Golon v. Jenne

• Decision Date: 18 August 1999
• Docket Number: No. 98-1431.,98-1431.
• Citation: 739 So.2d 659
• Parties: Jesse J. GOLON, Appellant, v. Ken JENNE, Sheriff of Broward County, Florida, Appellee.
• Court: Florida District Court of Appeals

739 So.2d 659

Jesse J. GOLON, Appellant, v. Ken JENNE, Sheriff of Broward County, Florida, Appellee.

No. 98-1431.

District Court of Appeal of Florida, Fourth District.

August 18, 1999.

Kevin J. Kulik, Fort Lauderdale, for appellant.

Patricia Windowmaker, Fort Lauderdale, for appellee.

STEVENSON, J.

Appellant, Jesse Golon, appeals the non-final order of the lower court finding probable cause for the Sheriff of Broward County to seize Golon's property under the Florida Contraband Forfeiture Act, sections 932.701-.707, Florida Statutes. Because the trial court refused to consider alleged Fourth Amendment violations at the adversarial preliminary hearing, we reverse.

At the adversarial preliminary hearing to determine whether there was probable cause to proceed with forfeiture of Golon's truck, a video camera, and $30,974.45 in cash, the deputy sheriff who arrested Golon testified about the events leading up to the arrest, the search of Golon's home, and the seizure of Golon's property. Throughout the officer's testimony, Golon's attorney objected and attempted to raise the issue of an illegal search and seizure. At the conclusion of the officer's testimony, Golon's counsel argued that all of the evidence and Golon's statements to the officer should be suppressed and that without that evidence, there was no probable cause for forfeiture. In response, counsel for the Sheriff argued that "this isn't the proper time to address these issues" and that the Sheriff had made a sufficient showing that Golon's property was connected with drug activity. The trial court agreed with the Sheriff and responded that the only matter pending was whether there was probable cause for the forfeiture and that the proper forum to raise the Fourth Amendment issue would be at another hearing, on a motion to suppress, before the judge who would be trying the case. The court then ruled that the Sheriff had probable cause to seize Golon's property, and it ordered the Sheriff to retain possession of the property pending further order of the court.

We agree with Golon that the lower court erred in not considering his ore tenus motion to suppress and the Fourth Amendment claim he attempted to raise during the adversarial preliminary hearing.¹ In Indialantic Police Department v. Zimmerman, 677 So.2d 1307 (Fla. 5th DCA 1996), Zimmerman argued during an adversarial hearing in a post-seizure of property forfeiture case that the arresting officer had unlawfully stopped his vehicle and that the ensuing search violated his Fourth Amendment rights. The lower court determined that there was no probable cause to believe Zimmerman's truck had been used in violation of the Forfeiture Act. See id. at 1308. The basis for its ruling was that the officer violated Zimmerman's Fourth Amendment rights because the stop was unlawful. See id. On appeal, the City of Indialantic argued that the trial court should not have considered Fourth Amendment issues at that stage of the proceedings; rather, the court was limited to determining whether there was probable cause to believe that the seized property had been used in violation of the Forfeiture Act. See id. at 1309.

The Fifth District Court of Appeal held that the lower court acted properly in considering the Fourth Amendment issues:

[T]he validity of the stop and search are inextricably bound up with the probable cause determination required by the Act. If no probable cause exists to stop a vehicle, or search it, which leads to discovery of the contraband, then that seized evidence should not be considered, and cannot form the basis for the probable cause determination required by the Act. Indeed, Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991) does not limit so narrowly the issues which a trial court must consider in an adversarial preliminary hearing in a forfeiture case. The Real Property court required:

After the ex parte seizure of personal property, the state must immediately notify all interested parties that ... they have a right to request a post-seizure adversarial preliminary hearing. If requested, the preliminary hearing shall be held as soon as is reasonably possible to make a de novo determination as to whether probable cause exists to maintain the forfeiture action.

Id. at 965.

