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"Contraband Confiscation Agreement" circumstances  ruled unconstitutional violation of due process: judge orders Bradenton police to return $10,200 or use court system to file forfeiture proceedings. 
Bradenton Police Department continues policy of bypassing court system by coercing victims into signing forfeiture contract waiving right to day in court.
by Judy Osburn   

Each year police in Bradenton, Florida side-step judicial oversight provided in Florida's Contraband Confiscation Act by intimidating hundreds of people into signing roadside agreements to give up property such as cash and cars and waive all rights to contest the confiscation in court.  "Imagine having to choose between signing over your cash or going to jail," Tampa Bay defense attorney Denis DeVlaming said earlier this year. "That's the situation that these people face. It's a scary proposition."

Twenty-year-old Delane Johnson was not arrested when he consented to a search outside his apartment in July, 2006, and police coerced him into handing over $10,200 and signing Bradenton's Contraband Confiscation Agreement.  On February 9, 2007, state Circuit Judge Peter Dubensky rejected the city of Bradenton's motion to dismiss Johnson's legal challenge of the waiver agreement, and ordered police to either return Johnson's cash or file suit for forfeiture against the money in state court.  The court determined that the contract signed by Johnson "and the circumstances surrounding the making of the contract fail to comply with even the rudimentary elements of due process."

Though his ruling applies only to Johnson's case, the judge wrote a scathing criticism of Bradenton's waiver agreement policy: "Taken to its logical extreme," Dubensky wrote, the police "could present this agreement to any citizen stopped for any reason and request forfeiture of any item of property" in exchange for signing the document. The judge continued, "It is not remotely conceivable that the citizenry would countenance such a state of affairs."

Bradenton police spokesman stated the his department had not yet decided whether to return Johnson's money to him or file suit for forfeiture.  However, the department stands little chance of prevailing in a state forfeiture proceeding, as the statutory deadline for filing a notice of intent to forfeit under Florida law passed last October.

Attorney Varinia Van Ness, co-counsel for Johnson, questioned the impact Dubensky's favorable ruling will have on the police department, stating, "I'm hoping they will no longer use these agreements to take people's property." But if the department continues to go by its policy rather than state laws she may file a motion to reconsider the future of the department's policy. "I would hope they would start obeying the law of the land, so, in the future, this doesn't happen to other people," she said.

Earlier this year at a January meeting about the legal challenge to the controversial waiver agreement policy Bradenton Police Chief Michael Radzilowski told Florida's Herald-Tribune Editorial Board members that he was "really looking forward to the judge for guidance," stating, "I want to do the right thing, and I want to follow the law."  But then four days after the judge's strongly worded guidance the Bradenton Police Department announced that it will continue to follow its policy of completely bypassing the court system, claiming department's unique contraband forfeiture agreement supersedes the state law that provides property owners a chance to contest the confiscation in court.

Varinia Van Ness wrote in a letter to the Bradenton Herald published February 21:

I am Delane Johnson's attorney, who just obtained a favorable ruling from Judge Peter Dubensky regarding the Bradenton Police Department's Contraband Forfeiture Agreement procedures.

Friday, I finished a deposition of Detective Mike Skoumal of the Bradenton Police Department. He testified at a deposition, unrelated to the Johnson case, that as late as last week (Thursday) he used the "contract" to take someone's property.

It was reported in your paper that Mayor Wayne Poston said, "Obviously, we'll do whatever the judge says. If he says we ought not to do (the waivers), that's fine."

It was also reported that Police Chief Michael Radzilow-ski said, before the judge's ruling, "I want to follow the law."

The ruling was signed by the judge on Feb. 9. I wonder why it has taken so long for the judge's opinion to sink in on the mayor and the chief of police and for the two of them to communicate to employees the doubts expressed by the judge.

Whatever the case, the judge's ruling regarding these contracts has had little effect, if any, on the manner in which the Bradenton Police Department takes people's property and twists the law!

Bradenton Police Maj. William Tokajer responded to Judge Dubensky's ruling by continuing to back the policy, and gave no indication whether the department will default to the state forfeiture laws any time in the future. "We will review the judge's ruling and consult with our legal counsel to determine which action we will take. ...We suspended the policy last year while it was being reviewed by our attorneys. Minor changes were made and the civil agreement was deemed legal by our counsel," Tokajer said.

The minor change gives victims of Bradenton police piracy policy five days to cancel the agreement, making it null and void-still completely bypassing the court system and still far short of "even the rudimentary elements of due process."