State v. Glass
| Decision Date | 11 July 1995 |
| Docket Number | Nos. 93-3745,93-4004,s. 93-3745 |
| Citation | 657 So.2d 934 |
| Parties | 20 Fla. L. Weekly D1610 STATE of Florida, Appellant/Cross-Appellee, v. James Don GLASS, Appellee/Cross-Appellant. STATE of Florida, Appellant/Cross-Appellee, v. Lessie MILLENDER, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Bradley R. Bischoff, and Mark Menser, Asst. Attys. Gen., Office of the Atty. Gen., Tallahassee, for appellant/cross-appellee.
Stephen S. Dobson, III of Stephen S. Dobson, III, P.A., Tallahassee, for appellee/cross-appellant Glass; Edgar Lee Elzie, Jr., Tallahassee, for appellee/cross-appellant Millender.
The State of Florida appeals a single order rendered in two related cases, as to the suppression of $18,800 in United States currency and the return of the currency to appellee, Lessie Millender. 1 Appellee James Glass and Millender cross-appeal the court's order insofar as it denied their motions to suppress cannabis seized during a search of Glass's residence. 2 We affirm on all issues raised in the appeals and cross-appeals.
The Franklin County Sheriff's Office applied for a search warrant of Glass's residence, stating in the affidavit that Glass was using the premises for the purpose of violating laws relating to possession and sale of cannabis. The affiant averred that his reason for believing the premises were being so used was that a confidential informant had bought felony amounts of cannabis from Glass at the residence. In the final paragraph, affiant asked for the issuance of a search warrant "for the search of the above described premises for the said property heretofore described, and for the seizure and safekeeping thereof."
The county judge issued a search warrant authorizing law enforcement to search the premises "for the property described in this warrant, to-wit: CANNABIS AND ALL ITEMS ASSOCIATED WITH THE POSSESSION, STORAGE, USE, AND SALE OF IT." When the search was executed, officers recovered six bags of marijuana, three scales, plastic bags, two semi-automatic pistols, a cellular telephone, and a travel case containing $18,800 in currency in approximately $1,000 increments, plus a tally sheet. Lessie Millender was at the house during the search and told the officers the money was hers and it had nothing to do with drug sales. Glass was charged with possession of paraphernalia and of cannabis with intent to sell. Millender was not charged with any offense.
The sheriff's office sent Millender a letter confirming her right to an adversarial preliminary hearing regarding the property seized, pursuant to Florida's Contraband Forfeiture Act, sections 932.701 through 932.707, Florida Statutes (1993). She answered, requesting an adversarial preliminary hearing and moved to suppress all evidence seized pursuant to the search warrant. Glass filed a similar motion to suppress in his criminal case.
The trial court initially granted Millender's motion to suppress in full, reasoning that the affidavit underlying the search warrant was insufficient, resulting in an invalid search warrant, and ordered the currency returned to Millender. At a later hearing, however, a successor judge revisited the prior order 3 and held that the cannabis was properly seized, concluding that the following portion of the affidavit, describing the laws allegedly being broken, was intended to describe the items to be seized:
[The above premises] are being used by James Don Glass a.k.a. "J.D." for the purpose of violating the laws relating to controlled substances, to-wit: Possession and sale [of] Cannabis.
The court nevertheless agreed with the predecessor judge that there was no admissible evidence to support a finding of probable cause for forfeiture of the $18,800, and directed that it be returned to Millender.
Turning first to the sufficiency of the search warrant, section 933.04, Florida Statutes (1993), provides that "no search warrant shall be issued except upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the person and thing to be seized." 4 We conclude that the underlying affidavit sufficiently described cannabis so as to authorize the warrant issued upon the request of the "affidavit to search" and seize the "heretofore described" property (cannabis). Glass and Millender have asserted that this case should be controlled by State v. Phillips, 528 So.2d 542 (Fla. 1st DCA 1988). We reject that notion. Phillips, is distinguishable for in that case the defendant was suspected of committing grand theft and the affidavit at issue did not set out a description of the items of property suspected of having been stolen. In our case, cannabis was specifically set out in the affidavit.
