HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 485 Return of Weapons and Arms Following an Arrest
SPONSOR(S): Judiciary Committee, Brackett
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 18 Y, 0 N Padgett Hall
2) Judiciary Committee 15 Y, 0 N, As CS Padgett Kramer
SUMMARY ANALYSIS
Generally, a law enforcement officer is authorized to search a person incident to a lawful arrest and seize items discovered
on the person arrested or within his or her immediate control if the seizure is necessary to protect the officer from attack,
prevent an escape, or assure the subsequent lawful custody of the fruits of a crime or the articles used in the commission
of a crime. A law enforcement agency holds seized property that is needed for the prosecution of a crime as evidence. All
other seized property that is not subject to forfeiture under the Florida Contraband Forfeiture Act (FCFA) under ss.
932.701–932.7062, F.S, is either held by a law enforcement agency as “personal property” or “safekeeping property.”
Section 790.08, F.S., requires every law enforcement officer who makes an arrest under s. 790.07, F.S., which prohibits
the use or attempted use of a weapon, electric weapon or device, or arms (weapon or firearm) in committing a felony, or
under any other law or municipal ordinance to take possession of any weapon or firearm found upon the person arrested
and deliver such weapon or firearm to the sheriff or chief of police of the jurisdiction in which the arrest was made. The
sheriff or the chief of police must retain such weapon or firearm until after the trial of the person arrested.
Sections 790.08(2) and (3), F.S., require the forfeiture of a weapon or firearm if a person is convicted of violating s.
790.07, F.S., or a similar offense involving the use or attempted use of a weapon or firearm in committing a felony, and
the return of a weapon or firearm if a person is acquitted or such charges are dismissed. The forfeiture and return
requirements do not apply in circumstances where a weapon or firearm was seized as evidence but was not used in
committing a felony or where a weapon or firearm is seized and held by a law enforcement agency as safekeeping
property. Because there is currently no statute prescribing procedures for the return of a weapon or firearm held as
safekeeping property, the specific procedures for returning such property vary by jurisdiction.
Section 933.14(3), F.S., prohibits a law enforcement agency from returning a pistol or firearm without an order of a trial
court judge if such pistol or firearm has been taken by any officer with a search warrant or without a search warrant upon
a view by the officer of a breach of the peace. Courts have interpreted “breach of the peace” as a generic term that
includes “…all violations of the public peace, order, or decorum. A breach of the peace includes the violation of any law
enacted to preserve peace and good order.”
CS/HB 485 amends s. 790.08, F.S., to delete the requirement for a sheriff or chief of police to retain custody of all
weapons or firearms seized incident to an arrest until after the trial of the person arrested. Instead, the bill requires a law
enforcement agency to return any weapons or firearms that are taken from a person following an arrest, but that are not
seized as evidence or seized and subject to forfeiture under the FCFA upon request of the person arrested within 30 days
after such request is made if he or she:
Has been released from detention;
Provides a form of government-issued photographic identification; and
If requesting the return of a firearm, successfully completes a criminal history background check confirming the person
is not prohibited from possessing a firearm under state or federal law, including not having any prohibition arising from
an injunction, a risk protection order, or any other court order prohibiting the person from possessing a firearm.
The bill amends s. 933.14, F.S., to delete a provision requiring an order of a trial court judge to return a pistol or firear m to
its owner if such pistol or firearm was taken by an officer upon a view by the officer of a breach of the peace.
The bill authorizes a sheriff or chief of police to develop reasonable procedures to ensure the timely return of weapons or
firearms which are not inconsistent with the bill. The bill prohibit s a sheriff or chief of police from requiring a court order to
release weapons or firearms that are not seized as evidence in a criminal proceeding unless there are competing claims
of ownership of such weapons or firearms.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Seizing Property Following an Arrest
Generally
Section 901.21, F.S., authorizes a law enforcement officer to search a person who is lawfully arrested
and the area within the person's immediate presence for the purpose of:
Protecting the officer from attack;
Preventing the person from escaping; or
Discovering the fruits of a crime.
A law enforcement officer conducting such a lawful search without a warrant may seize all instruments,
articles, or things discovered on the person arrested or within the person's immediate control, the
seizure of which is reasonably necessary for the purpose of:
Protecting the officer from attack;
Preventing the escape of the arrested person; or
Assuring subsequent lawful custody of the fruits of a crime or of the articles used in the
commission of a crime.
