Bill Text: FL S1044 | 2016 | Regular Session | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Contraband Forfeiture

Spectrum: Bipartisan Bill

Status: (Passed) 2016-04-01 - Chapter No. 2016-179 [S1044 Detail]

Download: Florida-2016-S1044-Engrossed.html

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       CS for CS for SB 1044                     Second Engrossed (ntc)
       
       
       
       
       
       
       
       
       20161044e2
       
    1                        A bill to be entitled                      
    2         An act relating to contraband forfeiture; amending s.
    3         932.701, F.S.; conforming provisions to changes made
    4         by the act; amending s. 932.703, F.S.; specifying that
    5         property may be seized only under certain
    6         circumstances; defining the term “monetary
    7         instrument”; requiring that specified persons approve
    8         a settlement; providing circumstances when property
    9         may be deemed contraband; allocating responsibility
   10         for damage to seized property and payment of storage
   11         and maintenance expenses; requiring the seizing agency
   12         to apply for an order, within a certain timeframe,
   13         making a probable cause determination after the agency
   14         seizes property; providing application requirements;
   15         requiring a court to make specified determinations;
   16         providing procedures upon certain court findings;
   17         authorizing the court to seal any portion of the
   18         application and of specified proceedings under certain
   19         circumstances; amending s. 932.704, F.S.; providing
   20         requirements for a filing fee and a bond to be paid to
   21         the clerk of court; requiring that the bond be made
   22         payable to the claimant under certain circumstances
   23         unless otherwise expressly agreed to in writing;
   24         increasing the evidentiary standard from clear and
   25         convincing evidence to proof beyond a reasonable doubt
   26         that a contraband article was being used in violation
   27         of the Florida Contraband Forfeiture Act for a court
   28         to order the forfeiture of the seized property;
   29         increasing the attorney fees and costs awarded to
   30         claimant under certain circumstances; requiring a
   31         seizing agency to annually review seizures,
   32         settlements, and forfeiture proceedings to determine
   33         compliance with the Florida Contraband Forfeiture Act;
   34         providing requirements for seizing law enforcement
   35         agencies; requiring seizing law enforcement agencies
   36         to adopt and implement specified written policies,
   37         procedures, and training; requiring law enforcement
   38         agency personnel to receive basic training and
   39         continuing education; requiring the maintenance of
   40         training records; amending s. 932.7055, F.S.;
   41         conforming provisions to changes made by the act;
   42         creating s. 932.7061, F.S.; providing reporting
   43         requirements for seized property for forfeiture;
   44         creating s. 932.7062, F.S.; providing penalties for
   45         noncompliance with reporting requirements; amending s.
   46         322.34, F.S.; providing for payment of court costs,
   47         fines, and fees from proceeds of certain forfeitures;
   48         conforming provisions to changes made by the act;
   49         amending ss. 323.001, 328.07, and 817.625, F.S.;
   50         conforming provisions to changes made by the act;
   51         providing an effective date.
   52          
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Subsection (1) of section 932.701, Florida
   56  Statutes, is amended to read:
   57         932.701 Short title; definitions.—
   58         (1) Sections 932.701-932.7062 932.706 shall be known and
   59  may be cited as the “Florida Contraband Forfeiture Act.”
