Opinion
No. SC04-1944.
February 16, 2006.
Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions, Third District — Case No. 3D03-1535, (Miami-Dade County).
Paul Morris, Miami, Florida and Robert A. Rosenblatt, Pinecrest, Florida, for Petitioner.
Roberto Elpidio Fiallo and Robert Knabe, Miami, Florida, for Respondent.
This case concerns the issue of standing to contest probable cause at a postseizure, adversarial probable cause hearing under the Florida Contraband Forfeiture Act. We review Velez v. Miami-Dade County Police Department, 881 So. 2d 1190 (Fla. 3d DCA 2004), in which the Third District Court of Appeal certified conflict with the decisions of the Fourth District Court of Appeal in City of Fort Lauderdale v. Baruch, 718 So. 2d 843 (Fla. 4th DCA 1998), and Jean-Louis v. Forfeiture of $203,595.00 in U.S. Currency, 767 So. 2d 595 (Fla. 4th DCA 2000). The conflict issue is whether a person who was merely in possession of property when it was seized has standing to participate in an adversarial preliminary hearing in which the issue is probable cause for the seizure. We have jurisdiction. See art. V, § 3(b)( 4), Fla. Const.
Hereinafter "Forfeiture Act." The Forfeiture Act spans sections 932.701—.707, Florida Statutes (2002).
In addition to certifying conflict, the Third District set out the conflict issue in the format customarily used by our district courts in certifying questions of great public importance:
DOES A PERSON IN MERE POSSESSION OF PROPERTY AT THE TIME OF SEIZURE HAVE STANDING AT AN ADVERSARIAL PRELIMINARY HEARING TO CHALLENGE THE SEIZURE WITHOUT SHOWING A PROPRIETARY INTEREST IN THE PROPERTY?
Velez, 881 So. 2d at 1192. Because the Third District did not formally certify this question as being of great public importance and because the question does not take into consideration the showing necessary to establish possession of the seized property, an issue that is also addressed in this opinion, we decline to answer this question as posed.
The Fourth District reads the Forfeiture Act as granting standing at a postseizure, adversarial preliminary hearing to a "person entitled to notice" as that term is defined in section 932.701(2)(e), Florida Statutes (2002). In addition to owners, lienholders, and titleholders, this category includes the person in possession of the property when it was seized. The Third District interprets the Act more narrowly. It reads the Forfeiture Act as conferring standing at an adversarial preliminary hearing only upon a "claimant." A claimant is defined in the Forfeiture Act as a person who has a "proprietary interest" in the property "including owners, registered owners, bona fide lienholders, and titleholders." § 932.701(2)(h), Fla. Stat. This definition omits persons who were merely in possession of property when it was seized.
For the reasons set forth below, we hold that the Forfeiture Act confers standing for purposes of the adversarial preliminary hearing upon a "person entitled to notice" as defined in section 932.701(2)(e). However, we further hold that in order to establish standing to participate in this adversarial preliminary hearing, one must either testify or otherwise attest to being within the class of persons entitled to notice. We therefore approve in part and quash in part the decision of the Third District in Velez, and, with one reservation explained below, approve the decisions of the Fourth District in Baruch and Jean-Louis.
FACTS AND PROCEDURAL HISTORY
A Miami-Dade police officer stopped Velez for a traffic infraction. The officer asked Velez about a suitcase in plain view on the rear seat of the vehicle. Velez said the suitcase contained only clothing and gave consent for a search. The suitcase yielded $489,880 in currency, mostly in $20 bills secured in bundles. Velez told the officer that the money did not belong to him but had been given to him by a person he did not know. Fifteen days after the seizure, Velez requested an adversarial preliminary hearing under section 932.703(2)(a), Florida Statutes (2002). Velez did not attend the hearing, and his attorney did not present any sworn proof to establish that Velez was the owner or the person in possession of the seized currency. Velez's counsel asserted only that because the officer's sworn complaint reflected that the money was in Velez's possession at the time of the seizure, he was a "person entitled to notice" under section 932.701(2)(e) and therefore had standing to contest the seizure at an adversarial preliminary hearing under section 932.703(2)(a). The trial court disagreed, denied Velez standing pursuant to Vasquez v. State, 777 So. 2d 1200 (Fla. 3d DCA 2001), and concluded that probable cause existed to seize the currency based on the allegations in the sworn complaint.
