The Accreditation for Florida's Arson Crime Lab Goes Up in Smoke

On March 7, 2016, the ASCLD/LAB suspended the suspended the accreditation of the Florida Fire Marshal Bureau of Forensic Fire and Explosives Analysis (BFFEA) in the fire debris category of testing only.

This is a big deal because in arson investigations in criminal cases, fire debris samples will be analyzed to determine the presence and identity of any ignitable liquids such as gasoline. When ignitable liquids such as gasoline are identified by the crime lab, this is powerful evidence for the prosecutor that the fire was intentionally set by a person committing the crime of arson. The finding in the lab report often leads to an arrest for arson or insurance fraud. These reports are also used by insurance companies to deny claims for fire damage.

The lab techs in these cases are called a "senior analyst." The lab tech will extract and analyze fire debris against laboratory procedures including the use of passive headspace concentration and gas chromatography/mass spectrometry.

If the lab identified ignitable liquids in the sample, such as gasoline, when none actually exist, then innocent people can be convicted of arson and other serious felony charges. This type of trace evidence has a significant impact in the way a criminal arson case is prosecuted. Amazingly, from 1992 until 2013, this lab found ignitable liquids were found in 47% of samples. This investigation found that out of a random portion of those samples, the analysis was wrong more than half the time.

The Media Breaks the Story  


Jarrod Holbrook with Action News recently completed an investigative report on how “Florida’s arson lab loses accreditation, wrongful charges a main concern.”

You can see the story here - http://www.abcactionnews.com/news/local-news/i-team-investigates/floridas-arson-lab-loses-accreditation

The Florida Arson Lab is expected to lose the appeal over the loss of the accreditation. Regardless, the findings will undoubtedly impact many arson and insurance fraud investigations across the State of Florida.

Criminal defense attorneys will file post-conviction motions to set aside wrongful convictions based on this newly discovered evidence, and many insurance companies will be paying additional claims for fire damage that they denied based on those lab results.

Concerns Regarding the Competency of Laboratory Personnel


The investigation was conducted by ASCLD/LAB-International, the organization that provides accreditation to crime labs throughout the country, reported that it randomly tested 26 cases and found 14 in which the lab erroneously found the presence of gasoline, which (according to the report) “indicates concern regarding the competency of laboratory personnel.”

Despite these findings and the suspension of accreditation, the website for the Bureau of Forensic Fire and Explosive Analysis (BFFEA) still proudly displays the picture of the Bureau Staff holding up their accreditation certificates from ASCLD/LAB International.



Carl E. Chasteen, the Chief of Forensic Services at the Florida Arson Lab

The most amazing part of the story is the one-page letter written on May 7, 2016, by Carl E. Chasteen, the Chief of Forensic Services at the Florida Arson Lab. Ironically, the letterhead he used still had the seal of approval from the ASCLD/Lab-International proudly displayed at the bottom. The Florida’s Arson Lab is a Division of State Fire Marshal / Bureau of Fire and Explosives Analysis of the Florida Department of Financial Services.

The letter was written to Ms. Pamela Bordner with ASCLD/LAB-International. The letter explained that when Carl E. Chasteen was first apprised of the makeup of this Team of Assessors from ASCLD/LAB-International he thought they would provide a fair and objective review. Carl Chasteen would later complaint to ASCLD/LAB that:

“The allegations should have been kept confidential.”

It appears that Carl Chasteen kept the findings from judges, prosecutors, and criminal defense attorneys even as cases involving those types of lab reports continued to process through the system.

John J. Lentini with Scientific Fire Analysis, LLC


According to Carl Chasteen, the investigation was the result of a complaint by an expert named Mr. John Lentini, who disputed the lab’s determination of gasoline in a sample used in the case against A. Stanley Freeman, who was accused of arson and insurance fraud.

John J. Lentini is an expert in the scientific protocols for fire investigations with Scientific Fire Analysis, LLC, in Islamorada, FL. He is used as an expert by fire investigators, prosecutors, insurance companies, and criminal defense attorneys to conduct fire investigation reviews and causation analysis.

Mr. Lentini had previously proffered an expert opinion against the Florida arson laboratory’s findings in a particular case concerning a sample on which the lab determined the presence of gasoline. The person wrongfully accused of arson and insurance fraud was cleared, and the State of Florida quietly paid $247,000 in taxpayer money to settle a civil rights lawsuit that followed.

Thereafter, Mr. Lentini questioned the lab’s work and filed a complaint last year disclosing the inaccurate testing procedures used by the lab.

In the four-page complaint filed in May of 2015, he concluded:

“I suspect that erroneous identifications of gasoline happen on a routine basis.” 

The allegations were handed over to the Investigations Program Manager for ASCDL/LAB International. Amazingly the organization that gives out accreditation to crime labs essentially agreed with that conclusion and suspended the accreditation.

The Critical Report by the Special Assessment Team 


In response to Mr. Lentini's complain, Carl Chasteen responded and turned over additional information requested. He was then informed that a special assessment team was being assembled to come to the laboratory and review the complaint and their casework.

In the appeal, Carl Chasteen expressed his surprise “that ASCLD/LAB would undertake the cost for an assessment of this type….” Carl Chasteen also complained that because of the special nature of this assessment, the representatives from ASCLD/LAB International would not provide him with the type of overview usually provided at an exit meeting.

Instead, the representatives, Mr. Harry Fox and Ms. Reta Newman (a forensic expert from the Pinellas County Sheriff’s Office / Director of the Pinellas County Forensic Laboratory), came to Carl Chasteen’s office and indicated that there would be findings against the lab, but they could not provide details at that time. Carl Chasteen states in the letter that he initially thought from the tone of the conversation and items discussed that the report would be “so critical.”

When he read the report, however, Carl Chasten concluded that it essentially appeared to “repudiate” all of the lab’s work over the years, their “professional reputations” and their “personal character.” According to the letter, he jokingly asked when they left, if he should prepare his resume in the event their report may cause his employers to seek my resignation.

He said that both laughed and said not to worry. He later found out that he should have worried because according to Carl Chasteen, the report was:

“…full of allegations that make it seem that this is a laboratory full of incompetents and incompetence. The report suggests that ASTM E1618 has all the answers and provides a clear guide which we chose not to follow. The report suggests a deliberate attempt on our part to find and justify ignitable liquids in samples where none exists, that we do not apply correct quality assurance, and controls over our staff.” 

The appeal that he prepared then attempted to “refute each and every point where we have identified criticisms which, in our opinion, were unfounded. On some few points we agree that we can affect improvements to our processes and will propose appropriate corrective actions.”

The appeal highlights the magnitude of the problem:
This laboratory processes 3,500 to 4,000 fire debris samples per year. Other than the Ohio Fire Marshal’s Laboratory or the Bureau of Alcohol, Tobacco, and Firearms Laboratories, we may process more Fire Debris Samples than any other laboratory in the nation.  
As this has been my profession for 37 years, I have personally analyzed over 14,000 fire debris samples and provided technical review of more than 90,000 fire debris samples. I am often consulted by analysts from other laboratories to provide assistance in the interpretation of unusual or difficult samples which I am happy to do without any request for remuneration or notoriety.  
I have been the head of this laboratory since January 8, 1992. I have been intimately involved in the development of the discipline of fire debris analysis.  

The Problem with GC/MS for Fire Debris Analysis

According to Carl Chasteen, this is how the problems began:
The introduction of the GC/MS for fire debris analysis opened the door to greater scrutiny. It allowed the analyst to go beyond the total ion chromatogram (TIC) and examine both Extracted Ion Chromatograms (EIC), Extracted Ion Profiles (EIP), and the mass spectra of individual peaks. Improvements in column technology and the gas chromatograph itself improved the ability to better resolve the components in an ignitable liquid.  
Laboratories still today have to make a choice to balance the quality of the resolution with the amount of time required per analysis. As a result, while gasoline has been reported as having up to 400 separate compounds, most labs only resolve it to 230 to 280 components. This is a vast improvement since the 1970’s when most labs only resolved gasoline into 25 components. Is it any wonder then that a rate of over 50% of fire debris samples are written up as negative?  
Any laboratory doing their job appropriately will choose to make a negative determination if there is any doubt of an identification. Analysts with only occasional or limited exposure to fire debris analysis rightly need to maintain a very high threshold of confidence and be very conservative in their determinations simply because they lack the experience….  
Each of our analysts see thousands of fire debris samples per year as this is our primary type of analysis. In their training they shadow seasoned analysts for months while they are taught how to perform extractions, how to run the instruments, and how to perform interpretations. After that they must perform a few hundred of supervised casework samples before being allowed to work independently.  
We allow interns and visiting scientists to observe our work as they will often see more fire debris casework in one week here that they may see in an entire year in their home laboratories. Fire debris analysts face a major challenge when it comes to discerning an ignitable liquid from a strong matrix contribution. 
In the appeal, Carl Chasteen complains that since the report found the laboratory was in such flagrant violation of accreditation requirements that:
We find it highly incongruous that all the previous assessments and surveillance visits failed to discern the problems that the special assessment team found by looking at essentially the same quality documents and casework. 
Carl Chasteen concludes:
Either our personnel are the most astute at predicting the actions of an assessment team and at suppressing any problems to keep them from being found, all the prior assessments or surveillance visits were improperly conducted and failed to identify problems and violations of Standards, or that this special assessment team had the ability or bias to find problems where none had been noted before.
The lab is run by Jeff Atwater, the elected chief financial officer. In an effort to restore the lab’s credibility, Jeff Atwater is attacking the motives of the accrediting agency. A hearing is scheduled for Wednesday to fight the sanctions. Apparently, no media will be allowed at the hearing.

This might not be the only fire arson crime lab with this problem. Mr. Carl Chasteen is a leader in this field, and if his lab has these problems, it is likely that these types of problems are systemic throughout other state-run arson labs. In the appeal he explains:
I have been a member of ASCLD since 1993 and a member of the ASTM E-30 committee writing various fire debris standards since the same year. I was the original chair of the Technical and Scientific Working Group for Fire and Explosions (T/SWGFEX) holding the position for the first eight years. 
I am still serving as the Vice-Chair of the skeleton of T/SWGFEX and Chair of the Ignitable Liquids Reference Committee which reviews and classifies all ignitable liquids on the international database, https://ncfs.ucf.edu/databases/
....I have also been the Chair of the Forensic Science Committee of the International Association for Arson Investigation for many years during the 1990’s authoring or co-authoring numerous articles or positions published in their magazine, Fire and Arson Investigator.  
I have also been asked to develop courses and teach fire debris analysis (basic, advanced, and organic chemistry for fire debris analysts) through on-line classes for the University of Central Florida since 2009. I have developed and taught fire debris analysis workshops and seminars for the Midwest Forensics Resource Center, The State of Virginia, the State of New York, the State of Michigan, and this month, the State of Missouri.  
I have developed and presented workshops in basic and advanced fire debris analysis for the Northeastern Association of Forensic Science, The Mid-Atlantic Association of Forensic Science, the Southern Association of Forensic Science and the Midwestern Association of Forensic Science.  
These presentations focused on the systematic approach to fire debris analysis I have used internally for our staff and in the training of interns from many different University programs including the University of Wisconsin at Platteville, the University of Central Florida, Eastern Kentucky University, West Virginia University, The University of Lausanne (Switzerland), Auburn University, Florida State University, and the Florida Agricultural and Mechanical University.  
I helped to develop the R214 class offered by the National Fire Academy on Forensic Evidence Collection. I am also the author of the NIJ report “2007-2008 National Needs Assessment for the Near and Long Term Future of Fire Debris and Explosives Analysis and Investigation”.  
I was an original planning panel member that developed the NIJ report titled “A Guide for Investigating Fire and Arson”. 
I am also currently a committee member of the Chemistry and Instrumental Analysis committee of the Organization of Scientific Area Committees (OSAC) and chair of the ad hoc committee on terminology. It should be very clear that when it comes to fire debris analysis, I am not a novice.  
I am not unfamiliar with the technical requirements of the discipline. And, I am not a laboratory director without active expertise in the discipline. I do not offer this as puffery, but as a reference base for my observations and opinions in this rejection and appeal to the findings of this special assessment team. 

Bigger Problem: Failure to Disclose Exculpatory Evidence

Criminal defense attorneys with pending arson and insurance fraud cases involving one of those lab reports might be waiting awhile for that Brady Notice. If you get one, send me a copy. I'd love to see it.

In the meantime, if you need a copy of the 52-page Letter and Appeal from Carl Chasteen, send me an email and I'll forward you a copy. I'll also post a copy on the forum board of the Florida Association for Criminal Defense Lawyer (FACDL).





FAQ: Can the Court Deny My Petition to Seal or Expunge My Arrest Record?


The attorneys at the Sammis Law Firm help people seal or expunge a criminal record in Florida. Our offices are located in Tampa, FL, but we help clients seal or expunge a criminal record throughout the State of Florida. We charge a flat fee of $950 to seal or expunge the record and that includes all attorney fees and costs (with no hidden charges).

To start the process, just give us a call at 813-250-0500. You can come into our office to sign the paperwork or we can complete the paperwork and mail it to you today. Because the court has wide discretion to just deny any petition to seal or expunge a criminal record it is important to have the assistance of an attorney during the entire process. 

An attorney can make sure all of the paperwork is completed quickly and correctly. If one incident resulted in more than one charge or more than one arrest, then an attorney can make sure that all eligible records are included in the petition. You only get one chance to petition for a seal or expunge so you need to make sure everything is done correctly the first time. 

The attorney can make sure the petition is approved by the court as quickly as possible either with or without an attorney. If the court is considering denying the petition, the attorney can present evidence showing the court all of the reasons why the petition should not be denied. 

If you would like to seal or expunge your record call 813-250-0500 to discuss your eligibility and the services we provide. Read more about the process to seal or expunge a record in Tampa, FL.

Can the court can deny the petition to seal or expunge the record?


The short answer is that yes, although it doesn’t happen very often. As a general rule, even if the court determines that the petitioner has satisfied the statutory and rule eligibility requirements for the seal or expunction, the court still has discretion to deny the petition to expunge or seal if it conducts an evidentiary hearing and articulates an evidence-based reason for denial. 

What’s the Difference Between a Seal or Expunge?


A petition to seal a record is brought pursuant to section 943.059, Florida Statutes

A petition to expunge a record is brought pursuant to section 943.0585, Florida Statutes (2008), and Florida Rule of Criminal Procedure 3.692.2. 

Expunged records “must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department [of law enforcement] must be retained in all cases.” § 943.0585(4), Fla. Stat. (2008). But an order sealing records “does not require that such record be surrendered to the court, and such record shall continue to be maintained by the department and other criminal justice agencies.” § 943.059(3)(e), Fla. Stat. (2008).

Section 943.0585, Florida Statutes (Supp.1998), relates to the expungement of criminal history records held by nonjudicial criminal justice agencies, whereas the expungement of judicial criminal records is controlled by Florida Rule of Criminal Procedure 3.692, because only the supreme court has the authority to establish rules relating to judicial procedure. State v. D.H.W., 686 So.2d 1331 (Fla.1996); Johnson v. State, 336 So.2d 93 (Fla.1976).


If the Court Denies My Petitioner Then Can I Appeal?


Yes. The appellate court reviews orders denying a petition to seal or expunge a criminal records under an abuse of discretion standard. See Oymayan v. State, 765 So.2d 812, 814 (Fla. 1st DCA 2000). 

The courts have consistently held that even if the petition and attachments conform with the requirements of section 943.0585 and rule 3.692.4, Section 943.0585 makes clear, however, that it “does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.” See Wells v. State, 807 So.2d 206, 207 n. 2 (Fla. 5th DCA 2002) (quoting statute). 

“[W]here a petitioner has satisfied all of the statutory requirements, section 943.0585 gives the trial court the discretion to deny expunction ... ‘if there is a good reason for denial based on the facts and circumstances of the individual case.’ ” Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009).

Are There Any Limitations on the Court’s Discretion?


Florida law recognizes some limitations on the court’s discretion. The court must conduct a hearing and have a specific factual basis to support the denial of the petition to seal or expunge. See Cole v. State, 941 So.2d 549 (Fla. 1st DCA 2006). In Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009) the court held that the trial court abused its discretion in denying petition to expunge based on a prior offense because “there was no evidence presented at the hearing to support this finding.”