   60         Section 2. Subsection (1) of section 932.703, Florida
   61  Statutes, is amended, a new subsection (2) is added, and present
   62  subsections (2) through (8) are redesignated as subsections (3)
   63  through (9), respectively, to read:
   64         932.703 Forfeiture of contraband article; exceptions.—
   65         (1)(a) A Any contraband article, vessel, motor vehicle,
   66  aircraft, other personal property, or real property used in
   67  violation of any provision of the Florida Contraband Forfeiture
   68  Act, or in, upon, or by means of which any violation of the
   69  Florida Contraband Forfeiture Act has taken or is taking place,
   70  may be seized and shall be forfeited subject to the provisions
   71  of the Florida Contraband Forfeiture Act. A seizure may occur
   72  only if the owner of the property is arrested for a criminal
   73  offense that forms the basis for determining that the property
   74  is a contraband article under s. 932.701, or one or more of the
   75  following circumstances apply:
   76         1. The owner of the property cannot be identified after a
   77  diligent search, or the person in possession of the property
   78  denies ownership and the owner of the property cannot be
   79  identified by means that are available to the employee or agent
   80  of the seizing agency at the time of the seizure;
   81         2. The owner of the property is a fugitive from justice or
   82  is deceased;
   83         3. An individual who does not own the property is arrested
   84  for a criminal offense that forms the basis for determining that
   85  the property is a contraband article under s. 932.701 and the
   86  owner of the property had actual knowledge of the criminal
   87  activity. Evidence that an owner received written notification
   88  from a law enforcement agency and acknowledged receipt of the
   89  notification in writing, that the seized asset had been used in
   90  violation of the Florida Contraband Forfeiture Act on a prior
   91  occasion by the arrested person, may be used to establish actual
   92  knowledge;
   93         4. The owner of the property agrees to be a confidential
   94  informant as defined in s. 914.28. The seizing agency may not
   95  use the threat of property seizure or forfeiture to coerce the
   96  owner of the property to enter into a confidential informant
   97  agreement. The seizing agency shall return the property to the
   98  owner if criminal charges are not filed against the owner and
   99  the active criminal investigation ends or if the owner ceases
  100  being a confidential informant, unless the agency includes the
  101  final forfeiture of the property as a component of the
  102  confidential informant agreement; or
  103         5. The property is a monetary instrument. For purposes of
  104  this subparagraph, the term “monetary instrument” means coin or
  105  currency of the United States or any other country; a traveler’s
  106  check; a personal check; a bank check; a cashier’s check; a
  107  money order; a bank draft of any country; an investment security
  108  or negotiable instrument in bearer form or in other form such
  109  that title passes upon delivery; a prepaid or stored value card
  110  or other device that is the equivalent of money and can be used
  111  to obtain cash, property, or services; or gold, silver, or
  112  platinum bullion or coins.
  113         (b) After property is seized pursuant to the Florida
  114  Contraband Forfeiture Act, regardless of whether the civil
  115  complaint has been filed, all settlements must be personally
  116  approved by the head of the law enforcement agency that seized
  117  the property. If the agency head is unavailable and a delay
  118  would adversely affect the settlement, approval may be given by
  119  a subordinate of the agency head who is designated to grant such
  120  approval Notwithstanding any other provision of the Florida
  121  Contraband Forfeiture Act, except the provisions of paragraph
  122  (a), contraband articles set forth in s. 932.701(2)(a)7. used in
  123  violation of any provision of the Florida Contraband Forfeiture
  124  Act, or in, upon, or by means of which any violation of the
  125  Florida Contraband Forfeiture Act has taken or is taking place,
  126  shall be seized and shall be forfeited subject to the provisions
  127  of the Florida Contraband Forfeiture Act.
  128         (c) If at least 90 days have elapsed since the initial
  129  seizure of the property and the seizing agency has failed to
  130  locate the owner after making a diligent effort, the seized
  131  property is deemed a contraband article that is subject to
  132  forfeiture under the Florida Contraband Forfeiture Act All
  133  rights to, interest in, and title to contraband articles used in
  134  violation of s. 932.702 shall immediately vest in the seizing
  135  law enforcement agency upon seizure.
  136         (d)1. The seizing agency may not use the seized property
  137  for any purpose until the rights to, interest in, and title to
  138  the seized property are perfected in accordance with the Florida
  139  Contraband Forfeiture Act. This section does not prohibit use or
  140  operation necessary for reasonable maintenance of seized
  141  property. Reasonable efforts shall be made to maintain seized
  142  property in such a manner as to minimize loss of value.
  143         2. Unless otherwise expressly agreed to in writing by the
  144  parties, the agency seeking forfeiture of the seized property is
  145  responsible for any damage to the property and any storage fees
  146  or maintenance costs applicable to the property. If more than
  147  one agency seeks forfeiture of the property, the division of
  148  liability under this subparagraph may be governed by the terms
  149  of an agreement between the agencies.
