Florida's Civil Asset Forfeiture Reforms Haven't Stopped the Shakedowns

On a May day in 2015, a task force of Drug Enforcement Administration (DEA) agents and Miami-Dade Police Department officers raided Miladis Salgado's suburban Miami home and seized $15,000 in cash that they found in her closet.

The DEA agents were acting on a tip from a confidential informant that Salgado's estranged husband was laundering drug money.

The cash in Salgado's closet was not drug proceeds, however. It was money that Salgado, who worked at a duty-free store in the Miami airport, had been saving up for her daughter's quinceañera, an important coming-of-age 15th birthday party. Salgado had been planning to book a banquet hall, D.J., and -photographer. Suddenly bereft of her savings, she had to cancel the party.

It took two years for Salgado to get her money back, even after a DEA agent admitted in a deposition that there was no connection between her cash and the alleged criminal activity. In the meantime, Florida passed a law reforming the state's civil asset forfeiture process, which allows law enforcement to seize property—cash, cars, houses—even when the owner isn't convicted of a crime. The 2016 law raised the burden of proof for forfeiting property and now requires at least an arrest before most property can be forfeited.

But despite tightening the rules for when police can keep seized property, Florida remains one of the most prolific practitioners of civil forfeiture. The Sunshine State took in more revenue through forfeitures than any other state in 2018, according to a survey by the Institute for Justice, a libertarian-leaning public interest law firm. Local and state police can evade the new restrictions by working with the federal government, just like the Miami-Dade police did in Salgado's case. In return for calling in the feds, they get a cut of the proceeds.

"The federal government is literally paying state and local police to circumvent state law," says Justin Pearson, managing attorney for the Institute for Justice's Florida office. "That's not the way things are supposed to work."

'It Was Really the Wild West'

State Sen. Jeff Brandes (R–St. Petersburg), who sponsored the 2016 law, says that before its passage, "it was really the wild west" in Florida when it came to asset forfeiture. "You had some crazy stories where there were police departments with 10 members, and they'd have three people whose basically full-time job was asset forfeiture."

Florida, like most other states at the time, had few protections for innocent property owners and little oversight of police departments' activities. This was not without consequences.

In 2012, the Justice Department demanded that the police department in Bal Harbour, Florida—population 2,500—return $4 million in forfeited assets after audits showed the department had been misusing funds for lavish expenses, vehicles, payouts to snitches, and first-class travel. A follow-up Miami Herald investigation found the Bal Harbour police had been running a task force investigating money laundering by international drug cartels, in which task force members posed as money launderers, ostensibly to learn more about cartel networks. Over the course of the three-year investigation, the task force laundered $56 million for drug cartels through undercover police bank accounts, and took $1.7 million for themselves as commission. The Bal Harbour police made zero arrests or major drug seizures as a result of the investigation, and even when accounting for federal seizures based on tips from the task force, the task force was still funneling far more money to drug cartels than it was stopping. The Herald obtained confidential records showing that Bal Harbour officers later withdrew hundreds of thousands of dollars in cash from those accounts, and, because of lax oversight, there were no records showing where the money went.

In 2014, the Fort Lauderdale Sun-Sentinel published a report about how police in the suburb of Sunrise, Florida—population 90,000 at the time—raked in millions by using well-paid snitches to lure cocaine buyers into town from around the country, meeting them at a local TGI Fridays, and seizing their cash. Despite having a relatively small police force, Sunrise was taking in more forfeiture revenue than any other city in Palm Beach or Broward counties. The Sun-Sentinel found that a dozen members of the Sunrise Police Department's vice squad had each made hundreds of thousands of dollars in overtime pay through the stings.

The 2016 reforms raised the evidentiary standard for forfeitures from "clear and convincing" to "beyond reasonable doubt," meaning prosecutors must meet the same burden of proof required in criminal cases before police are allowed to keep seized property. The law also required an arrest before the seizure of most property (although notably not cash); raised the attorney fees awarded to owners to $2,000 when a court finds there was no probable cause for the seizure; adopted new transparency requirements for law enforcement agencies; raised the filing fee the government has to pay to initiate forfeiture actions to $1,000; and required agencies to post a $1,500 bond, payable to owners who win their property back.

Finally, Florida's new law requires any local police department that takes in at least $15,000 in a fiscal year via the Florida Contraband Forfeiture Act to donate at least 25 percent of the proceeds to community programs, such as drug prevention, youth sports, and neighborhood safety initiatives.

A Reason review of state forfeiture data showed law enforcement donating to a wide variety of causes. In 2018, for example, the Escambia County Sheriff's Office donated forfeiture revenues to, among other organizations, Pensacola Habitat for Humanity and Christian Surfers, an evangelical group whose mission is to spread the good word while shredding waves. Nonetheless, an investigation of state data conducted by the Florida news outlet ABC7 reported in 2020 that, "overall, agencies are falling short of that donation requirement."