The Third District affirmed, relying on its holding in Vasquez that one challenging a seizure of property "must come forward with sworn proof of a possessory and/or ownership interest in the same to acquire standing to contest the forfeiture proceeding.'" Velez, 881 So. 2d at 1192 (quoting Vasquez, 777 So. 2d at 1202). The court also stated that "standing to participate in an adversarial preliminary hearing is `a preliminary issue for the court'" and that the person challenging the seizure "`must provide a sworn statement setting forth the factual basis of the claim.'" Id. (quoting Gonzalez v. City of Homestead, 825 So. 2d 1050, 1052 (Fla. 3d DCA 2002)). However, the Third District recognized that its holding directly conflicted with the Fourth District's holdings in Baruch, 718 So. 2d at 846 (holding that "[a] `person entitled to notice' need not demonstrate a proprietary interest in the property at issue, but only that he was `in possession' of the property when it was seized"), and Jean-Louis, 767 So. 2d at 598 (holding that "appellants have standing in the adversarial preliminary hearing, as at the very least, they were in possession of the money at the time of its seizure"). We granted review based on certified conflict of decisions.
THE FORFEITURE ACT
Forfeiture proceedings in Florida are a two-stage process. The first stage is an adversarial preliminary hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Forfeiture Act. § 932.701(2)(f), Fla. Stat. The Forfeiture Act provides that when personal property is seized, any "person entitled to notice" should receive notice of the right to a preliminary hearing within five days after the seizure and may make a request within fifteen days after receiving notice that the hearing be held. § 932.703(2)(a), Fla. Stat. The Act defines "person entitled to notice" as "any owner, entity, bona fide lienholder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry." § 932.701(2)(e), Fla. Stat. The second stage is a forfeiture proceeding "in which the court or jury determines whether the subject property shall be forfeited." § 932.701(2)(g), Fla. Stat. At the forfeiture proceeding, the court "shall" order the seized property forfeited to the seizing agency "[u]pon clear and convincing evidence that the contraband article was being used in violation" of the Forfeiture Act. § 932.704(8), Fla. Stat. (2002). The person contesting the forfeiture in the second stage is identified in section 932.704 as a "claimant." The class of persons who are claimants is narrower than those entitled to notice of the adversarial preliminary hearing. A claimant is defined in section 932.701(2)(h) as "any party who has proprietary interest in property subject to forfeiture and has standing to challenge such forfeiture, including owners, registered owners, bona fide lienholders, and titleholders."
ANALYSIS
Our analysis involves the statutory interpretation of the Forfeiture Act. The standard of appellate review on issues involving the interpretation of statutes is de novo. B.Y. v. Dep't of Children Families, 887 So. 2d 1253, 1255 (Fla. 2004). We begin our analysis by interpreting the meaning of a "person entitled to notice" as that term relates to other pertinent provisions of the Forfeiture Act. This interpretation will conclude that the Legislature intended to include those merely in possession of seized property in the class of those entitled to contest the seizure at the adversarial preliminary hearing. We will then apply this statutory interpretation to the facts in Velez. Lastly, we resolve the certified conflict by holding that a person demonstrating by sworn proof that he or she possessed the property subject to forfeiture at the time of the seizure has standing at an adversarial preliminary hearing to challenge probable cause for the seizure.