  150         (2)(a) When a seizure of property is made under the Florida
  151  Contraband Forfeiture Act, the seizing agency shall apply,
  152  within 10 business days after the date of the seizure, to a
  153  court of competent jurisdiction for an order determining whether
  154  probable cause exists for the seizure of the property. The
  155  application for the probable cause determination must be
  156  accompanied by a sworn affidavit and may be filed electronically
  157  by reliable electronic means.
  158         (b) The court must determine whether:
  159         1. The owner was arrested under paragraph (1)(a), and if
  160  not, whether an exception to the arrest requirement specified in
  161  paragraph (1)(a) applies; and
  162         2. Probable cause exists for the property seizure under the
  163  Florida Contraband Forfeiture Act.
  164         (c) If the court finds that the requirements specified in
  165  paragraph (1)(a) were satisfied and that probable cause exists
  166  for the seizure, the forfeiture may proceed as set forth in the
  167  Florida Contraband Forfeiture Act, and no additional probable
  168  cause determination is required unless the claimant requests an
  169  adversarial preliminary hearing as set forth in the act. Upon
  170  such a finding, the court shall issue a written order finding
  171  probable cause for the seizure and order the property held until
  172  the issue of a determination of title is resolved pursuant to
  173  the procedures defined in the act.
  174         (d) If the court finds that the requirements in paragraph
  175  (1)(a) were not satisfied or that probable cause does not exist
  176  for the seizure, any forfeiture hold, lien, lis pendens, or
  177  other civil encumbrance must be released within 5 days.
  178         (e) The court may seal any portion of the application and
  179  the record of any proceeding under the Florida Contraband
  180  Forfeiture Act which is exempt or confidential and exempt from
  181  s. 119.07(1) and s. 24(a), Art. I of the State Constitution or
  182  may otherwise be sealed pursuant to Rule 2.420, Florida Rules of
  183  Judicial Administration.
  184         Section 3. Subsection (4), paragraph (b) of subsection (5),
  185  paragraph (b) of subsection (6), subsections (8), (10), and (11)
  186  of section 932.704, Florida Statutes, are amended to read:
  187         932.704 Forfeiture proceedings.—
  188         (4) The seizing agency shall promptly proceed against the
  189  contraband article by filing a complaint in the circuit court
  190  within the jurisdiction where the seizure or the offense
  191  occurred, paying a filing fee of at least $1,000 and depositing
  192  a bond of $1,500 to the clerk of the court. Unless otherwise
  193  expressly agreed to in writing by the parties, the bond shall be
  194  payable to the claimant if the claimant prevails in the
  195  forfeiture proceeding and in any appeal.
  196         (5)
  197         (b) If no person entitled to notice requests an adversarial
  198  preliminary hearing, as provided in s. 932.703(3)(a)
  199  932.703(2)(a), the court, upon receipt of the complaint, shall
  200  review the complaint and the verified supporting affidavit to
  201  determine whether there was probable cause for the seizure. Upon
  202  a finding of probable cause, the court shall enter an order
  203  showing the probable cause finding.
  204         (6)
  205         (b) The complaint must, in addition to stating that which
  206  is required by s. 932.703(3)(a) and (b) 932.703(2)(a) and (b),
  207  as appropriate, describe the property; state the county, place,
  208  and date of seizure; state the name of the law enforcement
  209  agency holding the seized property; and state the name of the
  210  court in which the complaint will be filed.
  211         (8) Upon proof beyond a reasonable doubt clear and
  212  convincing evidence that the contraband article was being used
  213  in violation of the Florida Contraband Forfeiture Act, the court
  214  shall order the seized property forfeited to the seizing law
  215  enforcement agency. The final order of forfeiture by the court
  216  shall perfect in the law enforcement agency right, title, and
  217  interest in and to such property, subject only to the rights and
  218  interests of bona fide lienholders, and shall relate back to the
  219  date of seizure.
