       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                          ORLANDO SANCHEZ,
                              Appellant,

                                    v.

                     CITY OF WEST PALM BEACH,
                              Appellee.

                             No. 4D13-4819

                           [September 3, 2014]

  Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No.
502013-CA011598-MB-AI.

  Michael F. Amezaga of Orner & Orner, P.L.L.C., Boca Raton, for
appellant.

   Christopher Van Hall, West Palm Beach, for appellee.

GROSS, J.

   In a forfeiture proceeding under the Florida Contraband Forfeiture Act,
§§ 932.701-932.706, Florida Statutes (2013) (the “Act”), Orlando Sanchez
appeals from a non-final order entered after an adversarial preliminary
hearing finding probable cause to support the City of West Palm Beach’s
continued seizure of $11,165.00 in U.S. currency. Because the circuit
court prevented Sanchez from calling witnesses and introducing evidence
at the hearing, we reverse and remand for a new adversarial preliminary
hearing.
                          Factual Background
    In July 2013, West Palm Beach police officers seized $11,165.00 in U.S.
currency from Sanchez pursuant to the Act on the belief the money had
been acquired from illegal gambling. As provided by section 932.703(2)(a),
Florida Statutes (2013), Sanchez requested the trial court conduct an
adversarial preliminary hearing. The trial court held a hearing pursuant
to section 932.703(2)(c), for the purpose of determining whether there was
probable cause to believe the currency had been or was being used in
violation of the Act. Prior to the hearing, counsel for Sanchez submitted a
memorandum of law in support of his position, describing the parties’
evidentiary burden under Wright v. Florida Department of Highway Safety
& Motor Vehicles, 531 So. 2d 352, 355 (Fla. 1st DCA 1988), a case decided
prior to the enactment of the current version of the Act.

                   The Preliminary Adversarial Hearing
   At the hearing, an officer testified that on July 3, 2013, at about 11:30
p.m., he pulled over Sanchez’s vehicle after observing it run two stop signs.
Upon approaching the vehicle, the officer “instantly smelled marijuana”
emanating from Sanchez’s rolled-down window, leading the officer to call
for backup. When a second officer arrived and confirmed the marijuana
odor, the two removed Sanchez and proceeded to search his vehicle.
    After pinpointing the smell to the vehicle’s center console, the first
officer opened a red paper shopping bag believing it would contain “a large
amount of marijuana.” As it turned out, the bag contained eight hundred
dollars in loose cash along with “two blocks” of U.S. currency bound by
rubber bands, each consisting of $5,000 in twenty-dollar bills.
Underneath the shopping bag, the officers located a misdemeanor amount
of marijuana. The record does not reflect how the amount of marijuana
seized produced the extent of the odor the officers described.
    Believing the currency to be the proceeds of a narcotics sale, the first
officer questioned Sanchez regarding the source of the cash, to which
Sanchez responded that he had won it at the dog track. Following
continued questioning, however, Sanchez changed his story, stating the
he “won it [at] a friend’s house playing poker.” Since residential gambling
is illegal, the first officer seized the cash along with three hundred sixty-
five dollars found on Sanchez’s person.
    In his defense, Sanchez denied saying that he had been gambling at a
friend’s house. He testified that he was a professional gambler and that
he had won the seized currency during a successful night at the Palm
Beach Kennel Club. To corroborate his claims, Sanchez offered into
evidence gambling tickets and racing programs from the Kennel Club, all
dated July 3, 2013, claiming they were in his car at the time of the search.
In addition, Sanchez submitted tax returns, in which he accounted for his
prior gambling winnings.
   Although the City objected to this evidence, claiming that (1) Sanchez
was not permitted to introduce documentary evidence at an adversarial
preliminary hearing that was unknown to the state at the time of the
seizure, and (2) the evidence was otherwise irrelevant to whether the first

