Seized Property.pdf

BOCA RATON POLICE SERVICES DEPARTMENT Departmental Standards Directive 74.500 SEIZED PROPERTY Revised: December 26, 2018 I. PURPOSE: The purpose of this directive is to provide members of the Boca Raton Police Services Department with information concerning the confiscation and disposition of pro...

BOCA RATON POLICE SERVICES DEPARTMENT Departmental Standards Directive 74.500 SEIZED PROPERTY Revised: December 26, 2018 I. PURPOSE: The purpose of this directive is to provide members of the Boca Raton Police Services Department with information concerning the confiscation and disposition of property seized under the Florida Contraband Forfeiture Act (FCFA) and the Department of Justice and the Department of the Treasury Asset Forfeiture Programs (hereafter Federal Asset Forfeiture Programs). II. POLICY: It is the policy of the Boca Raton Police Services Department that any seizures of personal or real property comply with the requirements of the Florida Contraband Forfeiture Act, Department of Justice and the Department of the Treasury Asset Forfeiture Programs, or other competent legal authority and is supported by a thorough investigation. 30.01 III. DEFINITIONS: Adversarial Preliminary Hearing: A hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Florida Contraband Forfeiture Act. Claimant: Any party who has proprietary interest in property subject to forfeiture and has standing to challenge such forfeiture, including owners, registered owners, bona fide lien holders, and titleholders. Florida Contraband Forfeiture Act: Sections 932.701 to 932.7062 of the Florida Statutes which govern the forfeiture of property used in the commission of crimes or property that is the product of a criminal act. These sections are better known as the “Florida Contraband Forfeiture Act.” or more commonly cited by the abbreviation FCFA. 30.01 Person Entitled to Notice: Any owner, claimant, entity, bona fide lien holder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry. Probable Cause: Where the facts and circumstances within the law enforcement officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Effective: January 1, 1989 Revised: December 26, 2018 Seized Property Directive No. 74.500 Page 1 of 8 IV. PROCEDURE: A. SEIZURE OF REAL OR PERSONAL PROPERTY WITHOUT A WARRANT: 30.02 1. A 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 Florida contraband forfeiture act. A seizure may occur only if the owner of the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under FSS 932.701, or one or more of the following circumstances apply: a. The owner of the property cannot be identified after a diligent search, or the person in possession of the property denies ownership and the owner of the property cannot be identified. b. The owner of the property is a fugitive from justice or is deceased. c. An individual who does not own the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under FSS 932.701 and the owner of the property had actual knowledge of the criminal activity. Evidence that an owner received written notification from this or another law enforcement agency and acknowledged receipt of the notification in writing, that the seized asset had been used in violation of the Florida contraband forfeiture act on a prior occasion by the arrested person, may be used to establish actual knowledge. d. The owner of the property agrees to be a confidential informant as defined in FSS 914.28. Law enforcement officers (LEOs) may not use the threat of property seizure or forfeiture to coerce the owner of the property to enter a confidential informant agreement. The Department must return the property to the owner if criminal charges are not filed against the owner and the active criminal investigation ends or if the owner ceases being a confidential informant, unless final forfeiture of the property is a component of the confidential informant agreement. e. The property is a monetary instrument. For purposes of this subparagraph, the term “monetary instrument” means coin or currency of the United States or any other country, a traveler's check, a personal check, a bank check, a cashier's check, a money order, a bank draft of any country, an investment security or negotiable instrument in bearer form or in other form such that title passes upon delivery, a prepaid or stored value card or other device that is the equivalent of money and can be used to obtain cash, property, or services; or gold, silver, or platinum. Effective: January 1, 1989 Revised: December 26, 2018 Seized Property Directive No. 74.500 Page 2 of 8 2. Prior to property being seized for forfeiture, the seizing LEO must have the probable cause supporting the seizure reviewed by a supervisor (sergeant or higher), who is not directly involved in making the seizure. Following the seizure, the City Attorney’s Office must be notified of the seizure as soon as possible. B. POST-SEIZURE PROCEDURE: 30.02 1. Within 24 hours of a seizure pursuant to the FCFA, the seizing LEO shall complete a seizure packet, which includes the following and describes the circumstances attendant to the seizure: a. Completed FCFA information form and Notice of Forfeiture form. b. PC Affidavit c. Field Report d. Evidence voucher e. Vehicle registration (if applicable) f. Copy of search and seizure warrant and supporting affidavit (if applicable) g. Signature of the defendant/suspect and any other person entitled to notice that is present sign the Notice of Forfeiture form. i. If not signed at the time of seizure, the form must be personally served on the defendant and other persons entitled to notice within five (5) days of the seizure. If the person cannot be located, a certified letter shall be sent to the last known address notifying them of the seizure. 