1. Who May Participate in the Preliminary Hearing
"As this Court has often repeated, `[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning . . . the statute must be given its plain and obvious meaning.'" Fla. Dep't of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 960 (Fla. 2005) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). Further, we are "without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power." McLaughlin v. State 721 So. 2d 1170, 1172 (Fla. 1998) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). A related principle is that when a court interprets a statute, it "must give full effect to all statutory provisions." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). Courts should "avoid readings that would render part of a statute meaningless." Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996) (quoting Forsythe, 604 So. 2d at 456).
The Forfeiture Act provides that a "person in possession of the property . . . when seized" is a "person entitled to notice." § 932.701(2)(e), Fla. Stat. A "person entitled to notice" must be notified that there is a right to an adversarial preliminary hearing to determine whether probable cause exists for the seizure and is authorized to request such a hearing. § 932.703(2)(a), Fla. Stat. This combination of a requirement of notification of the right to the adversarial preliminary hearing and the right to request the hearing indicates that the Legislature intended the "person entitled to notice" to have an opportunity to participate in that hearing.
The showing necessary to establish standing by a person who has received notice and requested a preliminary hearing falls outside the certified conflict. However, that issue is addressed below in our application of our conclusion on the conflict issue to the facts of this case.
The Third District's construction grants standing at this preliminary hearing only to one who can demonstrate an interest sufficient to satisfy the court of the party's standing as a "claimant." The resulting limitation on standing is contrary to the plain meaning of section 932.701(2)(e) and would effectively negate the language therein that brings a "person in possession of property subject to forfeiture when seized" within the definition of a "person entitled to notice." To give effect to the plain meaning of section 932.701(2)(e) and to avoid rendering part of that provision ineffectual, a person who can demonstrate that he or she was in possession of the property at the time of seizure must be granted standing at the adversarial preliminary hearing.
See § 932.701(2)(h) (defining "claimant").
This reading of the Act to include persons in mere possession of the seized property as being entitled to standing at the adversarial preliminary hearing is consistent with amendments to the Act made to conform it with an earlier due process decision from this Court. In 1991, this Court held that due process requires that all "potential" claimants of seized property receive notice and an opportunity to be heard in an adversarial proceeding. Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957, 966 (Fla. 1991). During the next legislative session after this decision, the Forfeiture Act was amended to create both the adversarial preliminary hearing and a category of "person entitled to notice" who must be notified of the right to the hearing. See ch. 92-54, §§ 1, 3, Laws of Fla. As amended, the Forfeiture Act extends to potential claimants, including those who were in possession of property when it was seized, the notice required by the decision in Real Property. On this point, the Fourth District has noted:
It is in the interest of a seizing agency to aggressively notice all potential claimants, to cast a wide net for" persons entitled to notice" under the statute, since a later finding of a lack of diligence would vitiate the entire forfeiture proceeding. Any interpretation of the statute which permitted a seizing agency to tiptoe around the notice requirement would eviscerate the statutory intent to provide a speedy preliminary hearing and would run afoul of the procedural due process requirement of Article I, Section 9, of the Florida Constitution.
Baruch, 718 So. 2d at 846.
Further, in using the term "adversarial," the statute contemplates that the preliminary hearing would involve opposing parties. If persons who were merely in possession of the property when it was seized are "entitled to notice" but uniformly denied standing at the preliminary hearing, the resulting hearing might be less than adversarial. Indeed, this hearing would in many cases effectively be an ex parte proceeding, satisfying one of the due process requirements, notice, but not the other, the opportunity to be heard.
Black's Law Dictionary 58 (8th ed. 2004) defines an adversary proceeding as "[a] hearing involving a dispute between opposing parties."
