E.P.P. 8 Forfeiture Policy
The purpose of this directive is to define the forfeiture policy of the Longwood Police Department and delineate the process though which forfeiture action is initiated. It is also the purpose of this policy to standardize the procedures used in seizing, maintaining and forfeiting assets pursuant to the provisions of the Florida Contraband Forfeiture Act, Chapter 932, Florida State Statutes to ensure that seized property is seized and maintained in an efficient and lawful manner and to provide for an orderly process for the seizure in accordance with law.
This directive addresses forfeiture proceedings that effect real and personal property. Employees are instructed to seek advisement from their supervisor or the city attorney before considering any seizure for forfeiture of any property.
A. The initial forfeiture seizure determination will only be made by supervisory personnel who have received forfeiture training, or by the legal advisor. Any forfeiture action contemplated against any personal property will first be brought to the attention of the officer’s supervisor. No seizure or forfeiture action will be initiated until the situation has been discussed with the officer’s supervisor or city attorney.
B. Any forfeiture action contemplated against real property shall first be discussed with the City Attorney. No real property shall be seized without a prior judicial determination of
C. Law enforcement and the deterrence of crime are the principal objectives of asset forfeiture. The potential for obtaining from forfeitures must not override fundamental considerations such as public safety, the safety of law enforcement officers, the investigation and prosecution of criminal activity, and respect for the rights of individuals as provided by law.
D. No employment, salary, promotion or other compensation of any police department is dependent on obtaining any seizure.
E. When personal property (other than currency) is seized for forfeiture, the probable cause supporting the seizure must be promptly reviewed by a supervisor who is not directly involved in making the seizure. Legal counsel must be notified within twenty-four hours of all seizures.
F. Any prospective seizure of assets without a corresponding criminal arrest will be brought to the attention of the chief of police and the legal advisor before any such action is taken.
G. The final determination of whether a forfeiture action will be filed will be made by the chief of police.
H. All asserted claims of interest in seized property shall be promptly reviewed for potential validity by the legal advisor. Upon review of a forfeiture request, the legal advisor shall advise the appropriate personnel that the property may be promptly released. Settlement of any forfeiture action shall be consistent with the mandates of the Florida Contraband Forfeiture Act and in compliance with this policy or directive.
I. Seized property may not be used for any purpose until the rights to, interest in, and title to the seized property are in accordance with the Florida Contraband Forfeiture Act. This does not prohibit the 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 its loss of value.
J. The legal advisor shall periodically review the seizures of property, as well as settlements and forfeiture proceedings initiated to determine whether such seizures, settlements and forfeitures comply with the Florida Contraband Forfeiture Act. Such review shall occur at least annually. If the review suggests deficiencies, the legal advisor shall inform the chief of the methods that may be used to ensure compliance with the Florida Contraband Forfeiture Act.
K. All personnel will avoid the appearance of impropriety in the acquisition, sale, retention, or transfer of any forfeited property or proceeds derived from such property.
L. All personnel involved in forfeiture proceedings shall receive periodic training. This training shall address at least the legal aspects of forfeiture, search and seizure, racial and ethnic sensitivity, pretextural “stops’, and use of drug courier profiles.
A. Florida Contraband Forfeiture Act:
The Florida Contraband Forfeiture Act authorizes law enforcement agencies to seize and forfeit any vessel, motor vehicle, aircraft, currency or other personal property or contraband article which has been used, is being used, or was intended to be used in violation of its provisions.
B. Personal Property:
Personal property is defined as vehicles, guns, jewelry, electronics, etc.
C. Real Property:
Real property is defined as homes or land.
D. Verified Affidavit:
A statement given under oath based upon personal knowledge as to the facts contained in the statement.
E. Seizing Officer:
The officer responsible for processing the forfeiture request (under the direction of a supervisor trained in forfeiture proceedings) with the legal advisor and who issues the initial notice of forfeiture to the potential claimants.
F. Forfeiture Coordinator:
The officer or other person designated by the chief who is charged with the responsibility of maintaining an inventory of impounded vehicles at the police department.
V. POLICY STATEMENT
A. It is the policy of the police department to utilize forfeiture provisions to effectively and significantly impact upon crime while protecting the propriety interests of innocent owners and lien holders. The potential for obtaining revenues from forfeiture must not override fundamental considerations such as public safety, the safety of law enforcement officers, or the investigation and prosecution of criminal activity.
B. The act also allows seizure and forfeiture of any controlled or other substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of Chapter 893, Florida State Statutes, if a connection can be clearly demonstrated between the article(s) seized and the narcotics activity.
