Civil Asset Forfeiture in Florida

Civil asset forfeiture allows the government to seize property it believes is connected to criminal activity, without suing the property owner personally. The action is filed against the property itself, and seizure can happen before any criminal charges are filed or even if no charges are ever brought.

Florida’s Contraband Forfeiture Act (§§ 932.701–932.7062) governs forfeiture at the state level. Federal forfeiture under 18 U.S.C. § 981 and 21 U.S.C. § 881 operates under separate rules with a lower burden of proof. A person whose assets are seized may face proceedings under one system or both.

How Civil Forfeiture Differs from Civil Judgment Collection

A civil judgment creditor must file a lawsuit, prove the claim at trial, obtain a judgment, and then use Florida’s post-judgment collection tools to pursue the debtor’s non-exempt assets. At every stage the debtor can respond and assert exemptions.

Civil forfeiture reverses that sequence. The government seizes the property first and litigates afterward. The property owner must then fight to recover it. Because the action targets the property rather than the person, the owner’s personal exemptions do not apply the same way they do against a civil creditor.

A Florida homestead cannot be forfeited under the state’s own forfeiture laws. In Butterworth v. Caggiano (1992), the Florida Supreme Court refused to let a RICO forfeiture reach a home where bookmaking had taken place. It applied the same rule in Tramel v. Stewart (1997) to a house a jury found had been acquired or improved entirely with the proceeds of the violation. Article X, section 4 of the Florida Constitution lists three exceptions to the exemption, and forfeiture is not among them.

Federal forfeiture law overrides the Florida homestead exemption. The Eleventh Circuit so held for the civil forfeiture statute, 21 U.S.C. § 881, and again in United States v. Fleet (2007) for the substitute-property provision of the criminal forfeiture statute, 21 U.S.C. § 853(p). A homestead that Florida law puts out of reach can still be forfeited in federal court.

Florida’s Forfeiture Process Under the Contraband Forfeiture Act

Florida’s Contraband Forfeiture Act requires law enforcement to follow a specific sequence before taking permanent ownership of seized property. Its deadlines are short.

The seizing agency must give notice at the time of the seizure or mail it within five working days to any known claimant. The owner then has 15 days after receiving that notice to demand an adversarial preliminary hearing, where the court decides whether probable cause supported the seizure. If the court finds none, the seizure cannot continue, and the court must award the owner attorney’s fees and costs up to $2,000.

If the agency clears the probable-cause hearing (or if the owner does not demand one), the government files a forfeiture complaint. The owner has 20 days after receiving the complaint and the court’s probable cause finding to file responsive pleadings and affirmative defenses. Missing that deadline can result in a default forfeiture, permanent loss of the property without a trial. Florida law puts the ultimate forfeiture question to a jury unless the owner waives that right in writing or on the record.

Florida requires the government to prove beyond a reasonable doubt that the property was being used in violation of the Contraband Forfeiture Act. That is the same standard a criminal conviction requires. Until 2016, the state had to show only clear and convincing evidence.

Florida law allows a seizure only if the owner is arrested for the offense that makes the property contraband, unless one of five exceptions applies. Money is one of them. Cash and other monetary instruments can be seized with no arrest at all. The others cover an owner who cannot be identified, an owner who is a fugitive or has died, an arrest of someone else where the owner knew about the crime, and an owner who agrees to become a confidential informant.

Separately, the seizing agency must ask a court within 10 business days after the seizure to decide whether the arrest requirement was met and whether probable cause supported the seizure. If the court finds either one missing, any forfeiture hold or other encumbrance on the property must be released within five days.

Federal Forfeiture and the Equitable Sharing Problem

Federal forfeiture law operates alongside Florida’s system and can replace it entirely when federal agents are involved. When that happens, the property is forfeited without Florida’s higher standard of proof. The federal forfeiture decisions are collected on the federal creditor case law page.

