11   10:17:32 ET  Reply   Trace   Private Reply  


#22. To: Deckard, A K A Stone, misterwhite, Gatlin (#0)

People, people, people! When are you going to stop falling for turds scoured from the cesspools of the internet and brought back and deposited at LF??? Taking such bullshit at face value only results in wasting your time chasing your own tails.

Let me introduce Tim Cushing, the instant general dumb fuck who either did not read the law he spouts about, or he deliberately misrepresented what it says. I present what this latest legal "expert" said and then the actual law and what it says.

First, and fucking foremost, Tim Cushing did not know what he was talking about. He conflates criminal asset forfeiture with civil asset forfeiture, and just generally fucks up after that.

[Thread article - Tim Cushing, Techdirt]

If you're going to be touted as an "expert," the very goddamn least you can do is not make people stupider.

[...]

More than that, touting someone as an "expert" tends to lead viewers and readers to believe this person knows what the fuck they're talking about.

[...]

The question is fairly innocuous: are there any safety tips Trooper "Traffic Safety Expert" Steve could offer travelers roaming around the country with cash in their possession?

Martha, of Champions Gate, asked, “Is there anything I should know when carrying large amounts of cash in the car?

Everything goes off the rails immediately.

Well if you’re up to no good and get stopped by the police and have large amounts of cash on you, you’re going to have something to worry about. Civil asset forfeiture act requires you to show proof of cash when law enforcement is conducting an investigation.

Anything around $5,000 or more you should always have some type of paperwork showing where that money has come from, legally. This is to eliminate the idea that this money was earned or given during criminal activities for which you may be investigated.

First and fucking foremost, there is nothing illegal about cash. Cops presume there is because it puts money directly in the pockets of cops. Civil asset forfeiture tends to benefit the agency performing the seizure, so cops (and troopers) have every incentive to view any amount of cash as suspicious.

Trooper Steve draws the line at $5,000. It's an arbitrary line. Law enforcement officers will gladly seize amounts less than that because they're allowed to keep 85% of everything they seize.

But -- either due to stupidity or as a favor to his law enforcement buddies -- "expert" Trooper Steve shifts the burden of proof to drivers. That is not the law. The law -- following some minimal reform efforts -- lays the burden exactly where Trooper Steve says it doesn't.

Cash seizures still won’t need to be preceded by an arrest, though under the new law, forfeiture of any property won’t be made permanent unless law enforcement can prove “beyond a reasonable doubt” that it is linked to a crime. That’s the same standard of proof required for a criminal conviction.

So, it is not up to drivers to prove the cash they have on them is legit. It's up to cops.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Here, taken straight from the Florida legislature is the appliicable law. I need not explain it. I merely boldface the most relevant parts about the civil asset forfeiture of monetary instruments. Beyond any and all doubt, this is what the law is.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0932/Sections/0932.703.html

The 2019 Florida Statutes

Title XLVII
CRIMINAL PROCEDURE AND CORRECTIONS

Chapter 932
PROVISIONS SUPPLEMENTAL TO CRIMINAL PROCEDURE LAW

View entire chapter:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0932/0932.html

932.703 Forfeiture of contraband article; exceptions.—

(1)(a) A contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the Florida Contraband Forfeiture Act. A seizure may occur only if the owner of the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under s. 932.701, or one or more of the following circumstances apply:

1. The owner of the property cannot be identified after a diligent search, or the person in possession of the property denies ownership and the owner of the property cannot be identified by means that are available to the employee or agent of the seizing agency at the time of the seizure;

2. The owner of the property is a fugitive from justice or is deceased;

3. An individual who does not own the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under s. 932.701 and the owner of the property had actual knowledge of the criminal activity. Evidence that an owner received written notification from a law enforcement agency and acknowledged receipt of the notification in writing, that the seized asset had been used in violation of the Florida Contraband Forfeiture Act on a prior occasion by the arrested person, may be used to establish actual knowledge;

