Fink v. Holt, No. 91-1184

• Court: Court of Appeal of Florida (US)
• Writing for the Court: FARMER
• Citation: 609 So.2d 1333
• Decision Date: 12 November 1992
• Docket Number: No. 91-1184
• Parties: 17 Fla. L. Week. D2539 Robert A. FINK, Appellant, v. James D. HOLT, Sheriff of Martin County, Appellee.

Page 1333

609 So.2d 1333 17 Fla. L. Week. D2539 Robert A. FINK, Appellant,
v.
James D. HOLT, Sheriff of Martin County, Appellee. No. 91-1184. District Court of Appeal of Florida,
Fourth District. Nov. 12, 1992.

Page 1334

Richard D. Kibbey, Stuart, for appellant.

Robert L. Kilbride, Stuart, for appellee James D. Holt, Sheriff of Martin County.

FARMER, Judge.

After a high-speed chase for nearly three miles by Martin County Sheriff's deputies, Dr. Robert Fink lost control of his vehicle while attempting to negotiate a turn and struck the center median strip, causing his vehicle to go airborne. Fink was placed under arrest for reckless driving, for fleeing and for attempting to elude a police officer. A search of the vehicle incident to the arrest revealed a partially smoked marijuana cigarette on the seat where Fink had been sitting.

On the passenger seat, the officer also found Fink's briefcase, which contained a variety of personal items, including three separate pill bottles. One bottle contained Hydrocodone ¹ and Diethylproprion, ² controlled substances under Florida law. Another bottle contained Diazepam, ³ also a controlled substance. A third bottle contained Naprosyn. Fink explained to the officer that he was a doctor, that he was on his way to his office, and that he was allowed to carry the drugs. ⁴

The Sheriff of Martin County initiated forfeiture proceedings against the automobile driven by Fink, a 1985 Chevrolet Corvette. The Sheriff alleged the following with regard to the controlled substances:

Inside the briefcase were several pill containers with pills inside them. One of the pill containers was completely unmarked with no labeling and contained several prohibited drugs. Another one of the pill containers, although marked for one type of drug, contained a mixture of various types of Schedule II prohibited drugs and also prescribed medication. The driver, Robert A. Fink, did not possess written prescriptions for these drugs and the pill containers were without proper labeling. Possession of these drugs due both to the nature of the drugs and lack of proper labeling constituted a third degree felony and the driver, Robert A. Fink, was arrested for this felony offense as well as the misdemeanor offense of possession of marijuana under 20 grams. Based upon the circumstances of this case and the absence of proper labeling and written prescriptions, the officer concluded that these scheduled drugs were not possessed by the driver, Robert A. Fink, in good faith nor in the normal course of his professional practice for proper use. As a result, the motor vehicle was seized and this forfeiture action instituted inasmuch as the vehicle was used to possess, use, conceal or transport a felony amount of drugs or was used as an

Page 1335

instrumentality to commit said felony offense. [emphasis supplied.]

Motion For Rule To Show Cause and For Final Order of Forfeiture, at 2-3; R. 148-49. Fink's attorney moved for a dismissal, arguing that there was no probable cause to believe that Fink had committed any crime that would serve as a basis for the forfeiture. The court ruled:

I'm going to deny the motion for--I believe its for involuntary dismissal of the non-jury action on the grounds of failure to establish probable cause. I believe that the totality of the circumstances, including the action of the doctor speeding, the other evasive actions that have been testified to, the fact that the pills were mixed together, the presence of marijuana--all of those things are facts that establish probable cause.

Fink's attorney then presented portions from Fink's prehearing deposition. He testified that, in his capacity as a licensed physician, he obtained the drugs found in his car from manufacturer's representatives. He further testified that he possessed and transported them "specifically for the purpose of attending to [his] brother and sister-in-law".

The court decided that the Sheriff had met his burden and had established probable cause for the arrest and for the seizure of the automobile. The judge expressly held that Fink did not meet his burden of establishing any affirmative defenses and did not offer enough evidence to show that he possessed controlled substances in good faith and in the course of his professional practice only. The trial court's final order concluded:

6. On October 11, 1989, said [vehicle], was used or was intended to be used, or was actually employed as an instrumentality in the commission of, or in the aiding or abetting in the commission of any felony, in violation of Chapter 893, Florida Statutes (1989), to wit: said 1985 Chevrolet Corvette had been used or was being used to transport, convey, conceal or possess controlled substances a felony offense under Chapter 893 and Chapter 932.701(2)(e), .702 and .703, Florida Statutes (1989).

The court entered an order forfeiting the vehicle to the Sheriff and this appeal timely...