The distinction between a "person entitled to notice" and one who is a "claimant" is inherent in, if not essential to, the two-stage process of the Forfeiture Act. In the first, adversarial preliminary hearing stage, the seizing agency bears the burden of establishing "probable cause that the property subject to forfeiture was used in violation of the [Forfeiture Act]." § 932.701(2)(f), Fla. Stat. Permitting the broadest class of persons with a potential interest in the seized property to participate at this initial hearing is appropriate because only the issue of probable cause for the seizure is addressed. No interest in the property is actually forfeited to the seizing agency at this stage. The second, forfeiture proceeding stage, actually "determines whether the subject property shall be forfeited," § 932.701(2)(g), Fla. Stat. At this second stage, the decision is made as to whether the proprietary interest of a claimant — an owner, registered owner, bona fide lienholder, or titleholder — will be extinguished in favor of the seizing agency. To establish status as a "claimant" with standing to contest forfeiture in this second stage, a person must demonstrate that he or she has "a proprietary interest in property subject to forfeiture." § 932.701(2)(h), Fla. Stat. Thus, the different criteria for standing of persons entitled to notice and claimants correspond to the different determinations to be made in adversarial preliminary hearings and forfeiture hearings.
Moreover, "because forfeiture actions are considered harsh extractions, this Court has long followed a policy of strictly construing forfeiture statutes." DeGregorio v. Balkwill, 853 So. 2d 371, 373 (Fla. 2003); see also Real Property, 588 So. 2d at 961. Any ambiguity in a forfeiture statute must be construed against forfeiture. DeGregorio, 853 So. 2d at 373. Requiring a "person entitled to notice" to also demonstrate his status as a claimant in order to participate in the adversarial preliminary hearing is contrary to this principle of strict construction.
Accordingly, we conclude that under the Forfeiture Act a person demonstrating that he or she was in possession of the property subject to forfeiture at the time of the seizure has standing at an adversarial preliminary hearing to challenge probable cause for the seizure and is not required to also show a proprietary interest in the property.
2. Establishing Standing to Participate
Having resolved the conflict question of whether or not a person in mere possession of property at seizure is entitled to participate in the adversarial preliminary hearing, we must now address a second issue. We must determine what burden, if any, one seeking to participate in this preliminary proceeding bears in order to actually participate in the hearing. As we elaborate below, we hold that the statutory right to participate in the adversarial preliminary proceeding carries with it an initial burden of establishing one is a "person entitled to notice." Therefore, even though we disagree with the Third District's reading of the Forfeiture Act as conferring the right to participate at the preliminary hearing only upon claimants, we agree with its understanding that Florida law places the burden of establishing standing in this civil proceeding upon the person asserting the right to participate. In Chuck v. City of Homestead Police Department, 888 So. 2d 736, 745 (Fla. 3rd DCA 2004), an en banc decision rendered after Velez, the Third District wrote:
Florida has recognized in its decisions that only persons who have standing can participate in a judicial proceeding. Byrom v. Gallagher, 609 So. 2d 24, 26 (Fla. 1992). The burden of establishing standing in a forfeiture proceeding is on the claimant. See In re Forfeiture of 1983 Wellcraft Scarab, 487 So. 2d 306, 309 (Fla. 4th DCA), rev. dismissed, 494 So. 2d 1150 (Fla. 1986). Furthermore, standing is a preliminary issue that is to be decided by the court. Fraser v. Dep't of Hwy. Safety and Motor Vehicles, 727 So. 2d 1021, 1022 (Fla. 4th DCA 1999).
In light of our agreement with the Third District on this second issue, Velez has failed to establish standing. He failed to satisfy his initial burden of showing that he was a person in possession of the money at the time of seizure.
Specifically, Velez contends that the trial court's failure to grant him standing to participate in the adversarial preliminary hearing requires this Court to reverse the trial court's ruling with directions to dismiss the forfeiture action and return the money to him. Velez relies on DeGregorio, 853 So. 2d at 376, in which we held that "if the seizing agency fails to file the complaint within the prescribed time, the forfeiture proceeding can be dismissed on the claimant's motion." See also Murphy v. Fortune, 857 So. 2d 370, 372 (Fla. 1st DCA 2003) (reasoning that failure to hold a timely adversarial preliminary hearing mandates return of seized money); Dep't of Highway Safety Motor Vehicles v. Metiver, 684 So. 2d 204, 206 (Fla. 4th DCA 1996) (affirming an order holding a five-day delay between the tenth day after claimant requested a hearing on forfeiture and the date on which the hearing occurred did not comply with the Forfeiture Act requirements that the hearing occur within ten days or as soon as practicable thereafter and requiring the State to return the currency seized); Cochran v. Harris, 654 So. 2d 969, 971 (Fla. 4th DCA 1995) (affirming dismissal of forfeiture proceedings due to a twenty-three-day delay between the tenth day after request for hearing and the date on which hearing could have occurred).