In this case, the testimony proffered by the state to establish probable cause to determine the vehicle was being used in violation of the Act, by its nature, raised Fourth Amendment issues. Clearly, Zimmerman had a right to cross-examine Baker on this issue. Argersinger v. Hamlin, 407 U.S. 25, 27-28, 92 S.Ct. 2006, 2008, 32 L.Ed.2d 530 (1972). Once the Fourth Amendment issue arose, the trial court ha[d] a duty to make a determination of those issues whether they were expressly raised in the pleadings.

Indialantic, 677 So.2d at 1309 (footnote omitted).

Consistent with Indialantic, we hold that the lower court erred in failing to consider the Fourth Amendment issue in determining whether there was probable cause. Florida Statute section 932.704(1)(1997) provides in part that:

It is also the policy of this state that law enforcement agencies ensure that, in all seizures made under the Florida Contraband Forfeiture Act, their officers adhere to federal and state constitutional limitations regarding an individual's right to be free from unreasonable searches and seizures, including, but not limited to, the illegal use of stops based on a pretext, coercive-consent searches, or a search based solely upon an individual's race or ethnicity.

Indeed, long-standing precedent provides that evidence derived from a search in violation of the Fourth Amendment must be excluded at a hearing determining whether the government has probable cause for forfeiture. See One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965)

(exclusionary rule applies 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 sustain a forfeiture); McLane v. Rose, 537 So.2d 652 (Fla. 2d DCA 1989) (evidence uncovered in violation of the Fourth Amendment must be excluded from consideration in civil forfeiture proceedings); In re Forfeiture of 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.").

The Sheriff argues that even if the trial court could have considered the Fourth Amendment issue at the preliminary hearing, the trial court was correct in refusing to hear Golon's claim since the only matter noticed for hearing was the probable cause issue and Golon had not filed any motion to suppress. The Sheriff, citing State Department of Highway Safety & Motor Vehicles v. Killen, 667 So.2d 433 (Fla. 4th DCA 1996), argues that the legality of the search and seizure should have been raised in a responsive pleading and then argued in a motion to. suppress. Killen held, inter alia, that the appellee should not have raised the Fourth Amendment issues in a motion to dismiss the forfeiture complaint; rather, "he should have raised those issues in his responsive pleadings, and presented them for argument to the trial court in a motion to suppress unlawfully seized evidence." Id. at 436-37. We find Killen distinguishable since, there, the claimant attempted to raise the Fourth Amendment issue via a motion to dismiss which was filed after the preliminary adversarial hearing and prior to the final forfeiture hearing. A motion to dismiss is a particularly ill-suited vehicle in which to bring a Fourth Amendment suppression claim. No evidence may be taken on a motion to dismiss, and the court is required to determine whether from the four corners of the complaint, a cause of action is pled. Because we are presented with a different procedural posture here, Killen does not control and we find no reason to revisit the decision in Killen at this time.²

In declining to rule on the Fourth Amendment issue, the lower court did not appear concerned with the fact that Golon had not yet filed a suppression motion or responsive pleadings. Rather, the court apparently believed that the issue of probable cause and the Fourth Amendment claim were separate and distinct and could not be considered hand in hand. Hence, we suspect that even had Golon raised the Fourth Amendment claim in a written pleading prior to the probable cause hearing, the lower court would have declined to consider the issue. Nevertheless, we address the collateral issue raised by the Sheriff, that is, whether the suppression issue must be raised in a written motion or pleading filed prior to the adversarial hearing.

Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991), which sets forth the procedures to be employed in Florida civil forfeiture cases in order to satisfy due process concerns, acknowledges the Fourth Amendment's application but does not address the issue presented here.³ Real Property provides that after an ex parte seizure of personal property, the government must immediately notify all interested parties that it has taken the subject property in a forfeiture action; the parties then have the right to request a post-seizure adversarial preliminary hearing, and such hearing must be held within 10 days of such request. See 588 So.2d at 965-66; see also § 932.703, Fla. Stat. Additionally, an agency seeking...