C. It is also the policy of the police department to ensure that, in all seizures made under the Florida Contraband Forfeiture Act, that officers adhere to federal and state constitutional limitations regarding an individual’s right to be free from unreasonable searches and seizures, including, but not limited to, the illegal use of stops based on a pretext, coercive consent searches, or a search based solely upon an individual’s race or ethnicity.
VI. BASIS FOR SEIZURE OF PROPERTY
A. Chapter 932.702, Florida State Statutes, provides that it is unlawful:
1. To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft;
2. To conceal or possess any contraband article in or upon any vessel, motor vehicle, aircraft, other personal property, or real property;
3. To use any vessel, motor vehicle, aircraft, other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article;
4. To conceal, or possess, or use any contraband article as an instrumentality in the commission of or in aiding or abetting in the commission of any felony or violation of the Florida Contraband Forfeiture Act; or,
5. To acquire real or personal property by the use of proceeds obtained in violation of the Florida Contraband Forfeiture Act.
B. Chapter 932.701(2)(a) 1-6, Florida State Statutes, essentially defines contraband articles as:
1. Any controlled or other substance, device, paraphernalia, or currency or other means of exchange which was used, was attempted, or intended to be used in violation of any provision of Chapter 893, Florida State Statutes, if the totality of the facts presented clearly establish probable cause to believe that a connection exists between the article seized and the narcotics activity;
2. Any gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, was attempted, or intended to be used in violation of the gambling laws of the state;
3. Any equipment, liquid or solid, which was being used, is being used, was attempted to be used, or intended to be used in violation of the beverage or tobacco laws of the state;
4. Any motor fuel upon which the motor fuel tax has not been paid as required by law;
5. Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act; or,
6. Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which was used, is being used, or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
VII. PROCEDURES FOR SEIZURE OF PERSONAL PROPERTY
A. Property may not be seized unless there is probable cause to believe that:
1. The item subject to seizure has been used, was attempted, or intended to be used in violation of any provision of the Florida Contraband Forfeiture Act, or;
2. Any violation of the Florida Contraband Forfeiture Act has taken place or is taking place in, upon, or by means of the seized property, or;
3. The item subject to seizure is a “contraband article” as defined in Chapter 932.701, Florida State Statutes, or other provision of law or the Florida Contraband Forfeiture Act, or;
4. The property was used to facilitate the commission of a felony.
- Probable cause seizures taking place at the time of Florida Contraband Forfeiture Act violations may be made without prior judicial approval for personal property. Property not seized at the time of F.C.F.A. violations presently located on private premises may be seized only pursuant to a court order authorizing entry onto the private premises, unless otherwise authorized by law.
C. The seizing officer shall make diligent efforts to determine ownership of the property, including the identification of all registered owner(s), title holder(s), bona fide lien holder(s), or other interested parties.
D. In cases of vehicle seizure, the officer shall run a lien and status (stolen, etc.) check with teletype and reflect that information on the forfeiture summary form. The Vehicle Identification Number shall be verified by means other than a simple match with the license tag number; a visual inspection of the vehicle’s V.I.N. plate(s) should be accomplished. The V.I.N. number is to be accurately and legibly recorded on all appropriate documents.
E. The seizing forfeiture coordinator shall inform all persons entitled to notice that the property is being seized for possible fortitude. “Persons entitled to notice” is defined by Chapter 32.701(e), Florida State Statutes, as “any owner, entity, bona fide lienholder, or person in possession of the property...when seized.” A Notice of Seizure of Property Form must be personally given or sent by certified mail within five (5) days from the date of seizure
F. Any property seized for forfeiture shall be handled as provided by police department
property and evidence control and vehicle storage and inventory. All receipts, inventory forms and disposition sheets shall be marked, “Hold for Forfeiture.” Occasionally, property seized for eventual forfeiture will also need to be held for evidence. This is particularly true in drug cases, where scales, firearms, safes, etc. are seized. It is imperative that the officer make it clear to the legal advisor and the evidence section that such property is to be held as evidence. Evidence holds should be used only where necessary for trial or further investigation. Where dual holds are necessary, the officer will be responsible for promptly releasing evidence holds upon conclusion of the criminal case to enable the forfeited property to be properly disposed of by the police department.
G. A Notice of Seizure of Property for Forfeiture Form shall be completed and submitted, with a copy of all reports, charging affidavits, and an original verified affidavit to the legal advisor within three calendar days of the seizure. When supplemental reports are prepared, copies of these will be forwarded to the legal advisor to be placed within the existing forfeiture file.