Velez's reliance on this line of precedent is misplaced. Neither DeGregorio nor the other cases cited above apply to this case, in which the preliminary hearing was timely held. The issue in this case is not the consequence for failing to comply with the clear time dictates of the Forfeiture Act. The conflict issue here is whether a person who was merely in possession of property when it was seized has the right to participate in an adversarial preliminary hearing. We have answered this conflict question in Velez's favor. However, there remains the second issue, an issue in which there is no conflict among the district courts. Again, this second issue concerns the burden one must carry in order to actually participate in this preliminary proceeding.
In Velez, the Third District held that the trial court properly denied Velez standing to participate in the preliminary adversarial hearing because he did not make an adequate showing that he was in possession of the property when seized. Velez neither appeared personally nor "came forward with . . . sworn proof on the question of standing." Velez, 881 So. 2d at 1192. The Third District relied on its prior decisions in which it emphasized the requirement of "sworn proof of a possessory [or] ownership interest" to acquire standing to contest a seizure in an adversarial preliminary hearing. Vasquez, 777 So. 2d at 1202 (quoting Munoz v. City of Coral Gables, 695 So. 2d 1283, 1288 (Fla. 3d DCA 1997)).
Although the issue in Munoz and Vasquez was standing to contest probable cause in an adversarial preliminary hearing, the Third District used the terms "claimant" and "forfeiture proceeding," which apply to the second stage of the process. In Chuck, the Third District acknowledged that in Munoz it had "used `forfeiture hearing' and `adversarial preliminary hearing' interchangeably and did not note the statutory distinction between a `claimant' and `person entitled to notice.'" Chuck v. City of Homestead Police Dep't, 888 So. 2d 736, 750 (Fla. 3d DCA 2004).
Again, though we do not agree with the decision of the Third District below as it relates to the conflict question, the Munoz and Vasquez decisions on which the Velez court relied, as well as the subsequent en banc decision in Chuck, aid our analysis of this second issue.
In an unverified pleading, Munoz claimed the seized currency without asserting a possessory or ownership interest. The Third District found this pleading insufficient to establish standing. See Munoz, 695 So. 2d at 1287. Further, the court concluded that police allegations contained in the city's verified complaint and Munoz's unsworn statement to the seizing officers also were insufficient to establish standing. The court specifically concluded that Munoz's mere possession of the currency was not legally determinative. See id. at 1288. In Vasquez, the Third District remanded the case to the trial court for an evidentiary hearing to resolve the conflict between Vasquez's affidavit asserting ownership of the money and his statements to officers implying that he was acting as a money courier for a third person. See 777 So. 2d at 1203.
The Third District's more recent en banc decision in Chuck clearly outlines the appropriate method for assessing standing to participate in the adversarial preliminary hearing. In that case, Chuck was in possession of $380,000 at the time of its seizure. At one point during the seizure, Chuck claimed ownership of the funds. However, there also was evidence from the time of seizure contradicting this claim of ownership. The Third District found this "contradictory evidence sufficient to require an evidentiary hearing on the issue of standing [for the adversarial preliminary hearing]." Id. at 751. The court analogized adversarial preliminary hearing procedures to the procedures used in long-arm jurisdiction disputes. It determined that it needed to resolve this threshold issue of Chuck's standing and that he would bear the initial burden of proof. Moreover, the Third District stated that "if Chuck declines to testify on the basis of privilege against self-incrimination, the court may draw an adverse inference against him." Id. at 752. Based on the evidence presented, the trial court could then decide whether ownership of the property was established by a preponderance of the evidence. If so, the court could then move on to the probable cause determination. If not, Chuck's request for the adversarial preliminary hearing in order to determine probable cause should be dismissed. As modified by our primary holding that a "person entitled to notice" has standing to request and participate in the adversarial preliminary hearing, we approve this procedural approach.
