adversarial preliminary hearing in Florida

2025As the person in possession of the property when it was seized, appellant fit the statutory definition of a “person entitled to notice.” Cf. Baruch, 718 So. 2d at 847 (finding that a person’s bare assertion of an “interest” in money seized from a safety deposit box was insufficient to bring her within the statutory definition of “person entitled to notice” under the forfeiture statute, and, thus, she lacked standing to litigate the issue of probable cause at an adversarial preliminary hearing).

2006However, the Third District recognized that its holding directly *1164 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"), 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").

2006It 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).

2006It 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).

2014The 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 3Ul 6BDE, 803 So.2d 847, 850 (Fla.

2014The 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 3Ul 6BDE, 803 So.2d 847, 850 (Fla.

2014The first stage, outlined in section 932.703(2), involves the seizure of property, where, if an adversarial preliminary hearing is held, “ ‘the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Forfeiture Act.’ ” Gomez, 41 So.3d at 184 (quoting Velez, 934 So.2d at 1164 (citing § 932.701(2)(f), Fla. Stat. (2002))).

2014In 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, *97 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).

2025Notice 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.”); Sanchez v. City of West Palm Beach, 149 So. 3d 92, 95 (Fla. 4th DCA 2014).

2018See § 932.704(5)(b), Fla. Stat. (2016); see also Sanchez v. City of West Palm Beach, 149 So. 3d 92, 97-98 (Fla. 4th DCA 2014) (“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 1 After amendments were enacted in 2016, section 932.703(2) became 932.703(3).

2009See Velez v. Miami-Dade County Police Dep't, 934 So.2d 1162, 1164 (Fla.2006); see also Alvarez v. City of Hialeah, 900 So.2d 761, 765 (Fla. 3d DCA 2005) (“Our standard of review of an order finding probable cause after an adversarial preliminary hearing, under the Florida Contraband Forfeiture Act, is de novo.”).

2009See Velez v. Miami-Dade County Police Dep't, 934 So.2d 1162, 1164 (Fla. 2006); see also Alvarez v. City of Hialeah, 900 So.2d 761, 765 (Fla. 3d DCA 2005) ("Our standard of review of an order finding probable cause after an adversarial preliminary hearing, under the Florida Contraband Forfeiture Act, is de novo.").

2005See § 932.703(2)(a), Fla. Stat. (2004); In re Forfeiture of $171,900, 711 So.2d 1269 (Fla. 3d DCA 1998) (the inquiry is whether there is sufficient probability to warrant a reasonable belief that the currency was connected to criminal activity); Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987) (probable cause "involves the question of 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.").

2001The third district in In re Forfeiture of One Hundred Seventy-One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d 1269, 1274 (Fla. 3d DCA 1998), explained that: The determination of probable cause involves "the question of 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." Medious v. Department of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988); see also Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987); United States

2014To 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.” 588 So.2d at 965 .

2014If 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 .

2006Alvarez v. City of Hialeah, 900 So.2d 761, 765 (Fla. 3d DCA 2005) (“[Wjhere 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]ong-standing 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

1999We agree with Golon that the lower court erred in not considering his ore tenus motion to suppress and the Fourth Amendment claim he attempted to raise during the adversarial preliminary hearing. [1] In Indialantic Police Department v. Zimmerman, 677 So.2d 1307 (Fla. 5th DCA 1996), Zimmerman argued during an adversarial hearing in a post-seizure of property forfeiture case that the arresting officer had unlawfully stopped his vehicle and that the ensuing search violated his Fourth Amendment rights.

2014App. P. 9.130(a)(3)(C)(ii) (permitting review of non-final orders that determine “the right to immediate possession of property”); Munoz v. City of Coral Gables, 695 So.2d 1283, 1284 (Fla. 3d DCA 1997). 2 Patel argues that the evidence presented by the State at the adversarial preliminary hearing failed to establish any link between the alleged criminal activity and the subject bank accounts as required by section 932.703(2)(c), Florida Statutes (2013), and, as a result, that the trial court erred when it found probable cause to continue the seizure of his assets.

2004For example, in Munoz v. City of Coral Gables, 695 So.2d 1283, 1286 (Fla. 3d DCA 1997), the claimant made a claim to seized currency by filing the following unverified, unsworn general claim: "COMES NOW ALONSO MUNOZ, who, through his undersigned attorney, hereby makes claim to the Eighty-Five Thousand Eight Hundred Three Dollars ($85,803.00) in United States currency seized by the Coral Gables and Metro Dade Police Departments on August 22, 1996." Munoz did not personally appear at the adversarial preliminary hearing nor did he submit an affidavit or other sworn proof indicating that he was th

2001See generally Cochran v. Harris, 654 So.2d 969 (Fla. 4th DCA 1995).

2000See State Dep't. of Highway Safety and Motor Vehicles v. Metiver, 684 So.2d 204 (Fla. 4th DCA 1996)(affirming dismissal of forfeiture complaint where there was a five-day delay between the tenth day after the hearing was requested and the date hearing was held); Cochran v. Harris, 654 So.2d 969 (Fla. 4th DCA 1995)(affirming dismissal of forfeiture proceedings because of a 23-day delay).

2008The proper remedy would have been to set the case for an adversarial preliminary hearing with proper notice."); Crepage v. City of Lauderhill, 774 So.2d 61, 66 (Fla. 4th DCA 2000) (holding that where Crepage only received twenty-four-hour notice of the hearing, the remedy was to set a new hearing with proper notice).