                                    -2-
officer had probable cause to seize the currency, the court considered
these documents.
   To further support his claim, Sanchez sought to call a Kennel Club
employee to testify (1) that he saw Sanchez at the Kennel Club on the night
in question, (2) that “anyone can claim their cash winnings in $20 bills,”
and (3) that he heard Sanchez scream “I won” in Spanish. The trial court
excluded the witness, finding that Sanchez had already made a sufficient
showing to negate the City’s claim of probable cause. The trial court
cautioned, however, that the probable cause determination was “without
prejudice,”1 meaning the City could “come back” when it had more
evidence.
                          Motion for Reconsideration
    The following week, the City moved for reconsideration, contending
Sanchez’s recitation of the parties’ evidentiary burdens was erroneous as
an “incomplete citation based on a case [Wright] that preceded the current
forfeiture statutory scheme.” Under the applicable scheme, the City
averred that the sole purpose of an adversarial preliminary hearing is to
determine whether the seizing agency has probable cause to believe the
property subject to forfeiture was used in violation of the Act. Thus, the
City argued, Sanchez’s testimony regarding his gambling career along with
the inclusion of the gambling tickets, the racing programs, and the Kennel
Club employee’s testimony was irrelevant since such evidence was not
privy to the seizing agency at the time of the seizure.

   The trial court agreed and granted the City’s motion for reconsideration,
finding that it mistakenly relied upon Wright to justify admitting
“testimony relating to [Sanchez’s] occupation, income sources, ownership
rights to the currency, and whereabouts on or about July 3, 2013 that
related to the source of the Currency” along with “documentary evidence
that included gambling receipts, gambling programs, and income tax
returns.” As a result, the trial court stated that it would “reconsider the
evidence presented . . . pursuant to the appropriate standards.”
                  Evidentiary Hearing on Reconsideration
   Having granted the City’s motion for reconsideration, the trial court
conducted a second adversarial preliminary hearing. The City re-called
the officers to testify that they found no gambling receipts or racing
programs within Sanchez’s car at the time they seized the currency.


1Because this order was later withdrawn, we do not address this curious order.
It would seem that the Act and Supreme Court precedent entitle an interested
party to a timely ruling on the issue of probable cause.

                                     -3-
   After the City rested, Sanchez again took the stand. As before, Sanchez
sought to admit the gambling receipts, the racing programs, and the
Kennel Club employee’s testimony. Upon the City’s objection, however,
the trial court barred Sanchez from proceeding, finding the evidence to be
outside the scope of the adversarial preliminary hearing. As a result, since
the City’s largely unrebutted evidence established that Sanchez admitted
to receiving the money through illegal gambling, the trial court ruled the
City had probable cause to believe the seized currency was used in
violation of the Act.
                The Florida Contraband Forfeiture Act
    Under the Florida Contraband Forfeiture Act, real or personal property
“used in violation of any provision of the [Act,] or in, upon, or by means of
which any violation of the [Act] has taken or is taking place,” may be seized
and ultimately forfeited through civil proceedings. § 932.703(1)(a), Fla.
Stat. (2013); see also City of Coral Springs v. Forfeiture of a 1997 Ford
Ranger Pickup Truck VIN No. 1FTCR10A4VTA62475 FL Tag 3U16BDE, 803
So. 2d 847, 849-50 (Fla. 4th DCA 2002). To effectuate a forfeiture under
the Act, the seizing agency must engage two stages: a seizure stage and a
forfeiture stage. See Gomez v. Vill. of Pinecrest, 41 So. 3d 180, 184 (Fla.
2010). At the seizure stage, the trial court must determine “whether there
is probable cause to believe that the property has been used in violation of
the Act.” In re Forfeiture of: $221,898 in U.S. Currency, 106 So. 3d 47, 49
(Fla. 2d DCA 2013) (citation omitted). If probable cause exists, the matter
then proceeds to a subsequently scheduled forfeiture proceeding, during
which “‘the court or jury determines whether the subject property shall be
forfeited.’” Velez v. Miami-Dade Cnty. Police Dep’t, 934 So. 2d 1162, 1164
(Fla. 2006) (quoting § 932.701(2)(g), Fla. Stat. (2002)).
    While now codified by sections 932.703 and 932.704, Florida Statutes
(2013), this two-step approach to forfeiture proceedings has its origins in
Department of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla.
1991), a case concerning a due process challenge to the Act’s then-current
procedure. Prior to the Real Property decision, the abovementioned seizure
and forfeiture stages were truncated into a single proceeding, initiated
either by the State within 90 days of the seizure or by the claimant in an
action to recover the property. § 932.703(1), 932.704(1), Fla. Stat. (1991).
At the proceeding, the “governmental entity seeking forfeiture b[ore] the
initial burden of going forward” by demonstrating “probable cause that the
res subject to forfeiture was illicitly used within the meaning of the
forfeiture statute.”    In re Approximately Forty-Eight Thousand Nine
Hundred Dollars ($48,900.00) in U.S. Currency, 432 So. 2d 1382, 1385 (Fla.
4th DCA 1983). If this hurdle was cleared, the burden then shifted to the
claimant “to rebut the probable cause showing, or by a preponderance of