H. Where a laboratory analysis is necessary to establish the grounds for forfeiture of property, the seizing officer shall ensure that the substance is properly submitted for delivery to the lab, and shall further ensure that a copy of the laboratory result is immediately forwarded to the legal advisor.
I. When cash is taken from a suspect for forfeiture purposes, the officer shall issue the suspect a receipt. If feasible, the money should be counted in the presence of the suspect, who should co-sign and receive a copy of the receipt. Otherwise, the currency must be counted in the presence of another officer, employee, or other reliable witness who should co-sign the receipt. In order to minimize conflicts with amounts of money seized, officers shall list currency on the property receipts and evidence envelopes by individual denominations. Receipts for currency shall be placed in evidence.
J. Under no circumstances shall any settlement negotiations be conducted at the time of seizure. Settlements shall be handled by the legal advisor. Settlement agreements between the Legal Advisor and un-represented claimants must clearly indicate that the claimant has freely and voluntarily agreed to the settlement without benefit of an attorney.
K. If the officer believes a settlement offer favorable to the suspect should be made, the officer shall communicate that information to the legal advisor. Accordingly, if the person from whom the property was seized is a repeat offender, that information should also be provided to the legal advisor.
L. All officers involved in the seizure of property will be available for, and testify at, all applicable forfeiture hearings, including any adversarial preliminary hearings, if such hearings are scheduled and within their ability to attend. Subpoenas will not be necessary to secure the Officers presence at any hearing, but on-call and appearance time and compensation provisions will be observed. As much advance notice as possible will be provided to the officer by the legal advisor.
VIII. STORAGE AND MAINTENANCE OF PERSONAL PROPERTY
A. Vehicle Inventory:
1. A complete inventory of the vehicle and all containers, open or closed, found therein shall be completed by the seizing officer at the time of the seizure.
2. All vehicles seized for forfeiture shall be towed and secured at the police department whenever possible to minimize costs
3. The seizing officers shall complete a Tow Sheet Form and mark the form “Hold for Forfeiture” in the space designated for “reason for hold.” The Tow Sheet Form will be disseminated by the officer prior to the end of his/her tour of duty to:
a. Wrecker Service;
b. The driver or owner if present;
c. Forfeiture Coordinator (C.I.D.);
d. Legal Advisor (photocopy).
4. If any personal property seized for forfeiture is also being held as evidence, the officer will indicate this fact on the forfeiture paperwork. This will prevent an inadvertent release by the legal advisor.
5. All personal property shall be left secured within the vehicle. If the vehicle cannot be locked and secured the property will be removed, inventoried, and placed into evidence. If the vehicle is to be processed and it is determined that removal of property might compromise the processing, the seizing officer shall be responsible for removing and securing appropriate personal property once the processing has been completed. Personal property within the vehicle of no evidentiary value, or not subject to a claim of forfeiture, will be returned to the vehicle owner upon request; by the seizing officer.
6. Any personal property seized as evidence shall be handled in accordance with the Enforcement Policy and Procedure “Evidence Collection EPP.011.
1. Reasonable efforts shall be made to maintain the property in its time-of-seizure condition.
2. If special maintenance is required to maintain seized personal property in time- of -seizure condition, as may be necessary with aircraft or vessels, the forfeiture coordinator will ensure that such maintenance is provided within a reasonable time after seizure, with such care continuing until the conclusion of the forfeiture action.
3. Currency seizures pending forfeiture may be placed in an interest-bearing account upon signature for Stipulation of Deposit and approval of the State Attorney’s Office, if the currency also has any evidentiary value in a criminal case.
IX. Supervisor of the Investigations Division Duties (Forfeiture Coordinator):
The Supervisor shall:
A. Promptly review copies of all reports describing the circumstances attendant to the seizure and make an independent evaluation of the probable cause determination.
B. Verify that the seizing officer gave notice of the seizure to all persons entitled to notice within five business days after seizure. Said notice shall advise all interested persons that they have the right to request an adversarial preliminary hearing within fifteen days of receipt of such notice.
C. Determine as soon as practicable after seizure whether to proceed with the forfeiture or to release the seized property to the lawful owner, bearing in mind that forty-five days after seizure, motions for return of property may be brought against the police department.
D. Upon the determination to proceed with the forfeiture, coordinate the forfeiture process with appropriate personnel.
E. Promptly proceed against the seized property by filing a forfeiture action or entering into a settlement agreement.
F. Upon the determination not to proceed with a forfeiture action, absent evidentiary value to a pending prosecution or a settlement agreement to the contrary, notify the seizing officer that the seized property may be immediately released to the lawful owner or authorized designee.
