NEW SMYRNA BEACH POLICE DEPARTMENT NEW SMYRNA BEACH, FLORIDA POLICY AND PROCEDURE DIRECTIVE

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1 NEW SMYRNA BEACH POLICE DEPARTMENT NEW SMYRNA BEACH, FLORIDA POLICY AND PROCEDURE DIRECTIVE TITLE: FLORIDA CONTRABAND FORFEITURE ACT NUMBER: 30-1 EFFECTIVE: 9/14 REFERENCE: RESCINDS/ AMENDS: 38-1 REVISED: 2/18 ATTACHMENTS: DAG-71 INSTRUCTIONS & FORM FS Through FS Asset Forfeiture Reporting Instructions Forfeiture Reporting Spreadsheet PURPOSE The purpose of this directive is to provide guidelines that shall be followed when seeking forfeiture of assets or contraband articles under the Florida Contraband Forfeiture Act (FCFA). DISCUSSION The mission of the Asset Forfeiture Program is to disrupt and dismantle criminal enterprises, deprive criminals of the proceeds of illegal activity, deter crime, and restore property to victims. Florida s Contraband Forfeiture Act contains specific requirements for the agency to proceed with, and to successfully conclude a forfeiture action. Significant requirements of the Act include, specifying that property may be seized only under certain circumstances; requiring that specified persons approve a settlement; providing circumstances when property is deemed contraband; allocating responsibility for damage to seized property and payment of storage and maintenance expenses; requiring the agency to apply for an order, within a certain time frame, making a probable cause determination after the agency seizes property; increasing the evidentiary standard from clear and convincing evidence to proof beyond a reasonable doubt. Additionally, the act requires the agency to adopt and implement specified written policies, procedures, training, and reporting requirements. CONTRABAND ARTICLE, as defined by FS (2)(a): DEFINITIONS Any controlled substance as defined in Chapter 893 or any substance, device, paraphernalia or currency or other means of exchange which has been, is being, or is intended to be used in violation of any provision of Chapter

2 Any gambling paraphernalia, lottery tickets, money and currency used or intended to be used in the violation of the gambling laws of the state. Any equipment, liquid or solid, which is being used or intended to be used in violation of the beverage or tobacco laws of the state. Any motor fuel upon which the motor fuel tax has not been paid as required by law. Any personal property, including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which has been, was attempted to be, or is actually employed as an instrumentality in the commission of, or in aiding or abetting 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 Florida Contraband Forfeiture Act. Any real property or any interest in real property which has been, was attempted to be, or is being employed as an instrumentality in the commission of, or in aiding or abetting in the commission of any felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act. Any personal property, including, but not limited to, equipment, money, securities, books, records, research, negotiable instruments, currency, or any vessel, aircraft, item, object, tool, substance, device, weapon, machine, or vehicle of any kind in the possession of or belonging to any person who takes aquaculture products in violation of F.S (2)(c). Any motor vehicle offered for sale in violation of F.S Any motor vehicle used during the course of committing an offense in violation of F.S (9)(a). LIS PENDENS -- is a written notice that a lawsuit has been filed which concerns title to real property or some interest in that real property. MONETARY INSTRUMENT Coin or currency of the United States or any other country, traveler s check, personal check, bank check, cashier s check, money order, bank draft of any country, investment security or negotiable instrument in bearer or other form, prepaid or stored value card, other device that is the equivalent of money that can be used to obtain cash, property, or services, or gold, silver, or platinum bullion or coins. PROBABLE CAUSE sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. POLICY (CFA 30.01) It is the policy of the New Smyrna Beach Police Department to utilize the provisions of the Florida Contraband Forfeiture Act (FS ) only on a limited basis to deter and prevent the continued use of contraband articles for criminal purposes, while protecting the proprietary interests of innocent owners and lienholders. The proceeds from these seizures will be utilized as supplemental funding for authorized purposes as set forth in US Department of Justice Guidelines or Florida State Statute. The New Smyrna Beach Police Department will participate in the Florida Contraband Forfeiture Act. The employment, salary, promotion, or other compensation of any department member does not depend on obtaining a quota of seizures. All seizures shall comply with federal and state constitutional limitations regarding an individual's right to be free from unreasonable searches and seizures including, but not limited to, the illegal use of stops based on a pretext, coercive consent searches or a search based solely upon an individual's race, ethnicity, gender, national origin, religion, sexual orientation or gender identity. (CFA 2.06M) The Chief of Police is the sole determinate of when the agency will proceed with a civil forfeiture action. Additionally, the Chief of Police is the sole Departmental authority for expenditure of forfeiture funds. 2

