Wheeler v. State

• Decision Date: 15 July 1985
• Docket Number: No. AZ-299,AZ-299
• Citation: 472 So.2d 847,10 Fla. L. Weekly 1715
• Parties: 10 Fla. L. Weekly 1715 Gailyn W. WHEELER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 847

472 So.2d 847

10 Fla. L. Weekly 1715

Gailyn W. WHEELER, Appellant, v. STATE of Florida, Appellee.

No. AZ-299.

District Court of Appeal of Florida First District.

July 15, 1985.

Raymond L. Syfrett of Syfrett and Trollope, Panama City, for appellant.

Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Appellant seeks review of a judgment of forfeiture of her automobile, arguing that the trial court erred when it found from the evidence that appellant either knew or should have known that the vehicle was used for narcotics trafficking. We agree with appellant and reverse.

The evidence showed that on the evening of February 29, 1984, Jackie Vathis, a long-time friend of appellant, telephoned Ms. Wheeler and asked to borrow her 1977 Pontiac Bonneville because Vathis' own car was broken down. It was apparently established practice for Mrs. Vathis and Ms. Wheeler to lend each other their cars in such circumstances. Ms. Wheeler told Mrs. Vathis that she did not need the car back until the next morning; Mrs. Vathis later telephoned Ms. Wheeler and said that her husband, Nick Vathis, had borrowed the car. This, too, was apparently not out of the ordinary and Ms. Wheeler did not object.

Later that same evening, Nick Vathis was seen at the site of a narcotics transaction in Tallahassee. He eluded capture at that time but was arrested a few hours later in Blountstown. Approximately five pounds of cannabis were found in the trunk of the Bonneville. Vathis was arrested and the state sought forfeiture of the auto pursuant to Florida law. ¹

In support of its petition, the state introduced the testimony of a Panama City Police Department narcotics investigator who stated that Nick Vathis had the reputation in Bay County as a drug dealer. He also testified that on February 16, 1984, he purchased cocaine from a man named Zengri at the No Name Lounge and that Zengri got into appellant's car and drove to the Castaway Lounge after the transaction. The witness stated that Zengri, like Vathis, was a reputed drug dealer.

Jackie Vathis testified that Ms. Wheeler occasionally lent her car to friends. She also stated her husband worked as an auto mechanic and had never been arrested on drug charges prior to February 29, 1984.

Appellant testified that she lent her car to friends who needed transportation and to customers at the Castaway Lounge where she worked. The lounge is located on the water and customers often arrive by boat; appellant sometimes lent her car to these people if asked. She stated that she had no knowledge that Vathis or Zengri or anyone else to whom she lent the car was involved in the drug trade.

The outcome of this appeal is controlled by the application of Fla.Stat. section 932.703(2) (1983) to the facts presented below. That statutory section provides:

No property shall be forfeited under the provisions of ss. 932.701-932.704 if the owner of such property establishes that he neither knew nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity.

We believe that Ms. Wheeler did establish that she "neither knew nor should have known after a reasonable inquiry" that her auto "was being employed or was likely to be employed" to transport drugs. By her own testimony, she did not know of Nick Vathis' intent to use her car for illegal purposes. We also find that the "reasonable inquiry" standard was met where a long-time friend asked to borrow a car to run household errands while her own car was under repair, a practice that had been followed and reciprocated several times in the past without incident. We also find little probative value to the investigator's testimony that Vathis was a reputed drug dealer where Vathis had no arrest record and appellant testified she knew of no such reputation. We doubt that, in the absence of very unusual circumstances, any given individual would have a reputation as a drug dealer among the general population of a community if he had never been arrested on drug-related charges. We therefore construe the investigator's testimony to relate to Vathis' reputation in the law enforcement community of Bay County, information to which there was no showing that Ms. Wheeler had or should have had access. Likewise, we find the evidence regarding Zengri's reputation has little probative value to establish what Ms. Wheeler knew or should have known about the loan of her car to Mrs. Vathis.

Despite our traditional deference to the trial court's role as finder of fact, we find the record before us, taken in its totality, establishes that Ms. Wheeler neither knew nor should have known of the illegal use to which Nick Vathis put her vehicle. Accordingly, the judgment of forfeiture is REVERSED.

WENTWORTH, J., concurs.

ERVIN, J., dissents with written opinion.

ERVIN, Judge, dissenting with opinion.

In my judgment the majority has failed to place the proper legal significance upon the statutory provision added to Section 932.703(2), Florida Statutes, by Chapter 80-68, Section 3, Laws of Florida. The former forfeiture provisions, Sections 943.41 through 943.44; Florida Statutes (1975), were interpreted as permitting vehicle forfeiture only upon a showing of a " 'nexus between the illegal drugs found in the car and the furtherance of an illegal drug "operation".' " Griffis v. State, 356 So.2d 297, 302 (Fla.1978) (quoting In re Forfeiture of 1972 Porsche, 307 So.2d 451, 452 (Fla. 3d DCA 1975)). Although I am well aware of the general rule that forfeitures are considered harsh exactions, and therefore statutes authorizing forfeitures must be strictly construed, General Motors Acceptance Corp. v. State, 152 Fla. 297, 11 So.2d 482 (1943), I do not consider that the majority has taken proper account of the "knew nor should have known" language of Section 932.703(2). If the majority interprets section 932.703(2) as placing the burden upon the government to establish the owner's actual knowledge of her automobile's involvement in criminal activity, I submit such a construction is at variance with a plain reading of the statute.

I think it important to observe that had the statute in question explicitly provided for the vehicle's forfeiture, regardless of the owner's knowledge, no constitutional provision would necessarily have been implicated thereby. A long line of federal cases reflects the traditional view that the innocence of the owner of property subject to forfeiture is not a defense to the forfeiture. See, e.g., The Palmyra, 25 U.S. (12 Wheat.) 1, 14, 6 L.Ed. 531 (1827); United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 233, 11 L.Ed. 239 (1844); Dobbins's Distillery v. United States, 96 U.S. (6 Otto) 395, 401-02, 24 L.Ed. 637 (1878); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897, 900 (8th Cir.1977); United States v. One 1975 Ford F100 Pickup Truck, 558 F.2d 755, 757 (5th Cir.1977). Without specifically so deciding, the Supreme Court in Calero-Toledo indicated that "serious constitutional questions" might arise from any interpretation of a forfeiture statute which permitted forfeiture if (1) the property subject to the forfeiture had been taken from the owner without his consent, or (2) the owner "proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property". 416 U.S. at 689, 94 S.Ct. at 2094, 40 L.Ed.2d at 471 (e.s.). The Court, however, was satisfied that the government's evidence, showing that the owner had voluntarily leased its vessel to others without further inquiry, was sufficient to meet the statutory burden that the owner had not done "all that it reasonably could to avoid having its property put to an unlawful use." Id. at 690, 94 S.Ct. at 2095, 40 L.Ed.2d at 472.

Admittedly, the federal statutes, particularly 19 U.S.C. § 1595a, 21 U.S.C. § 881(a)(4), and 49 U.S.C. § 782, relating to forfeiture, do not have any provision, as does the Florida statute, relating to scienter. Section 932.703(2) represents an apparent accommodation between the federal rule requiring forfeiture, regardless of an owner's knowledge, and the former state rule placing the burden on the government to demonstrate that the owner had actual knowledge that his...