Has the Government Seized Your Personal or Real Property? Broward Criminal Lawyer, Kenneth Padowitz, Has Effectively Challenged Forfeitures arising out of Criminal Cases
Arresting agencies may seize illegal weapons, drugs, money, motor vehicles, or other property and forfeit such items if they determine that these items are connected to a crime. Further, if the owner knew or should have known that the property was being used in connection with a crime, then this property may also be subject to seizure and forfeiture by law enforcement officers. Criminal defense attorney Kenneth Padowitz, P.A. has successfully fought for clients’ rights in cases where the government has seized and forfeited personal or real property in South Florida.
In a Sun-Sentinel investigative story titled “Cops. Cash. Cocaine. How Sunrise police make millions selling drugs”, Ken Padowitz was quoted on one of his cases involving police Forfeitures. “In criminal cases, you’re presumed innocent until proven guilty, but in forfeiture cases you’re presumed guilty unless you can prove you’re innocent,” Padowitz said.
Defenses to Forfeiture
There are legal defenses to the attempted forfeiture of property by the Government. There is Due Process built into the system for seizing your property. Some of the Defenses to Forfeiture actions include the following:
- The police seized the property without Probable Cause
- The actual owner of the property has no knowledge of any criminal activity and is an “innocent owner”.
- The government seizure of the property is excessive and disproportionate to the alleged criminal conduct.
Civil and Criminal Forfeitures – Know the Difference
There are two procedures in forfeiture situations – criminal forfeiture or civil forfeiture. Civil forfeitures are a way for the state or federal government to attempt to take property. The rules for civil forfeiture actions are in many circumstances easier for the state or federal government because no criminal prosecution or conviction is mandated. If you are never arrested or exonerated of the criminal offense, the Government may still succeed in civil forfeiture.
In a civil forfeiture proceeding, the government brings suit against the property, rather than suing the owner of the property. The owner of the property becomes a third party who asserts a claim to the property. In order to succeed, the government must first make a case of probable cause for the forfeiture of the property. Then, the property owner must prove by a greater weight of the evidence that probable cause does not exist to forfeit the property. The outcome of the criminal case does not affect a civil forfeiture proceeding.
A criminal forfeiture action is deemed a punishment and is therefore dependent on a conviction for the individual accused of a criminal act. The higher requirement of a conviction for Criminal Forfeiture makes Civil Forfeiture a more attractive tool by law enforcement which carries no such requirement.
Florida is one of eighteen states that permits criminal forfeiture of assets. Florida criminal forfeiture laws attempt to deter several crimes, including:
- Money Laundering;
- Drug trafficking;
- Prostitution; and
- Theft or Fraud.
A sample view of the Statute covering Forfeiture in Florida:
932.703 Forfeiture of contraband article; exceptions.—
(1)(a) Any 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 provisions of the Florida Contraband Forfeiture Act.
(c) All rights to, interest in, and title to contraband articles used in violation of s. 932.702 shall immediately vest in the seizing law enforcement agency upon seizure.
(2)(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.
(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. (emphasis added) A copy of the findings of the court shall be provided to any person entitled to notice.
Kenneth Padowitz is an experienced forfeiture Attorney who can often negotiate the return of the property for a fraction of the property’s true value. In some cases, property has been released without any payment or with a small payment after signing a “waiver of damages” form. In one recent case, The Broward Sheriff’s Office returned all of $16,000.00 in cash taken from a clients vehicle after an arrest.
If you can not afford to lose your asset, whether it is cash, a vehicle, a firearm, or other property, contact Kenneth Padowitz who can explain your rights and devise a strategic plan to get your property back. Call 954-761-3888 today.