4. The owner of the property agrees to be a confidential informant as defined in s. 914.28. The seizing agency may not use the threat of property seizure or forfeiture to coerce the owner of the property to enter into a confidential informant agreement. The seizing agency shall return the property to the owner if criminal charges are not filed against the owner and the active criminal investigation ends or if the owner ceases being a confidential informant, unless the agency includes the final forfeiture of the property as a component of the confidential informant agreement; or

5. The property is a monetary instrument. For purposes of this subparagraph, the term “monetary instrument” means coin or currency of the United States or any other country; a traveler’s check; a personal check; a bank check; a cashier’s check; a money order; a bank draft of any country; an investment security or negotiable instrument in bearer form or in other form such that title passes upon delivery; a prepaid or stored value card or other device that is the equivalent of money and can be used to obtain cash, property, or services; or gold, silver, or platinum bullion or coins.

(b) After property is seized pursuant to the Florida Contraband Forfeiture Act, regardless of whether the civil complaint has been filed, all settlements must be personally approved by the head of the law enforcement agency that seized the property. If the agency head is unavailable and a delay would adversely affect the settlement, approval may be given by a subordinate of the agency head who is designated to grant such approval.

(c) If at least 90 days have elapsed since the initial seizure of the property and the seizing agency has failed to locate the owner after making a diligent effort, the seized property is deemed a contraband article that is subject to forfeiture under the Florida Contraband Forfeiture Act.

(d)1. The seizing agency may not use the seized property for any purpose until the rights to, interest in, and title to the seized property are perfected in accordance with the Florida Contraband Forfeiture Act. This section does not prohibit use or operation necessary for reasonable maintenance of seized property. Reasonable efforts shall be made to maintain seized property in such a manner as to minimize loss of value.

2. Unless otherwise expressly agreed to in writing by the parties, the agency seeking forfeiture of the seized property is responsible for any damage to the property and any storage fees or maintenance costs applicable to the property. If more than one agency seeks forfeiture of the property, the division of liability under this subparagraph may be governed by the terms of an agreement between the agencies.

(2)(a) When a seizure of property is made under the Florida Contraband Forfeiture Act, the seizing agency shall apply, within 10 business days after the date of the seizure, to a court of competent jurisdiction for an order determining whether probable cause exists for the seizure of the property. The application for the probable cause determination must be accompanied by a sworn affidavit and may be filed electronically by reliable electronic means.

(b) The court must determine whether:

1. The owner was arrested under paragraph (1)(a), and if not, whether an exception to the arrest requirement specified in paragraph (1)(a) applies; and

2. Probable cause exists for the property seizure under the Florida Contraband Forfeiture Act.

(c) If the court finds that the requirements specified in paragraph (1)(a) were satisfied and that probable cause exists for the seizure, the forfeiture may proceed as set forth in the Florida Contraband Forfeiture Act, and no additional probable cause determination is required unless the claimant requests an adversarial preliminary hearing as set forth in the act. Upon such a finding, the court shall issue a written order finding probable cause for the seizure and order the property held until the issue of a determination of title is resolved pursuant to the procedures defined in the act.

(d) If the court finds that the requirements in paragraph (1)(a) were not satisfied or that probable cause does not exist for the seizure, any forfeiture hold, lien, lis pendens, or other civil encumbrance must be released within 5 days.

(e) The court may seal any portion of the application and the record of any proceeding under the Florida Contraband Forfeiture Act which is exempt or confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution or may otherwise be sealed pursuant to Rule 2.420, Florida Rules of Judicial Administration.

(3)(a) Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act. Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. When a postseizure, adversarial preliminary hearing as provided in this section is desired, a request must be made in writing by certified mail, return receipt requested, to the seizing agency. The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter.

