An Adversarial Preliminary Hearing is a court proceeding where a judge determines if probable cause exists to believe that seized property has been used in violation of the Florida Contraband Forfeiture Act.
During this hearing, the judge will review evidence presented by law enforcement as well as any potential claimants. Evidence can include documentation, financial records, photographs, videos, physical evidence, forensic evidence, and witness testimony.
It is important to remember that an Adversarial Preliminary Hearing is just that – a preliminary hearing. It is not a trial on the merits, it is not the end all/say all in your case, and it isn’t the last chance you will get to fight back. The hearing exists to see if there is a basis for law enforcement to continue to seize your property pending the outcome of the forfeiture action.
In this regard, an Adversarial Preliminary Hearing is not much different than first appearance court when someone gets arrested. Both hearings are conducted to determine if probable cause exist. When someone is arrested, a judge must decide if probable cause exists to warrant that person’s continued detention. In regards to Civil Asset Forfeiture in Florida, the judge must decide if probable cause exists to permit law enforcement to continue to seize your property pending the outcome of the forfeiture action.
Who has the burden of proof in an Adversarial Preliminary Hearing?
The burden of proof in an Adversarial Preliminary Hearing is entirely on the Government. Claimants have no burden of proof. In fact, a claimant can demand an Adversarial Preliminary Hearing and do nothing more than show up for court. This is not recommended, but it illustrates that the burden of proof rests solely on the Government.
What is the evidence standard in an Adversarial Preliminary Hearing?
Even though Civil Asset Forfeiture cases are naturally intertwined with criminal law, they are still civil actions. That means they are governed by the Florida Rules of Civil Procedure. As a result, the burden of proof has a lower standard than is required in criminal court.
As we all know, a criminal conviction requires “proof beyond a reasonable doubt” (more than 90%). However, in a civil action, the Plaintiff must only prove their allegations by a “preponderance of the evidence” (51% or more). The higher standard in criminal cases is required because criminal conviction means loss of life and liberty, whereas a judgment in a Civil Asset Forfeiture case only means the loss of property.
How do I request an Adversarial Preliminary Hearing?
A request for an Adversarial Preliminary Hearing must be made in writing and sent to the seizing agency by by certified mail, return receipt requested. It is important to note that Adversarial Preliminary Hearings are not available forever. Instead, a hearing must be demanded within 15 days of receiving notice of seizure from the seizing agency.
Because a seizing agency must send notice of seizure to all interested parties within 5 days of the seizure, your right to an Adversarial Preliminary Hearing will evaporate in less than a month.
Once the time to demand an Adversarial Preliminary Hearing passes, it cannot be recovered. That is why it is so important to hire a Civil Forfeiture Defense Attorney right away. Your rights need to be preserved!
Other Time Limits Under the Florida Contraband Forfeiture Act
Put simply, the Florida Contraband Forfeiture Act has very strict time limitations. If an Adversarial Preliminary Hearing is not requested in writing by certified mail with return receipt requested during the 15 day window, the right to the hearing is waived.
Pursuant to Fl. Stat. 932.703(2)(a), the seizing agency must ask a judge to determine if probable cause exists within 10 days of the asset seizure. This request must be made in writing and be accompanied by a sworn affidavit. The sworn affidavit is usually executed by the lead investigator or seizing officer. However, an Adversarial Preliminary Hearing will take precedence over this paper application.
If a claimant demands an Adversarial Preliminary Hearing, then the court will not rule on any request filed by law enforcement. Instead, the court will conduct the hearing.
Why is an Adversarial Preliminary Hearing beneficial?
The opportunity to have an Adversarial Preliminary Hearing is a tremendous benefit conferred on property owners. The purpose of the hearing is simple: to make the Government show its hand and prove that it has the right to seize your property.
By demanding an Adversarial Preliminary Hearing, you make the Government do its job. The Government is forced to come to court and show its hand. Its evidence is then put under scrutiny by your Civil Forfeiture Defense Attorney who will ask the tough questions, cross-examine Government witnesses, present your own evidence, call your own testimony, and otherwise attack the Government’s case while arguing your own.
In a sense, an Adversarial Preliminary Hearing is a dress rehearsal before the main event.
Best of all, if you win, the seized property must be returned to you within 5 days!
Further Reading on Civil Asset Forfeiture
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Brian Silber is a Nationwide Civil Asset Forfeiture Attorney located in Fort Lauderdale, Florida. He is a former prosecutor and career trial attorney who has been litigating criminal cases for over 15 years.