Title: Fla

IN THE CIRCUIT COURT OF THE 12^TH JUDICIAL CIRCUIT
IN AND FOR MANATEE COUNTY, FLORIDA

[ ],

	Petitioner,			CASE NO. 					

v.						DIVISION: 		

[ ],

	Respondent.
						/

PETITION FOR WRIT OF MANDAMUS

	COMES NOW, the petitioner, [ ], by and through his undersigned Counsel, pursuant to the authority granted by Article V, Section 5, of the Constitution of the State of Florida, and Rule 1.630, of the Florida Rules of Civil Procedure, and files this petition for a writ of mandamus against the respondent, [ ], in the State of Florida, and in support thereof states as follows:
Facts
1.	The following events all occurred in the City of [ ], in the County of [ ], in the State of Florida.
2.	The following actions were taken by [ ] police officers who, at all times relevant herein, were in the employ of the City of [ ] and acting within the scope of their employment.
3.	On July 6, 2006, Officer [ ], of the [ ] City Police Department, an employee of the Respondent, responding to a robbery call, observed the petitioner walking on the Westside of East Meadows, in the City of [ ], and pulled up next to him to ask him if he had called for police assistance.

This information was taken from records provided by the Bradenton Police Department in response to Petitioner’s Public Records Requests.

4.	The petitioner responded “no”, and directed the officer to another location where the call might have originated from.
5.	Officer [ ] investigated the other location and found no victims or suspects.
6.	Shortly thereafter, Officer [ ] then responded to a call he overheard from [ ] Police Officer [ ] who said he found the possible robbery victim.
7.	Officer [ ] proceeded to Officer [ ]’s location and noticed that it was the petitioner, whom he had encountered earlier, except that he was wearing a tank top instead of a shirt.
8.	Officer [ ] noticed what looked like a large amount of money rolled up with black rubber-bands, allegedly in plain view, in petitioner’s right shorts pocket.
9.	Officer [ ], of the [ ] Police Department, allegedly obtained consent from the petitioner to search his person and found $[ ] in U.S. currency on the petitioner’s person.
10.	Officer [ ] questioned the petitioner about why he was carrying so much money on his person.
11.	The petitioner allegedly gave two different stories about the cash: he was self sufficient and his mother owns a big business, he was going to meet some girls and take them back to Orlando for fun.
12.	The petitioner then explained he had walked out of the apartment complex with a friend, someone came from behind him with a gun; he looked back for one second and then ran away.
13.	The petitioner could not give an accurate description of the suspect, he could not provide a direction of travel, and he did not know if the suspect had left on foot or in a vehicle.
14.	The petitioner could not describe the gun that the suspect used and said he was so scared he did not have time to look.
15.	When asked why he did not ask for assistance from Officer [ ] when he encountered him earlier, the petitioner allegedly stated that he was walking away from the suspect.
16.	Officer [ ] had not observed anyone when he entered the apartment complex.
17.	Gun shell casings were found on the scene.
18.	The petitioner was handcuffed, placed under arrest, and charged with violating Section 896.102, of the Florida Statutes (currency more than $10,000.00 without reporting), a misdemeanor.  A copy of the Probable Cause Affidavit, Petitioner’s Exhibit “A”, is hereto attached.
19.	While the petitioner was in the custody and control of the [ ] Police Department, he was presented with a document titled “[ ] City Police Department, [ ], Florida, Contraband Forfeiture Agreement.”  A copy of Agreement, Petitioner’s Exhibit “B”, is hereto attached.
20.	Paragraph 1 and 2 of the above referenced agreement establishes that the petitioner is acknowledging his ownership of the $[ ] in U.S. currency (hereinafter referred to as the money).
21.	The remainder of the agreement attempts to have the petitioner surrender the money over to the [ ] Police Department and to waive his rights to any judicial review or remedies.
22.	Absent from the agreement are the specific notices and other language required by Chapter 932, of the Florida Statutes (Florida Contraband Forfeiture Act).
23.	On August 21^st, 2006, Assistant State Attorney, [ ], filed a Notice with the Manatee County Court that no criminal charges would be filed against the petitioner for his having $[ ] on his person.  Case No. [ ].  A copy of the Notice, Petitioner’s Exhibit “C”, is hereto attached.
24.	On August 29, 2006, Assistant State Attorney, [ ], authored the attached document advising that the money, obtained by the [ ] Police Department from the petitioner, was no longer required as evidence.  A copy of said writing, Petitioner’s Exhibit “D”, is hereto attached.
25.	Yet well before the case was dismissed by the State Attorney’s Office, on July 10, 2006, the [ ] Police Department had already deposited the $[ ] it took from the petitioner into its bank account with [ ].  A copy of the deposit slip and record, Petitioner’s Exhibit “E”, is hereto attached.
26.	On September 6, 2006, a letter was sent by Petitioner’s criminal defense counsel to the [ ] Chief of Police, requesting the return of the money.
27.	After a phone call it was learned that an Officer at the agency had decided that he was not going to return the money to the petitioner until a Judge Orders him to do otherwise.
28.	Petitioner’s counsel made attempts to contact the attorney who handled the [ ] Police Department’s forfeiture cases and was informed that they could not provide any information because the case had not been turned over to them by the [ ] Police Department.