In Murphy v. State, 363 So.2d 581, 582 (Fla. 4th DCA 1978), the appellate court reversed the order denying expunction because the state “did not present any evidence at the hearing to refute appellant's sufficient allegations and proof but merely objected to the expungement”.

In VFD v. State, 19 So. 3d 1172, 1174 (Fla. List. Ct. App. 2009), the court denied a petitioner to expunge on the basis that the records, if not expunged, might-for reasons applicable in any case-prove useful in the future. The appellate court found that this reason fell short of the exercise of discretion that the statute requires. See Steinmann v. State, 839 So.2d 832, 832 (Fla. 4th DCA 2003) (holding failure to exercise discretion reversible error). 

Furthermore, the trial court abused its discretion by not hearing evidence and exercising its discretion based on the facts and circumstances of petitioner’s specific case. 

Before either granting or denying the petition, the court must hold a meaningful hearing and articulate reasons for any denial based on the facts and circumstances of his case. 


Finding a Tampa Attorney to Seal or Expunge a Criminal Record


If you want to seal or expunge a criminal record then contact an experienced criminal defense attorney in Tampa, FL. Call 813-250-0500 to discuss your case and see if you are eligible. We can begin your case today.

Driver's License Reinstatement Day in Hillsborough County


On Friday morning, January 8, 2016, at the George Edgecomb Courthouse located at 800 E. Twiggs Street, in Tampa, FL, the court is holding a reinstatement day to reduce fees and help people get their driver’s license reinstated. Relief will only be granted for tickets issued in Hillsborough County. You do not need an attorney to participate in the program.

The Florida Department of Highway Safety and Motor Vehicles will be onsite to issue Driver’s Licenses. Proof of identification is required before a driver's license will be issued.

The flyer for this upcoming event promises limited availability. Cases will be handled on a first come first serve basis so apply early. It is probably a good idea to obtain a copy of your driving record before you apply so that you can fill out the form correctly. Participants must be pre-registered between December 7-28, 2015. You can apply online on the clerk of court website.

If you are qualified based on the answers that you provide then your court record and driving record will be reviewed. If you are deemed eligible then the Clerk will add you to the docket and and mail you a notice letting you know where to appear. If you are not eligible, the clerk promises to give you a call by phone.

Click here for more information on the Driver’s License Reinstatement Day in Hillsborough County.

The purpose of the program is to help individuals who have a suspended driver’s license and may be eligible to have their Florida Driver’s License reinstated. The benefit of the program is that fees can be reduced following a determination of eligibility and a judicial hearing.

Those with suspensions resulting from the following violations should pre-register for the Driver’s License Restatement Day:
  1. No Valid Drivers License;
  2. Failure to Pay suspensions; 
  3. Citations in Collections; 
  4. Failure to Appear; and
  5. Outstanding Civil Traffic Citations.  
Individuals with the following suspensions are not eligible to participate during Driver’s License Reinstatement Day:
  1. Child Support Suspensions;
  2. DUI suspensions or revocations; 
  3. Habitual Traffic Offender revocations; 
  4. Felony Involved Traffic Offenses; 
  5. An Outstanding Capias or Warrant. 
If any of the above statements apply to you then you may still be eligible to have your license reinstated, but you may need to consult with an attorney about your options.

According to the clerk's office webpage on the event, it is hosted by the Public Defender's Office, the State Attorney's Office, the 13th Judicial Circuit Clerk, Senator Arthenia L. Joyner, and Representatives Dana Young, Darryl Rouson, Janet Cruz.

Read more about the problems with driving with a suspended license

Help! Homeland Security Stole My Cash at the Airport



What happens if you bring cash to the airport for a domestic flight? As you go through the security checkpoint on the way to board your flight and the cash is discovered, agents with the Department of Homeland Security might seize the U.S. Currency.

If they walk a drug K9 dog around the cash and the dog alerts (which it completely within their control), then they can allege that you are a drug dealer and the money must have come from illegal dealings in drugs.

The federal agents and local police officers with the Tampa International Airport (TIAPD) might allege that you made inconsistent statements about where the money came from and that you appeared to be nervous or acted suspiciously.

The agents will then take you to a small room (away from the video surveillance cameras) and count your money. The agents will then issue you a “Custody Receipt for Seized Property and Evidence” from the Department of Homeland Security. The form is known as the DHS Form 6051S which was last revised in August of 2009.

After you receive the custody receipt for seized property from the agent with the Department of Homeland Security, you will be sent on your way. You have probably missed your flight by now.

Although international travelers with negotiable monetary instruments valued at $10,000 or more in their possession must complete a form FinCEN 105, Report of International Transportation of Currency or Monetary Instruments, no such obligation exist for bringing currency from one state to another.

In 2014, CBP seized more than $81,496,161 in undeclared or illicit currency. In many of those cases, the taking goes uncontested. If the taking of money or other property was improper under federal law then you should immediately contact an experienced attorney to demand an "early judicial hearing" in federal court to fight for the quick return of your property.

Update on Recent Case Result:

The attorneys at the Sammis Law Firm recently had a case in which Mary Ann Cranford, with the title "Fines, Penalties and Forfeitures Officer" at the U.S. Customs and Board Protection Office in Tampa, sent us a letter dated April 6, 2016, indicating that she had received our verified claim demanding the immediate return of funds taken by Agent Carlos Carrasquillo at the Tampa International Airport.

She said in the letter that she was recently advised that the U.S. Attorney's Office has chosen not to file a forfeiture action in Court. The letter stated: "Accordingly, this office will submit a request to the National Finance Center to issue a refund in the amount of $11,892" which was the total amount presented to the CBP office after the seizure.

It is our experience that it is usually far better to file a verified claim demanding that CBP refer the case for COURT ACTION instead of waiving your important rights by either submitting a petition for an administrative decision, an offer in compromise, or simply abandoning the property.   

Custody Receipt for Seized Property and Evidence

The Custody Receipt for Seized Property and Evidence (DHS Form 6051S (08/09) can be found in Handbook 5200-09. It requires the incident number, the investigating case number, the enforce number, whether any prior detentions had occurred, the date of this seizure, the time of the seizure, the name and address of the person from whom the property was seized and additional remarks.

The agent will then list the property taken. Later, the agent will document the acceptance of the property by another person so that the chain of custody can be documented.

If you didn't receive a receipt or the amount listed on the receipt is less than what was actually seized, you should be worried. It is your word against the agent's word, and it is all to easy for a federal agent to pocket seized cash with little chance of getting in trouble.

If the agents seize the currency they will usually allege that it is subject to forfeiture under the provisions of Title 18, United States Code, section 981(a)(1)(C). Under this provision, the agents will alleged that the currency is proceeds of the manufacture, sale or distribution of a controlled substance which is identified as “specified unlawful activity” under Title 18, United States Code, section 1956(c)(7).

If you do nothing you may wait up to 90 days for further correspondence which is the notice of seizure letter that outlining your rights to contest the seizure. To speed up the process, if you hire the attorney, the attorney might decide to immediately write a letter to the agent demanding an EARLY JUDICIAL HEARING.

That letter written by your attorney to the agent and local U.S. Customs and Boarder Protection (CBP) office will then trigger the CBP, acting on behalf of Homeland Security Investigations (HSI), Immigration and Customs Enforcement (ICE), to send you a letter acknowledging that you have an interest in the seized property.

The letter will be sent by a “Fines, Penalties and Forfeiture Officer.” For seizures at the Tampa International Airport, the correspondence will usually be addressed to the U.S. Customs and Boarder Protection, Fines, Penalties and Forfeitures, 1624 E. 7th Avenue, Suite 101, Tampa, Florida 33605. The phone number the Tampa Offices of U.S. Customs and Boarder Protection is 813-712-6012.

The purpose of the letter is to advise you of the options available to you concerning this seizure. CBP will also send the following documents:
  1. an “Election of Proceedings” form (also called the CAFRA form); and
  2. a “Seized Asset Claim” form (also called the CAFRA Seized Asset Claim Form.
The letter instructs you to make certain choices on the “election of proceedings” form and return it, and any other necessary documents, to CBP within the allotted time frame.

Be advised that any false statement or claim may subject a person to prosecution under 18 U.S.C. Section 1001 and/or 18 U.S.C. Section 1621, and may be punishable by a fine and imprisonment. Typically fighting for the return of property is not a good "do it yourself project." Seek out the services of an experienced attorney for forfeiture cases in Tampa, FL, so that you do not make a mistake before you decide on a course of action.

