          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


BREVARD COUNTY SHERIFF'S OFFICE,

             Appellant,

 v.                                                    Case No. 5D15-3390

KEVIN CHARLES BROWN,

             Appellee.

________________________________/

Opinion filed February 3, 2017

Appeal from the Circuit Court
for Brevard County,
George W. Maxwell III, Judge.

Jason M. Gordon and Robin M.L. Cornell,
of Gordon & Cornell, Cocoa Beach, for
Appellant.

Reed C. Cary, of Law Office of Reed C.
Cary, Melbourne, for Appellee.


BERGER, J.

      During the execution of a search warrant, members of the Brevard County Sheriff’s

Office (Brevard) located a glass pipe containing methamphetamine residue inside Kevin

Brown’s 1997 Chevrolet Corvette.1 Thereafter, Brevard sought forfeiture of Brown’s



      1   The following additional items of contraband were found in and around Brown’s
home: nine grams of ecstasy, forty-three packages of pseudoephedrine, lithium batteries,
coffee filters, methamphetamine, two digital scales, cannabis, small plastic baggies, one
Corvette under the Florida Contraband Forfeiture Act (FCFA). See §§ 932.701-.706, Fla.

Stat. (2015). At the adversarial preliminary hearing, the trial court dismissed Brevard’s

complaint, with prejudice, after concluding possession of the pipe was insufficient to

establish that the Corvette was used in committing or aiding and abetting the commission

of a felony.   Brevard argues this was error.     It insists that possession of the pipe

constitutes a felony offense, regardless of how it was charged, because the pipe field-

tested positive for methamphetamine and, further, that because it was unlawful for Brown

to conceal the pipe in the Corvette, the Corvette was subject to forfeiture under the FCFA.

We agree and reverse.

       As we have previously recognized, forfeiture proceedings involve a two-step

process. Patel v. State, 141 So. 3d 1239, 1244 (Fla. 5th DCA 2014) (citing Gomez v. Vill.

of Pinecrest, 41 So. 3d 180, 184 (Fla. 2010)).       The first stage, outlined in section

932.703(2), Florida Statutes (2015), involves the seizure of property. The second stage

involves the actual forfeiture of property. See id. Adversarial preliminary hearings, such

as the one at issue in this case, occur during the first stage of the proceedings. See §

932.703(2), Fla. Stat. (2015). The purpose of an adversarial preliminary hearing is "to

determine whether probable cause exists to believe that the property was used in violation

of the FCFA." Patel, 141 So. 3d at 1242; see also §§ 932.701(2)(a)12.(f), 932.703(2)(a),

Fla. Stat. (2015). Only if the trial court determines probable cause exists for the seizure

may the forfeiture proceed. § 932.703(2)(c), Fla. Stat. (2015).




pipe that tested positive for methamphetamine, and three glass pipes that tested positive
for cocaine.

                                            2
       It is unlawful to use any motor vehicle to facilitate the concealment or possession

of any contraband article. § 932.702(3), (4), Fla. Stat. (2015). Section 932.701(2)(a)

defines a contraband article as:

              1. Any controlled substance as defined in chapter 893 or any
              substance, device, paraphernalia, or currency or other means
              of exchange that was used, was attempted to be used, or was
              intended to be used in violation of any provision of chapter
              893, if the totality of the facts presented by the state is clearly
              sufficient to meet the state’s burden of establishing probable
              cause to believe that a nexus exists between the article seized
              and the narcotics activity, whether or not the use of the
              contraband article can be traced to a specific narcotics
              transaction.

§ 932.701(2)(a)1., Fla. Stat. (2015). Methamphetamine is a controlled substance. See

§ 893.03(2)(c)4., Fla. Stat. (2015).      A pipe containing it is paraphernalia.     See §

893.145(12), Fla. Stat. (2015). Both are contraband articles under the FCFA. See §

932.701(2)(a), Fla. Stat. (2015). Because possession of methamphetamine is a felony,

any motor vehicle containing the drug is subject to forfeiture. See § 932.703(4), Fla. Stat.

(2015).

       Specifically, section 932.703(4) provides:

              (4) In any incident in which possession of any contraband
              article defined in s. 932.701(2)(a) constitutes a felony, the
              vessel, motor vehicle, aircraft, other personal property, or real
              property in or on which such contraband article is located at
              the time of seizure shall be contraband subject to forfeiture. It
              shall be presumed in the manner provided in s. 90.302(2) that
              the vessel, motor vehicle, aircraft, other personal property, or
              real property in which or on which such contraband article is
              located at the time of seizure is being used or was attempted
              or intended to be used in a manner to facilitate the
              transportation, carriage, conveyance, concealment, receipt,
              possession, purchase, sale, barter, exchange, or giving away
              of a contraband article defined in s. 932.701(2).




                                              3
§ 932.703(4), Fla. Stat. (2015) (emphasis added). Here, because the pipe located in

Brown’s    Corvette    tested   positive   for       methamphetamine   and    possession    of

methamphetamine is a felony, Brown’s Corvette is subject to forfeiture. See id. It does

not matter whether the Corvette was used to actually transport the methamphetamine, it

is subject to forfeiture if it merely "possesses" the illegal substance.        See State v.

