Forfeiture of 1983 Wellcraft Scarab, In re

• Decision Date: 19 February 1986
• Docket Number: No. 84-1118,84-1118
• Citation: 11 Fla. L. Weekly 457,487 So.2d 306
• Parties: 11 Fla. L. Weekly 457 In re FORFEITURE OF 1983 WELLCRAFT SCARAB.
• Court: Florida District Court of Appeals

Page 306

487 So.2d 306

11 Fla. L. Weekly 457

In re FORFEITURE OF 1983 WELLCRAFT SCARAB.

No. 84-1118.

District Court of Appeal of Florida Fourth District.

Feb. 19, 1986.

Rehearing Denied May 12, 1986.

John H. Lipinski, Miami, for appellant, Eric Brockschmidt.

G. Russell Petersen of G. Russell Petersen, P.A., Vero Beach, for appellee, R.T. "Tim" Dobeck, Sheriff of Indian River County, Florida.

HURLEY, DANIEL T.K., Associate Judge.

This appeal emanates from a civil forfeiture proceeding under section 932.704, Florida Statutes (1985). It presents two questions: (1) whether the claimant, who possessed a power of attorney from the owner of the vessel, had standing to contest the forfeiture, and (2) whether the trial court erred by granting forfeiture. We hold that the claimant had standing and that the proof was inadequate to justify a forfeiture. Consequently, we reverse.

The Sheriff of Indian River County initiated a civil forfeiture proceeding, pursuant to section 932.704, Florida Statutes (1985), to obtain forfeiture of a 1983 Wellcraft Scarab boat. The forfeiture was opposed by appellant Eric Brockschmidt who possessed a power of attorney from the registered owner, Richard Miller. The power of attorney authorized Brockschmidt "[t]o conduct, transact any and all lawful business of whatever nature pertaining to: 1983 Wellcraft Scarab Sport...."

One of the sheriff's key witnesses was an FBI agent who said that a confidential informant had seen contraband drugs on Brockschmidt's vessel. This informant had provided "very accurate" information on dozens of prior occasions. He gave "a complete description of [Brockschmidt's] vessel, the colors of the vessel, the length of the vessel, who it was registered to, the Florida registration number, and a distinct peculiarity, that the two power plants are located in a fashion that they stick out from the transom of the vessel." In addition, the informant provided information about Brockschmidt's earlier activities which the agent independently verified.

Approximately a week before May 28, 1983, the informant relayed information that Brockschmidt was about to smuggle over a thousand pounds of marijuana into the United States. It would come from Walker's Cay in the Bahamas. According to the informant, the operation would involve two boats, the Wellcraft Scarab, which Brockschmidt would captain, and a thirty-one foot Bertram named "Slow Poke." The plan called for the Wellcraft Scarab to carry the contraband while the Bertram would serve as an "interference vessel" and scout the offloading site for law enforcement vessels. The informant said that the smugglers planned to use marine channel sixty-eight or seventy. They would use the code word "sparrow" to communicate with the people on shore at the offloading site. This information was conveyed to the customs authorities and the sheriff's department in Indian River County.

As dusk approached on May 28, 1983, the police took up watch around the Sebastian Inlet. They expected the offloading to occur somewhere in northern Indian River County or southern Brevard County. Around 7:30 p.m., the Bertram entered the inlet from the ocean. The police boarded, but found nothing. At about 10:15 p.m., a customs agent stationed in a boat north of the Sebastian Inlet overheard two different conversations on marine channel sixty-eight. "One of them was calling the sparrow, and in turn, he came back with a word that we could not understand and said, I'm waiting on the signal." Shortly afterwards, a police aircraft flying north of the Sebastian Inlet noticed flashlight signals from shore to sea. A return signal came from a boat about a mile offshore which the pilot later identified as the Wellcraft Scarab. As the plane circled the boat, the pilot noted that "[i]t had no lights on, none at all, no running lights, nothing, except for the light that they were using to signal off and on." The pilot further testified that "[a]t one time, [the boat] went right up to the breakwater," where the waves actually break offshore. Several people were on the beach with lights. "There was some type of activity going on. As to exactly what it was, I don't know," the pilot admitted. He was adamant, however, in stating that the Wellcraft Scarab went into the area where the people were standing. He was certain it was the Wellcraft Scarab because he noted the unusual manner in which the boat's engines were mounted on a special bracket that moved the engines aft of the transom of the boat. The pilot radioed this information to the police below and then continued to monitor the scene for thirty to forty-five minutes until the authorities arrived.

When the police vessels reached the site, they were unable to locate any marijuana. A customs boat, however, spotted the Wellcraft Scarab approximately two hundred yards offshore as it turned on its running lights and proceeded south toward the Sebastian Inlet. The vessel was going slow and then accelerated to a high rate of speed. The police stopped it in the inlet and found Brockschmidt on board. He told the officers that he had been trolling for dolphin and had experienced engine trouble. Neither fishing gear nor bait was evident and, when the police took control of the vessel, they found that the engines were in good working order. A search of the boat turned up one seed that could not be identified. Also, the police found a yacht registration form from the Sea Lion Marina at Walker's Cay in the Bahamas. It indicated that Brockschmidt had been on the Bertram at Walker's Cay on May 3, 1983. The sheriff rested his case.

The defense called two chemists who had examined the seed and some vacuum sweepings taken from the Wellcraft Scarab. They testified that the seed could not be germinated and that the sweepings tested negative for marijuana. Next, the parties stipulated that May 28th was in the height of the turtle egg season. (Thus offering a possible explanation for the presence of people with flashlights on the beach.) The defense then rested.

After hearing final arguments, the trial court made detailed findings of fact and conclusions of law--a practice that is exemplary and for which we express our gratitude. The court concluded that Brockschmidt lacked standing to contest the forfeiture because he was neither the owner nor a lienholder. The court then adjudicated the merits and found that the sheriff had established probable cause to believe that the Wellcraft Scarab had been used to facilitate the commission of a felony, viz., trafficking in illegal drugs. Because the court was unpersuaded by Brockschmidt's proof, it granted the petition for forfeiture.

We do not agree with the respected trial judge that Brockschmidt lacked standing to contest the forfeiture. Section 932.703(2), Florida Statutes (1985), confers standing on an owner to contest a forfeiture. Similarly, section 932.703(3), Florida Statutes (1985), grants standing to a bona fide lienholder to protect his interest. The underlying intent of these provisions is to allow individuals with valid possessory interests in the res to protect those interests by asserting various defenses permitted by the statute. See In re Forfeiture of Approximately Forty-Eight Thousand, Nine Hundred Dollars, 432 So.2d 1382 (Fla. 4th DCA 1983). The statute does not prohibit owners from empowering others to act on their behalf and we can discern no justification to single out this type of a proceeding and hold that an otherwise valid power of attorney would be ineffective. Thus, we hold that Brockschmidt, by virtue of the power of attorney, stood in the shoes of the owner with standing to contest the forfeiture.

We realize that the Legislature designed the forfeiture statute for the express purpose of creating a potent weapon in the battle against crime. See Department of Highway Safety & Motor Vehicles v. Pollack, 462 So.2d 1199 (Fla. 3d DCA 1985). Today's decision in no way impairs or diminishes the effectiveness of that...