(b) Real property may not be seized or restrained, other than by lis pendens, subsequent to a violation of the Florida Contraband Forfeiture Act until the persons entitled to notice are afforded the opportunity to attend the preseizure adversarial preliminary hearing. A lis pendens may be obtained by any method authorized by law. Notice of the adversarial preliminary hearing shall be by certified mail, return receipt requested. The purpose of the adversarial preliminary hearing is to determine whether probable cause exists to believe that such property has been used in violation of the Florida Contraband Forfeiture Act. The seizing agency shall make a diligent effort to notify any person entitled to notice of the seizure. The preseizure adversarial preliminary hearing provided herein shall be held within 10 days of the filing of the lis pendens or as soon as practicable.

(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 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. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.

(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.

(4) Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act; however, such action may be maintained if forfeiture proceedings are not initiated within 45 days after the date of seizure. However, if good cause is shown, the court may extend the aforementioned prohibition to 60 days.

(5) In any incident in which possession of any contraband article defined in s. 932.701(2)(a) constitutes a felony, the vessel, motor vehicle, aircraft, other personal property, or real property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. It shall be presumed in the manner provided in s. 90.302(2) that the vessel, motor vehicle, aircraft, other personal property, or real property in which or on which such contraband article is located at the time of seizure is being used or was attempted or intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in s. 932.701(2).

(6) The court shall order the forfeiture of any other property of a claimant, excluding lienholders, up to the value of any property subject to forfeiture under this section if any of the property described in this section:

(a) Cannot be located;

(b) Has been transferred to, sold to, or deposited with, a third party;

(c) Has been placed beyond the jurisdiction of the court;

(d) Has been substantially diminished in value by any act or omission of the person in possession of the property; or

(e) Has been commingled with any property which cannot be divided without difficulty.

(7)(a) Property may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.

(b) A bona fide lienholder’s interest that has been perfected in the manner prescribed by law prior to the seizure may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the lienholder had actual knowledge, at the time the lien was made, that the property was being employed or was likely to be employed in criminal activity. If a lienholder’s interest is not subject to forfeiture under the requirements of this section, such interest shall be preserved by the court by ordering the lienholder’s interest to be paid as provided in s. 932.7055.

(c) Property titled or registered between husband and wife jointly by the use of the conjunctives “and,” “and/or,” or “or,” in the manner prescribed by law prior to the seizure, may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the co-owner either knew or had reason to know, after reasonable inquiry, that such property was employed or was likely to be employed in criminal activity.

(d) A vehicle that is rented or leased from a company engaged in the business of renting or leasing vehicles, which vehicle was rented or leased in the manner prescribed by law prior to the seizure, may not be forfeited under the Florida Contraband Forfeiture Act, and no fine, penalty, or administrative charge, other than reasonable and customary charges for towing and storage, shall be imposed by any governmental agency on the company which rented or leased the vehicle, unless the seizing agency establishes by preponderance of the evidence that the renter or lessor had actual knowledge, at the time the vehicle was rented or leased, that the vehicle was being employed or was likely to be employed in criminal activity. When a vehicle that is rented or leased from a company engaged in the business of renting or leasing vehicles is seized under the Florida Contraband Forfeiture Act, upon learning the address or phone number of the company, the seizing law enforcement agency shall, as soon as practicable, inform the company that the vehicle has been seized and is available for the company to take possession upon payment of the reasonable and customary charges for towing and storage.

(8) Any interest in, title to, or right to property titled or registered jointly by the use of the conjunctives “and,” “and/or,” or “or” held by a co-owner, other than property held jointly between husband and wife, may not be forfeited unless the seizing agency establishes by a preponderance of the evidence that the co-owner either knew, or had reason to know, after reasonable inquiry, that the property was employed or was likely to be employed in criminal activity. When the interests of each culpable co-owner are forfeited, any remaining co-owners shall be afforded the opportunity to purchase the forfeited interest in, title to, or right to the property from the seizing law enforcement agency. If any remaining co-owner does not purchase such interest, the seizing agency may hold the property in co-ownership, sell its interest in the property, liquidate its interest in the property, or dispose of its interest in the property in any other reasonable manner.