REQUESTING COURT ACTION and a JURY TRIAL


Talk to an experienced attorney who might recommend that your best option is to elect for COURT ACTION which can include a JURY TRIAL if properly requested. In many cases, this is the fastest way to have the issue resolved. If you elect one of the other options, you can expect delays that last more than a year.

The only downside to demanding judicial action is that you MIGHT have to appear in a courtroom in front of a judge at the Federal District Court. If the U.S. Attorney's Office chooses not to file a forfeiture action then the property will be returned to you within a matter of weeks.

Only if the U.S. Attorney's Office decides to file a forfeiture action would you be required to go to court, exchange written discovery or have your deposition taken. A prosecutor with the United States Attorney's Office can then ask you questions about your finances and the circumstances surrounding the possession of the currency. Both side often want to avoid hearings and preparing for trial and as a result pre-trial settlements can occur quickly.

Note that your attorney doesn’t have to wait for the letter called the “Notice of Seizure and Information to Claimants CAFRA Form” to request court action.

The attorney can make that election immediately after the seizure by sending the letter demanding court action. In some cases, the attorney will send the letter the next day after the seizure occurred. The letter should also include your attestation and oath that you have an interest the property claimed because you own the property and are requesting that the Government initiate a judicial action to forfeit the seized property.

A claim can also be submitted by any innocent third party with an innocent owner defense.

You will be instructed that you must elect court action within 30 days by requesting referral of this matter to the U.S. Attorney, who will have the authority to simply return the property to you without any further delay.

The U.S. Attorney might decide to file a forfeiture action against the property in federal court pursuant to 18 U.S.C. Section 983(a)(3). If you choose this action, your attorney will check Box 4 on the “election of Proceedings” form. Your attorney will also complete the enclosed “Seized Asset Claim” form or otherwise submit a complete judicial claim as required by 18 U.S..C. Section 983(a)(2)(C).

Option 4 provides:

I AM FILING A CLAIM AND REQUESTING THAT CBP REFER THE CASE FOR COURT ACTION. Please send the case to the U.S. Attorney for court action. I have fully completed, signed, and attached a “Seized Asset Claim” form.
I understand that if I have not fully completed this form, or otherwise made a proper claim and request for judicial forfeiture pursuant to 18 U.S.C. Section 983(a)(2)(C) within 35 days after the date the notice of seizure was mailed, CBP will treat any submission as a petition for relief without the ability to seek future judicial forfeiture proceedings.

OTHER LESS DESIRABLE OPTIONS

1. Take No Action and Do Nothing: 

If you choose to do nothing, the CBP will initiate forfeiture action. The first notice will be posted on or about 35 days from the date of this letter.

For property appraised in excess of $5,000, CBP will post notice of seizure and intent to forfeit on the internet at www.forfeiture.gov for 30 consecutive days.

For property apprised at $5,000 of less, CBP will post a notice of seizure and intent to forfeit in a conspicuous place accessible to the public at the customhouse or Board Patrol sector office (where appropriate) nearest the place of seizure as well as on the internet at www.forfeiture.gov for 30 consecutive days.

2. Abandon the Property

Abandon any claim or interest you may have in the property. If you elect this option in the “Election of Proceedings - CAFRA Form” then no additional notice about further proceeds concerning the property will be provided to you.

3. File a Petition - Will Delay and Prolong the Resolution

 You can file a petition with the CBP office within 30 days from the date of this letter in accordance with Title 19, United States Code (USC) Section 1618 and Title 19, Code of Federal Regulations (C.F.R.), Section 171.1 and 171.2 (19 C.F.R. Section 171.1, 171.2), seeking the remission of the forfeiture.

The petition does not need to be in any specific form, but it must describe the property involved, identify the date and place of the seizure, include all the facts and circumstances which you believe warrant relief from forfeiture and must include proof of your interest in or claim to the property.

Examples of proof of interest include, but are not limited to, a car title, loan agreement, or documentation of the source of funds. If you choose this option you must check Box 1 on the “Election of Proceedings” form.

By completing Box 1 on the “election of Proceedings” form, you are requesting administrative processing. You are requesting that CBP refrain from beginning forfeiture proceedings while your petition is pending or that CBP halt forfeiture proceedings if they have already commenced.

If you choose to file an administrative petition and you are dissatisfied with the petition decision (initial petition or supplemental petition), you will have an additional 60 days from the date of the initial petition decision, or 60 days from the date of the supplemental petition decision, or such other time as specified by the Fines, Penalties and Forfeiture Office to file a claim to the property requesting a referral to the U.S. Attorney.

If you do not act within these time frames, the property may be administratively forfeited to the United States. You may also request a referral to the U.S. Attorney at any point prior to the issuance of a petition decision by filing a claim.

Please see section 4 of this letter for information on how to request judicial action. If you take such action after filing a petition for relief, your pending petition will be withdrawn from consideration.

If you request a referral to the U.S. Attorney or if another person asserting an interest in the same property chooses a referral to the U.S. Attorney, the matter will be referred to the U.S. Attorney wo will have the authority to file a forfeiture action against the property in federal court pursuant to Title 18, U.S.C., Section 983(a)(3)(19 U.S.C. Section 983(a)(3)).

If upon receipt of your petition, the matter has already been referred to the U.S. Attorney’s Office for the institution of judicial forfeiture proceedings, your petition will be forwarded to the U.S. Attorney’s Office for consideration.

4. Offer in Compromise which will Delay and Prolong a Resolution

 At any time prior to forfeiture, you ma file an offer in compromise in accordance with `9 U.S.C. Section 1617 and 19 C.F.R. Section 161.5, 171.31. The offer must specifically state that you are making it under the provisions of 19 U.S.C. Section 1617.

If you are offering money in settlement of the case, you must include payment (bank draft, cashier’s check or certified check, drawn on a U.S. financial institution, and made payable to CBP) in the amount of your offer. CBP may only consider the amount of your offer and will return the full offer if it is rejected. This option may serve to delay the case. If you choose this option, you must check Box 2 on the “Election of Proceedings” form.

If you choose to submit an offer in compromise and are dissatisfied with the offer decision, you will have an additional 30 days from the date of the offer decision to file a claim requesting a referral for judicial action. If you do not act within the additional 30 days, the property may be forfeited to the United States.

You may also request a referral for judicial action at any point prior to the issuance of the offer decision by fully completing the enclosed “Seized Asset Claim” form or by otherwise submitting a complete judicial claim consistent with the requirements under 18 U.S.C. Section 983(a)(2)(C). If you take such action, your petition or offer will be considered to have been withdrawn.

If, upon receipt of your offer, the matter has already been referred to the U.S. Attorney’s Office for the institution of judicial forfeiture proceedings, your offer will be forwarded to the United States Attorney’s Office for consideration as an offer in settlement of the judicial action, as appropriate.  

Be advised that any false statement or claim may subject a person to prosecution under 18 U.S.C. Section 1001 and/or 18 U.S.C. Section 1621, and may be punishable by a fine and imprisonment. 

Additional Resources:


U.S. Customs and Boarder Protection - The CBP is an agency within the Department of Homeland Security that manages, controls and protects the nation's borders and official ports of entry.
 
      U.S. Customs and Boarder Protections 
      Fines, Penalties and Forfeitures
      1624 E. 7th Avenue, Suite 101
      Tampa, Florida 33605
      Phone Number: 813-712-6012

Tampa International Airport Police Department - Visit the website of the Tampa International Airport Police Department to learn more about this nationally accredited law enforcement agency with 44 support personnel, 63 traffic specialists and 66 sworn police officers. Sections of the TIAPD include the Airport Operations Center, Administration, Traffic, Bike Detail, Crime Prevention, Criminal Investigations, K9 and Patrol. In addition to providing traditional law enforcement services, the TIAP also enforces federal regulations associated with transportation security.