2. The seizing LEO shall forward the seizure packet to the Strategic Operations Section (SOS) commander. The seizing LEO shall make a diligent effort to determine ownership of the seized property, including the identification of the registered owner(s), title holder(s) and bona fide lien-holders, if any, as soon as practical following any seizure. 3. The SOS commander will promptly review copies of all reports describing the circumstances surrounding the seizure and shall make an independent evaluation of probable cause. 4. The SOS commander will determine as soon as practical whether to proceed with a forfeiture action and if so, forward the packet to the City Attorney's Office within 24 hours. Upon seizure of the property by the Department, the city attorney shall evaluate the case to determine if the initiation of a forfeiture action is supported by sufficient probable cause and meets the stated purpose of the Act. a. If the city attorney determines that there is sufficient probable cause to initiate a forfeiture action, the city attorney will, within 10 business days from the date of seizure, apply to the court for an ex parte probable cause determination. Effective: January 1, 1989 Revised: December 26, 2018 Seized Property Directive No. 74.500 Page 3 of 8 b. If a court determines that probable cause does not exist for the seizure, the property shall be returned within 5 days from the date of the order finding no probable cause. c. If the city attorney determines that a forfeiture action should be filed, they will present his or her recommendation, in writing, to the chief of police or his/her designee. The chief of police or his/her designee shall have the sole responsibility and authority to determine if a forfeiture action should be filed. d. The Department may not use the seized property for any purpose until the rights to, interest in and title to the seized property are perfected in accordance with the Act. This does not prohibit the use or operation necessary for reasonable maintenance and care of seized property. Reasonable efforts shall be made to maintain seized property in such a manner as to minimize loss of value. e. After property is seized pursuant to the FCFA, any settlement shall be personally approved by the chief of police. All settlements shall be consistent with the mandates of the FCFA. f. If the chief of police is unavailable to approve a settlement, his/her designee may give such approval, if the delay in obtaining the chief’s approval would adversely affect the settlement. 5. The seizing LEO(s) shall ensure that the seized property is promptly released to its lawful registered owner or to his/her designee if a decision is made not to proceed with a forfeiture action and absent evidentiary value to a pending criminal case or absent any settlement agreement to the contrary. C. STORAGE AND MAINTENANCE OF SEIZED VEHICLES, VESSELS, AND AIRCRAFT: 30.02 1. At the time of seizure, the seizing LEO(s) shall have vehicles, vessels, aircrafts, etc. transported or towed to a secure storage facility or other authorized storage location. 2. A complete inventory of the seized property and all containers, open or closed, found therein shall be completed at the time of the seizure. a. As soon as practical after the seizure, the seizing LEO(s) shall make a good faith attempt to release to the lawful owner all personal property (e.g., clothing) seized with items impounded pursuant to the FCFA and not being retained as evidence or for forfeiture. b. If the owner is unknown, has been arrested, or is otherwise unavailable to take possession of the property, the property shall be placed in a secure location within the evidence custodian’s control to be released to the owner later. Effective: January 1, 1989 Revised: December 26, 2018 Seized Property Directive No. 74.500 Page 4 of 8 i. The secure location depends on the type of item, e.g., cash would be kept in the Property and Evidence Room and clothing would be kept in outside storage. ii. Title to lost or abandoned property of which ownership cannot be determined will be handled in accordance with FSS 705.104 and FSS 705.105. c. Any personal property seized as evidence shall be packaged and stored separately and handled in accordance with established Department procedures for the processing of evidence. d. If special maintenance is required to maintain seized property in its timeof-seizure condition, as may be necessary with aircraft and vessels, the SOS commander shall ensure that such necessary maintenance is provided within a reasonable time after seizure, with such care continuing through the pendency of the forfeiture action. D. SPECIFIC SEIZURE PROCEDURES: 30.02 1. MOTOR VEHICLES: a. The vehicle shall be towed to the designated seizure impound area of the Department using a contracted towing service. b. All property inside the motor vehicle shall be inventoried on a property receipt, not on a vehicle form. i. Any personal property seized as evidence shall be packaged and stored separately and handled in accordance with established procedures for the processing of evidence. ii. The personal property not seized as evidence shall be secured in the vehicle trunk or other secured area of the vehicle. c. Forensic Services employees shall photograph the right side, left side, front and back of the vehicle showing all hubcaps, tag, vehicle’s interior and exterior, and any notable damage as soon as possible and deliver the photographs to the SOS commander. d. The vehicle keys shall be tagged, packaged, and delivered to the SOS commander. 