G. In cases involving motor vehicles and other non-currency seizures, a certified copy of any final order of forfeiture shall be provided to the Forfeiture Coordinator. Non-certified copies shall be provided to the seizing officer and to the chief of police.
H. In cases involving currency seizures, a certified copy of any final order of forfeiture shall be provided to the chief of police. Non-certified copies shall be provided to the forfeiture coordinator.
I. The supervisor shall be responsible for reviewing all forfeiture seizures, settlements, and filed forfeitures and will prepare a report for the chief of police by December of each year.
J. The supervisor shall file, by December 31st of each year, a certificate that it’s agency’s forfeiture policy and procedure are in compliance with Florida Department of Law Enforcement guidelines.
X. RELEASE OF SEIZED PERSONAL PROPERTY
A. If the lawful owner or other person prevails at the conclusion of the judicial process, the seized property shall be released to him/her immediately. In these instances, the police department shall not assess any towing or storage fees, administrative or maintenance costs, or similar charges against the owner or other interested party.
B. In all other instances, if a seized vessel, vehicle, aircraft, etc. is to be released to the lawful owner or other authorized person, the police department may assess the actual costs of towing, storage, and maintenance of the seized property. Absent settlement to the contrary, administrative costs reflecting actual expenses shall not be assessed.
C. It shall be the responsibility of the forfeiture coordinator to contact and release the subject property to its proper owner after being advised to do so by the city attorney.
D. The forfeiture coordinator in all vehicle seizures shall be responsible for notifying Florida State authorities that the police department holds on the vehicle may be released.
XI. USE OF FORFEITED ITEMS
A. State Forfeiture:
1. All forfeited property retained for law enforcement use shall be maintained and used in accordance with the Florida Contraband Forfeiture Act, and will be subject to the same controls with regard to property acquired through the agency’s normal appropriations process.
2. Currency obtained through settlement, court order, or sale of forfeited property shall be deposited into the Law Enforcement Trust Fund for the police department use as provided by law.
3. Items forfeited by settlement or court order may be converted to the use of the Department of Public Safety or sold at auction. No forfeited item shall be used or assigned until forfeiture proceedings are complete pursuant to settlement or court border.
4. The legal advisor shall notify the police department when a vehicle is awarded to the police department. The fleet manager shall be responsible for obtaining clear title and all supporting documentation to enable the proper disposal of the vehicle. Approval by the chief or his designee must be obtained before any forfeited is placed in service.
B. Federal Forfeiture:
All property acquired through federal forfeiture proceedings shall be used in accordance with the Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies.
XII. PROCEDURES FOR SEIZURE OF REAL PROPERTY
A. During any investigation and prior to the execution of any search warrant where non-homestead real estate property may have been used in violation of the Florida Contraband Forfeiture Act the following procedures should be adhered to:
1. The forfeiture coordinator will contact the county tax assessor’s office to determine who pays property taxes on the real estate in question and will obtain a printout of that information;
2. Obtain any and all mortgage deeds, lien information, and any satisfaction of mortgages concerning the real estate property;
3. Contact any lien holder (i.e. mortgage companies or financial institutions which have a mortgage or lien on the property) and determine the present mortgage amount or lien amount on the property.
B. Because of the uniqueness and special needs of real property, along with any contemplation of seizure of such property; shall require approval of the chief and coordination with the legal advisor.
C. Once probable cause for seizure has been determined, the following factors should be considered in determining whether to seize real property:
1. The potential for successful forfeiture action;
2. The availability of alternate methods of forfeiture such as joint or adoptive forfeitures with a federal agency;
3. The impact of forfeiture on targets of a criminal investigation;
4. The impact of forfeiture on innocent owners, lien holders or other persons not involved in criminal activity;
5. The impact of forfeiture on the public health, safety and welfare, particularly environmentally sensitive land.
1. Forfeiture Coordinator
a. Provide information to and consult with the legal advisor regarding the investigation, seizure and management of real property under consideration for seizure.
b. Accomplish necessary forfeiture investigation and research regarding the subject real estate or assist in compiling such information if information is developed by other sources.
c. Assist the legal advisor when requested to complete necessary police department, court related and other paperwork relative to the forfeiture, including a legal description of the property, such as:
1. An “Affidavit for Seizure Warrant for Real Property”.
2. A “Notice of Lis Pendens.”
3. A “Seizure Warrant for Real Property.”
4. A “Petition for Rule to Show Cause.”
5. A “Stipulation for Occupancy and Indemnity.”
d. Effect constructive “seizure” of real estate, service of process and other enforcement duties with respect to the subject real estate.
e. If the residence is occupied and eviction is warranted, then prior to evicting dependent children, medically disabled persons or persons otherwise infirm, the investigator/case agent must notify appropriate social service agencies of the eviction so that said agencies may determine if their assistance is required.
f. Assist, as requested, in securing specialized personnel or services relative to the property and in handling any ongoing concerns relating to the subject real estate during the pendency of forfeiture proceedings.