A law enforcement agency holds seized property that is needed for the prosecution of a crime as
evidence.1 All other seized property that is not contraband is either held by a law enforcement agency
as “personal property” or “safekeeping property.” 2
Weapons, Electric Weapons or Devices, or Arms
Section 790.08, F.S.,3 requires every law enforcement officer who makes an arrest under s. 790.07,
F.S.,4 or under any other law or municipal ordinance to take possession of any weapons, 5 electric
weapons or devices,6 or arms mentioned in s. 790.07, F.S.,7 (weapons or firearms) found upon the
person arrested and deliver such weapons or firearms 8 to the sheriff or chief of police of the jurisdiction
1 Broward County Sheriff’s Office, Evidence Unit, https://www.sheriff.org/LE/Pages/Evidence-and-Property-Unit.aspx (last visited Feb.
21, 2023). Nassau County Sheriff’s Office, Property & Evidence, https://nassauso.com/administrative-services/property-evidence/ (last
visited Feb. 21, 2023).
2 Id. Personal property includes items such as a wallet, keys, or watch. All other non -evidentiary items seized from a person at the time
of arrest, such as weapons or firearms, are generally held by a law enforcement agency as safekeeping property.
3
Section 790.08, F.S., does not apply to a municipality in a county that has home rule under the Florida Constitution. S. 790.08(7), F.S.
These counties include Duval, Monroe, Miami-Dade, and Hillsborough. 95-82 Fla. Op. Att’y Gen. (1995).
4 Section 790.07, F.S., prohibits a person from displaying, using, threatening, or attempting to use:
Any weapon or electric weapon or device or carrying a concealed weapon while committing or attempting to commit any felony
or while under indictment; or
A firearm while committing or attempting to commit any felony.
A violation involving a weapon or electric weapon or device is a third degree felony, punishable by up to five years imprison ment and a
$5,000 fine. Ss. 775.082, 775.083, or 775.084. A violation involving a firearm is a second degree felony, punishable by up to 15 years
imprisonment and a $10,000 fine. Ss. 775.082, 775.083, or 775.084.
5 “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadl y
weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife. S. 790.001(20), F.S.
6 “Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesi gned,
used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury. S. 790.001(7), F.S.
7 The term “arms” is not defined in ch. 790, F.S., or in s. 790.07, F.S. However, from the context of s. 790.07, F.S., the term “arms”
appears to mean a firearm. See infra, note 4. For purposes of this analysis, the terms “arms” and “firearms” are interchang eable.
8 “Firearm” means any weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by
the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; an y destructive device; or
any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a
crime. S. 790.001(9), F.S.
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in which the arrest was made.9 The sheriff or the chief of police must retain such weapons or firearms
until after the trial of the person arrested.10
Return of Seized Property Held by a Law Enforcement Agency
Weapons or Firearms Held as Evidence
Section 790.08(1), F.S., requires a sheriff or chief of police to retain a seized weapon or firearm until
after the trial of the person arrested.11 If a person arrested is convicted of violating s. 790.07, F.S., a
similar offense under any municipal ordinance, or any other offense involving the use or attempted use
of a weapon or firearm, such weapon or firearm is forfeited to the state.12 If a person arrested is
acquitted of such an offense or the charges against a person are dismissed, the weapon or firearm
seized must be returned to the person.13 If a person fails to claim a weapon or firearm within 60 days of
his or her acquittal or the dismissal of charges, the weapon or firearm must be delivered to the sheriff of
the county in which the person was arrested.14 If a person fails to claim a weapon or firearm within six
months from the date it was delivered to the sheriff, such weapon or firearm is forfeited to the state. 15
The forfeiture and return requirements in s. 790.08(2) and (3), F.S., do not apply if a person is arrested
for committing an offense in which a weapon or firearm is seized and held as evidence but was not
used in committing a felony (e.g. unlawfully carrying a concealed firearm in violation of s. 790.01(3),
F.S.)16 In such circumstances, the return of such a weapon or firearm is governed by s. 705.105, F.S.,
which generally provides for the disposition of unclaimed evidence following the conclusion of a criminal
proceeding.17
Weapons or Firearms Held as Safekeeping Property
Similarly, the forfeiture and return requirements in s. 790.08(2) and (3), F.S., do not apply to a weapon
or firearm seized incident to an arrest that is held as safekeeping property and not needed as evidence
since the weapon or firearm was neither used in committing a felony nor related to the crime for which
the person was arrested (e.g. a person is arrested for driving with a suspended license and is lawfully
carrying a concealed firearm at the time of his or her arrest). Because there is currently no statute
providing for the return of a weapon or firearm held as safekeeping property, the specific procedures for
returning such property may vary by jurisdiction.18 Certain general procedures, such as requiring a
person to produce photo identification and complete a background check prior to the release of a
firearm, appear universal.19 However, the specifics of such procedures, such as the proof of ownership
required to claim property, the time required to complete a background check, and the need for judicial
9
S. 790.08(1), F.S.
10 Id.
11 It appears, in practice, that the requirement in s. 790.08(1), F.S., to retain a weapon or firearm until after the trial of the person
arrested applies only to a weapon or firearm that is seized as evidence. See infra note 21.