Federal civil forfeiture requires the government to prove its case by a preponderance of the evidence, a lower bar than Florida’s beyond-a-reasonable-doubt standard. Federal agencies can also forfeit seized vehicles, boats, and other goods administratively, without a judge, when the property is worth $500,000 or less. There is no ceiling at all on cash and other monetary instruments. The claim deadline in the notice letter must be at least 35 days after the letter is mailed. An owner who does not file a claim by that deadline loses the property outright.

The federal Equitable Sharing Program lets a Florida agency turn a seizure over to a federal agency, which forfeits the property under federal law and returns a share of the proceeds to the local department.

The program gives local agencies an incentive to bypass Florida’s higher standard and route seizures through federal channels, where property owners face fewer procedural protections.

Which Assets the Government Can Seize

Civil forfeiture can reach almost any type of property the government connects to criminal activity. Cash, vehicles, real estate, bank accounts, brokerage accounts, business equipment, and cryptocurrency are all subject to seizure.

The scope is broader than what a civil judgment creditor can reach. Florida’s statutory exemptions for retirement accounts, life insurance, and annuities protect those assets from judgment creditors. Forfeiture does not follow those exemption rules. A retirement account beyond the reach of any judgment creditor can still be forfeited if the government proves it holds the proceeds of a crime.

Defenses Available to Property Owners

The innocent owner defense protects an owner who did not know about the crime. Under Florida law the seizing agency must prove that the owner knew, or should have known after a reasonable inquiry, that the property was being used in criminal activity. Federal law reverses that and makes the owner prove innocence. Either way, the standard is a preponderance of the evidence. A landlord whose tenant used a rental property for a crime can raise the defense in either system, though the path is harder in federal court.

The proportionality argument draws on the Eighth Amendment’s Excessive Fines Clause. The Supreme Court held in Timbs v. Indiana (2019) that the Excessive Fines Clause binds the states. An earlier decision, Austin v. United States (1993), brought civil forfeitures within the clause whenever the forfeiture is at least partly punishment. If the value of the seized property is grossly disproportionate to the severity of the offense, the forfeiture violates constitutional limits.

Due process challenges attack procedural failures. A missed 10-business-day court review, a notice mailed after the five-working-day deadline, or a failure to meet the evidentiary standard all give the owner grounds to demand the property back.

How Asset Protection Strategies Interact with Forfeiture

Most Florida asset protection strategies are built against civil creditors. A creditor has to reach the asset through a judgment; the government reaches it by proving the asset is tied to a crime.

Assets a married couple owns as tenants by the entirety are out of reach of a creditor of only one spouse. Property titled to both spouses cannot be forfeited under Florida law unless the seizing agency proves that the other spouse knew, or should have known after a reasonable inquiry, that the property was being used in criminal activity. The agency carries that burden by a preponderance of the evidence. In Fleet, the Eleventh Circuit held that federal criminal forfeiture reaches a defendant’s interest in entireties property, as it reaches homestead.

An LLC separates business assets from personal assets for creditor protection purposes. Forfeiture can reach assets inside an LLC if those assets are connected to criminal conduct, regardless of how the entity is structured.

An offshore trust places assets outside U.S. jurisdiction with a foreign trustee. Seizing those assets requires the government to pursue enforcement in a foreign court or obtain a domestic court order compelling the trust owner to repatriate the funds. Either route is a practical barrier that does not exist with domestic assets.

The government can seek a contempt order against the trust owner who refuses to comply, but the trustee, located outside U.S. jurisdiction, is not bound by the order. The same jurisdictional distance that protects offshore trust assets from civil creditors applies against government forfeiture, though the government has enforcement tools (including criminal contempt) that private creditors lack.

Forfeiture reaches property the government can connect to a crime, whatever entity, trust, or account holds it. Assets bought with lawful money are generally out of reach. The exception is substitute property. When the government cannot recover what it is entitled to forfeit because the owner spent it or put it beyond the court, Florida and federal law let the government take other property up to that value.