      Tampa International Airport Police Department
      4160 George J. Bean Parkway
      Tampa, Florida 33607
      Phone Number: 813-870-8700

CBP Makes Cash Seizures - Visit the website of the U.S. Customs and Border Protection to read an article dated November 12, 2015 about the risk to international travelers if they do not properly report currency. The article discusses how CBP working at one field office seized nearly $50,000 of unreported currency in just the past week. The article explains why U.S. law requires international travelers to properly report currency in their possession whether traveling into or departing from the United States. Read more about the requirements for international travelers with negotiable monetary instruments valued $10,000 or more to complete a form FinCEN 105, Report of International Transportation of Currency or Monetary Instruments. 

Conclusion


If a federal agent with Homeland Security or the Bureau of Customs and Boarder Protection took your cash, vehicle, or other property, and then alleged that the property was involved in unlawful activity, then contact an experienced attorney to fight the forfeiture action. 

Whether the taking took place at your home, work, the roadside or the airport, we can help you fight the forfeiture action with the goal of obtaining the immediate release of the money to you.

We also represent clients who are arrested for any other reason after being accused of committing a crime at Tampa International Airport, including carrying a concealed weapon or firearm, possession offenses, and driving under the influence on the airport property. We represent clients after an arrest by the Tampa International Airport Police Department (TIAPD) and other law enforcement agencies at the airport.

Petition for Return of a Firearm in Tampa and Hillsborough County, Florida

The requirements for a petition a motion for return of a firearm(s) in Hillsborough County, Florida, are set out in an administrative order. The Administrative Order S-2015-042, was signed by Chief Judge Ronald N. Ficarrotta on August 5, 2015. The order became effective on August 10, 2015.

These requirements only apply if the firearm was seized pursuant to section 933.14(3), Florida Statutes, where no arrest was made and no case has been established in the court system related to the seizure of the firearm.

Florida Statute Section 933.14 Return of property taken under search warrant.—
(3) No pistol or firearm taken by any officer with a search warrant or without a search warrant upon a view by the officer of a breach of the peace shall be returned except pursuant to an order of a trial court judge.
Law enforcement agencies often site this provision after they illegal seize a firearm even when no “breach of the peace” occurred.

In many of these cases, the petitioner will hire an attorney. The attorney will contact legal counsel for the law enforcement agency in possession of the firearm(s). If the provisions of Section 933.14 then
the firearm can usually be returned to the owner without a court order.

If Section 933.14 applies, then the petitioner’s attorney and the legal counsel for the agency might agree on a stipulation and proposed order for the court to sign. The proposed order authorizes the release of a firearm and it must be attached to all stipulations presented to the court.

If the legal counsel for the agency and the petitioner’s attorney cannot reach an agreement for the return of the firearm, then the petitioner’s attorney will file a petition that requires a court hearing.

 

Filing the Petition for Return of a Firearm in Hillsborough County, FL


 If the firearm was seized under Section 933.14(3), then the petitioner’s must also attach a copy of the agency report that describes the event(s) that lead to the seizure of the firearm(s).

A copy of the Petition for Return of Firearm and notice of hearing on the petition will be provided to the legal counsel for law enforcement agency in possession of the firearm(s) subject to the petition. One Petition for Return of Firearm(s) may seek the return of multiple firearms.

If a motion seeking return of a firearm is filed in an existing case being prosecuted in either a misdemeanor or felony division, then the motion for the return of the firearm will be considered by the judge in the respective court division.

If no previous case was established, then the administrative order provides:

Any person who seeks the return of a firearm seized by law enforcement under section 933.14(3), Florida Statutes, where no arrest was made and no case has been established in the court system must file a sworn Petition for Return of Firearms. The petition must identify the firearm and should further allege:
  1. the firearm is the petitioner’s personal property;
  2. the firearm was not involved in criminal activity; 
  3. the firearm is not being held as evidence by the law enforcement agency; 
  4. the petitioner is not disqualified under any state or federal law from possessing a firearm; 
  5. the petitioner has not been convicted of a misdemeanor crime of domestic violence, or has not had an adjudication of guilt withheld or imposition of sentence suspended on any misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or expunction has occurred;  
  6. the petitioner has not been adjudicated mentally defective in section 790.065(2)(a)4.a., Florida Statutes, or if petitioner has been adjudicated mentally defective, petitioner has had his or her capacity restored by court order for at least 5 years and
  7. the petitioner has not been committed to a mental institution as defined in section 790.065(2)(a)4.b., Florida Statutes, or 
  8. if petitioner has been committed to a mental institution, petitioner possesses a certificate from a licensed psychiatrist that he or she has not suffered a mental disability for at least 5 years since the commitment to a mental institution.

Other Types of Motions to Return Property in Criminal Cases

When an arrest is made or charges are filed, then the trial court's jurisdiction over a criminal proceeding includes the inherent authority over property seized or otherwise obtained in connection with the proceeding and held by the court in custodia legis. See Garmire v. Red Lake, 265 So.2d 2 (Fla.1972); Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981); Daniel v. State, 991 So.2d 421 (Fla. 5th DCA 2008).

This authority continues beyond the termination of the prosecution which enabling the court to direct the return of the property to its rightful owner. See Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006).

A defendant is not required to file a separate suit for replevin or conversion when seeking to recover property seized in connection with his or her case. Instead, the procedure for a defendant to move to have his seized property returned to him is similar to that of a motion for post-conviction relief. Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004).

To reclaim seized property, “the defendant must file a facially sufficient motion for the return of property.” Id. If the motion is facially sufficient, the court “may order the State to respond” by refuting the defendant's arguments that the property should be returned. Id.

Once the “trial court has assumed jurisdiction over criminal charges, it is thereafter vested with an inherent power to assist the true owner in the recovery of property held in custodia legis.” Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993).

The defendant is required to prove the property is exclusively his own, that it was not the fruit of illegal activity, and that it is not being held for evidentiary purposes. Sanchez v. State, 88 So. 3d 389, 391 (Fla. 4th DCA 2012).

Alternatively, the defendant might bring an action for the return of property in civil court in a separate civil action for replevin or conversion. Under section 95.11(3), Florida Statutes, a four year civil statute of limitations for actions to recover personal property may apply to those cases.

Modifying the Standard No Contact Order in Hillsborough County, FL

Chief Judge Ronald N. Ficarrotta recently signed Administrative Order S-2015-053 addressing the Standard No-Contact Order on September 29, 2015. The new administrative order is intended to comply with recent amendments to section 903.047 related to the conditions of pretrial release.

If the case has a "victim," the automatic and standard "no contact" provision will be imposed. The prohibition is absolute until modified by the court.

In many of these cases, some types of contact between the accused and the alleged victim is justified. In many of these cases, this new absolute ban on any contact would result in a serious injustice. The injustice often leaves even the alleged victim feeling frustrated and disgruntled with the criminal justice system.

It can also result in a serious financial hardship on people in the system. Bills can't be paid, children can't get to school, doctor appointments are missed, and people can't go to work or back to their home. Many people caught up in the system might be forced to resolve their case just so that life can get back to normal even if the underlying charges are unfounded.

Any violation of the standard no contact condition can resolve in the accused person being held for the duration of the case on "no bond." Additionally, any violation could result in additional charges being filed even if the original case later proves to be unfounded.

Trial judges in Florida should be trusted to impose this condition of release as necessary on a case-by-case basis. Adding it every time will mean that many of these defendants and alleged victims will have to come back to court to seek an emergency modification of the no contact condition.

Florida law already provided for an automatic no contact provision in domestic violence cases, it is hard to imagine a reason for imposing it automatically in every kind of case.

Modifying the No Contact Condition under 903.047(2)

Individuals who cannot afford a private attorney to file the "motion to modify" will be at a particular disadvantage. The order handed out to the accused person does not even discuss the procedure to seek a "motion to modify" the no contact provision as set out in 903.047(2).
 903.047 Conditions of pretrial release. - 
(2) Upon motion by the defendant when bail is set, or upon later motion properly noticed pursuant to law, the court may modify the condition required by paragraph (1)(b) if good cause is shown and the interests of justice so require.

The victim shall be permitted to be heard at any proceeding in which such modification is considered, and the state attorney shall notify the victim of the provisions of this subsection and of the pendency of any such proceeding. 

The New Procedures for the No Contract Provision in Tampa 

Under the other provisions of 903.047, the court must impose a Standard No Contact Order in all criminal cases involving a victim.

The Standard No Contact Order provides defendants with written notice of the meaning of “no contact” and has immediate effect and enforceability.