The Third District Court of Appeal specifically stated that:
In a civil case, when a defendant wishes to contest the existence of a factual basis for the exercise of long-arm jurisdiction over him or her, the litigant files a motion to dismiss for lack of personal jurisdiction, and supports the motion with an affidavit stating the facts relevant to personal jurisdiction. If the plaintiff wishes to contest the defendant's version of the facts, the plaintiff must file an opposing affidavit. If the two affidavits can be reconciled, the court makes a ruling without an evidentiary hearing. If the two affidavits cannot be reconciled, then the trial court conducts an evidentiary hearing to decide the issue of personal jurisdiction.
Chuck, 888 So. 2d at 751 n. 6 (quoting Gonzalez v. City of Homestead, 825 So. 2d 1050, 1053 n. 1 (Fla. 3d DCA 2002)) (citations omitted).
The Fourth District's approach to the proof necessary to establish standing in the adversarial preliminary hearing is consistent with the Third District's approach. In Baruch, the Fourth District held that Baruch's testimony that she had "an interest" in the seized contents of a safe deposit box was insufficient to establish standing. See 718 So. 2d at 847. In Jean-Louis, the court required an evidentiary hearing to resolve the conflict created by a written waiver of any possessory or ownership interest obtained from Jean-Louis by the seizing agency and a subsequent affidavit in which he attested that the money was his and explained that it was used in his export business. See 767 So. 2d at 598.
The court in Jean-Louis also stated that if the waiver were found to be invalid, the appellants would have standing "as at the very least, they were in possession of the money at the time of its seizure." 767 So. 2d at 598. To the extent that this language may be read to confer standing from unsworn evidence of mere possession, we disagree.
Guided by these decisions, we conclude that Velez did not carry his burden of establishing standing to participate in the adversarial preliminary hearing. We agree with the Third District that a personal appearance by one contesting a seizure is not mandatory. See Munoz, 695 So. 2d at 1286. However, we also agree with the Third District that the narrative in the sworn complaint of the seizing agency reflecting that the money was in the possession of a person when seized is insufficient to establish that person's standing in the adversarial preliminary hearing. See Velez, 881 So. 2d at 1192. The sworn complaint in this case reflects that Velez initially told the officer that the suitcase merely contained clothing. When the officer instead discovered the large sum of money, Velez said the money did not belong to him but had been given to him by a person he did not know. Despite this incongruity, unlike the appellants in Vasquez and Jean-Louis, Velez never offered sworn proof at the preliminary hearing that he was the person in possession of the currency at seizure. For purposes of establishing standing, Velez's bare reliance at the adversarial preliminary hearing on the Miami-Dade County Police Department's complaint is insufficient. In summary, Velez failed to demonstrate that he was a person in possession of the currency at the time of seizure. Therefore, he failed to meet his burden to establish standing to participate in the adversarial preliminary hearing to determine probable cause for the seizure.
Although this is not a basis for our decision, we also note that subsequent to the hearing, Velez filed an answer to the complaint wherein he denied that he was driving the vehicle, denied that there was currency in the vehicle, and denied that he even had knowledge that the currency was seized.
CONCLUSION
We quash that part of the decision of the Third District Court of Appeal in Velez holding that a person in possession of property at the time of seizure must show a proprietary interest in the property in order to gain standing to challenge the seizure in an adversarial preliminary hearing. However, we approve that part of the decision holding that Velez did not have standing because he failed to demonstrate that he possessed the currency at seizure. We approve the decisions of the Fourth District Court of Appeal in Baruch and Jean-Louis, except to the extent that certain language in Jean-Louis, 767 So. 2d at 598, can be construed to convey standing to persons who "at the very least . . . were in possession of money at the time it was seized" without sworn proof.
