Alvarez v. City of Hialeah

Decision Date04 May 2005
Docket NumberNo. 3D04-1797.,3D04-1797.
Citation900 So.2d 761
PartiesAlvaro ALVAREZ, et al., Appellants, v. CITY OF HIALEAH, Appellee.
CourtFlorida District Court of Appeals

Jason M. Wandner, for appellants.

Rafael E. Granado, Coral Gables, for appellee.

Before COPE, GREEN, and WELLS, JJ.

GREEN, J.

Alvaro Alvarez and his live-in girlfriend, Odalys Vargas (collectively "claimants"), appeal a non-final order entered after an adversarial preliminary hearing finding probable cause for the seizure of $21,350.00 in U.S. currency from Alvarez's vehicle pursuant to a stop. The claimants argue, among other things, that the City of Hialeah ("City"), as the seizing agency, could not establish probable cause that this money was used in violation of Florida's Contraband Forfeiture Act1 because the initial stop of the vehicle was unlawful. We agree and reverse.

At the adversarial preliminary hearing, Lieutenant Humberto Valdes of the Hialeah Police Department was called to testify on behalf of the City. He stated that at about noon, on the date in question, he was involved in a stakeout of a warehouse area in Hialeah. That stakeout was unrelated to this case. Lt. Valdes was situated in a residential area comprised of a row of townhomes directly behind the warehouse district. While parked in this area, Lt. Valdes observed two men in a covered pick-up truck pull into the driveway of one of the townhomes. There were no vehicles parked in the driveway and it did not appear that anyone was home. The home had visible iron security bars on its front door and windows.

Claimant Alvarez was the driver of the truck. He and his passenger, later identified as Juan Gonzalez, got out of the truck. Lt. Valdes observed them "standing around the front of the house looking around." Lt. Valdes did not see them attempt to open or knock on the door. Lt. Valdes further testified that the two men momentarily walked to the side of the house and "loitered" for a short time. They eventually returned to the front of the house, got back into the truck and drove away. Lt. Valdes estimated that the two men were at the home for approximately two minutes.

Based upon his twenty years in law enforcement, Lt. Valdes testified that he believed that the two men were "casing" this home to burglarize it. He decided to investigate further. He followed the pick-up truck for approximately three blocks. Although he did not observe the driver of the truck commit any traffic infractions or other violations of law, Lt. Valdes testified that he decided to conduct a "traffic stop" to determine whether the two men were burglars "casing out" the home. Police backup was called to the scene.

During the stop, the two men were ordered out of the vehicle, separated and questioned. They gave conflicting accounts about why they had gone to the home. Alvarez stated that he was there to meet a friend. His passenger, Gonzalez, however, said that they were just cruising through the area. The police requested and received Alvarez's written permission to search the truck. The search revealed $21,350.00 under the front seat.

The money was wrapped with rubber bands and stacked in bundles of various denominations. Lt. Valdes testified that this was typical of how drug dealers carry their money. Lt. Valdes also found a spiral notebook in the glove compartment of the truck. He believed, based on his training and experience, that the notebook contained a record of numerous drug transactions. Lt. Valdes requested that a narcotics dog be brought to the scene. Although no drugs were found, the dog alerted to both the money and vehicle. The police then confiscated the money and notebook on the theory that they were tied to drug transactions. No criminal charges were filed against the men.

The City of Hialeah commenced forfeiture proceedings against the currency. Claimants requested an adversarial preliminary hearing. The claimants moved to suppress the evidence and the currency arguing that the stop of the pickup and confiscation of the currency was an illegal search and seizure. They argued that the police lacked reasonable suspicion based on articulable facts to believe that the two men in the truck had committed, were committing, or were about to commit a crime. As a result, the stop of this vehicle violated both of the Fourth Amendment as applied to the states under the Fourteenth Amendment to the U.S. Constitution, and Florida's Stop and Frisk Law.2 Thus, they maintain that the City could not rely upon the seized evidence to establish probable cause at the adversarial preliminary hearing.

The trial court found that the City had sustained its burden of demonstrating that the police had lawfully stopped the truck based upon a reasonable founded suspicion. The court therefore denied the claimant's request to exclude the evidence uncovered as a result of the stop and went on to find that there was probable cause to believe that the currency was used in, or represented the proceeds of, a criminal enterprise in violation of Florida's Contraband Forfeiture Act. The claimants were ordered to file and serve their responsive pleadings and affirmative defenses to the complaint for Final Judgment of Forfeiture.