3 All requests for approval to utilize forfeiture funds will be forwarded to the City Commission for approval. The City of New Smyrna Beach maintains revenue accounts, which hold the proceeds of Federal and State forfeiture shares. No other funds will be held in these accounts. Federal and State forfeiture monies will not be co-mingled. No monies, including interest income, will be transferred from this account without conforming to Department of Justice (DOJ) and/or State guidelines. SEIZURE PROCESS (CFA 30.02M) Whether the seizure of vessels, vehicles, aircraft, currency, or other personal property or contraband articles is initiated shall be determined based upon a two-stage process: First, a determination must be made that the item of property is subject to seizure under the Florida Contraband Forfeiture Act when probable cause exists to believe that: 1. The item subject to seizure has been used, is being used, or was intended to be used in violation of the provisions of the Florida Contraband Forfeiture Act; or, 2. Any violation of the Florida Contraband Forfeiture Act has taken place, or is taking place in, upon, or by means of the seized property; or, 3. The item subject to seizure is a "contraband article" as defined by FS, the possession of which would constitute a felony. Second, in addition to determining that the vessel, vehicle, aircraft, currency, or other personal property or contraband was utilized in violation of the Florida Contraband Forfeiture Act, the seizure may occur only if the owner of the property is arrested for the criminal offense that forms the basis for determining the property was subject to seizure under the Florida Contraband Forfeiture Act, unless one of the following conditions exist: 1. The owner of the property cannot be identified after a diligent search, or the person in possession of the property denies ownership and the owner of the property cannot be identified by means that are available to the employee or agent of the seizing agency at the time of the seizure; If at least 90 days have elapsed since the initial seizure of the property and the seizing agency has failed to locate the owner after making a diligent effort (properly documented), the seized property is deemed a contraband article that is subject to forfeiture under the Florida Contraband Forfeiture Act. 2. The owner of the property is a fugitive from justice or is deceased; 3. An individual who does not own the property is arrested for a criminal offense that forms the basis for determining that the property is a contraband article under s and the owner of the property had actual knowledge of the criminal activity; 4. The owner of the property agrees to be a confidential informant as defined in s However, the threat of property seizure or forfeiture may NOT be used to coerce the owner of the property to enter into a confidential informant agreement. Final forfeiture of the property must be included as a component of any confidential informant agreement; 5. The property is a monetary instrument In view of the costs of associated with a forfeiture proceeding, the value of an item seized, and any lien of record, shall be a consideration for seizure of the item, along with other considerations The owner or person in possession of any seized asset will be advised that the property is being seized under the authority of the Florida Contraband Forfeiture Act and that any questions pertaining to those proceedings should be directed to the City Attorney. If the person in possession of the seized asset is not the owner, the officer will attempt to ascertain from the person the name and address of the owner and any potential claimants to the seized property. 3