It is so ordered.
WELLS, LEWIS, and QUINCE, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with in opinion, in which PARIENTE, C.J., and CANTERO, J., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
While I agree with the majority's resolution of the conflict issue, I cannot agree with the majority's conclusion that Velez was required to offer additional proof to establish standing at the preliminary hearing, when his attorney had already presented the sworn complaint of the seizing agency demonstrating Velez's standing at the hearing. Therefore, I would quash the decision of the Third District Court of Appeal and hold that Velez has demonstrated his standing as a person in possession of the seized property.
The certified conflict issue in this case requires us to determine whether a person in possession of property at the time of seizure has standing at an adversarial preliminary hearing to challenge the seizure without showing an additional proprietary interest in the property. That question is straightforward and requires an affirmative response, as the majority acknowledges. However, the majority opinion goes further and limits standing to participate in an adversarial preliminary hearing to an individual who "must either testify or otherwise attest to being within the class of persons entitled to notice." Majority op. at 3. The majority then concludes that Velez failed this test because he "failed to demonstrate that he was a person in possession of the currency at the time of seizure." Majority op. at 20. The majority reaches this conclusion even though Velez relied upon the sworn complaint of the seizing agency attesting that the property was in his possession at the time of seizure.Id.
The majority opinion states, "Because the Third District did not formally certify this question as being of great public importance and because the question does not take into consideration the showing necessary to establish possession of the seized property, an issue that is also addressed in this opinion, we decline to answer this question as posed." Majority op. at 2 n. 2.
Surely the sworn complaint of the government agency seeking forfeiture should serve as an adequate basis for the court to determine the standing of a person in possession. Indeed, those sworn statements would ordinarily bind the agency and preclude any contest where the respondent agrees with the statement. After all, if the agency claims a respondent was in possession, and files a sworn petition to that effect, that agency is estopped to claim otherwise, absent an attempt to withdraw or amend its pleading.
As the majority points out, in the first stage of a forfeiture proceeding, the adversarial preliminary hearing stage, the seizing agency bears the burden of establishing "probable cause that the property subject to forfeiture was used in violation of the . . . Forfeiture Act." § 932.701(2)(f), Fla. Stat. (2002). As the majority further explains, a less stringent standing requirement exists for this preliminary hearing because only the narrow issue of the existence of probable cause for the seizure is addressed. No interest in the property is actually forfeited to the seizing agency at this stage. However, at the second stage, not at issue here, the court actually "determines whether the subject property shall be forfeited." § 932.701(2)(g). At this stage, the decision is made as to whether the proprietary interest of a "claimant" will be extinguished in favor of the seizing agency. Accordingly, to establish standing to contest forfeiture in this second stage, a person must demonstrate that he or she has a "proprietary interest in property subject to forfeiture." § 932.701(2)(h).
The analysis of whether Velez has standing must start with the statute itself. Section 932.703(2)(a) provides:
Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act. Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. When a postseizure, adversarial preliminary hearing as provided in this section is desired, a request must be made in writing by certified mail, return receipt requested, to the seizing agency. The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter.
Id. (emphasis added). This statute expressly provides that a "person entitled to notice" may demand an adversarial preliminary hearing. Section 932.701(e), defines a "person entitled to notice" as "any owner, entity, bona fide lienholder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry." (Emphasis added.) Hence, this statutory scheme authorizes a person in possession of the seized property to demand a preliminary hearing. The majority's analysis is clearly correct up to this point.
However, after acknowledging the standing of a person in possession, the majority fails to explain why the agency's sworn complaint attesting to Velez's possession should not suffice to establish his standing. The majority opinion appears to place an additional burden on Velez by requiring that he must either testify or attest to being a "person entitled to notice" despite the existence of a sworn petition attesting to that fact. Majority op. at 3. What the majority fails to acknowledge is the fact that Velez's possession of the suitcase has been conceded by the petitioning agency and is not in dispute in this case. Under such circumstances, there is no justification for the majority's requirement of additional sworn proof when there is already a sworn complaint by the seizing agency stating that Velez was the person who was in possession of the suitcase.