2. VESSELS: a. The seizing LEO shall be responsible for complying with the procedures set forth above, including the photographing and inventorying of vessels. b. Effective: January 1, 1989 Revised: December 26, 2018 If deemed necessary, an appraisal shall be conducted. Seized Property Directive No. 74.500 Page 5 of 8 3. AIRCRAFT: a. The seizing LEO shall be responsible for complying with the procedures set forth above, including the photographing and inventorying of aircraft. b. If deemed necessary, an appraisal shall be conducted. 4. CURRENCY, SECURITIES, RECORDS, RESEARCH, NEGOTIABLE INSTRUMENTS OR BOOKS: 30.02 a. Currency, securities, records, research, negotiable instruments, or books shall be packaged and stored separately and handled in accordance with established procedures for the processing of evidence. b. Photocopies or photographs of all items, copies of all reports and the completed forfeiture forms should be delivered to the SOS commander. 5. WEAPONS: a. All weapons shall be packaged and stored separately and handled in accordance with established procedures for the processing of evidence. b. Copies of all reports and completed forfeiture forms, if the weapon is subject to forfeiture, shall be delivered to the SOS commander. E. SEIZURE OF REAL PROPERTY: 30.02 1. Real property, whether residential, commercial, business or vacant; 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 FCFA can be seized. 2. Probable cause seizures of real property may not be made without first obtaining a seizure warrant and/or Order Finding Probable Cause issued as a result of an adversarial probable cause hearing. 3. Any seizure of real property must be approved by the chief of police or his/her designee in consultation with the city attorney. 4. In the event real property is seized, the contents of the dwelling/structure will be inventoried, and the property secured. 5. The LEO advocating seizure of real property will provide the SOS commander the same package as described in this directive along with photographs of the inside and outside of the dwelling/structure. 6. The city attorney or his/her designee will obtain a certified real estate appraisal and ensure the defendant/owner possesses equitable title to the property. Effective: January 1, 1989 Revised: December 26, 2018 Seized Property Directive No. 74.500 Page 6 of 8 7. If a determination is made not to proceed with a forfeiture action and absent evidentiary value to a pending criminal case or absent any settlement agreement to the contrary, the seizing LEO shall ensure that the seized property is promptly released to its lawful owner or to his/her designee. F. RELEASE OF SEIZED PERSONAL AND REAL PROPERTY: 30.02 1. If at the conclusion of the judicial process the claimant prevails, the seized property shall be promptly released to the lawful owner 2. Under these circumstances, the Department shall not assess any towing charges, storage fees, administrative costs, maintenance costs, etc., against the claimant, unless otherwise authorized by the court. G. FEDERAL ASSET FORFEITURE PROGRAMS: 1. Federal asset forfeiture funds may be requested if the Department assisted in a law enforcement effort resulting in federal forfeiture. As a general rule, the forfeiture should follow the criminal case. 2. The Department may request a share of the forfeited assets of Department of Justice-led investigations by electronically submitting a DAG-71 to the federal seizing agency through the Department of Justice. A separate DAG-71 must be completed for each asset to be shared. 3. The Department may request a share of the forfeited assets of Department of Treasury-led investigations by electronically submitting a TD F form to the federal seizing agency processing the forfeiture. 4. For more information on Federal Asset Forfeiture Programs, refer to A Guide to Federally Forfeited Property for State and Local Law Enforcement Agencies. H. DISPOSITION OF FORFEITURE ASSETS: 30.02 1. The Department, upon being awarded seized property per a Final Order of Forfeiture or settlement order, shall dispose of the property/assets in accordance with the requirements of the FCFA. Cash will be deposited in the Department's State Law Enforcement Trust Fund. 2. Cash received as a result of Department participation in the Federal Equitable Sharing Program will be deposited in the Department's Federal Law Enforcement Trust Fund. 30.03 3. Disposition of forfeited funds will be handled in accordance with applicable Florida Statutes and Federal Regulations as they may apply. All transactions will be recorded in the City's budget/accounting systems and on any reporting required by the Code of Federal Regulations and Florida State Statutes. 30.03 Effective: January 1, 1989 Revised: December 26, 2018 Seized Property Directive No. 74.500 Page 7 of 8 I. TRAINING: 1. Department personnel involved in the seizure of property pursuant to the FCFA shall receive basic training and continuing education in the procedures and policy. V. REFERENCES: A. FSS Chapter 893 B. FSS Section 932.701 – 932.7062 C. Article I, Chapter 9, Florida Constitution Approved: Daniel C. Alexander Chief of Police Effective: January 1, 1989 Revised: December 26, 2018 Date: Seized Property Directive No. 74.500 Page 8 of 8