2. The Chief shall:
a. Make authorization as to whether to seize real property, and proceed with the real property forfeiture after consultation with the legal advisor.
b. Authorize expenditure for the maintenance and management of real property pending final disposition.
c. Approve a plan for the management of real property pending final disposition.
d. Approve or reject any proposed settlement agreements after consultation with the legal advisor.
E. Pre-Seizure Planning:
1. Prior to seizing any real property, the investigator/agent shall be responsible for determining the ownership of any real property under consideration for forfeiture.
2. Prior to seizing any real property, the investigator/agent shall be responsible for determining the value of the real property and the equity in the property. The estimated value may be based upon an appraisal or recent market price of the property or of market values of comparable property which are subject to forfeiture and the amount of income generated by any business located on the property.
3. Prior to seizing any real property, forfeiture coordinator shall attempt to obtain either a letter of commitment to provide title insurance from a title insurance company or an ownership and encumbrance report.
4. Prior to seizing any real property, forfeiture coordinator shall determine the amount of any prior existing mortgages, liens and taxes. These amounts shall include both the existing balance and any monthly or periodic payments, if any.
5. The forfeiture coordinator shall compile a proposal for the management of real property, which shall be submitted with the recommendation for seizure and forfeiture via the chain of command to the chief or his designee.
F. Budgetary Considerations:
1. No real property shall be seized for forfeiture unless funds are available from existing appropriations for the maintenance and management of the property pending final disposition of the forfeiture. The condition and contents of seized property shall be documented by photograph and/or video at the time of seizure.
2. The forfeiture coordinator shall keep a detailed record of all expenditures made for the maintenance and management of real property.
G. Management of Real Property:
1. Upon seizure, or as soon as practical thereafter, an inventory of the contents of any seized real property shall be conducted by the seizing investigator/agent and his/her supervisor.
2. The seizing forfeiture coordinator shall coordinate the maintenance and management of real property pending final disposition. Contract for special services shall be prepared by the seizing forfeiture coordinator. Any necessary repairs that are not part of the regular maintenance service shall be brought to the attention of the legal advisor. Approval of the chief shall be required before repairs are made.
H. Disposition of Real Property:
- If at the conclusion of the judicial process, the police department prevails and a judgment of forfeiture is issued, the Department of Public Safety ownership interest in the property should not be considered completed until the time for an appeal is filed. The appeal should be resolved before the department’s ownership interest in the property is considered completed.
2. Once a final judgment of forfeiture has been obtained by the police department and the time for appeal has passed, or appeals have been resolved in favor of the Department, real estate shall be received in the name: “Longwood Police Department”.
3. Real estate forfeited to the Longwood Police Department under the Florida Contraband Forfeiture Act may be retained, utilized, transferred, donated or sold in a manner as authorized by the Florida Contraband Forfeiture Act and/or other relevant statutory provisions.
4. From the proceeds of the sale of any forfeiture real property, the following costs shall be paid or funds from which payments have been previously made shall be reimbursed:
a. Costs of litigation;
b. Costs of maintenance and management;
c. Fees to the Department of Legal Affairs.
XIII. DUTIES OF THE CHIEF OF POLICE
A. State Forfeitures:
1. Proceeds obtained from state forfeiture proceedings shall be maintained in an account separate from federally acquired assets.
- Federal Forfeitures:
1. The chief shall maintain on file a copy of all federal DAG-71 forms.
2. An annual certification report shall be prepared at the end of each fiscal year outlining the funds and property received and expended under the Federal Equitable Sharing Program. A copy of the certification shall be sent to the Executive Office for Asset Forfeiture and to the United States Attorney for the Middle District of Florida.
C. Use of Forfeited Assets:
- The chief shall ensure the police department’s compliance with the Guide to Equitable Sharing of Federally Forfeited Property or State and Local Law Enforcement Agencies regarding expenditure of federally forfeited assets.
2. The chief shall ensure the police department’s compliance with the Florida Contraband Forfeiture Act regarding expenditures of federally forfeited assets.