Indeed, in an analogous scenario — one in which a civil forfeiture action was brought by the government — the Third District in Office of the State Attorney v. Jimenez, 845 So. 2d 914 (Fla. 3d DCA 2003), stated that "[t]he mere assertion of ownership over the res, without more is insufficient to establish standing. Standing is established where the mere assertion is coupled with an admission by the government that the claimant has a relationship to the seized property." Id. at 917 (emphasis added). The federal courts have reached a similar conclusion.See United States v. $8,221,877.16 in U.S. Currency, 148 F. Supp. 2d 427, 432 (D.N.J. 2001) ("[W]here the government admits that a claimant has a relationship to the res, no additional evidence of ownership need be produced by that claimant in order to establish standing."), rev'd on other grounds, 330 F.3d 141 (3d Cir. 2003); United States v. Forfeiture, Stop Six Center, 794 F. Supp. 626, 633 (N.D. Tex. 1992) (stating that the government's allegation of claimant's involvement with seized res was sufficient to establish standing).
In another analogous scenario — involving a suppression hearing following the seizure of contraband — courts have generally accepted the government's admission of facts required to establish standing or concession of standing. After the seizure of contraband, the State will frequently argue that the defendant lacks standing at the suppression hearing. See, e.g., Simmons v. State, 913 So. 2d 19, 23 n. 1 (Fla. 2d DCA 2005) ("At the suppression hearing . . . the State raised the issue of [the defendant's] standing to challenge the motion to suppress.");Huggins v. State, 882 So. 2d 507, 508 (Fla. 4th DCA 2004) ("[A]t the hearing the state suggested . . . that [the defendant] had no standing to contest the warrant. . . ."); State v. Thompson, 852 So. 2d 877, 878 (Fla. 2d DCA 2003) ("At the suppression hearing the State objected that [the defendant] . . . did not have standing to contest the search and seizure."). Courts in Florida, however, have accepted (1) the State's concession that the defendant has standing or (2) the State's admission of facts required to establish standing. See, e.g.,Figueroa v. State, 870 So. 2d 897, 899-900 (Fla. 5th DCA 2005) ("At the hearing . . . the State conceded that [the defendant] had standing to challenge the evidence sought to be suppressed because he was a participant in some incriminating conversations that were intercepted by virtue of the wiretap."); Torres v. State, 708 So. 2d 677, 677-78 (Fla. 2d DCA 1998) ("The trial court denied the motion on the basis that [the defendant] did not have standing to challenge the legality of the stop. . . . The State correctly concedes that [the defendant] does have standing, and that the trial court erred in denying Mr. Torres' motion on this basis."); Johnson v. State, 492 So. 2d 693, 694 (Fla. 5th DCA 1986) ("The State concedes appellant's standing to assert his Fourth Amendment claim. . . ."); Sarno v. State, 424 So. 2d 829, 833 (Fla. 3d DCA 1982) (where the court denied appellants relief because they lacked standing to challenge the information obtained from one room "bug," but considered their challenge to the information obtained from another "bug," because the State conceded that several of the appellants had standing).
CONCLUSION
It would seem obvious that when the government acknowledges the claimant's relationship to the property, no additional evidence is necessary to establish standing. There seems to be little logic in requiring a sworn affidavit that Velez was in possession of the suitcase when the government has already conceded this fact in a sworn petition. Hence, I would hold that Velez had standing at the preliminary hearing because Velez's attorney offered the government's sworn complaint acknowledging Velez's relationship to the suitcase. While I agree with much of the majority's analysis, I cannot join in the majority's ultimate conclusion to deny Velez standing at the preliminary hearing on the record before this Court.
PARIENTE, C.J., and CANTERO, J., concur.