  220         (10) The court shall award reasonable attorney’s fees and
  221  costs, up to a limit of $2,000 $1,000, to the claimant at the
  222  close of the adversarial preliminary hearing if the court makes
  223  a finding of no probable cause. When the claimant prevails, at
  224  the close of forfeiture proceedings and any appeal, the court
  225  shall award reasonable trial attorney’s fees and costs to the
  226  claimant if the court finds that the seizing agency has not
  227  proceeded at any stage of the proceedings in good faith or that
  228  the seizing agency’s action which precipitated the forfeiture
  229  proceedings was a gross abuse of the agency’s discretion. The
  230  court may order the seizing agency to pay the awarded attorney’s
  231  fees and costs from the appropriate contraband forfeiture trust
  232  fund. Nothing in this subsection precludes any party from
  233  electing to seek attorney’s fees and costs under chapter 57 or
  234  other applicable law.
  235         (11)(a) The Department of Law Enforcement, in consultation
  236  with the Florida Sheriffs Association and the Florida Police
  237  Chiefs Association, shall develop guidelines and training
  238  procedures to be used by state and local law enforcement
  239  agencies and state attorneys in implementing the Florida
  240  Contraband Forfeiture Act. At least annually, each state or
  241  local law enforcement agency that seizes property for the
  242  purpose of forfeiture shall periodically review such seizures of
  243  assets made by the agency’s law enforcement officers, any
  244  settlements, and any forfeiture proceedings initiated by the law
  245  enforcement agency, to determine whether they such seizures,
  246  settlements, and forfeitures comply with the Florida Contraband
  247  Forfeiture Act and the guidelines adopted under this subsection.
  248  If the review suggests deficiencies, the state or local law
  249  enforcement agency shall promptly take action to comply with the
  250  Florida Contraband Forfeiture Act.
  251         (b) The determination as to of whether an agency will file
  252  a civil forfeiture action is must be the sole responsibility of
  253  the head of the agency or his or her designee.
  254         (c)(b) The determination as to of whether to seize currency
  255  must be made by supervisory personnel. The agency’s legal
  256  counsel must be notified as soon as possible after a
  257  determination is made.
  258         (d) The employment, salary, promotion, or other
  259  compensation of any law enforcement officer may not be dependent
  260  on the ability of the officer to meet a quota for seizures.
  261         (e) A seizing agency shall adopt and implement written
  262  policies, procedures, and training to ensure compliance with all
  263  applicable legal requirements regarding seizing, maintaining,
  264  and the forfeiture of property under the Florida Contraband
  265  Forfeiture Act.
  266         (f) When property is seized for forfeiture, the probable
  267  cause supporting the seizure must be promptly reviewed by
  268  supervisory personnel. The seizing agency’s legal counsel must
  269  be notified as soon as possible of all seizures and shall
  270  conduct a review to determine whether there is legal sufficiency
  271  to proceed with a forfeiture action.
  272         (g) Each seizing agency shall adopt and implement written
  273  policies and procedures promoting the prompt release of seized
  274  property as may be required by the act or by agency
  275  determination when there is no legitimate basis for holding
  276  seized property. To help ensure that property is not wrongfully
  277  held after seizure, each law enforcement agency must adopt
  278  written policies and procedures ensuring that all asserted
  279  claims of interest in seized property are promptly reviewed for
  280  potential validity.
  281         (h) The settlement of any forfeiture action must be
  282  consistent with the Florida Contraband Forfeiture Act and the
  283  policy of the seizing agency.
  284         (i) Law enforcement agency personnel involved in the
  285  seizure of property for forfeiture shall receive basic training
  286  and continuing education as required by the Florida Contraband
  287  Forfeiture Act. Each agency shall maintain records demonstrating
  288  each law enforcement officer’s compliance with this requirement.
  289  Among other things, the training must address the legal aspects
  290  of forfeiture, including, but not limited to, search and seizure
  291  and other constitutional considerations.
  292         Section 4. Subsection (3) and paragraph (c) of subsection
  293  (5) of section 932.7055, Florida Statutes, are amended to read:
  294         932.7055 Disposition of liens and forfeited property.—
  295         (3) If the forfeited property is subject to a lien
  296  preserved by the court as provided in s. 932.703(7)(b)
  297  932.703(6)(b), the agency shall:
  298         (a) Sell the property with the proceeds being used towards
  299  satisfaction of any liens; or
  300         (b) Have the lien satisfied prior to taking any action
  301  authorized by subsection (1).
