Patel v. State

• Decision Date: 18 July 2014
• Docket Number: No. 5D13–1065.,5D13–1065.
• Citation: 141 So.3d 1239
• Parties: Satish B. PATEL, Appellant, v. STATE of Florida, etc., Appellee.
• Court: Florida District Court of Appeals

141 So.3d 1239

Satish B. PATEL, Appellant,

v.STATE of Florida, etc., Appellee.

No. 5D13–1065.

District Court of Appeal of Florida,

Fifth District.

June 27, 2014.

Rehearing Denied July 18, 2014.

Matthew P. Ferry, of The Law Office of Warren W. Lindsey, P.A., Winter Park, and William R. Ponall, of Snure & Ponall, P.A., Winter Park, for Appellant.

Jeffrey L. Ashton, State Attorney, and Joseph A. Cocchiarella, Assistant State Attorney, Orlando, for Appellee.

BERGER, J.

Satish B. Patel (“Patel”) appeals the trial court's non-final order finding probable cause to support the State's continued seizure of $142,815.27 in substitute assets pursuant to the Florida Contraband Forfeiture Act (“FCFA”).¹ We have jurisdiction. SeeFla. R. App. P. 9.130(a)(3)(C)(ii) (permitting review of non-final orders that determine “the right to immediate possession of property”); Munoz v. City of Coral Gables, 695 So.2d 1283, 1284 (Fla. 3d DCA 1997).² Patel argues that the evidence presented by the State at the adversarial preliminary hearing failed to establish any link between the alleged criminal activity and the subject bank accounts as required by section 932.703(2)(c), Florida Statutes (2013), and, as a result, that the trial court erred when it found probable cause to continue the seizure of his assets. The State concedes this point, but argues that, independent of the actual use of the subject property, section 932.703(5)(a), permits the seizure of Patel's accounts as “substitute assets” for the illegal cash proceeds acquired, but not located or seized. Because we hold that section 932.703(5) does not authorize the seizure of substitute assets prior to a forfeiture hearing, we reverse.

The State filed a petition under the FCFA, seeking forfeiture of certain assets owned by Satish Patel, Sonya Patel, Jigger Patel, and Baldevbhai KN, Inc./Apopka Discount Drugs.³ An amended petition was later filed, which sought forfeiture of a total of $139,297.01 contained in four separate bank accounts, $4,275.12 in cash, and a 2009 Honda Accord. The petition alleged that the case was being brought as an “in rem” civil forfeiture pursuant to the FCFA because of drug violations, and that some of the property had been seized as:

A substitute asset for a “contraband article” because said vehicle or personal property has a value less than, or equal to, the value of money or currency that was a contraband article or proceeds of the violations above, and has been spent, transferred to other persons, or commingled with other funds, or placed beyond the jurisdiction of the court; [sic] as set out in Florida Statutes 932.703(5).

Patel asked for and received an adversarial preliminary hearing pursuant to section 932.703(2)(a), at which he challenged the seizure of the three items in which he claimed an interest: (1) an Old Florida National Bank account for Baldevbhai KN, Inc./Apopka Discount Drugs, which originally contained $57,758.75, but into which an additional $73,622.86 had been deposited since the filing of the petition, for a total of $131,381.61; (2) a Bank of America account in the name of Satish Baldevbhai Patel and Sonya S. Patel, which contained $7,158.54; and (3) $4,275.12 in cash taken from Apopka Discount Drugs Pharmacy.