The claimants timely filed this appeal. They argue, and we agree, that the trial court erred in its determination that the initial stop and detention of the truck by the police was valid based on a reasonable suspicion that its occupants had committed, were committing, or were about to commit a crime.

Our standard of review of an order finding probable cause after an adversarial preliminary hearing, under the Florida Contraband Forfeiture Act, is de novo. See § 932.701, Fla. Stat. (2004); City of Coral Springs v. Forfeiture of 1997 Ford Ranger, 803 So.2d 847 (Fla. 4th DCA 2002); Dept. Highway Safety & Motor Vehicles v. Jones, 780 So.2d 949 (Fla. 4th DCA 2001). At the adversarial preliminary hearing, the City, as the seizing agency, carried the initial burden of proving that there was probable cause to believe that there was a nexus between the seized currency and elicit drug activities. See § 932.703(2)(a), Fla. Stat. (2004); In re Forfeiture of $171,900, 711 So.2d 1269 (Fla. 3d DCA 1998) (the inquiry is whether there is sufficient probability to warrant a reasonable belief that the currency was connected to criminal activity); Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987) (probable cause "involves the question of whether the information relied upon by the state is adequate and sufficiently reliable to warrant the belief by a reasonable person that a violation has occurred.").

However, where the claimants raised a Fourth Amendment challenge to the stop of the vehicle, that issue must be addressed first and independently of the question of whether there is a nexus between the seized currency and unlawful drug activity. The law is clear that the exclusionary rule applies to forfeiture proceedings, and that evidence obtained in violation of the Fourth Amendment must be excluded at a hearing to determine whether the government has probable cause for the forfeiture. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (exclusionary rule applicable to forfeiture proceedings); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (evidence obtained in violation of Fourth Amendment cannot be relied upon to uphold civil forfeiture); McLane v. Rose, 537 So.2d 652 (Fla. 2d DCA 1989) (same); In re Approximately $48,900 in U.S. Currency, 432 So.2d 1382, 1385 (Fla. 4th DCA 1983) ("[T]he governmental entity seeking forfeiture must establish probable cause for violation of the forfeiture act without benefit of evidence obtained in violation of the Fourth and Fourteenth Amendments").3 Therefore, prior to making a determination of whether there is a nexus between the currency and elicit drug activities, the trial court here had to address the legality of the stop of the vehicle. See Golon v. Jenne, 739 So.2d 659 (Fla. 4th DCA 1999); Indialantic Police Dep't. v. Zimmerman, 677 So.2d 1307 (Fla. 5th DCA 1996).

Based upon our de novo review of the evidence adduced at the adversarial preliminary hearing below, we disagree with the trial court's determination that the police acted with reasonable suspicion to conduct an investigatory stop and detention pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Initially, we note that the Fourth District in Golon and the Fifth District in Indialantic Police Dept. have suggested that where a Fourth Amendment challenge to a stop is raised in an adversarial preliminary hearing in a forfeiture proceeding, the appropriate standard for determining the validity of the stop is whether there was probable cause. See Golon, 739 So.2d at 660-61; Indialantic Police Dept., 677 So.2d at 1309.

We respectfully disagree with our sister courts.4 Such stops, like the stop of Alvarez's vehicle here, are investigative detentions subject to Fourth Amendment scrutiny. § 901.151, Fla. Stat. (2004); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We conclude that the proper inquiry to determine the validity of these stops, even in the context of a forfeiture proceeding, is whether the government had reasonable suspicion to support the stop. See U.S. v. $99,990.00 in U.S. Currency, 2003 WL 21698849 (6th Cir. 2003); U.S. v. $404,905.00 in U.S. Currency, 182 F.3d 643 (8th Cir.1999); U.S. v. $321,470.00 U.S. Currency, 874 F.2d 298 (5th Cir.1989); U.S. v. One 1993 Ford F150 Pickup, 148 F.Supp.2d 1258 (M.D.Ala.2001); U.S. v. $57,443, 42 F.Supp.2d 1293 (S.D.Fla.1999); U.S. v. $46,000 in U.S. Currency, 2003 WL 21659180 (E.D.Pa.2003). See also In re Forfeiture of $61,300.00 in U.S. Currency, 576 So.2d 424 (Fla. 4th DCA 1991)(stop of vehicle for speeding, challenged in civil forfeiture action, was lawful as based on founded suspicion); McLane v. Rose, 537 So.2d 652 (Fla. 2d...

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