Under the new administrative order in Hillsborough County, all defendants who are arrested for a criminal offense involving a victim and who are released from custody on pretrial release are hereby subject to the Standard No Contact Order.

In accordance with section 903.047(1)(b), Florida Statutes, each defendant identified in section 1 of this administrative order must receive a copy of the Standard No Contact Order before the defendant is released from custody on pretrial release.

Additionally, the terms of the no contact order do not prohibit an attorney for the defendant, consistent with the rules regulating The Florida Bar, from communicating with any person protected by the no contact order for lawful purpose.

This Standard No Contact Order in no way prevents the Court from imposing additional conditions of release on a case-by-case basis.


IN THE THIRTEENTH JUDICIAL CIRCUIT
HILLSBOROUGH COUNTY, FLORIDA

Standard No Contact Order

As a condition of your pretrial release, this no contact order has been issued in your case. You are prohibited from any contact of any type with the victim, except through pretrial discovery rules.

This order of no contact is effective immediately and enforceable for the duration of your pretrial release or until this order is modified by the court.

The term “no contact” includes the following prohibited acts:
  1. Communicating orally or in any written form, either in person, telephonically, electronically, or in any other manner, either directly or indirectly through a third person, with the victim or any other person named in the order.
  2. Having physical or violent contact with the victim or other named person or his or her property.
  3. Being within 500 feet of the victim’s or other named person’s residence, even if the defendant and the victim or other named person share the residence.
  4. Being within 500 feet of the victim’s or other named person’s vehicle, place of employment, or a specified place frequented regularly by such person.
If the victim and the defendant have children in common, at the request of the defendant, the court may designate an appropriate third person to contact the victim for the sole purpose of facilitating the defendant’s contact with the children.


Finding an Attorney in Tampa to Modify the No Contact Provision

If you need a criminal defense attorney to modify the no contact provision imposed in your case then contact a criminal defense attorney at the Sammis Law Firm.

Call 813-250-500 to discuss the facts of your case and ways to modify this condition so that no violations of pretrial release can be alleged. 

Using a Expert in a Medical Marijuana Necessity Defense Case in Florida

I recently had the privilege of talking with Dr. Stephen Blythe, D.O., a Board-Certified Family Physician about the Maine Medical Marijuana Program (MMMP). His experience with patients in a state where medical marijuana has been approved will help educate judges and juries throughout Florida.

For criminal defense attorneys in Florida interested in having Dr. Blythe review your case you can contact him at sblythe@tds.net. His fax number is 877-220-0488. His training and experience make him particularly suited to help criminal defense attorneys who have clients that possessed or cultivated marijuana because of a medical necessity.

In most cases, the medical necessity defense is a defense asserted at trial. Therefore, having an expert testify about the medical necessity of the marijuana use, cultivation or possession is critical. Read more about Florida's necessity defense as it related to the possession, use, or cultivation of marijuana for medical purposes

Dr. Stephen Blythe recently moved back to Melbourne, Florida, after practicing in rural Washington County, Maine, for five years. He is anxious to share his experiences and what he has learned about medical marijuana with his patients and colleagues in Florida.

He would be willing to testify on behalf of any Floridian arrested for what is clearly medical use of marijuana. He looks forward to the legalization of medical marijuana in 2016, but knows that the approval of the referendum will be just the beginning of a long struggle for acceptance of medical marijuana as part of a treatment regimen.

Dr. Blythe is a Board-Certified Family Physician. He graduated from MIT with a BS in Biology in 1974. He has worked in a broad range of health care settings: rural medicine (where he delivered babies and made house calls), refugee medicine, academic medicine (teaching medical students and resident physicians), and emergency medicine.

Prior to going to medical school he worked as a dialysis technician. He discovered that a number of his patients regularly used illegal marijuana prior to their dialysis sessions to lessen the nausea and vomiting associated with that procedure.

He has studied plant medicines for decades – since he experienced first-hand their usefulness: high in the Andes suffering debilitating headaches from the altitude an old Quechua Indian showed him that the leaves of the minty muño plant could be crushed and the vapor inhaled to make the headache go away. It was very effective, but like with many plant medicines, it has never been studied for its potential as a medicine – in this case for migraine headaches.

Dr. Blythe has made several trips to the rainforests of the Americas with Dr. James Duke (author of “The Green Pharmacy”) to study medicinal plants in the rainforest and how they are used by rainforest inhabitants. He is very enthusiastic about medical marijuana; he has seen first-hand how very useful it is in the treatment of a number of conditions such as PTSD, obsessive compulsive disorder (OCD), Chrohn's disease, and chronic pain.

He has also written a book for his patients: “Medical Marijuana: A Patient Guidebook” (available on Amazon).

Seal and Expunge an Arrest Record in Tampa, FL

If you are considering sealing or expunging your criminal record in Tampa or Hillsborough County, FL, then consider some of the main reasons why the Florida Department of Law Enforcement (FDLE) might fail to process the application.

After the FDLE receives your application for a Certification of Eligibility in accordance with Florida Statute 943.0585 and 943.059, it might fail to process the application for any of the following reasons:

  • (  ) A written certified statement from the appropriate state attorney or statewide prosecutor as shown on the enclosed application, Section B, must be provided. 
  • (  ) A $75 processing fee must be submitted to FDLE, by a cashier's check, certified check, money order or personal check.
  • (  ) A certified copy of the final disposition of the charges to which the application pertains must be provided.
  • (  ) The enclosed fingerprint card must be submitted as part of the application. The fingerprint card must be completed by a law enforcement agency.
  • (  ) Section A of the Application for Certification of Eligibility must be completed in its entirety. 
The FDLE might also need additional information including a certified disposition for any charge that it finds during its investigation. If no information is available then the FDLE will instruct you to please provide certified documentation from the Clerk of Courts, the State Attorney, and the arresting agency Stating: "No information is available."

The completed application must then be returned to the Florida Department of Law Enforcement (FDLE) Criminal Justice Information Services Expunge Section.

 Many people hire us after attempting to seal or expunge the record without an attorney only to find that some small mistake caused the application to be returned unprocessed. Those small mistakes can cause big delays.

Additionally, we also contact the private data mining companies (like mugshot .com or arrests .com) to demand that they take down your mug shot and web page without charge. Sometimes hiring an attorney to help you with the process to expunge or seal and record can save you time, money and frustration.

For more information on sealing or expunging a criminal arrest record in Tampa or Hillsborough County, then visit our main website. 

Help! The Florida Highway Patrol Stole My Vehicle

The Department of Highway Safety and Motor Vehicles (DHSMV) Division of Florida Highway Patrol is seizing vehicle under the Florida Contraband Forfeiture Act at an alarming rate.

This policy of "policing for profit" works because so many people are too scared to assert their rights to a fair hearing and trial. For those who properly assert their rights, the agency will often attempt to negotiate a quick settlement.

 

Demanding the Adversarial Preliminary Hearing under the Florida Contraband Forfeiture Act


Any type of property (including a car, boat, weapon, gun, firearm, cash or currency) can be seized, although this article is primarily focused on the seizure of a vehicle by the Florida Highway Patrol.

In a forfeiture action, always follow these three rules:
  1. File for the Adversarial Preliminary Hearing immediately.
  2. File for the Adversarial Preliminary Hearing immediately. 
  3. File for the Adversarial Preliminary Hearing immediately.
If FHP or another law enforcement agency in Florida seized your property, consider hiring an attorney to file for the adversarial preliminary hearing. The attorney can do the following:
  1. Serve a "Demand for an Adversarial Preliminary Hearing" on the agency that took your vehicle within 15 days (and do it as soon as possible within those 15 days). The rule is 10 days in federal court. The demand will list a description of the property (for example, the year, make, model and VIN number). 
  2. Attach a copy of the notice of seizure that you received (if you received a notice).  
  3. Send the demand Certified Mail with Return Receipt Requested to the address listed in the notice.
  4. Wait for an immediate phone call from the attorney asking you nicely to "Please waive the 10 day requirement."
  5. If you do not waive the 10 day requirement, expect the attorney to suddenly be willing to talk about a fair settlement. 

Don't Incriminate Yourself


For individuals representing themselves, they should be careful not to make any statements that might impact their pending criminal case if they are also charged with a crime. An attorney can help the person best way to fight for the return of the vehicle without making incriminating statements.


