73594

32.2 FORFEITURES Page 1 of 13 EDGEWOOD POLICE DEPARTMENT GENERAL ORDER #32.2 FORFEITURE POLICY Effective Date: December 29, 2008 The purpose of this policy is to provide an orderly, legal process for the seizure and forfeiture of personal and real property pursuant to the Florida Contraband Forfeiture Act, Sections 932.701 – 932.707, Florida Statutes (hereinafter the FCFA or the Act). This General Order consists of the following numbered sections: I. Scope II. General III Forfeiture Procedures IV. Duties of the Agency F orfeiture Coordinator & Forfeiture Legal Advisor V. Use of Forfeited Items VI. Uniform Standards VII. Forms I. SCOPE A. It is the policy of the Edgewood Po lice Department to participate in the Florida Contraband Forfeiture Act to the fullest extent possible in order to impact criminal activity, provide law enforcement with economic benefit and protect the substantive and procedural due process rights of all interested parties. B. The agency policy with regards to the Florida Contraband Forfeit ure Act is to be as proactive as possible regarding enforcement of the Act while ensuring that all person’s Constitutional Rights are not abused. II. GENERAL A. Florida Statute 932.702 states that it is unlawful: 1. To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle or aircraft. 2. To conceal or possess any contraband article 3. To use any vessel, motor vehicle, aircraft, other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange or giving away of any contraband article. 32.2 FORFEITURES Page 2 of 13 4. To conceal, possess, or use any contraband article as an instrumen tality in the commission of or in aiding or abetting in the commission of any felony or violation of the Act 5. To acquire real or personal property by the use of proceeds obtained in violation of the Act B. Florida Statute 932.701(2)(a) 1 -6 defines contraband article as: 1. Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violati on of any provision of Chapter 893, if the totality of the facts presented by the state are clearly sufficient to meet the state’s burden of establishing probable cause to believe that a nexus exists between the article seized and the narco tics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction. 2. Any gambling paraphernalia, lottery tickets, money, and currency, or other means of exchange which was used, was attempted, or i ntended to be used in violation of the gambling laws of the state. (The Act applies to property used in misdemeanor gambling). 3. Any equipment, liquid or solid, which was being used, is being used, was attempted to be used, or intended to be used in violation of the beverage or tobacco laws of the state. 4. Any motor vehicle fuel upon which the motor fuel tax has not been paid as required by law. 5. Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of , or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Act. 6. Any real property, including any right, titl e, 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 or, or in aiding or abetting in the commission or, any felony, or which is acquired by proceeds obtained as a result of a violation of the Act. C. Burden of proof and evidence required 1. The burden of proof in a forfeiture ca se is “clear and convincing.” This burden is more than preponderance, but less than beyon d a reasonable doubt. 2. The evidence must be of such weight that the jury or judge has a firm belief or conviction as to the truth of the allegations. 3. A seizing officer must keep this heightened standard of proof in mind when determin ing whether the facts support a forfeiture seizure. 32.2 FORFEITURES Page 3 of 13 4. Property is subject to seizure if there is any evidence that the owner knew, or should have known after reasonable inquiry, that the property would be used in violation of law. a. This is true even if the owner is not present at the time of the criminal activity. b. The owner does not have to be aware of the specific criminal behavior involved, but if there is evidence the owner knew, or should have reasonably known that the property was likely to