Medious v. Department of Highway Safety and Motor Vehicles, 88-126

• Citation: 534 So.2d 729,13 Fla. L. Weekly 2370
• Decision Date: 20 October 1988
• Docket Number: No. 88-126,88-126
• Parties: 13 Fla. L. Weekly 2370 Charles Edward MEDIOUS, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, etc., Appellee.
• Court: Florida District Court of Appeals

Page 729

534 So.2d 729

13 Fla. L. Weekly 2370

Charles Edward MEDIOUS, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, etc., Appellee.

No. 88-126.

District Court of Appeal of Florida,

Fifth District.

Oct. 20, 1988.

Rehearing Denied Dec. 2, 1988.

James E.C. Perry and James Sweeting, III, of Perry & Lamb, P.A., Sanford, for appellant.

Enoch J. Whitney, Gen. Counsel and R.W. Evans, Asst. Gen. Counsel, Tallahassee, and James Patrick Curry of Curry, Taylor & Carls, Orlando, for appellee.

DANIEL, Judge.

Charles Edward Medious appeals an amended final judgment forfeiting $16,547.87 in United States currency and twenty-one pieces of assorted jewelry to the use of the Florida Highway Patrol Division of the Department of Highway Safety and Motor Vehicles. The amended final judgment of forfeiture found probable cause to believe that the currency and jewelry were used and employed in aiding or abetting the commission of a crime--possession of controlled substances, cannabis and cocaine, with the intent to distribute the same; that the property was contraband and that Medious failed to show good and adequate cause why the property should not be forfeited. We affirm in part and reverse in part.

Medious was stopped for speeding and reckless driving on the Florida Turnpike by Florida Highway Patrol Trooper David Norman who clocked Medious' white northbound Cadillac at 90 miles-per-hour. The trooper testified that Medious was quite nervous as he stepped out of the car and could not locate his registration. During his search the trooper noticed a plastic baggie with white residue or white powdery substance on the driver's seat as well as a weapon on the right front floor board. A police dog brought to the scene alerted to the right front passenger seat in the vehicle. Another plastic baggie containing cocaine was found between the cracks in the seat. Medious told the trooper about twenty-one pieces of jewelry in a bag on the right floor board. One piece, a gold medallion on a chain shaped like a small spoon, had cocaine residue on it. The troopers found $16,500 secured with a rubber band in Medious' sock and $47.87 in his pocket. The currency was in the form of six $1,000 bills; ninety-nine $100 bills; one $500 bill; two $50 bills; two $20 bills; one $5.00; and two $1.00 bills. The jewelry was valued at $11,585.

Medious was convicted of possession of cocaine. ¹ His car had an Illinois tag and Medious had an Illinois driving license. Medious told the trooper that he had the drugs for personal use; that he operated a car wash service; that he was a gambler and that he was involved in prostitution. The troopers did not have the dog examine the currency and the dog did not alert to any other areas of the vehicle. Nine grams of marijuana were located in a small plastic bag under the right side seat belt retracting assembly.

At the forfeiture hearing, Medious testified that he lived in Opalocka, Florida; that he owned a total of five duplexes in that area, renting out eight units, living in one and using the remaining one for his car wash business. Copies of deeds to support this contention were admitted into evidence. Medious also stated that he earned income from gambling and that he was on his way to Chicago to visit his mother when arrested. Medious explained that he had the money and jewelry with him because he did not want to leave them at his vacant house. According to Medious, he used the $1,000 bills to get bets and accumulated the $100 bills from the car wash and rental properties.

Forfeiture proceedings are governed by chapter 932. A "contraband article" is defined as:

(a) Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange which has been, is being or is intended to be used in violation of any provision of chapter 893.

* * *

* * *

(e) Any personal property, including, but not limited to, any item, object, tool, substance, devise, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.

§ 932.701(2)(a), (e), Fla.Stat. (1985).

Any contraband article involved in a violation of any provision of chapter 932 may be seized and forfeited. In any incident in which possession of any contraband article constitutes a felony, personal property in or on which the contraband article is located is contraband subject to forfeiture. In forfeiture proceedings, the governmental entity bears the initial burden of showing probable cause that the res subject to forfeiture was illicitly used within the meaning of the forfeiture statute. In re Forfeiture of One 1976 Chevrolet Corvette VIN 1Z37L6541240, 442 So.2d 307, 309 (Fla. 5th DCA 1983). After the governmental entity establishes that there is probable cause, the burden shifts to the claimant to rebut the probable cause showing or establish by a preponderance of the evidence that the forfeiture statute was not violated or that there is an affirmative defense which entitles the claimant to repossession of the item. Id.

In the case now before this court the department alleged a nexus ² between the personal property and Medious' possession of a controlled substance with intent to distribute, a violation of chapter 893. Additionally, sufficient facts were pleaded to allow forfeiture upon a nexus established by the location of cocaine on any of the property, or use as a device or tool for the consumption of cocaine. The pleadings did not, however, assert the use of the currency or jewelry as contraband in violation of the gambling laws or any other criminal activities precluding those as alternative bases for forfeiture of the property.

Contrary to the department's assertion, it is necessary that this nexus be established for the money, the "spoon", and other jewelry separately as the establishment of a nexus to one item does not eliminate the need for its establishment to other items no matter how close in proximity. Otherwise, the nexus requirement would be illusory. See, e.g., In re Forfeiture of Two Thousand Four Hundred Fifty-Four Dollars ($2,454) in U.S. Currency, 503 So.2d 370 (Fla. 1st DCA 1987).

The determination of probable cause in a forfeiture proceeding 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...