                                    -4-
the evidence, to establish that the forfeiture statute was not violated or
that there is an affirmative defense which entitles the appellant to
repossession of the item.” Lobo v. Metro-Dade Police Dep’t, 505 So. 2d 621,
623 (Fla. 3d DCA 1987).
    The problem with this streamlined process, as the court noted in Real
Property, was that it impinged upon the claimant’s “compelling interest[]
to be heard at the initiation of forfeiture proceedings against their property
rights to assure that there [wa]s probable cause to believe that a person
committed a crime using that property to justify a property restraint.” 588
So. 2d at 964 (emphasis added). As Justice Barkett explained:
      Property rights are among the basic substantive rights
      expressly protected by the Florida Constitution. Art. I, § 2,
      Fla. Const.; see Shriners Hosps. for Crippled Children v. Zrillic,
      563 So. 2d 64, 68 (Fla. 1990) (article I, section 2 protects all
      incidents of property ownership from infringement by the
      state unless regulations are reasonably necessary to secure
      the health, safety, good order, and general welfare of the
      public). Those property rights are particularly sensitive where
      residential property is at stake, because individuals
      unquestionably have constitutional privacy rights to be free
      from governmental intrusion in the sanctity of their homes
      and the maintenance of their personal lives. Art. I, §§ 2, 12,
      23, Fla. Const. Additionally, Floridians have substantive
      rights to be free from excessive punishments under article I,
      section 17 of the Florida Constitution, and to have meaningful
      access to the courts pursuant to article I, section 21 of the
      Florida Constitution.       All of these substantive rights
      necessarily must be protected by procedural safeguards
      including notice and an opportunity to be heard. Art. I, § 9, Fla.
      Const.; see Hadley v. Department of Admin., 411 So. 2d 184
      (Fla. 1982); State ex rel. Gore v. Chillingworth, 126 Fla. 645,
      657–58, 171 So. 649, 654 (1936).
Id. (emphasis added). The resulting determination was that due process
“requires that ‘those claiming an interest in the property’ be provided with
notice and the opportunity to be heard at each stage of the proceeding.” City
of Fort Lauderdale v. Baruch, 718 So. 2d 843, 847 (Fla. 4th DCA 1998)
(quoting Real Property, 588 So. 2d at 957) (emphasis added); Sheffey v.
Futch, 250 So. 2d 907, 910 (Fla. 4th DCA 1971) (“[D]ue process has been
defined in non-criminal situations as contemplating reasonable notice and
an opportunity to appear and be heard.” (citations omitted)).



                                     -5-
   To bring the Act’s procedure in compliance with due process, the Real
Property Court held that the initial seizure of property—whether real or
personal—must be tethered to providing all interested parties with “notice”
and an “opportunity for an adversarial preliminary hearing . . . as soon as
possible.” 688 So. 2d at 965. If requested, the adversarial preliminary
hearing was required to take place “within ten days of the request” so that
the trial court could “make a de novo determination as to whether probable
cause exists to maintain the forfeiture action.” Id. at 965.
   In response to the Real Property decision, the Legislature amended the
Act in 1992 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.” Velez, 934 So. 2d at 1165; see also Ch. 92-54, §§ 1, 3, Laws
of Fla. Consistent with due process, a person falling within this
enumerated category “has the right to litigate the issue of probable cause
at an adversarial preliminary hearing.” Chuck v. City of Homestead Police
Dep’t, 888 So. 2d 736, 745 (Fla. 3d DCA 2004) (emphasis added). With
regard to the evidence to be presented at the hearing, section
932.703(2)(c), Florida Statutes (2013), provides:

      When an adversarial preliminary hearing is held, the court
      shall review the verified affidavit and any other supporting
      documents and take any testimony to determine whether
      there is probable cause to believe that the property was used,
      is being used, was attempted to be used, or was intended to
      be used in violation of the Florida Contraband Forfeiture Act.

