Ospina Garrido v. Miami-Dade Police Department

170 So. 3d 810
CourtDistrict Court of Appeal of Florida
DecidedFebruary 25, 2015
Docket14-0393
StatusPublished

This text of 170 So. 3d 810 (Ospina Garrido v. Miami-Dade Police Department) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ospina Garrido v. Miami-Dade Police Department, 170 So. 3d 810 (Fla. Ct. App. 2015).

Opinion

WELLS, Judge.

Luis Felipe Ospina Garrido and Ospina Garrido e Hijos (collectively Ospina), appeal from an order denying their motion for an award of attorney’s fees 1 incurred for successfully defending a forfeiture action brought by the Miami-Dade Police Department (“MDPD”). For the following reasons, we reverse in part and remand with instructions.

On January 25, 2012, Ospina, a Colombian national, traveled from Bogota, Colombia to Miami, Florida. During the flight, Ospina filled out a U.S. Customs Declaration form declaring under oath that he was traveling on business and that he was carrying currency valued at more than $10,000.00. Upon arrival at Miami International Airport, Ospina was asked by a U.S. Customs official to declare the amount of currency he was carrying. Os-pina declared 100,000.00. Ospina was then provided with another more detailed U.S. Customs form so that he could declare the value in dollars of the currency that he was carrying. Ospina completed the form declaring under oath that the 100,000.00 had a value of approximately $129,000.00; he also declared that he was bringing the currency into the country for the purpose of purchasing cellular telephones for resale in Colombia by his cellular telephone company, Ospina e Hijos. Ospina was asked to produce and then produced the money which was secured in five Cambios Cen-tauros envelopes, each containing forty 500 notes. On further questioning, Ospina advised agents that the money he carried, initially in the form of pesos, had come from several sources including a safe located in his home and different bank accounts at Bancolombia titled in his, his wife’s, and his company’s names. Ospina said that he had exchanged the pesos secured from these sources for euros at Cambios Cen-tauros, a money exchange in Colombia. After several hours of questioning, the United States Attorney’s office was contacted to determine whether the United States would investigate Ospina or take action against him. The United States Attorney’s office declined. However, on the advice of its attorney, MDPD seized Ospina’s funds.

The day after the funds were seized, agents visited Amistar Telecom Inc., one of the two entities identified by Ospina as one of his suppliers of cellular telephones. Amistar, an entity that bought and sold telephones, confirmed that Ospina in the past had purchased merchandise from Am- *813 istar on a monthly basis. It also provided invoices confirming Ospina’s purchases and established that for the most part his purchases had been with cash. That same day, agents visited CT-Miami, the other business that Ospina had identified as one of his suppliers of cellular phones. As with Amistar, Ospina’s statements regarding his frequent purchases of cellular telephones and equipment were confirmed with supporting documents provided. Two days later, two Homeland Security agents inspected Ospina’s business in Colombia and interviewed Ospina; they reported no illegal activity.

On February 2, 2012, almost a week after the investigation into Ospina was completed — an investigation which bore out Ospina’s statements about the source and use of his funds — MDPD filed a verified forfeiture complaint. After citing to little more than the denomination of the euros at issue as purportedly supporting a belief that Ospina’s funds were being brought into the country as either part of a drug trafficking or money laundering scheme, 2 the complaint asserted a single claim of bank fraud premised on Ospina’s failure to make a declaration in Colombia that he was taking funds out of that country. 3

After reiterating the factors relating to drug trafficking and money laundering at the subsequently held adversarial preliminary hearing before Judge Marcia Caballero, MDPD convinced the trial court, contrary to the law, to exclude Ospi-na’s evidence that would demonstrate that he was engaged in a legitimate business transaction and that no probable cause existed for the continued seizure of his funds, arguing that such evidence could not be considered at this stage of the proceedings 4 :

*814 MR. BERRIO [COUNSEL FOR OS-PINA]: She objected to me introducing these documents.
MS. DIXON [FOR MDPD]: Because it would go to the ultimate issue of fact, Your Honor. As you know and you are aware that under the law that at a probable cause hearing all the Judge is to do is to establish whether or not we have probable cause.
If that document is taken into consideration ... it would then go to the ultimate issue of fact, which is not to be determined at the probable cause hearing. It is to be determined at the second stage, Your Honor.

On the resulting lopsided presentation, on March 2, 2012, probable cause to continue to hold Ospina’s funds was found to exist. That same day Ospina filed his motion to dismiss. Sixty days later he filed a motion for summary judgment. On July 26, 2012, the two motions were heard, and on October 5, 2012, after MDPD had held the funds at issue for over eight months, summary judgment was granted on a finding that no illegality had been demonstrated to exist.

No appeal was prosecuted from this determination, and Ospina’s funds were returned to him nineteen days later. Ospina thereafter moved for an award of damages which was granted in part 5 by a successor judge. 6 He also moved for an award of attorneys’ fees under both section 932.704(10) 7 and section 57.105 8 , 9 of the *815 Florida Statutes. The motion was denied on both grounds chiefly because the trial court found that Ospina had “an opportunity to present evidence, and an opportunity to examine witnesses” at the preliminary adversarial hearing following which Judge Caballero had found probable cause existed to seize Ospina’s funds. .

A probable cause determination following a first stage adversarial preliminary hearing does not, however, preclude an attorney’s fee award following a second stage summary judgment or trial determination. 10 This is so because a probable cause determination during a first stage proceeding is required before a second stage- may proceed, and as section 932.704(10) makes clear, attorney’s fees may be awarded when it has been shown that “the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion.” (emphasis added); see Cobb v. Langworthy, 909 So.2d 416, 417 (Fla. 5th DCA 2005) (affirming an award of attorney’s fees to a successful property owner following a stage two judgment which necessarily was preceded by a stage one finding of probable cause); see also In re Forfeiture of: 1997 Jeep Cherokee, 898 So.2d 223, 224-25 (Fla.

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Bluebook (online)
170 So. 3d 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ospina-garrido-v-miami-dade-police-department-fladistctapp-2015.