Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brevard County Sheriff's Office v. Brown

Florida Court of Appeals, Fifth District

February 3, 2017

BREVARD COUNTY SHERIFF'S OFFICE, Appellant,
v.
KEVIN CHARLES BROWN, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Brevard County, George W. Maxwell III, Judge.

          Jason M. Gordon and Robin M.L. Cornell, of Gordon & Cornell, Cocoa Beach, for Appellant.

          Reed C. Cary, of Law Office of Reed C. Cary, Melbourne, for Appellee.

          BERGER, J.

         During the execution of a search warrant, members of the Brevard County Sheriff's Office (Brevard) located a glass pipe containing methamphetamine residue inside Kevin Brown's 1997 Chevrolet Corvette.[1] Thereafter, Brevard sought forfeiture of Brown's Corvette under the Florida Contraband Forfeiture Act (FCFA). See §§ 932.701-.706, Fla. Stat. (2015). At the adversarial preliminary hearing, the trial court dismissed Brevard's complaint, with prejudice, after concluding possession of the pipe was insufficient to establish that the Corvette was used in committing or aiding and abetting the commission of a felony. Brevard argues this was error. It insists that possession of the pipe constitutes a felony offense, regardless of how it was charged, because the pipe field-tested positive for methamphetamine and, further, that because it was unlawful for Brown to conceal the pipe in the Corvette, the Corvette was subject to forfeiture under the FCFA. We agree and reverse.

         As we have previously recognized, forfeiture proceedings involve a two-step process. Patel v. State, 141 So.3d 1239, 1244 (Fla. 5th DCA 2014) (citing Gomez v. Vill. of Pinecrest, 41 So.3d 180, 184 (Fla. 2010)). The first stage, outlined in section 932.703(2), Florida Statutes (2015), involves the seizure of property. The second stage involves the actual forfeiture of property. See id. Adversarial preliminary hearings, such as the one at issue in this case, occur during the first stage of the proceedings. See § 932.703(2), Fla. Stat. (2015). The purpose of an adversarial preliminary hearing is "to determine whether probable cause exists to believe that the property was used in violation of the FCFA." Patel, 141 So.3d at 1242; see also §§ 932.701(2)(a)12. (f), 932.703(2)(a), Fla. Stat. (2015). Only if the trial court determines probable cause exists for the seizure may the forfeiture proceed. § 932.703(2)(c), Fla. Stat. (2015).

         It is unlawful to use any motor vehicle to facilitate the concealment or possession of any contraband article. § 932.702(3), (4), Fla. Stat. (2015). Section 932.701(2)(a) defines a contraband article as:

1. Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893, if the totality of the facts presented by the state is clearly sufficient to meet the state's burden of establishing probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.

§ 932.701(2)(a)1., Fla. Stat. (2015). Methamphetamine is a controlled substance. See § 893.03(2)(c)4., Fla. Stat. (2015). A pipe containing it is paraphernalia. See § 893.145(12), Fla. Stat. (2015). Both are contraband articles under the FCFA. See § 932.701(2)(a), Fla. Stat. (2015). Because possession of methamphetamine is a felony, any motor vehicle containing the drug is subject to forfeiture. See § 932.703(4), Fla. Stat. (2015).

Specifically, section 932.703(4) provides:
(4) In any incident in which possession of any contraband article defined in s. 932.701(2)(a) constitutes a felony, the vessel, motor vehicle, aircraft, other personal property, or real property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. It shall be presumed in the manner provided in s. 90.302(2) that the vessel, motor vehicle, aircraft, other personal property, or real property in which or on which such contraband article is located at the time of seizure is being used or was attempted or intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in s. 932.701(2).

§ 932.703(4), Fla. Stat. (2015) (emphasis added). Here, because the pipe located in Brown's Corvette tested positive for methamphetamine and possession of methamphetamine is a felony, Brown's Corvette is subject to forfeiture. See id. It does not matter whether the Corvette was used to actually transport the methamphetamine, it is subject to forfeiture if it merely "possesses" the illegal substance. See State v. Crenshaw, 548 So.2d 223, 226 (Fla. 1989) ("[P]ossessing drugs, even solely for personal use, subjects individuals not only to criminal penalties but also to forfeiture of the vehicle, boat, or aircraft in which the drugs are found. It makes no difference whether the drugs are on the seat, in the console, or in the occupant's pocket."); In re Forfeiture of 1987 Cadillac, Serial No. 1G6CD5186H4292327, 576 So.2d 900, 900 (Fla. 1st DCA 1991) (finding that claimant's possession of cocaine while he was in his vehicle supports and requires forfeiture of the vehicle pursuant to section 932.703); accord United States v. One (1) 1983, Fifty-Seven Foot (57') Gulfstream Vessel, M/V Christy Lee, Official Documentation No. 643659, 640 F.Supp. 667, 672 (S.D. Fla. 1986) ("[A] vessel is subject to forfeiture if it merely 'possesses' the marijuana."). Furthermore, "[t]he courts have uniformly held that a vehicle is subject to forfeiture no matter how small the quantity of contraband found." United States v. One (1) 1982 28' Int'l Vessel, 741 F.2d 1319, 1322 (11th Cir. 1984) (citing United States v. One 1976 Porsche 911S, VIN 911-6200323, Cal. License 090 NXC, 670 F.2d 810, 812 (9th Cir. 1979) (affirming forfeiture of automobile where .226 grams of marijuana was found in the trunk of the automobile and rejecting argument that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.