FORFEITURE DEFENSE

Forfeiture defense: A true story by "Forfeiture Phil." 

Being arrested is a traumatic event. The government is more and more using another weapon in their arsenal when charging someone with a crime: seizing their assets. This can turn an arrest into a possible financial disaster.  State and Federal law enforcement officers are now routinely seizing cars, cash, freezing bank accounts, and in some cases, trying obtain a person's house or other property. 

When the police seize assets, all is not lost. 

This is the picture of over $40,000 in  cash I got back for my client and this is the story of how I did it. 

I was able to get my client's cash back! 

My client and his wife and young child pulled up in their car to a house to meet a friend. The client had the cash because after meeting his friend he was scheduled to buy a truck for his trucking business. Unknown to my client, the house he was going to had been raided by the police. While still in his car, the police came racing out of the house, guns drawn, and in front of his screaming young child, pulled my client out of the car. He was separated from his wife and when the police went to search the car he told them they needed a warrant. Police don't like being told that and they arrested him for-and  I am not making it up- resisting arrest without violence, a misdemeanor in Florida. 

The police searched his wife and found the cash in her purse. The police then separately presented the wife and my client with forms stating that they agreed to let the police take and keep their money without any court proceeding. The law calls this a "waiver" and it has to be "knowingly, intelligently, and voluntarily" done. In this case, none of those terms applied to the waiver.

 The police obtained the waiver by threatening to arrest my client on felony charges if he didn't sign away his rights to his money. 

The client came to see me and I began my defense on the criminal case I also began to attack the forfeiture. On December 24, 2016, I got the criminal charges- which were patently ridiculous- dismissed. 

In normal cases in Florida, when the police seize property they have to send the owner notice telling them they have the right to an adversarial preliminary hearing within 15 days.  At the APH hearing the court will determine if the police have proved "a nexus" - which means a connection between the property and criminal activity. If the court finds no nexus, the person gets their property back. If the court finds a nexus, then the case proceeds like a civil law suit. The legal department for the police files a complaint and the owner files an answer and the case is litigated. 

All too often, I am now unfortunately seeing the police trying to short-circuit the legal process and having the owners sign a piece of paper forfeiting all their rights. Remember, this is occurring during an arrest, when the person is already scared. Many people think if they cooperate the police will not arrest them or the judge will go easier on them. Nothing could be further from the truth. 

In this case I went to court to set aside the "waiver" the police had. My client and his wife testified. They told the judge where they got the cash from, what they were going to use it for, and how the police threatened them and forced them to sign their rights to the cash away. The judge agreed with me and set aside the waiver and the case proceeded as I explained above. During that process I negotiated a settlement with the police department to return most of the money. 

I don't like settling cases when my client has a strong case. But the courts are crowded and getting hearing dates before civil court judges can be a long process and my client needed the money for his business, so he gave me the authority to settle the case. 

There are long standing principles in Florida law that forfeitures are disfavored. There is a high burden for the police to keep the property they have seized. Florida's legislature recently enacted new laws making it harder for the police to seize and keep property or assets from a forfeiture. 

The most important thing to remember when placed in a situation like the one my client found himself in is that it is illegal for the police to threaten anyone, and no one in the United States of America can ever be punished for exercising their rights. 

Thanks for reading. 

"Forfeiture Phil".