Crenshaw, 548 So. 2d 223, 226 (Fla. 1989) ("[P]ossessing drugs, even solely for personal

use, subjects individuals not only to criminal penalties but also to forfeiture of the vehicle,

boat, or aircraft in which the drugs are found. It makes no difference whether the drugs

are on the seat, in the console, or in the occupant's pocket."); In re Forfeiture of 1987

Cadillac, Serial No. 1G6CD5186H4292327, 576 So. 2d 900, 900 (Fla. 1st DCA 1991)

(finding that claimant’s possession of cocaine while he was in his vehicle supports and

requires forfeiture of the vehicle pursuant to section 932.703); accord United States v.

One (1) 1983, Fifty-Seven Foot (57') Gulfstream Vessel, M/V Christy Lee, Official

Documentation No. 643659, 640 F. Supp. 667, 672 (S.D. Fla. 1986) ("[A] vessel is subject

to forfeiture if it merely 'possesses' the marijuana."). Furthermore, "[t]he courts have

uniformly held that a vehicle is subject to forfeiture no matter how small the quantity of

contraband found." United States v. One (1) 1982 28' Int'l Vessel, 741 F.2d 1319, 1322

(11th Cir. 1984) (citing United States v. One 1976 Porsche 911S, VIN 911-6200323, Cal.

License 090 NXC, 670 F.2d 810, 812 (9th Cir. 1979) (affirming forfeiture of automobile

where .226 grams of marijuana was found in the trunk of the automobile and rejecting

argument that forfeiture statute did not reach small amounts of contraband); see also One

(1) 1982 28' Int'l Vessel, 741 F.2d at 1322 (explaining that "[t]he very fact that a sufficient

quantity of marijuana was present to permit testing defeats appellant's suggestion that




                                                 4
the amount involved was immeasurable.")); One (1) 1983, Fifty-Seven Foot (57')

Gulfstream Vessel, 640 F. Supp. at 673 (same).

       In dismissing Brevard’s forfeiture complaint, the trial court determined:

              [T]he misdemeanor possession of drug paraphernalia is
              insufficient to establish that the Corvette was used in either
              committing or aiding and abetting the commission of a felony.
              The substance in the paraphernalia field tested positive for
              either methamphetamine or cocaine. Possession of either
              cocaine or methamphetamine is a third degree felony.
              However, Petitioner has failed to establish that a possessory
              offense has occurred.

This was error. See Jones v. State, 589 So. 2d 1001, 1002 (Fla. 3d DCA 1991) (holding

that quantity of the controlled substance does not have to be measurable to support a

conviction for possession of such controlled substance particularly when the

immeasurable amount of the substance is found on an implement used to consume the

substance); see also Peterson v. State, 841 So. 2d 661 (Fla. 4th DCA 2003) (finding pipe

which exhibited blue colored residue resulting from positive lab test that had consumed

remaining cocaine was sufficient to sustain conviction for possession of cocaine); Lupper

v. State, 663 So. 2d 1337, 1339 (Fla. 4th DCA 1994) (holding that trace amount of burnt

cocaine residue found on altered beer can sufficient to support possession conviction).

Moreover, "[f]or purposes of forefeiture, positive results in a field test furnish sufficient

proof as to the existence of contraband." One (1) 1982 28' Int'l Vessel, 741 F.2d at 1322

(citing United States v. One Wood, 19' Custom Boat, 501 F.2d 1327, 1329-30 (5th Cir.

1974)).

       "The probable cause standard applicable at the seizure stage requires only 'a

showing of a "sufficient probability to warrant a reasonable belief" that the property was

used in violation of the . . . Forfeiture Act.'" In re Forfeiture of 1994 Ford Explorer,



                                             5
Identification No. 1FMCU22XXRUC62178, 203 So. 3d 992, 993-94 (Fla. 2d DCA 2016)

(emphasis omitted) (quoting In re Forfeiture of Forty–Seven Video Redemption Games,

799 So. 2d 221, 222 (Fla. 2d DCA 2001). Because Brevard presented sufficient evidence

to establish probable cause that there was methamphetamine in the Corvette, it is entitled

to the presumption found in section 932.703(4). The presumption states in relevant part:

              It shall be presumed in the manner provided in s. 90.302(2)
              that the . . . motor vehicle, . . . in which or on which such
              contraband article is located at the time of seizure is being
              used or was attempted or intended to be used in a manner to
              facilitate the transportation, . . . concealment, . . . possession,
              . . . of a contraband article defined in s. 932.701(2).

§ 932.703(4), Fla. Stat. (2015). Thus, Brevard adequately established probable cause to

seize the vehicle.

       Accordingly, we reverse the trial court's final order dismissing the forfeiture

complaint. On remand, the trial court shall reinstate the complaint, enter a finding of

probable cause to support the seizure, and proceed to the next stage of the forfeiture

proceedings.2

       REVERSED; REMANDED with instructions.


CRAGGS, A.M., Associate Judge, concurs.
ORFINGER, J., concurring specially with opinion.




       2 We decline to comment on whether Brevard can sustain its burden of proof at the
forfeiture trial.

                                              6
ORFINGER, J., concurring specially.                                        5D15-3390

      Because possession of even the smallest amount of a controlled substance, or the

residue of a controlled substance, can be a felony, I concur with the majority opinion,

albeit reluctantly. See Peterson v. State, 841 So. 2d 661, 662-63 (Fla. 4th DCA 2003);

Gilchrist v. State, 784 So. 2d 624 (Fla. 3d DCA 2001).




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