Protecting the Innocent Owner for Forfeiture in Florida


An attorney can also represent the "innocent owner" of the property. For example, if you loan your vehicle to a friend, and the vehicle is seized because your friend had marijuana in the vehicle that you didn't know about, then you would qualify as an "innocent owner."

The innocent owner may still have to pay towing and storage, but the innocent owner should not be required to pay anything else. Also, the innocent owner will be asked to sign an agreement not allowing the wrongdoer to possess the property again.

Always File the Demand for an Adversarial Preliminary Hearing 

As a general rule, don't even think about trying to negotiate the return of the vehicle until after you have filed the Demand for an Adversarial Preliminary Hearing. Once you file the demand, the agency attorney has to set up a hearing within 10 days. That often creates a strong motivation on the attorney's part to negotiate a much better settlement.

If an acceptable negotiation isn't completed within 10 days, then it is unlikely it will be completed at all. Often the best deal is reached in the hours or moments before the hearing.

Therefore, filing that Demand for an Adversarial Preliminary Hearing might save you thousands of dollars and get your property back much faster. Plus, you just might win the hearing which is the best possible result. In that case, your property might be returned immediately.

 
What Can Be Negotiated?


As a general rule of thumb, the agency's attorney will often figure out an inflated estimate of the fair market value of the property and ask for a settlement amount that is half of that value. If there is a lien on the property then the lien amount should be subtracted from the fair market value as well.

Be sure to include any other expenses into that number including towing and storage fees so there are no surprises. 

That is generally the top end of the range. After filing for the Adversarial Preliminary Hearing, that number might drop quickly. If the property has little value, the agency's administrative expenses to fight for the forfeiture will quickly exceed the value of the property. For some reason, that reality often becomes much clearer to the agency attorney right before the APH hearing.

Of course, theoretically, the agency could refuse to make any settlement offer if they really want to keep the property and didn't mind litigating all of the issues in a APH hearing and then in a jury trial. If all else fails, have the hearing and then set the case for trial as quickly as possible.


Objections Often Raised at the Hearing:


1. The Petitioner (the agency that seized the property) should not be permitted to appear at the Adversarial Preliminary Hearing telephonically and must instead report in person with witnesses ready to testify to establish the legality of the stop and probable cause for the forfeiture.

2.  Any "Verification Affidavit" need to be notarized or signed with an attesting seal and it is inadmissible if it is merely "sworn to and subscribed" before a law enforcement officer or when otherwise not in compliance with F.S. 92.525. Otherwise, object to the admission of those documents into the record as hearsay, irrelevant and lacking any foundation (then list the foundational issued that are missing).
92.525. Verification of documents; perjury by false written declaration, penalty

(1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:

(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or

(b) By the signing of the written declaration prescribed in subsection (2).

(2) A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words “to the best of my knowledge and belief” may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.

(3) A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. It is a due process violation to not allow a person with standing to "litigate" the issue of probable cause which includes the right to call witnesses, question the officers, present evidence concerning the illegality of the stop or detention (and the exclusion of evidence gained from that illegality) and other evidence or testimony showing a lack of probable cause.

In many of these cases, the person with standing should take the stand to confirm proof that they have an ownership interest in the property and that it was taken without a warrant. Alternatively, the other side might stipulate to those issues. The person may decide to take the 5th instead of answering any questions that might tend to incriminate the person.

4. In addition to the issue of probable cause, the issue of an illegal stop or detention can be litigated at the Adversarial Preliminary Hearing, although the innocent owner's lack of knowledge is not generally an issue to be determined at the APH. 

5. The hearing must be held (fully litigated) within 10 days of the day that the agency received your demand or the motion for the return of property should be granted.
 

What Happens After the Seizure?


After the seizure the agency must provide a Notice of Seizure and Right to Adversarial Preliminary Hearing to any person entitled to receive notice under F.S. 932.701(2)(e).

When the seizing agency, the DHSMV (through its Division of Florida Highway Patrol) seizes the vehicle it must list a description of the vehicle by year, make and model along with the VIN number. The notice must also state that the vehicle is being seized pursuant to the Florida Contraband Forfeiture Act (F.S. 932.701-707, F.S.).

The notice must also state that a forfeiture action "may be filed against the property." All persons entitled to notice of the leisure of the property, as defined in s. 932.701(2)(e), F. S., may send a request for an Adversarial Preliminary Hearing (APH). Use the address listed in the notice. The address listed on the form is often listed as:
Office of General Counsel
Department of Highway Safety and Motor Vehicle (DHSMV)
2900 Apalachee Parkway, Room A-432
Tallahassee, Florida 32399-0504
The request for an Adversarial Preliminary Hearing under the Florida Contraband Forfeiture Act must be made in writing and must be sent by Certified Mail, Return Receipt Requested, within fifteen (15) days of receipt of this Notice.

The notice states that "[i]f you do not request an APH, you may still contest the forfeiture action at a later time." Always request an Adversarial Preliminary Hearing within the first 15 days (preferably on the day of the taking). Not requesting an APH is essentially stipulating to the taking while the case is pending. The case could be pending for years.

So it is easy - just write up a request for an Adversarial Preliminary Hearing and send it by Certified Mail, Return Receipt Requested within fifteen (15) days of receipt of the Notice to the address listed in the notice.

[Sample Form for the Request for an Adversarial Preliminary Hearing

 

The Agency's Response to the Request for an Adversarial Preliminary Hearing


After receiving the request for the APH, the agency has a lot of work to do. It will then file an “Emergency Request for Adversarial Preliminary Hearing Pursuant to the Florida Contraband Forfeiture Act.”

In the motion, the Petitioner (the law enforcement agency) will request that an Adversarial Preliminary hearing be scheduled in this case, on an emergency basis, no later than a date 10 days after the request was received, to determine whether probable cause exists to believe that the seized property in the case was used in violation of the Florida Contraband Forfeiture Act, section 932.701-932.706, Florida Statute (2014).

Pursuant to section 932.703(2)(a), Florida Statutes, when an Adversarial Preliminary Hearing is requested, the seizing agency “… shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter…

Additionally, Fla. R. Civ. P. 1.090(d) and Florida case law have established a Claimant requesting an Adversarial Preliminary Hearing is entitled to notice that “…shall be served a reasonable time before the time specified for the hearing.” See Crepage v. City of Lauderhill, 774 So.2d 61 (Fla. 4th DCA 2000), holding that twenty-four (24) hours notice of the Adversarial Preliminary Hearing was not sufficient notice and violated the Claimant’s due process rights.

Verified Complaint for Probable Cause and for Final Order of Forfeiture


The agency will then file a “Verified Complaint for Probable Cause and for Final Order of Forfeiture.” The certified complaint is for an action for forfeiture pursuant to the Florida Contraband Forfeiture Act, Section 932.701-932.706, Florida Statute. The jurisdictional requirements are set out in Section 932.704, Florida Statutes.

In these actions, the Department of Highway Safety and Motor Vehicles, acts through its Division of the Florida Highway Patrol, is a Law Enforcement agency as set forth in Section 932.704(1), Florida Statutes. The complaint will include a description of the property and the events leading up to the seizure.

The owner of the property can also file a verified complaint to contest any of those issues raised by the other side. The owner of the property can also testify to those facts at the hearing. 

 

Forfeiture for Driving While License Suspended . HTO Revocation


Many of these cases involve allegations that the property was used in violation of Section 932.701-706, Florida Statutes, based on a felony violation of:
  1. Section 322.34(2)(c), Florida Statutes (Driving While License Suspended / Revoked - 3rd or Subsequent Offense);
  2. Section 322.34(5), Florida Statutes (Driving While License Suspended / Revoked as a Habitual Traffic Offender); and / or
  3. the vehicle is alleged to be “contraband articles” as defined by Section 932.701(2)(a).

Financial Safe Harbor Provisions of Section 322.43(10)


The complaint will often alleged that the owner of the seized property is not eligible to claim the financial safe harbor provisions of Section 322.34(10), Florida Statutes. If your client does not have a conviction for a prior forcible felony, then check to see if any of the prior suspensions are because of the listed financial reasons. If so, 322.43(1) triggers the prohibition against prosecuting the case as a felony. [But see Wyrick v. State, 50 So.3d 674, 676 (Fla. Dist. Ct. App. 2010).]

