FORFEITURES

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:

1.  The police seized the property without Probable Cause
2.  The actual owner of the property has no knowledge of any criminal activity and is an “innocent owner”.
3.   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:

1. Money Laundering;
2. Drug trafficking;
3. Gambling;
4. Prostitution; and
5. Theft or Fraud.

 A sample view of the Statute covering Forfeiture in Florida:

932.703 Forfeiture of contraband article; exceptions.—