  302         (5)
  303         (c) An agency or organization, other than the seizing
  304  agency, that wishes to receive such funds shall apply to the
  305  sheriff or chief of police for an appropriation and its
  306  application shall be accompanied by a written certification that
  307  the moneys will be used for an authorized purpose. Such requests
  308  for expenditures shall include a statement describing
  309  anticipated recurring costs for the agency for subsequent fiscal
  310  years. An agency or organization that receives money pursuant to
  311  this subsection shall provide an accounting for such moneys and
  312  shall furnish the same reports as an agency of the county or
  313  municipality that receives public funds. Such funds may be
  314  expended in accordance with the following procedures:
  315         1. Such funds may be used only for school resource officer,
  316  crime prevention, safe neighborhood, drug abuse education, or
  317  drug prevention programs or such other law enforcement purposes
  318  as the board of county commissioners or governing body of the
  319  municipality deems appropriate.
  320         2. Such funds shall not be a source of revenue to meet
  321  normal operating needs of the law enforcement agency.
  322         3. After July 1, 1992, and during every fiscal year
  323  thereafter, Any local law enforcement agency that acquires at
  324  least $15,000 pursuant to the Florida Contraband Forfeiture Act
  325  within a fiscal year must expend or donate no less than 25 15
  326  percent of such proceeds for the support or operation of any
  327  drug treatment, drug abuse education, drug prevention, crime
  328  prevention, safe neighborhood, or school resource officer
  329  program or programs program(s). The local law enforcement agency
  330  has the discretion to determine which program or programs
  331  program(s) will receive the designated proceeds.
  332  
  333  Notwithstanding the drug abuse education, drug treatment, drug
  334  prevention, crime prevention, safe neighborhood, or school
  335  resource officer minimum expenditures or donations, the sheriff
  336  and the board of county commissioners or the chief of police and
  337  the governing body of the municipality may agree to expend or
  338  donate such funds over a period of years if the expenditure or
  339  donation of such minimum amount in any given fiscal year would
  340  exceed the needs of the county or municipality for such program
  341  or programs program(s). Nothing in this section precludes The
  342  minimum requirement for expenditure or donation of forfeiture
  343  proceeds in excess of the minimum amounts established in this
  344  subparagraph does not preclude expenditures or donations in
  345  excess of that amount herein.
  346         Section 5. Section 932.7061, Florida Statutes, is created
  347  to read:
  348         932.7061 Reporting seized property for forfeiture.—
  349         (1) Every law enforcement agency shall submit an annual
  350  report to the Department of Law Enforcement indicating whether
  351  the agency has seized or forfeited property under the Florida
  352  Contraband Forfeiture Act. A law enforcement agency receiving or
  353  expending forfeited property or proceeds from the sale of
  354  forfeited property in accordance with the Florida Contraband
  355  Forfeiture Act shall submit a completed annual report by October
  356  10 documenting the receipts and expenditures. The report shall
  357  be submitted in an electronic form, maintained by the Department
  358  of Law Enforcement in consultation with the Office of Program
  359  Policy Analysis and Government Accountability, to the entity
  360  that has budgetary authority over such agency and to the
  361  Department of Law Enforcement. The annual report must, at a
  362  minimum, specify the type, approximate value, court case number,
  363  type of offense, disposition of property received, and amount of
  364  any proceeds received or expended.
  365         (2) The Department of Law Enforcement shall submit an
  366  annual report to the Office of Program Policy Analysis and
  367  Government Accountability compiling the information and data in
  368  the annual reports submitted by the law enforcement agencies.
  369  The annual report shall also contain a list of law enforcement
  370  agencies that have failed to meet the reporting requirements and
  371  a summary of any action taken against the noncomplying agency by
  372  the office of Chief Financial Officer.
  373         (3) The law enforcement agency and the entity having
  374  budgetary control over the law enforcement agency may not
  375  anticipate future forfeitures or proceeds therefrom in the
  376  adoption and approval of the budget for the law enforcement
  377  agency.