2006See Crepage v. City of Lauderhill, 774 So.2d 61 (Fla. 4th DCA 2000) (holding that where Crepage only received twenty-four-hour notice of the hearing, the remedy was to set a new hearing with proper notice).

2006Alvarez 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'

2006Alvarez v. City of Hialeah, 900 So.2d 761, 765 (Fla. 3d DCA 2005) (“[Wjhere 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]ong-standing 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

2006However, the Third District recognized that its holding directly *1164 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"), 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").

2004In so holding, however, we recognize that our decision directly conflicts with our sister courts holdings in City of Fort Lauderdale v. Baruch, 718 So.2d 843 (Fla. 4th DCA 1998) ("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 v. Forfeiture of $203,595.00 in U.S. Currency, 767 So.2d 595, 598 (Fla. 4th DCA 2000) (holding that "appellants have standing in the preliminary hearing, as at the very least, they were in possession of the money at the time of its

2001The third district in In re Forfeiture of One Hundred Seventy-One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d 1269, 1274 (Fla. 3d DCA 1998), explained that: The determination of probable cause involves "the question of 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." Medious v. Department of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988); see also Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987); United States

1998See § 932.703(2)(a), Fla. Stat. (1995). [7] The determination of probable cause involves "the question of 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." Medious v. Department of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988); see also Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987); United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1282 (9th Cir.1983).

2017The 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).

2017The 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).

2014The first stage, outlined in section 932.703(2), involves the seizure of property, where, if an adversarial preliminary hearing is held, “ ‘the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Forfeiture Act.’ ” Gomez, 41 So.3d at 184 (quoting Velez, 934 So.2d at 1164 (citing § 932.701(2)(f), Fla. Stat. (2002))).

2011“Quite simply, under this unambiguous language, ‘[i]f law enforcement establishes [at the adversarial preliminary hearing] probable cause to believe that the property was used in violation of the [Forfeiture] Act, the court shall authorize the seizure or continued seizure of the property.’ ” Gomez v. Vill. of Pinecrest, 41 So.3d 180, 186 (Fla.2010) (quoting Gomez v. Vill. of Pinecreset, 17 So.3d 322, 326 (Fla. 3d DCA 2009)).

2014In 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, *97 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).

2014In 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, *97 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).

2014The 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 3Ul 6BDE, 803 So.2d 847, 850 (Fla.

2014The 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 3Ul 6BDE, 803 So.2d 847, 850 (Fla.

2014The 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 3Ul 6BDE, 803 So.2d 847, 850 (Fla.

2014The 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 3Ul 6BDE, 803 So.2d 847, 850 (Fla.

2011“Quite simply, under this unambiguous language, ‘[i]f law enforcement establishes [at the adversarial preliminary hearing] probable cause to believe that the property was used in violation of the [Forfeiture] Act, the court shall authorize the seizure or continued seizure of the property.’ ” Gomez v. Vill. of Pinecrest, 41 So.3d 180, 186 (Fla.2010) (quoting Gomez v. Vill. of Pinecreset, 17 So.3d 322, 326 (Fla. 3d DCA 2009)).

2010(Emphasis added.) Quite simply, under this unambiguous language, “[i]f law enforcement establishes [at the adversarial preliminary hearing] probable cause to believe that the property was used in violation of the Act, the court shall authorize the seizure or continued seizure of the property.” Gomez, 17 So.3d at 326 .

2010In Forfeiture of 1993 Lexus, 798 So.2d at 10 , the First District held: [Establishment of “probable cause to believe that the property was ... used in violation of the Florida Contraband Forfeiture Act” requires, among other things, a preliminary showing of a basis for belief that the owner knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.

2009The First District, in In re Forfeiture of a 1993 Lexus ES 300, VIN: JT8VK13T9P0196573, 798 So.2d 8, 10 (Fla. 1st DCA 2001), established a “basis for belief” standard in determining innocent owner status at the adversarial preliminary hearing.

2005See § 932.703(2)(a), Fla. Stat. (2004); In re Forfeiture of $171,900, 711 So.2d 1269 (Fla. 3d DCA 1998) (the inquiry is whether there is sufficient probability to warrant a reasonable belief that the currency was connected to criminal activity); Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987) (probable cause "involves the question of 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.").

2001The third district in In re Forfeiture of One Hundred Seventy-One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d 1269, 1274 (Fla. 3d DCA 1998), explained that: The determination of probable cause involves "the question of 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." Medious v. Department of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988); see also Lobo v. Metro-Dade Police Dept., 505 So.2d 621, 623 (Fla. 3d DCA 1987); United States

2002See In re Forfeiture of 1983 Wellcraft Scarab, 487 So.2d at 310.

1996“Hearsay evidence [such as the police affidavit utilized in this case] can ... be used to establish probable cause ... although it may not serve as the basis for the forfeiture.” Medious v. Department of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988) (citing In re Forfeiture of 1983 Wellcraft Scarab, 487 So.2d 306 (Fla. 4th DCA) [cause dismissed, 494 So.2d 1150 (Fla.1986) ]), rev. denied, 542 So.2d 1333 (Fla.1989).

2025These proceedings are a two-stage process: 3 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 Ac

2025At 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).

2023See Pardo, 941 So. 2d at 1066 (probable cause must be determined “not from witness testimony but from the four corners of the affidavit”).

2014See 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.”).