At the hearing, the State offered its verified affidavit into evidence, as well as the testimony of Trooper William Cain, who had prepared the affidavit. The State established that Patel was the co-owner and only licensed pharmacist at Apopka Discount Drugs Pharmacy. It further offered evidence that from February 24, 2010 through November 14, 2011, Satish Patel and Jigger Patel, ⁴ the pharmacy technician, knowingly accepted and filled 145 forged prescriptions for oxycodone and other narcotics. The prescriptions involved sixteen patients and four different doctors. The State also offered evidence that Patel and/or Apopka Discount Drugs Pharmacy received between $700 and $1,000 upon filling each prescription, which was two to three times the going rate, meaning that the pharmacy and/or Patel had made between $100,500 and $145,000 on the illegal prescriptions. Trooper Cain testified that he had seized assets less than or equal to the value of what was earned in the pharmacy, including $57,758.75 in the Old Florida National Bank account, $7,158.54 in a Bank of America account, and $4,275.12 in cash found at the pharmacy when the warrant was executed. He testified that an additional $73,622.86 had been deposited in the Bank of America account since the warrant was executed. Trooper Cain admitted that he had no evidence that the pharmacy had filled any fraudulent prescriptions since November 22, 2011, and that the Bank of America account was a joint account with Patel's wife. He further admitted that the cash had not been seized from the pharmacy until February 12, 2013. Trooper Cain also acknowledged that Patel owns several other businesses in addition to the pharmacy, including a number of Subway stores.

The issue before us is whether the evidence presented at the adversarial preliminary hearing is sufficient to show probable cause to seize the subject bank accounts and cash. Patel argues that the evidence is insufficient because of the failure to show that the monies seized were tied to the criminal activity alleged in the complaint. The State acknowledges the lack of any nexus between the assets seized and the criminal activity alleged in the complaint, but argues that, when ill-gotten gains cannot be found, it is permitted to seize “substitute assets” under the FCFA, and that such substitute property can be detained pretrial.

To properly evaluate the parties' arguments, it is important to note the distinction between civil and criminal forfeiture actions. A civil forfeiture is an “in rem” action brought against the property. Kern v. State, 706 So.2d 1366, 1369 (Fla. 5th DCA 1998); In re Forfeiture of Fifty Five Thousand Forty–Five Dollars in U.S. Currency, 809 So.2d 105, 106 (Fla. 2d DCA 2002). It is premised on a legal fiction that the property, not its owner, is held guilty. Rosado v. Bieluch, 827 So.2d 1115, 1117 (Fla. 4th DCA 2002); U.S. v. Ursery, 518 U.S. 267, 275, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“ ‘[This] forfeiture proceeding ... is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient.’ ” (quoting Various Items of Pers. Prop. v. U.S., 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558 (1931))). “Neither a conviction nor an acquittal in a criminal case is determinative of the issues in the forfeiture proceeding. In fact, neither the record nor the judgment in the criminal case is admissible in the civil action seeking in rem forfeiture.” Kern, 706 So.2d at 1369. A criminal forfeiture, on the other hand, is a penalty or punishment imposed after a person has been convicted of a crime. Heather J. Garretson, Federal Criminal Forfeiture: A Royal Pain in the Assets, 18 S. Cal. Rev. L. & Soc. Just. 45, 47–48 (Fall 2008). It is an “in personam criminal remedy, targeted primarily at the defendant who committed the offense.” Id. at 48.

This case does not involve a criminal forfeiture. Instead, it was brought as an “in rem” civil forfeiture, pursuant to the FCFA, which makes it illegal to conceal or possess any contraband article, § 932.702(2), Florida Statutes (2013), or to acquire real or personal property by the use of proceeds obtained in violation of the FCFA, § 932.702(4), Florida Statutes (2013). The FCFA permits law enforcement agencies to seize any contraband article used in violation of the FCFA, and states that “[a]ll rights to, interest in, and title to contraband articles used in violation of [section] 932.702 shall immediately vest in the seizing law enforcement agency upon seizure.” § 932.703(1)(c), Fla. Stat. (2013). Personal property may be seized at the time of the violation, or subsequent to the violation, if the person entitled to notice is noticed of the right to an adversarial preliminary hearing, the purpose of which is to determine whether probable cause exists to believe that the property was used in violation of the FCFA. See§ 932.703(2)(a), Fla. Stat. (2013). The statute provides:

(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.

(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.

§ 932.703(2)(c) and (d), Fla. Stat. (2013). The seizing agency is not required to establish at the seizure stage that the owner knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity. Gomez v. Village of Pinecrest, 41 So.3d 180, 188 (Fla.2010). It is enough to show that the subject property was used in violation of the FCFA. Id.

At issue in this case is the meaning of section 932.703(5), which contains a “substitute assets” provision, and whether this section permits the State to pursue a civil forfeiture directly against “substitute assets” that have no nexus to the...