    The focus of this statute is on the evidence of probable cause that exists
at the time of the adversarial preliminary hearing, not just what the police
officers knew at the time the property was seized. The wording of section
932.703(2)(c) compels the conclusion that, unlike a Fourth Amendment
challenge, the pertinent inquiry at the adversarial preliminary hearing is
“whether there ‘is’ probable cause to believe that a violation of the Act
occurred or is occurring, not whether there ‘was’ probable cause to believe
that a violation of the Act occurred at the time of seizure.” Beary v. Bruce,
804 So. 2d 579, 581 (Fla. 5th DCA 2002) (emphasis added); see also City
of Coral Springs v. Forfeiture of a 1997 Ford Ranger Pickup Truck VIN No.
1FTCR10A4VTA62475 FL Tag 3U1 6BDE, 803 So. 2d 847, 850 (Fla. 4th
DCA 2002) (stating that the question of importance is “‘whether the
information relied upon by the state is adequate and sufficiently reliable to
warrant the belief by a reasonable person that a violation has occurred’”)
(quoting Medious v. Dep’t of Highway Safety & Motor Vehicles, 534 So. 2d
729, 732 (Fla. 5th DCA 1988). This interpretation of the statute is
consistent with the Supreme Court’s identification in Real Property of the

                                     -6-
constitutional interests at play; if the State cannot establish probable
cause of a statutory violation early in the proceedings, its seizure of the
property ends without the delay that would accompany a forfeiture trial.
We note that “establishing the owner’s actual or constructive knowledge”—
i.e., whether the owner knew the property was being used in an illegal
manner—is not required until the forfeiture trial. Gomez, 41 So. 3d at 181.
    Because the section 932.703(2)(c) probable cause inquiry focuses on
the evidence that exists at the time of the hearing, it makes no
constitutional or statutory sense to force the “opposing” party at an
“adversarial” hearing to remain mute when in possession of evidence
capable of rebutting the agency’s claims of a statutory violation. See Velez,
934 So. 2d at 1166 (“[I]n using the term ‘adversarial,’ the statute
contemplates that the preliminary hearing would involve opposing
parties.” (citing Black’s Law Dictionary 58 (8th ed. 2004))). To give full
effect to the statutory scheme and to the requirements of due process, we
reject the City’s position that a claimant’s evidence rebutting probable
cause—evidence that the subject property is not the product of illegal
conduct—is inappropriate at an adversarial preliminary hearing. See Pope
v. Pope, 901 So. 2d 352, 353 (Fla. 1st DCA 2005) (“‘Due process requires
that a party be given the opportunity to be heard and to testify and call
witnesses on his behalf . . . , and the denial of this right is fundamental
error.’”) (quoting Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998);
Begens v. Begens, 617 So. 2d 360, 361 (Fla. 4th DCA 1993) (“An
opportunity to be heard includes the right to present evidence bearing on
the issues.”). Only where “no person entitled to notice requests an
adversarial preliminary hearing” is the court’s review limited to the
traditional probable cause determination where the court “review[s] the
complaint and the verified supporting affidavit to determine whether there
was probable cause for the seizure.” § 932.704(5)(b), Fla. Stat. (2013).
   The evidence Sanchez sought to offer—his statements regarding his
profession, his gambling receipts, the racing programs, and the testimony
of the Kennel Club employee—falls within the scope of a preliminary
adversarial hearing. As touched upon previously, the probable cause
inquiry focuses on whether “the property subject to forfeiture was used in
violation of the Forfeiture Act.” Velez, 934 So. 2d at 1164. This is distinct
from the issue of the claimant’s knowledge, which relates to the seizing
agency’s required showing at the forfeiture stage “that the [claimant] either
knew, or should have known after a reasonable inquiry, that the property
was being employed or was likely to be employed in criminal activity.” §
932.703(6)(a), Fla. Stat. (2013). Sanchez’s evidence went to the heart of
the probable cause determination—whether the currency seized was the
product of illegal gambling. At the adversarial preliminary hearing, the
City’s sole evidence of the currency’s illegality was Sanchez’s purported

                                    -7-
admission to the officers that the cash came from winnings at a residential
poker game. To that end, Sanchez’s employment, his gambling receipts,
the programs, and the testimony of the Kennel Club employee were all
pertinent to demonstrating the actual source of the money and whether
the currency was the product of illegality at all.
   We therefore reverse and remand for an adversarial probable cause
hearing consistent with this opinion.
MAY and CIKLIN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                   -8-