We therefore affirm the trial court's order denying appellees' motions to suppress as to the cannabis. Further, despite the state's urging, we see no reason to reverse the trial judge's ruling that the available evidence was insufficient to support a finding of probable cause for forfeiture of the $18,800.00.
We reject the state's contention that the hearing below was merely a suppression hearing and not a hearing on Millender's motion for return to her of the currency seized. Millender noticed the state of the hearing on both her motion to suppress and her motion for an adversarial preliminary hearing. At an adversarial preliminary hearing, the trial court must determine whether the seized property is subject to forfeiture under the Florida Contraband Forfeiture Act. Secs. 932.701(2)(f) and 932.703, Fla.Stat. (1993). This, the court did.
When the predecessor judge orally ruled at the hearing that all the items seized would be suppressed, the state did not attempt to offer any other evidence to support its contention that the $18,800 in currency was subject to forfeiture. It was the state's burden to establish probable cause that the currency was being used in violation of the Contraband Forfeiture Act. In re Forfeiture of $62,200 in U.S. Currency, 531 So.2d 352, 355 (Fla. 1st DCA 1988); Vessel Described as One 36 Foot Mirage v. Department of Natural Resources, 487 So.2d 1134, 1136 (Fla. 3d DCA 1986); In re Approximately $48,900 in U.S. Currency, 432 So.2d 1382 1385 (Fla. 4th DCA 1983). One can only presume that without the evidence seized below, the state must have decided that it could not establish probable cause for continued seizure of the currency and, therefore, submitted no additional evidence. Based on what had been presented, we cannot say that this was error by the trial judge in determining that the evidence presented did not provide probable cause for the retention of the $18,800.
The state nevertheless claims that the trial court could not return the currency to Millender until the county initiated a forfeiture proceeding, relying upon section 932.703(3), Florida Statutes (1993), which provides:
Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act; however, such action may be maintained if forfeiture proceedings are not initiated within 45 days after the date of seizure.
(Emphasis added.) The meaning of "such property" in this provision depends upon the immediately preceding provisions in section 932.703. Section 932.703(2)(c), addressing the subject of the adversarial preliminary hearing, provides:
[T]he 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.
(Emphasis added.) Once property is detained after a judicial determination that there is probable cause pursuant to section 932.703(2)(c), the court is required by section 932.703(2)(d) to order "such property " restrained by the least restrictive means. Thereafter, section 932.703(3), quoted above, limits actions for replevin of "such property." Accordingly, the replevin prohibition for "such property " in section 932.703(3) refers only to the property for which the court has ordered seizure or continued seizure...
To continue reading
Request your trial
-
State v. Vitale
...items of evidence found during the same search, State v. Miyasato, 805 So. 2d 818, 820 & n.1 (Fla. 2d DCA 2001); State v. Glass, 657 So. 2d 934, 935 & n.2 (Fla. 1st DCA 1995); cf. State v. Waterman, 613 So. 2d 565 (Fla. 2d DCA 1993), approved, Lopez v. State, 638 So. 2d 931 (Fla. 1994); to ......
-
Russ v. City of Jacksonville, 98-1523.
...any predecessor judge in the case. See Tingle v. Dade County Bd. of County Comm'rs, 245 So.2d 76, 78 (Fla.1971); State v. Glass, 657 So.2d 934, 935 n. 3 (Fla. 1st DCA 1995). While it is true that a judge should hesitate to undo his own work, and hesitate still more to undo the work of anoth......
-
State v. Vitale
...items of evidence found during the same search, State v. Miyasato, 805 So.2d 818, 820 & n. 1 (Fla. 2d DCA 2001); State v. Glass, 657 So.2d 934, 935 & n. 2 (Fla. 1st DCA 1995); cf. State v. Waterman, 613 So.2d 565 (Fla. 2d DCA 1993), approved, Lopez v. State, 638 So.2d 931 (Fla.1994); to sup......
-
Golon v. Jenne
...for an adversary preliminary hearing, a responsive pleading with affirmative defenses and a motion to suppress. See State v. Glass, 657 So.2d 934 (Fla. 1st DCA 1995) (after sheriffs office sent notice to claimant of her right to adversarial preliminary hearing in forfeiture proceeding, clai......