Opinion
No. 82-1601.
February 8, 1983.
Appeal from the Circuit Court, Dade County, Moie J.L. Tendrich, J.
Piken Snyder, North Miami, for appellant.
Weintraub, Weintraub, Seiden, Dudley Press, Miami, for appellee.
Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
While appellant was under investigation for suspected lottery violations, he was arrested for drinking beer within 500 feet of a grocery store. When the police searched his van, they found marijuana. Appellant pled no contest to the charge of possession of marijuana and to other charges. The City of Opa Locka then sought forfeiture of appellant's van and approximately $1,239 in the civil division of the circuit court.
We reverse the Summary Judgment of Forfeiture entered by the trial court. The court was required to conduct an evidentiary hearing prior to ordering forfeiture of appellant's property. Babb v. Lincoln Auto Finance Co., 133 So.2d 566 (Fla. 3d DCA 1961).
We note that a plea of no contest entered in a criminal case does not collaterally estop the assertion of defenses to a civil action. Chesebrough v. State, 255 So.2d 675 (Fla. 1971). Furthermore, a forfeiture proceeding is quasi-criminal and falls within the purview of the exclusionary rule. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); In re Forfeiture of 1972 Porsche, 307 So.2d 451 (Fla. 3d DCA 1975).
Reversed and remanded for further proceedings.
If the appellant's defense to the forfeiture proceeding is that the vehicle was not used to facilitate the transportation, concealment or sale of contraband, then it is correct to say that his nolo contendere plea in the criminal case will not collaterally estop him from raising that defense. But if his defense to the forfeiture proceedings is that the discovery of the contraband came about through an illegal seizure and search of the vehicle, then, contrary to the implication in the majority opinion, it is not the defendant's nolo contendere plea which saves him from the operation of collateral estoppel, but rather that the question of the legality of the seizure and search was neither distinctly put in issue nor directly determined in the criminal case. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951). Had the legality of the seizure and search been put in issue and determined adversely to the defendant in the criminal case, then he would be collaterally estopped from relitigating that question in the forfeiture proceedings without regard to the plea or outcome in the criminal case.