Sawyer v. Gable, 80-1990

• Decision Date: 16 June 1981
• Docket Number: No. 80-1990,80-1990
• Citation: 400 So.2d 992
• Parties: Warren Thomas SAWYER, Petitioner, v. Honorable Ellen Morphonios GABLE, Judge of the Circuit Court for Dade County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 992

400 So.2d 992

Warren Thomas SAWYER, Petitioner, v. Honorable Ellen Morphonios GABLE, Judge of the Circuit Court for Dade County, Florida, Respondent.

No. 80-1990.

District Court of Appeal of Florida, Third District.

June 16, 1981.

Donald L. Ferguson, Coconut Grove, for petitioner.

Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.

Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

As a result of the execution of a search warrant, a Beechcraft airplane and more than one hundred pounds of marijuana secreted therein were seized, and Sawyer was charged with trafficking in this contraband in violation of Section 893.135, Florida Statutes (1979). The criminal case against Sawyer was assigned to the respondent judge. Sawyer moved to suppress the seized evidence. Before the hearing on Sawyer's motion reached its end and could result in a ruling, the State dismissed the criminal charges against Sawyer. ¹ Seven days later, Sawyer moved in the dismissed criminal case for the return of the Beechcraft airplane. ² The respondent judge refused to entertain Sawyer's motion on the grounds that she was without jurisdiction. Sawyer petitioned this court to issue a writ of mandamus directing the respondent to exercise jurisdiction. ³

I.

The search warrant issued by a Dade County Circuit Court Judge commanded that the persons charged with its execution "return this warrant and bring the property ... before a court having competent jurisdiction of the offense." Pursuant to this directive, the offense being a felony, return was required to be made to the Circuit Court. ⁴ Under Section 933.14(1), Florida Statutes (1979), jurisdiction to order the return of the seized property became vested in the Circuit Court. ⁵ That section provides:

"(1) If it appears to the magistrate or judge before whom the warrant is returned that the property or papers taken are not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds upon which the warrant was issued, or if it appears to the magistrate before whom any property is returned that the property was secured by an 'unreasonable' search, the judge or magistrate may order a return of the property taken; ..." (emphasis supplied).

It is not clear from the record whether the trial judge doubted her jurisdiction, ab initio, or whether that doubt arose because the criminal case against Sawyer was terminated with the State's nolle prosequi. Therefore, we first address the respondent's jurisdiction ab initio.

Section 933.14(1) provides a mechanism for the expeditious return of property seized pursuant to a search warrant. Chapter 933 provides no statutory procedure for an application or motion seeking return of the property. Implicit, however, in the authority given to the court to order the property's return is the right of the person from whom it was seized to move for its return. Harvey v. Drake, 40 So.2d 214 (Fla.1949).

It is not, of course, a prerequisite to a motion for return of property that a criminal prosecution be brought following the seizure of the property. Harvey v. Drake, supra; Golding v. Director, Public Safety Department, Metropolitan Dade County, 400 So.2d 990 (Fla. 3d DCA 1981). However, once a criminal prosecution is instituted, the court in which that prosecution is pending acquires jurisdiction over that property to hear and determine all questions concerning its ownership if the property seized has an evidentiary purpose. Garmire v. Lake, 265 So.2d 2 (Fla.1972). If, on the other hand, the property seized is not held as evidence or no criminal prosecution ensues, then the court to which the warrant and property are returned obtains jurisdiction to order its return. Harvey v. Drake, supra; Golding v. Director, supra.