  378         Section 6. Section 932.7062, Florida Statutes, is created
  379  to read:
  380         932.7062 Penalty for noncompliance with reporting
  381  requirements.—A seizing agency that fails to comply with the
  382  reporting requirements in s. 932.7061 is subject to a civil fine
  383  of $5,000, to be determined by the Chief Financial Officer and
  384  payable to the General Revenue Fund. However, such agency is not
  385  subject to the fine if, within 60 days after receipt of written
  386  notification from the Department of Law Enforcement of
  387  noncompliance with the reporting requirements of the Florida
  388  Contraband Forfeiture Act, the agency substantially complies
  389  with those requirements. The Department of Law Enforcement shall
  390  submit any substantial noncompliance to the office of Chief
  391  Financial Officer, which shall be responsible for the
  392  enforcement of this section.
  393         Section 7. Paragraphs (a) and (c) of subsection (9) of
  394  section 322.34, Florida Statutes, are amended to read:
  395         322.34 Driving while license suspended, revoked, canceled,
  396  or disqualified.—
  397         (9)(a) A motor vehicle that is driven by a person under the
  398  influence of alcohol or drugs in violation of s. 316.193 is
  399  subject to seizure and forfeiture under ss. 932.701-932.7062
  400  932.706 and is subject to liens for recovering, towing, or
  401  storing vehicles under s. 713.78 if, at the time of the offense,
  402  the person’s driver license is suspended, revoked, or canceled
  403  as a result of a prior conviction for driving under the
  404  influence.
  405         (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
  406  the seizing agency obtains a final judgment granting forfeiture
  407  of the motor vehicle under this section, 30 percent of the net
  408  proceeds from the sale of the motor vehicle shall be retained by
  409  the seizing law enforcement agency. The remaining 70 percent of
  410  the proceeds shall first be applied to payment of court costs,
  411  fines, and fees remaining due, and any remaining balance of
  412  proceeds and 70 percent shall be deposited in the General
  413  Revenue Fund for use by regional workforce boards in providing
  414  transportation services for participants of the welfare
  415  transition program. In a forfeiture proceeding under this
  416  section, the court may consider the extent that the family of
  417  the owner has other public or private means of transportation.
  418         Section 8. Paragraph (a) of subsection (4) of section
  419  323.001, Florida Statutes, is amended to read:
  420         323.001 Wrecker operator storage facilities; vehicle
  421  holds.—
  422         (4) The requirements for a written hold apply when the
  423  following conditions are present:
  424         (a) The officer has probable cause to believe the vehicle
  425  should be seized and forfeited under the Florida Contraband
  426  Forfeiture Act, ss. 932.701-932.7062 932.706;
  427         Section 9. Paragraph (b) of subsection (3) of section
  428  328.07, Florida Statutes, is amended to read:
  429         328.07 Hull identification number required.—
  430         (3)
  431         (b) If any of the hull identification numbers required by
  432  the United States Coast Guard for a vessel manufactured after
  433  October 31, 1972, do not exist or have been altered, removed,
  434  destroyed, covered, or defaced or the real identity of the
  435  vessel cannot be determined, the vessel may be seized as
  436  contraband property by a law enforcement agency or the division,
  437  and shall be subject to forfeiture pursuant to ss. 932.701
  438  932.7062 932.706. Such vessel may not be sold or operated on the
  439  waters of the state unless the division receives a request from
  440  a law enforcement agency providing adequate documentation or is
  441  directed by written order of a court of competent jurisdiction
  442  to issue to the vessel a replacement hull identification number
  443  which shall thereafter be used for identification purposes. No
  444  vessel shall be forfeited under the Florida Contraband
  445  Forfeiture Act when the owner unknowingly, inadvertently, or
  446  neglectfully altered, removed, destroyed, covered, or defaced
  447  the vessel hull identification number.
  448         Section 10. Paragraph (c) of subsection (2) of section
  449  817.625, Florida Statutes, is amended to read:
  450         817.625 Use of scanning device or reencoder to defraud;
  451  penalties.—
  452         (2)
  453         (c) Any person who violates subparagraph (a)1. or
  454  subparagraph (a)2. shall also be subject to the provisions of
  455  ss. 932.701-932.7062 932.706.
  456         Section 11. This act shall take effect July 1, 2016.