'It Shouldn't Matter Whether It's Profitable'

While the new rules curb some of the pettiest examples of forfeiture abuse, they leave open an avenue for agencies to get around the requirements.

"What we're finding now is because of the hurdles we've placed in state law that requires at least an arrest, they're now utilizing federal law more," Brandes says. "It's jurisdiction -shopping."

Under the Justice Department's equitable sharing program, federal authorities may "adopt" state and local civil asset forfeiture cases and pursue them at the federal level. Local police departments who partner with the feds get to keep up to 80 percent of the forfeiture revenue, while the rest goes into the equitable sharing pool and is distributed among partner departments around the country. Such cases proceed under federal law and guidelines, rather than the state's.

(On the upside, participating in the Justice Department's Equitable Sharing program does come with strict controls on how revenues can be used, which is what got the Bal Harbour Police Department in trouble.)

In 2015, reacting to calls for policing reform, the Barack Obama administration limited when federal law enforcement could adopt asset forfeiture cases. But the Donald Trump administration, which touted itself as a stalwart friend of law enforcement, rescinded that memo in 2017, opening up the forfeiture spigot again. The Joe Biden administration has not re-instated the Obama-era directive, despite the lengthy criminal justice plank in the Biden campaign's platform, which included the principle that "no one should be profiteering off of our criminal justice system."

Law enforcement groups say asset forfeiture is a crucial tool to disrupt organized crime, such as drug trafficking, by targeting its illicit proceeds. The Florida Sheriff's Association did not respond to a request for comment, but the Florida Police Chiefs Association says on its website that the organization "opposes any legislation that abolishes or unreasonably restricts a law enforcement agency from implementing a properly managed civil asset forfeiture program."

The Institute for Justice gave Florida a grade of C in its recent survey of asset forfeiture laws across the country, which is an improvement over the state's D+ grade in the 2015 survey. The report cited Florida's higher burden of proof and extra protections for innocent owners but dinged it for the large financial incentive police still have to go after assets.

The report showed that Florida has the highest average dollar value for forfeitures: $4,500. This is likely a result of the raised filing fee for law enforcement seeking to seize property as well as the $1,500 bond requirement. Pearson says the extra bond requirement and higher filing fee have deterred petty seizures. "We've seen a huge drop off in forfeitures of less than $2,500, because it just doesn't make sense financially for the police to pursue them," Pearson says. "Of course, this shows that forfeiture is not about fighting crime, right? Because if you're trying to stop a crime, it shouldn't matter whether it's profitable."

Forfeiture cases often don't proceed to trial. Instead, police departments frequently cut settlement deals with property owners, agreeing to drop the case and return some (but not all) of the property.

Negotiated settlements accounted for $18.9 million of the $47.8 million that Florida law enforcement seized, according to the Florida Department of Law Enforcement's 2018–2019 asset forfeiture report. Of the 4,429 forfeiture cases initiated in fiscal year 2018, nearly a third were resolved through settlements, according to state data.

'They Want the Money'

Settling cases in this manner raises the question of exactly how departments determine which percentage of a pile of cash is an instrument of crime and which is not. After all, if the money isn't the fruit of criminal activity, then the police have no reason to hold on to any of it—in which case there are less polite ways to describe what's going on.

"It's just a shakedown," Pearson says. "Most people can't afford to wait two years to get part of their money back, because they have bills to pay. So they take the deal, and I can tell you, they will never trust law enforcement again."

Local news outlet WTSP reported in 2015 on the case of Tampa woman Antoinette Poskitt, whose 2011 Dodge Journey was seized by the Florida Highway Patrol after her boyfriend was arrested for a traffic violation. The agency offered to return the vehicle and drop a misdemeanor charge against Poskitt for allowing an unauthorized person to drive it…for $9,000.

Such settlements are not unusual around the rest of the country, either. Wayne County, Michigan, has been known to seize hundreds of cars a year without filing charges against the owners. The state attorney's office then offered owners a $900 (plus towing and storage) "settlement" to retrieve their car without going to court.

Although petty seizures have been reduced in Florida thanks to the 2016 reforms, abusive cases involving larger amounts of cash have continued to make the news. In 2018, Miami-Dade police were forced to return $20,000 in cash that the department had seized from Lizmixell Batista, a dancer at the local Cheetah Gentlemen's Club, and her husband, Ras Cates. The two were arrested following a traffic stop after police allegedly smelled marijuana in their car. A subsequent search turned up six guns, several large bottles of what cops suspected to be codeine cough syrup, and the large amount of cash.