In the present case, a criminal prosecution has ensued, but the property seized the airplane is not being held for use as evidence. Thus, while neither Garmire nor Harvey is precisely on target, the target is bracketed by them. It is clear under Harvey v. Drake, supra, that any circuit judge would have jurisdiction under Section 933.14 to entertain a motion to return the property. We are of the view that the pendency of the criminal case, with which the seizure of the property is inextricably related, and which required the respondent judge to hear and determine matters related to the warrant and the property seized under the warrant, gave to the respondent judge, as in Garmire v. Lake, supra, a priority in jurisdiction. The matter of the respondent's priority jurisdiction does not turn on whether the property seized under the search warrant is being held as evidence in the pending criminal case. Rather, it turns on the fact that the warrant and property, by virtue of the filing of criminal charges, have initially come within the jurisdiction of the respondent judge, which jurisdiction is not to be intruded upon by any court, though of concurrent jurisdiction. Garmire v. Lake, supra; Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936). This rule of law is designed to prevent not only the unseemly result of a court of concurrent jurisdiction ordering the return of property held as evidence, Garmire v. Lake, supra, or held under a writ issued by another court, Adams v. Burns, supra, but, in our view, is designed to prevent inconsistent results which could obtain were one court to rule on a motion to return property and another to rule on a motion to suppress in the criminal case. ⁶

Additionally, important considerations of judicial economy compel the same result. In United States v. Wilson, 540 F.2d 1100 (D.C.Cir.1976), the defendant, arrested for possession of narcotics, moved under Federal Rule of Criminal Procedure 41(e) ⁷ (the Federal analogue to Section 933.14) for return of money seized from his house pursuant to a search warrant. The Government contested the return of the property on the ground, inter alia, ⁸ that the defendant had available a civil remedy. The District Court rejected the Government's contention, stating:

"Property which is seized in a criminal proceeding either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action. It makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case." United States v. Wilson, supra, at 1104.

Accord, United States v. Wright, 610 F.2d 930 (D.C.Cir. 1979); United States v. Rangel, 608 F.2d 120 (5th Cir. 1979); United States v. One Residence and Attached Garage of Anthony J. Accardo, 603 F.2d 1231 (7th Cir. 1979); United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir. 1978); United States v. Palmer, 565 F.2d 1063 (9th Cir. 1977); United States v. LaFatch, 565 F.2d 81 (6th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978). Wilson was decided after the 1972 amendment to Rule 41, which, according to the Advisory Committee Note, was intended to require that a motion under the rule be made in the trial court where the criminal action was pending, rather than in the district in which the evidence was seized, a procedure allowed before the amendment. The avowed purpose of the amendment was to further the administration of justice. But even before the amendment, there was little doubt that the district court in which the criminal action was pending had jurisdiction, albeit non-exclusive, to return property as an adjunct to suppression. See DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) ("only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent ...."). In our view, the same considerations of judicial economy and consistency that brought about the amendment to Rule 41 compel a holding that the court which has jurisdiction of the criminal offense in which the search warrant will be considered should determine a motion to return the property seized.

II.

We hold further that the termination of the criminal case, here by the entry of a nolle prosequi, did not divest the trial court of jurisdiction to entertain Sawyer's motion for return of property. ⁹ While concededly neither Section 933.14, Florida Statutes (1979), nor any other statute, confers jurisdiction on the court before which the criminal proceedings are held to return property seized after the termination of the criminal case, that power inheres in the court's jurisdiction over the criminal case. Garmire v. Lake, supra; Estevez v. Gordon, 386 So.2d 43 (Fla.3d DCA 1980). If criminal courts have the inherent power in the absence of a statute to provide for the recovery of evidentiary items held by them, as the Supreme Court said in Garmire, then it is implicit that that power, to be effective, must exist after the termination of the criminal case when the items are no longer needed as evidence. See Jenkins v. State, 41 So.2d 554 (Fla.1949). ¹⁰ See also State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); Carlisle v. State ex rel. Smith, 319 So.2d 624 (Fla. 4th DCA 1975). ¹¹ Cf. United States v. Wright, supra; United States v. Palmer, supra; United States v. LaFatch, supra; United States v. Wilson, supra (all holding that under Federal Rule of Criminal Procedure 41(e), the Federal District Court does not lose jurisdiction to return seized property after termination of the criminal case).

III.

Our holding that the respondent judge had jurisdiction over Sawyer's motion for return of property, which was not divested by the termination of the criminal case, is unaffected by the argument advanced on behalf of the respondent that since the State intended to file proceedings to forfeit the aircraft, the respondent lacked jurisdiction to order its return to Sawyer.

The statutory right of the...