Diligent Search for All Owners


Prior to filing the complaint, the Petitioner must conduct a reasonably diligent search for all owners who may have an interest in the Vehicle and disclose which persons or entities may have standing to challenge the forfeiture of the Vehicle pursuant to Section 932.701(2)(h), Florida Statutes, prior to its seizure by the Florida Highway Patrol.

If an owner was not notified properly then that owner can file for their own Adversarial Preliminary Hearing within 10 days of discovering the taking or within 10 days of receiving notice of the seizure.

Service  of the Verified Complaint


When filing of the Verified Complaint, the Petitioner (the law enforcement agency that made the seizure) must comply with the service requirements of Section 932.703(2)(a), and 932.704(6)(a), Florida Statutes.

The Petitioner (the agency that seized the property) will request that the Court issue an Order Finding Probable Cause and Directing Claimant to Respond, require any person who may claim a proprietary interest in the Vehicle to show cause why the Vehicle should not be forfeited to the use of, or to be sold by, Petitioner, and after hearing or upon default pursuant to Rule 1.500(a), Florida Rules of Civil Procedure, to enter a Final Order of Forfeiture, perfecting all rights, title and interest in the Vehicle to Petitioner.

The Respondent (the owner of the property) will request that the Court issue an Order Finding a Lack of Probable Cause and Directing the Petitioner to Return the Property to the Rightful Owner.

Rules for the Adversarial Preliminary Hearing


The trial court will then hold a hearing pursuant to section 932.703(2)(c) and (d), for the purpose of determining whether there was probable cause to believe the property had been or was being used in violation of the Act.

(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.

(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property. 

Burden of Proof in a Forfeiture Adversarial Preliminary Hearing


If the state succeeds and the trial court determines that probable cause exists, then the burden shifts to the claimant to rebut the probable cause showing or, by a preponderance of the evidence, to establish that the forfeiture statute was not violated.” In re Forfeiture of One Hundred Seventy One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d at 1274 n. 7 (citing United States v. Motor Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir.1983)); Lobo v. Metro Dade Police Dep't, 505 So.2d 621, 623 (Fla. 3d DCA 1987).
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If you requested an Adversarial Preliminary Hearing or jury trial in a forfeiture case under Florida Contraband Forfeiture Act tell us about your experience below...

Florida Courses on Rule 3.220 and Brady / Giglio - Legal and Ethical Obligations of Discovery in Criminal Cases

When was the last time you received a Brady Notice?

Many believe that prosecutors will start to take a different approach to disclosing Brady material as a result of the recent amendments to Rule 3.113. The courses are intended to teach defense attorneys to learn how to hold the prosecutor's feet to the fire.

Criminal defense attorneys in felony cases now have less than one year (until May 16, 2016) to complete a course covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).

The amendment to Rule 3.113 is relatively short so I cut and paste it below.

You can find several videos intended to meet this requirement on The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.

The Florida Public Defender Association's Website has a lot of valuable information on this topic including:

One important point I learned from the first FLPDA video (embedded below) is that when you know that the prosecutor has failed to disclose Brady material, instead of just telling the prosecutor you have it, file a motion demanding that they give you a copy of it.

As a criminal defense attorney, you are not obligated to say that you already have it. You might get a question from the judge about whether you already have the material or not. But that misses the point.

The prosecutor must disclose the Brady material. The defense attorney does not have to hunt down that which is not properly disclosed. Why? Because sometimes the defense attorney will miss it. The obligation is on the prosecutor to locate the information and provide it to the defense attorney without being asked for it.

Occasionally, I've frustrated by the fact that I find information on an officer's pending "separation" from his job for serious misconduct or a pending internal affairs investigation and I disclose it to the prosecutor and they tell me that they do not consider it Brady and are not distributing it to the Public Defender's Office or to private criminal defense attorneys with open cases involving that same officer.

Instead of getting frustrated, I should just file the motion to force them to disclose it to me (even through I might already have it). It might also lead to the discovery of related information that I do not have in my possession and have no way to obtain otherwise. That will also clarify their obligations in their other cases where the disclosure has not been made. If defense attorneys did that every time - it would start to change the way prosecutors think about their obligations.

Then we will all start to see those Brady Notices more often.

Videos on the Florida Public Defender Association's Website:





The Florida Public Defender Association's Website provides that "for viewing the CLE Brady v. Maryland courses produced by the FPDA, it is respectfully requested that attorneys make a minimum $25 donation to the Florida Innocence Project or the Exoneree Support Fund of the Innocence Project of Florida. Please visit www.FLORIDAINNOCENCE.ORG to make your donation on-line, or send a check to: the Innocence Project of Florida, 1100 East Park Avenue, Tallahassee, FL 32301. All contributions are tax deductible to the fullest extent of the law, as IPF is certified as a nonprofit organization under the Internal Revenue Service Act Section 501(c)(3); federal tax ID 20-0210812."

Various live CLE courses are also being offered to fulfill this requirement.

So when was the last time you received a Brady Notice? What did you learn from watching any of the videos or attending a live CLE course on this topic?





Supreme Court of Florida
____________
No. SC13-552
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL
PROCEDURE—RULE 3.113.
[May 15, 2014]

PER CURIAM.

    This matter is before the Court for consideration of proposed amendments to the Florida Rules of Criminal Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.
    At the Court’s request, the Supreme Court’s Criminal Court Steering Committee (Steering Committee) filed its petition in this case, proposing adoption of a new rule of criminal procedure, rule 3.113 (Minimum Standards for Attorneys in Felony Cases). The Steering Committee unanimously proposes the rule amendment. Following publication of the proposed new rule by the Court, comments were filed by the Criminal Procedure Rules Committee and the Florida Public Defender Association. As discussed below, having considered the Steering Committee’s petition and the comments filed, we adopt Florida Rule of Criminal Procedure 3.113, as proposed by the Steering Committee.
    Rule 3.113 is intended to implement the Florida Innocence Commission’s recommendation that the criminal rules be amended to require that any attorney who is practicing law in a felony case complete at least a two-hour course regarding the law of discovery and Brady v. Maryland, 373 U.S. 83 (1963) responsibilities. The new rule provides as follows:
Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course . . . of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).
     Trial judges, based upon their inherent authority to uphold the rules of procedure, are authorized to give effect to the rule by not appointing counsel, or removing counsel, in the event that counsel is not in compliance with the rule.
     Additionally, to ensure that qualified counsel will be available at the time this rule goes into effect, we provide that the rule will take effect two years from the date of this opinion.
    Accordingly, Florida Rule of Criminal Procedure 3.113 is hereby adopted as reflected in the appendix to this opinion. The amendment shall become effective May 16, 2016, at 12:01 a.m.
    It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

THE FILING OF A MOTION FOR RE HEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceedings–Florida Rules of Criminal Procedure

Hon. Kevin Emas, Chair, Criminal Court Steering Committee, Miami, Florida for Petitioner Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm
Beach, Florida; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; and Paul E. Petillo, The Florida Public Defender Association, West Palm Beach, Florida,

    Responding with comments

APPENDIX

RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN FELONY CASES

     Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course, approved by The Florida Bar for continuing legal education credits, of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).

Criminal Court Steering Committee Commentary

    2014 Adoption. The Supreme Court has exclusive jurisdiction under Article V, section 15 of the Florida Constitution to “regulate the admission of persons to the practice of law and the discipline of persons admitted.” Implied in this grant of authority is the power to set minimum requirements for the admission to practice law, see In re Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as well as minimum requirements for certain kinds of specialized legal work. The Supreme Court has adopted minimum educational and experience requirements for attorneys in capital cases, see, e.g., rule 3.112, and for board certification in other specialized fields of law.
    The concept of a two-hour continuing legal education (CLE) requirement was proposed in the 2012 Final Report of the Florida Innocence Commission.
    The CLE requirement is not intended to establish any independent legal rights. Any claim of ineffective assistance of counsel will be controlled by Strickland v. Washington, 466 U.S. 668 (1984).
    It is intended that The Florida Prosecuting Attorneys Association and The Florida Public Defender Association will develop a seminar that will be approved for CLE credit by The Florida Bar. It is also intended that attorneys will be able to electronically access that seminar, at no cost, via The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.
    The rule is not intended to apply to counsel of record in direct or collateral adult felony appeals.

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