Prosecutors dropped the charges against the couple when body-cam footage showed police didn't have permission to search the couple's trunk. The guns were all legally owned, and Batista had explained to officers why, given her profession, she would be carrying large amounts of cash. Nevertheless, the department initiated a forfeiture case against the money.

"I felt that the glitter on the seized cash was compelling evidence," defense lawyer Jude Faccidomo told the Miami Herald, "but apparently the police department disagreed."

For Faccidomo, the 2016 law hasn't changed the nature of his work much. "My feeling on the Florida Contraband Forfeiture Act is that it is too broadly construed," he says. "It is ripe for abuse and oftentime leads to essentially legalized theft by law enforcement."

The raised attorney fees "do not cover the fees for representation by any stretch of the imagination," Faccidomo says. "There's no real threat there to law enforcement that they're going to get dinged with a significant bill from the attorney if they proceed on a frivolous seizure."

And while Florida law now requires an arrest before most property can be forfeited, that protection doesn't apply to cash—which is what most cops are really after anyway. "The municipalities and law enforcement are primarily interested in liquid currency," Faccidomo says. "They don't want to take your pickup truck, because then they've got a truck that they need to liquidate. They want the money."

'The Odor of Narcotics'

One place where Florida police have found a lucrative well of forfeiture cash is airports.

In 2019, Vice reported that the Broward County Sheriff's Office had a habit of seizing cash from travelers at Fort Lauderdale–Hollywood International Airport based on the alleged odor of marijuana and suspicious activity, such as one-way tickets or short turnarounds to and from California cities. In the three years prior to its report, Vice found that the agency had seized more than $189,000 from travelers.

"In every one of the 16 recent complaints, the Broward County Sheriff's Office alleges cops approached individuals seemingly at random, that their belongings smelled like cannabis, that they had purchased one-way plane tickets with a final destination in a California city on the same day or a few days earlier, that a police K-9 detected the odor of narcotics on the money they carried, and that they provided untruthful and evasive answers as to the source of their funds and the reasons why they were traveling to the Golden State," the outlet reported.

One of those cases was Curtis Simmons, who said he was printing out his boarding pass when he was surrounded by Broward County detectives. The officers seized roughly $11,000 in cash that Simmons said he intended to buy a Rolex watch with, accusing him of being involved in drug trafficking.

"It was embarrassing," Simmons told Vice. "It seemed like they profiled me because they thought that [drug dealing] was the only way a black person could have that much money."

Vice found that just three people stopped by the task force had been arrested for drug possession the day they were stopped, and none had been charged with a drug-trafficking crime.

There's nothing illegal about flying domestically with large amounts of cash, but federal and local narcotics agents, not just in Florida but around the country, use mere suspicion to seize travelers' money, forcing them to fight in court to get it back. The Institute for Justice is currently litigating a class-action lawsuit against the DEA and Transportation Security Administration on behalf of a Tampa woman, Stacy Jones, who had $43,000 in cash seized by federal authorities at an airport in North Carolina. The DEA returned the money after the Institute for Justice challenged the seizure.

"I worked hard for this money and was intending to use it for a down payment on a house," Jones said in a press release. "It's wrong that the government treats people like criminals even though they are doing something perfectly legal. It needs to stop."

'We Don't Have It Anymore'

The Institute for Justice says there's still much room for improvement in Florida's forfeiture laws. It recommends ending civil forfeiture altogether, as three other states have done. Short of that, it suggests directing all forfeiture proceeds to non–law enforcement funds, to eliminate perverse profit incentives, and preventing state and local agencies from using the equitable sharing program to circumvent state law.

While Florida's reforms appear to have improved asset forfeiture in general, strange cases still pop up. Last March, a Florida appeals court ruled that a man named Billy Ray Shirah deserved his day in forfeiture court. The Bay County Sheriff's Office (BCSO) had seized Shirah's 75-inch television and Playstation 4 while executing a drug search warrant on his father.

The sheriff's office initially denied taking the property. In a later court hearing, though, the sheriff's office admitted that it had once had Shirah's television and PS4. Unfortunately, it said, they had been mislaid.

"The bottom line is, we did have the property, and we don't have it anymore," a representative of the BCSO told the court, according to a transcript of the hearing.

"What happened to it?" the judge asked.

"I do not know."

One wonders where a 75-inch television could have disappeared to. Such mysteries likely won't be solved until there's more oversight of asset forfeiture in Florida.

As for Miladis Salgado, she eventually got her money back, although by that time her daughter's birthday had long since passed. The government refused to pay attorney fees for her lengthy legal battle.

"Miladis' case is over, but she was never made whole," Pearson says. "She did nothing wrong, but the government was able to game the system to avoid responsibility for the harm it caused. And her daughter's quinceañera will never happen."