Argument
29.	The actions taken by the City of [ ] through its police department deprive the citizenry of the City of [ ] of their rights to be secure in their persons and properties and to have due process.  Fla. Const. Art. I, § 9; U.S. Const. Amend. V.
30.	The use of arrests or threats of arrests as duress for the purpose of having citizens sign over their rights to personal properties and to waive their rights to a judicial review is in complete violation of Florida’s Contraband Forfeiture Act.  Fla. Stat. §§ 932.701-932.707.
It is also the policy of this state that law enforcement agencies ensure that, in all seizures made under the Florida Contraband Forfeiture Act, their officers adhere to 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 or ethnicity.

Fla. Stat. § 932.704(1).

31.	The State Supreme Court recently restated its opinion the Florida’s Contraband Forfeiture Act be strictly interpreted due to the harshness of its implications on individual rights.  Velez v. Miami-Dade County Police Department, 934 So. 2d 1162 (Fla. 2006).
32.	The State Legislature enacted specific legal requirements which all State police agencies must follow before depriving its citizens of their right to personal properties, and permitting those agencies to circumvent the Courts by the use of agreements or other intentional tactics greatly threatens the integrity of those agencies and defeats our Constitutional system of checks and balances that serve to protect individual members of the public from abusive government powers.  Fla. Stat. §§ 932.701-932.707.
33.	If this Court were to permit the above actions to continue, numerous citizens of the City of [ ] without any resources or capacity to seek any redress, will remain at peril of being threatened and intimidated by its police into signing statutorily unauthorized documents that surrender away their rights to approach this Honorable Court in search of justice to enforce their Federal and State Constitutional rights securing their persons and properties from police actions until a Court of law Orders otherwise.  Fla. Const. Art. I, § 9; U.S. Const. Amend. V.
34.	There are no other remedies that will protect the petitioner and citizenry of the City of [ ], and the facts of this case are capable of repeating themselves and avoiding this Court’s review.  Kight v. Dugger, 574 So. 2d 1066 (Fla. 1990).
35.	The Court’s decision in this matter has the potential to stop such practices throughout and beyond its jurisdiction.
WHEREFORE, the petitioner respectfully prays that this Court will enter an Order that:
A.	Immediately halts the practices of the City of [ ], through its police department, of presenting arrestees with documents to sign away their rights to properties, and Orders them to strictly abide by Sections 932.701-932.707, of the Florida Statutes;
B.	Requires the [ ] Police Department, through their attorney, to immediately file for a civil forfeiture proceeding for petitioner’s property and to provide petitioner’s attorney with notice of same; and
C.	Provides for any further relief which may be warranted under the facts and circumstances of this cause.
Dated this ____ day of October, 2006.

Respectfully submitted,
The Law Offices of 
Van Ness & Van Ness, P.A.

__________________________
Louis Daniel Lazaro, Esq.
Attorney for the Petitioner
46 N. Washington Blvd. Suite 9
Sarasota, Florida 34236
Telephone:	941/362-3560
Facsimile:	941/362-3632
Florida Bar No.: