2D06-154 / Walker v. Sheriff Grady Judd

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State: Florida

Court: Florida Southern District Court

Docket No: 2D06-154

Case Date: 08/09/2006

Plaintiff: 2D06-154 / Walker

Defendant: Sheriff Grady Judd

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In re forfeiture of:                                                                       )
1999 Dodge Intrepid, VIN No.                                                               )
2B3HDY6RXXH543805, FLORIDA                                                                 )
TAG # J06MAQ, and THREE                                                                    )
THOUSAND ONE HUNDRED                                                                       )
FOURTEEN AND 00/100 DOLLARS                                                                )
($3114.00) UNITED STATES                                                                   )
CURRENCY.                                                                                  )
________________________________ )
)
ROMERIO L. WALKER,                                                                         )
)
Appellant,                                                                                 )
)
v.                                                                                         )   Case No. 2D06-154
)
SHERIFF GRADY JUDD,                                                                        )
)
Appellee.                                                                                  )
________________________________ )
Opinion filed August 9, 2006.
Appeal from the Circuit Court for
Polk County; James Michael
Hunter, Judge.
Romerio L. Walker, pro se.
David S. Bergdoll of Polk County
Sheriff's Office, Bartow, for Appellee.
NORTHCUTT, Judge.
Following the discovery of narcotics during a traffic stop, the Polk County
Sheriff's Office seized Romerio Walker's car, currency in the sum of $3114, and two cell
phones.   After an adversarial preliminary hearing, the circuit court ordered the cell

phones returned to Walker, but it found probable cause for the initiation of proceedings
to forfeit the car and cash.   Walker has appealed, contending that the circuit court erred
by refusing to entertain his evidence and argument concerning the validity of the stop
and search.   We agree and reverse.
Under the Florida Contraband Forfeiture Act, articles falling within the
definition of contraband may be seized and ultimately forfeited.   § 932.703(1), Fla. Stat.
(2005).   Following the seizure of personal property, the State must notify all interested
parties of their right to request a postseizure adversarial preliminary hearing.
§ 932.703(2)(a).   If requested, the circuit court must hold a hearing and determine
whether there is probable cause to believe that the property is subject to forfeiture.
§ 932.703(2)(c); see also Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957, 965-
66 (Fla. 1991).
The Fourth Amendment's exclusionary rule applies to forfeiture
proceedings.   588 So. 2d at 963; One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.
693 (1965).   Specifically, evidence obtained in violation of the Fourth Amendment must
be excluded from the probable cause determination at an adversarial preliminary
hearing.   Alvarez v. City of Hialeah, 900 So. 2d 761, 765 (Fla. 3d DCA 2005) ("[W]here
the claimants raised a Fourth Amendment challenge to the stop of the vehicle, that
issue must be addressed first and independently of the question of whether there is a
nexus between the seized currency and unlawful drug activity."); Golon v. Jenne, 739
So. 2d 659, 661 (Fla. 4th DCA 1999) ("[L]ongstanding precedent provides that evidence
derived from a search in violation of the Fourth Amendment must be excluded at a
hearing determining whether the government has probable cause for forfeiture.");
Indialantic Police Dep't v. Zimmerman, 677 So. 2d 1307, 1309 (Fla. 5th DCA 1996)
("[T]he validity of the stop and search are inextricably bound up with the probable cause
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determination required by the Act."); see also McLane v. Rose, 537 So. 2d 652, 653
(Fla. 2d DCA 1989) (reversing trial court's decision on lawfulness of seizure but stating
that "evidence uncovered in violation of the fourth amendment . . . must be excluded
from consideration in civil forfeiture proceedings").
At the hearing in this case, the circuit court declined to entertain Walker's
suppression issue after the Sheriff's counsel advised that Walker had prepared a motion
to suppress but that it was not noticed for the hearing.   In Golon, 739 So. 2d at 663, the
Fourth District reviewed the procedural protections associated with forfeiture
proceedings, set forth by the supreme court in Real Property and in the Florida Rules of
Civil Procedure.   It found "no direct authority for the requirement that a claimant must
file a motion to suppress or other responsive pleading in order to raise Fourth
Amendment issues at an adversarial preliminary hearing[.]"   Golon, 739 So. 2d at 663
(noting that the State should anticipate these issues and should obtain a continuance if
it needed additional time to develop evidence or research the law).   In this case, the
circuit court erred by finding probable cause without allowing Walker to present
evidence and argument concerning the validity of the stop and search.   Therefore, we
reverse.
Reversed and remanded for further proceedings.
CASANUEVA and CANADY, JJ., Concur.
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