FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, George W. Maxwell
M. Gordon and Robin M.L. Cornell, of Gordon & Cornell,
Cocoa Beach, for Appellant.
C. Cary, of Law Office of Reed C. Cary, Melbourne, for
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. 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.
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).
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 ...