12 S. 790.08(2), F.S.
13 S. 790.08(3), F.S.
14
If the weapon, electric weapon or device, or firearm was delivered to the sheriff immediately following a person’s arrest, no transfer is
necessary. Id.
15 S. 790.08(5), F.S.
16 See Darman v. State, 774 So. 2d 798 (Fla. 4th DCA 2000).
17 Under s. 705.105, F.S., title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful
investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in th e custody of a
law enforcement agency vests permanently in the law enforcement agency 60 days after the conclusion of the proceeding. S.
705.105(1), F.S.
18 Brevard County Sheriff’s Office, Evidence Unit, https://www.brevardsheriff.com/home/commands-services/administrative-services-
command/evidence-unit/ (last visited Feb. 21, 2023). Broward County Sheriff’s Office, Evidence Unit, https://www.sheriff.org/LE/
Pages/Evidence-and-Property-Unit.aspx (last visited Feb. 21, 2023). Escambia County Sheriff’s Office, Evidence Unit,
https://www.escambiaso.com/departments/specialized-units/evidence-unit/ (last visited Feb. 21, 2023). Hillsborough County Sheriff’s
Office, Return of Property, https://www.teamhcso.com/Section/d8e5482d-66a8-44bf-9ac6-8913eca8da4c/Property-and-
Evidence#:~:text=Return%20of%20Property&text=You%20must%20bring%20the%20original,be%20presented %20to%20claim
%20property (last visited Feb. 21, 2023). Nassau County Sheriff’s Office, Property & Evidence, https://nassauso.com/administrative-
services/property-evidence/ (last visited Feb. 21, 2023). Pinellas County Sheriff’s Office, Property & Evidence, https://pcsoweb.com/
property-evidence (last visited Feb. 21, 2023).
19 Id.
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approval prior to releasing a weapon or firearm, may vary.20 The lack of any standardized procedures
across jurisdictions for returning a weapon or firearm that is held as safekeeping property may cause
confusion and delay in returning a weapon or firearm to its owner. In addition, in those jurisdictions that
require a court order to release a weapon or firearm, the owner of the weapon or firearm may incur the
added expense of hiring an attorney to file a motion for the return of his or her property with the court.
Pistol or Firearm Taken by a Search Warrant or Upon a View of the Breach of the Peace
Section 933.14(3), F.S., prohibits a law enforcement agency from returning any pistol or firearm without
an order of a trial court judge if such pistol or firearm has been taken by any officer:
With a search warrant; or
Without a search warrant upon a view by the officer of a breach of the peace.
Courts have interpreted “breach of the peace” as a generic term that includes “…all violations of the
public peace, order, or decorum. A breach of the peace includes the violation of any law enacted to
preserve peace and good order.”21 As such, a pistol or firearm seized by a law enforcement officer
pursuant to an arrest for a variety of criminal offenses may not be returned to its owner without an order
of a trial court judge.
Florida Contraband Forfeiture Act
Seizure
The Florida Contraband Forfeiture Act (FCFA)22 authorizes a law enforcement agency to seize a
contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in
violation of the FCFA, or in, upon, or by means of which any violation of the FCFA has taken or is
taking place.23 A “contraband article” includes:
A controlled substance as defined in ch. 893, F.S., or a substance, device, paraphernalia, or
currency or other means of exchange that was used, attempted, or intended to be used in
violation of ch. 893, F.S.;
Gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which
was used, attempted, or intended to be used in violation of Florida gambling laws;
Equipment, liquid or solid, which was used, attempted, or intended to be used, in violation of
Florida beverage or tobacco laws;
Motor fuel upon which the motor fuel tax has not been paid;
Personal property that was used or attempted to be used as an instrumentality in, or to aid or
abet the commission of, any felony, or which is acquired by proceeds obtained from a violation
of the Act;
Real property that was used or attempted to be used as an instrumentality in, or to aid or abet
the commission of, any felony, or which is acquired by proceeds from a violation of the Act;
Any personal property in the possession of or belonging to any person who takes aquaculture
products in violation of s. 812.014(2)(c), F.S.;
A motor vehicle offered for sale in violation of s. 320.28, F.S.;
A motor vehicle used in the cour