4 Seized property will not be used for any purpose until the rights to, interest in and title to the seized property are perfected in accordance with the Florida Contraband Forfeiture Act. This does not prohibit the use or operations necessary for reasonable maintenance of seized property. The New Smyrna Beach Police Department shall make reasonable efforts to maintain seized property in such a manner as to minimize loss of value. The Quartermaster will arrange for any required special maintenance. 1. The condition of the property seized shall be fully documented at the time of seizure. Photographs and/ or video of the property should be taken whenever practical to accurately document the property s condition at the time of seizure. 2. Unless otherwise agreed to in writing, the Department is responsible for damage, storage fees, and maintenance costs for seized property Supervisors Approval Required to Initiate Seizure Process Prior to initiating any seizure of personal property, the officer desiring to initiate the seizure must contact his/her immediate supervisor, explain the circumstances surrounding the proposed seizure, and obtain the supervisors approval prior to proceeding with the process. The officer initiating the seizure must include the name of the approving supervisor within the appropriate report documenting the incident. When property is seized for forfeiture, the probable cause supporting the seizure must be promptly reviewed and approved by a supervisor. The supervisor will make and document a valuation judgement of the property to be seized. The City Attorney or the department s designated legal counsel must be notified within 5 business days of all seizures and shall conduct a review to determine whether there is legal sufficiency to proceed with a forfeiture action. Notice shall be documented. The Chief of Police will decide if the department will file a civil forfeiture action. The Chief of Police, in conjunction with the City Attorney, shall make a determination if there is sufficient evidence available to prove the forfeiture case beyond a reasonable doubt, which will be an added consideration of whether to proceed with filing the case in circuit court. o When a seizure of property is made under the Florida Contraband Forfeiture Act, and a determination is made to proceed with the forfeiture of the item, the department shall apply, through the City Attorney s Office, within 10 business days after the date of seizure, to a court of competent jurisdiction for an order determining whether probable cause exists for the seizure of the property. The application for the probable cause determination must be accompanied by a sworn affidavit and may be filed electronically by reliable electronic means. o If the court finds that the requirements of the Florida Contraband Forfeiture Act were not satisfied or that probable cause does not exist for the seizure, any forfeiture hold, lien, lis pendens, or other civil encumbrance must be released within five (5) days. The release shall be documented Should it be learned that property seized does not meet the requirements as delineated at , the property shall be returned to property owner without delay and without financial penalty. The release/return shall be documented An investigator shall promptly review all asserted claims of interest in any property seized by the department. The investigation and disposition shall be documented and included in the case file Property which is located on private property at the time of arrest and in violation of the Florida Contraband Forfeiture Act should only be seized pursuant to a court order (seizure warrant), unless the seizure is otherwise authorized by law All reports involving a seizure will be forwarded to the Deputy Chief of Police, Investigative Bureau Sergeant, and the City Attorney by the supervisor who initially approved the seizure. 4

5 All articles subject to seizure that are also required for evidentiary purposes will be submitted as evidence in accordance with policy. When the items are no longer needed for criminal prosecution, the case officer will notify the Asset Forfeiture Coordinator (Investigative Sergeant) to conclude forfeiture procedures After property is seized pursuant to the Florida Contraband Forfeiture Act, regardless of whether the civil complaint has been filed, all settlements must be personally approved by the Chief of Police. VEHICLE, VESSEL, AIRCARFT, & PROPERTY SEIZURE PROCEDURES VEHICLES Store the vehicle in the locked impound area of the police department. At the impound: Complete a vehicle inventory report. Record all damaged areas and or missing or non-working equipment. Photograph when possible. Remove perishable items, if any, and proceed as directed by a supervisor. Secure property and submit to evidence for proper storage disposition. If property may be returned to the owner advise him/her that the same should be claimed from the Evidence Section within 90 days. If possible, close all doors and windows. May note if not operable. If possible use a tarp to protect from weather. Initiate the appropriate computer inquires to obtain title and lien information and include this information in your completed report. Submit the vehicle key to evidence. VESSELS & AIRCRAFT Any vessel or aircraft that cannot be transported to the impound area will be secured as directed by a supervisor The procedures listed above apply to seized vessels and aircraft. PROPERTY Any article of personal property that has been seized under the provisions of the Florida Contraband Forfeiture Act will be forwarded to evidence for proper storage. FORFEITURE COORDINATOR RESPONSIBILITIES Asset Forfeiture Coordinator (Investigative Sergeant) will: 1. Review all case files in which a seizure report was filed. 2. Act as the Department Liaison for all interested or entitled parties. 3. For Federal Forfeiture proceedings; (CFA 30.03M-A,B) Maintain a log and copies of all Application for Transfer of Federally Forfeited Property (DAG-71) forwarded to DOJ. This will be provided to the committee upon request and at each of their meetings. Retain copies of disbursement checks in the respective seizure file, reconciling the seizure log to reflect the difference between the original anticipated funds and the actual amount received. 5

