The “Clean Money” Rule

In Fleury v. State, 254 So. 3d 975 (Fla. 4th DCA 2018), Mr. Fleury was charged with drug trafficking. His criminal defense lawyer petitioned for a writ of habeas corpus attacking a court imposed condition requiring him to prove that the source of the money used to post bond was not tainted by illegal activities.

According to the probable cause affidavit, police officers executed a search warrant at a home that Mr. Fleury shared with his brother and found trafficking quantities of drugs, over $14,000 in cash, and several firearms. Mr. Fleury was charged with trafficking heroin, fentanyl, and cocaine. He was also charged with possession of marijuana with intent to sell, and as a felon in possession of a firearm or ammunition. At his first appearance, the court set a $500,000 bond. Defense counsel moved to modify the conditions of pretrial release asking the court reduce the amount of the bond, and the court agreed to lower the bond. The prosecutor asked the Judge to require Mr. Fleury to prove that the source of the money to be used to post bond was not tainted by illegal activities.

Defense counsel reported the cash would come from family relatives of Mr. Fleury, but the court agreed that the “clean money” condition was appropriate.

The Judge suggested that Mr. Fleury’s family submit and affidavit to prove that the cash was not derived from illegal activities. The court lowered the bond to $138,000 and entered an order requiring Mr. Fleury to prove that the money was obtained from a “legitimate source.” Defense counsel later objected, referencing “conflict” in case precedents.

In his petition for a writ of habeas corpus, Mr. Fleury argued that the court erred in imposing the “bond source condition,” where the prosecutor had not filed a motion to modify the bond conditions under Fla.R.Crim.Pr. 3.131(d)(2), and that pretrial detention based on such condition is not authorized by law. However, Fla. Stat. 903.046(2)(f) requires a court setting bond to consider:

The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium falls upon the defendant or other person proffering them to obtain the defendant’s release. Id. (emphasis supplied).

The underlined language expressly authorizes the “bond source condition.”

The court of appeal disagreed that the “bond source condition” results in unconstitutional detention. Article I, § 14 of the Florida Constitution provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

The court ruled that the bond source condition does not deny the accused “pretrial release on reasonable conditions.” As argued by the prosecutor at the bond hearing, there was probable cause that Mr. Fleury engaged in drug trafficking. The court acknowledged that the condition may result in temporary detention until satisfied but did not believe that it amounts to a denial of “pretrial release on reasonable conditions” as required by the Florida Constitution. See also Fla. Stat. § 903.046(1) (“The purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant.”)

The court of appeal explained that if an accused could use tainted funds from unlawful activities to post bond and immediately be released before an examination into the source of funds, then the purpose and legislative intent of the bond statute would be defeated See Fla. Stat. § 903.046(2)(h) (requiring a court setting bond conditions to consider the street value of the drugs involved and explaining:

“It is the finding and intent of the Legislature that crimes involving drugs and other controlled substances are of serious social concern, that the flight of defendants to avoid prosecution is of similar serious social concern, and that frequently such defendants are able to post monetary bail using the proceeds of the unlawful enterprises to defeat the social utility of pretrial bail. Therefore, the courts should carefully consider the utility and necessity of substantial bail in relation to the street value of the drugs or controlled substances involved.”) (emphasis supplied).

Like the “bond source condition” imposed by the state and federal courts, criminal defense lawyers must also impose a “clean money” requirement before accepting fees from clients for representation. The funds used to post bond and to retain defense lawyers must be “innocent funds.” See Luis v. United States, 578 U.S. 5 (2016) (United States Supreme Court holding that pretrial restraint of the defendant’s legitimate, untainted funds needed to retain counsel of choice violates the Sixth Amendment to the United States Constitution).