(9) It is an affirmative defense to a forfeiture proceeding that the nexus between the property sought to be forfeited and the commission of any underlying violation was incidental or entirely accidental. The value of the property sought to be forfeited in proportion to any other factors must not be considered in any determination as to this affirmative defense.

History.—s. 3, ch. 74-385; s. 3, ch. 80-68; s. 496, ch. 81-259; s. 1, ch. 85-316; s. 3, ch. 89-148; s. 3, ch. 92-54; s. 3, ch. 95-265; s. 32, ch. 96-247; s. 3, ch. 99-234; ss. 70, 71, ch. 99-248; s. 6, ch. 2004-39; s. 31, ch. 2004-344; s. 2, ch. 2016-179. Note.—Former s. 943.43.

nolu chan  posted on  2019-08-11   15:04:11 ET  Reply   Trace   Private Reply  


#23. To: Deckard, A K A Stone, misterwhite, Gatlin (#22)

Here are two explanations of civil and criminal asset forfeiture by Florida attorneys.

https://www.frankrubino.com/Legal-Articles/Understanding-asset-forfeiture-in-Florida-criminal-cases.shtml

Frank A. Rubino, Esq.
Federal and International Crimial Defense

UNDERSTANDING ASSET FORFEITURE IN FLORIDA CRIMINAL CASES

[Excerpt]

Grounds for forfeiture

A person may face civil or criminal asset forfeiture if he or she possesses property that is allegedly tied to illegal activity. This includes any property used during the commission of crimes, such as vehicles used to transport narcotics. It also includes proceeds from illicit activity, such as items purchased with the profits from white collar crimes.

The legal standards for each type of forfeiture are distinct. Criminal forfeiture can only be conducted if a person is convicted of a crime and if the property's connection to that crime is proven. Civil forfeiture, in contrast, is an action against the property, rather than its owner. Therefore, this type of seizure is not contingent upon a conviction, and the standards of proof are often lower.

Legislative changes

Last year, Florida lawmakers enacted significant changes to the state's civil asset forfeiture laws to extend greater protection to property owners. These changes include:

  • Stipulating that non-monetary property can only be seized if a person has been arrested for a criminal offense. Previously, seizures could be made even in the absence of an arrest or formal charges.

  • Requiring a court to review whether there was reasonable cause for the forfeiture within 10 days. Seized property must be released within five days if such cause is lacking.

  • Demanding proof beyond a reasonable doubt that the property was involved in illegal activity. Before, the burden of proof was lower; authorities only had to show "clear and convincing evidence."

  • The legislation also discourages unmerited seizures by requiring authorities to pay a filing fee and put up a bond, which is paid to the owner of the property if a forfeiture is found to be unwarranted.

[...]

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

https://criminaldefenseattorneytampa.com/asset-seizure-asset-forfeiture/

Sammis Law Firm
Florida Criminal Defense

Fight Asset Seizure and Forfeiture

[excerpt]

The Difference Between Civil and Criminal Forfeitures

Two procedures exist for forfeiture actions – criminal forfeiture or civil forfeiture. Civil forfeitures are becoming the increasingly common way for the state or federal government to attempt to take property because the rules for civil forfeiture actions are often easier for the state or federal government because no criminal prosecution or conviction is required.

In other words, even if you are never arrested for or ultimately exonerated of the criminal offense, the civil forfeiture may still succeed.

In a civil forfeiture proceeding, the state or federal government bring suit against the property, instead of suing the owner of the property. The owner of the property becomes a third party who asserts a claim to the property. To succeed, the state or federal government must first make a sufficient probable cause showing for the forfeiture of the property.

If that showing can be made, the owner of the property must prove by a greater weight of the evidence that probable cause does not exist to forfeit the property. A civil forfeiture proceeding does not depend on the outcome of the criminal case. On the other hand, in a criminal forfeiture action is dependent on a conviction because the criminal forfeiture proceeding is intended as punishment for the individual accused of a criminal act.

nolu chan  posted on  2019-08-11   15:05:49 ET  Reply   Trace   Private Reply  


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