6 Maintain an inventory log for all property including money and vehicles forfeited to the Department to ensure their pre-intended official use for the required two-year period. Assist the Budget Director in the compilation of an annual report of all forfeiture activity. 4. For State forfeitures: Within 5 days of the seizure, provide notice by certified mail to all parties so entitled advising of their right to an adversarial preliminary hearing. Receive and record the receipt of all requests for such hearing from parties so entitled. Schedule and ensure the commencement of such hearing with the Court within 10 days of receipt of a request from any persons so entitled. Ensure proper maintenance of any seized articles so requiring. 5. Coordinate with the City Attorney to secure contraband articles pursuant to the Florida Contraband Forfeiture Act for cases in which a seizure form was filed and the seizure did not occur at the time of the arrest or investigation. 6. Track all questions or request for information from the Mayor, City Council or any other City department. 7. Maintain a file of written purchase justifications for all requests and purchase orders for all approved expenditures. 8. Nothing contained herein shall preclude the Asset Forfeiture Coordinator from negotiating a settlement with the interested parties prior to the adversarial preliminary hearing. Such settlement shall be conducted with the assistance of the City Attorney under such form and format as directed by the City Attorney The Director of Finance will: Receive all forfeiture checks, maintaining a log of all checks received and disbursed. Provide a copy of all disbursement checks received to the Asset Forfeiture Officer. Designate all checks "restrictive" for deposit only to the respective account. Deposit all funds the same day or the next business day. Safeguard all checks not deposited the same day (locked storage). Maintain a record of all expenditures from forfeiture funds. Records will be in addition to any others normally kept and maintained separately. Copies are acceptable. Report activity for both accounts in the City s accounting ledger (Munis). By August 1st, annually, prepare the DOJ Certification Report and a detailed Departmental report detailing the activity of all forfeiture funds. Submit the Federal Equitable Sharing Agreement every three (3) Years as outlined in DOJ guidelines The Chief of Police will: Review all forfeiture expenditure requests. Forward those approved requests to the City Manager for inclusion into the City Commission Agenda. Ensure that an independent audit is conducted annually in accordance with all State and Federal guidelines pertaining to forfeiture monies. Initiate audit request when circumstances dictate. Review and forward the DOJ Annual Certification Report TRAINING Officers shall receive initial training and continuing education as required by the Florida Contraband Forfeiture Act. Training shall minimally include: 6

7 Legal aspects of forfeiture, including, but not limited to, search and seizure and other constitutional considerations; Department Policy; The training shall be documented for each officer. REVIEW & REPORTING Annually, the Deputy Chief of Police shall review property seizures, any settlements, and any forfeiture proceedings that have been initiated by the department to ensure compliance with the Florida Contraband Forfeiture act. If the review suggests deficiencies, the department shall promptly institute corrective measures to ensure compliance. The review and subsequent corrective measures, if any, shall be documented and forwarded to the Office of the Chief of Police By no later than October 10 of each year the Deputy Chief of Police shall prepare and file a report with the Florida Department of Law Enforcement and the City Finance Department indicating whether the department has seized or forfeited property under the Florida Contraband Forfeiture Act. Minimally the report shall contain: Date each item of property was seized; Type of property seized; Offense report number associated with each seizure; Type of offense or offenses associated with each seizure; Civil court case number (if any) associated with each seizure; Race and sex of the owner of the property associated with each seizure; Approximate value of each item of property seized; Disposition of property received; Amount of proceeds derived from each seizure (if any); List of expenditures (by month) from the Florida Contraband Forfeiture Account. * The department is subject to a civil fine of $ for non-compliance of the reporting requirement. Revised: DMB 02/18 Approved: Signature on File Chief McKinley D. Coffin, Jr. 7