Here is the best Florida case I could find:
THE STATE OF FLORIDA, Appellant, v. JAMES W. GREEN and WALTER J. VOGEL, Appellees
No. 83-2789
Court of Appeals of Florida, Third District
456 So. 2d 1309; 1984 Fla. App. LEXIS 15340; 9 Fla. L. Weekly 2188
October 9, 1984
OPINION BY: PEARSON
OPINION
At stake in this appeal are the competing claims of the landlords of an apartment building (Messrs. Green and Vogel) and the State of Florida to certain money seized by City of Miami police officers from a leased apartment in Green and Vogel’s building. The trial court resolved the dispute in favor of the landlords and ordered the City to release the money to them. The State seeks review of that order, convincingly urging that the undisputed facts show that the landlords are without any legally cognizable interest in the money and that pursuant to Chapter 717, Florida Statutes, the money must be turned over to the State. We reverse.
I.
Late in 1975, police officers of the City of Miami responded to reports of a shooting at the apartment of one Carlos Fuentes. Fuentes had been shot and, shortly after the police arrived, was removed to a hospital. 1 In an ensuing search of the apartment, 2 the police found assorted drug paraphernalia, a gun and cash in the amount of $58,591. 3, 4 The property was seized, taken to the police station and placed in the custody of the City’s Property Bureau.
_____Footnotes
1 It is fairly inferable from the record that Fuentes was unconscious when the police arrived.
2 The legality vel non of the search is not pertinent to any issue in this case.
3 The amount of the money seized is stated as $58,591 in the police report attached as an exhibit to a pretrial stipulation between the parties. The order under review refers to the amount as “in excess of $58,000.”
4 At the time of the seizure in question, money–even if found to have been employed as an instrumentality in the commission of, or in aiding and abetting in the commission of, any felony–was not a contraband article subject to forfeiture. Compare § 943.41, Fla.Stat. (1975), with § 932.701, Fla.Stat. (1983).
About nine days after these events, the police learned that Fuentes, who was under no legal restraint, had been discharged from the hospital. All efforts by the police to locate Fuentes and his girlfriend, a co-occupant of Fuentes’ apartment, were unsuccessful. Not surprisingly, neither Fuentes nor his girlfriend ever came forward to claim any of the items taken by the police from his apartment.
About four years later, in late 1979, Green and Vogel, Fuentes’ lessors, brought suit against the City of Miami seeking a judgment declaring their right to, and replevin of, the money. The City filed a counterclaim for interpleader, joining Fuentes and the State of Florida as defendants. Fuentes defaulted, and in October 1983, after a non-jury trial based exclusively on the above-recited stipulated facts, the trial court rendered its order.
II.
Green and Vogel successfully contended below that they were entitled to the outright ownership of the money on the theory that it was abandoned on their premises. They continue to advance that theory on appeal, along with the alternative theory that they, as owners of the locus in quo5 are at least entitled to possession of the money found on their premises, even if it cannot be said that the money was abandoned. Neither contention has merit.
_____________Footnote
5 In Latin, “the place in which.”
A.
While it is true that under the common law the finder of abandoned property, unlike the finder of lost or mislaid property, or treasure trove, is entitled to claim absolute ownership of the property, see Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F. Supp. 1562 (S.D. Fla. 1983); Campbell v. Cochran, 416 A.2d 211 (Del.Super.Ct. 1980), the person making that claim has the burden of proving the true owner’s intent to abandon. Dade County v. City of North Miami Beach, 69 So.2d 780 (Fla. 1953); J. C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla. 3d DCA 1981).
At common law, abandoned property was defined as:
"that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and with the intention of not reclaiming [**5] any future rights therein."
Campbell v. Cochran, 416 A.2d at 221.
See Favorite v. Miller, 176 Conn. 310, 407 A.2d 974 (1978); Paset v. Old Orchard Bank & Trust Co., 62 Ill.App.3d 534, 378 N.E.2d 1264, 19 Ill. Dec. 389 (1978); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948). Thus, the burden upon the landlords was to prove that Fuentes voluntarily relinquished his right to the money with the intention of terminating his ownership and of not reclaiming any future rights therein at the time he was removed from his apartment suffering from a debilitating case of bullet wounds in his neck and shoulder. Manifestly, that burden was not met, and the trial court’s finding that the money was abandoned in Fuentes’ apartment is totally unsupported by the evidence. 6, 7 See Katsaris v. United States, 684 F.2d 758 (11th Cir. 1982) (despite defendant’s disclaimer of ownership of money seized in drug raid, property held not abandoned where disclaimer made for purpose of disavowing any connection with incriminating evidence and thus not voluntary relinquishment); Johnson v. City of Fairfax, 394 F. Supp. 387 (E.D. Va. 1972) (money seized during drug raid from arrested occupants of house not abandoned). See also O’Shaughnessy v. State, 420 So.2d 377 (Fla. 3d DCA 1982) (intent to abandon cannot be inferred from fact that property may be incriminating).
_______Footnotes
6 A finding that the money was abandoned at a place other than Fuentes’ apartment (e.g., at the police station when Fuentes voluntarily departed the hospital and made no effort to claim the money from the police), although it might have some support in the evidence, is of no help to Green and Vogel whose claim to ownership of the money vis-a-vis the finder is necessarily bottomed on the money having been abandoned on, not simply taken from, premises owned by them. See, e.g., Favorite v. Miller, 176 Conn. 310, 407 A.2d 974; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F. Supp. 1562.
7 Since the money was not abandoned in Fuentes’ apartment, we need not consider whether Fuentes’ apartment (in which, as a then current lessee, he had a legally recognized interest, see DeVore v. Lee, 158 Fla. 608, 30 So.2d 924 (1927)) could be considered the landlords’ property so as to make colorable their claim to the money seized therein.
B.
The landlords’ alternative claim that they, as owners of the premises upon which the money was found, are entitled to possession of the money is equally wanting. The common-law proposition that the owner of the locus in quo has the right to a possessory interest in unclaimed property superior to the finder 8 applies only if the unclaimed property can be deemed to have been lost, mislaid, or treasure trove. Campbell v. Cochran, 416 A.2d 211. See Pyle v. Springfield Marine Bank, 330 Ill.App. 1, 70 N.E.2d 257 (1946); Ray v. Flower Hospital, 1 Ohio App.3d 127, 439 N.E.2d 942 (1981); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948); Flax v. Monticello Realty Co., 185 Va. 474, 39 S.E.2d 308 (1946); but see Erickson v. Sinykin, 223 Minn. 232, 26 N.W.2d 172 (1947) (finder held to have superior interest to owner of [*1312] locus in quo). At common law, lost property was defined as:
"that which the owner has involuntarily parted with through neglect, carelessness or inadvertence and the whereabouts of which is unknown to the owner,"
mislaid property as:
"that which the owner has intentionally laid down in a place where he can again resort to it, and then forgets where he put it,"
and treasure trove as:
"money, which has been concealed by the owner in a private place for safekeeping; treasure trove carries the thought of antiquity, i.e., it must have been concealed sufficiently long so as to indicate that the owner is probably dead or unknown."
Campbell v. Cochran, 416 A.2d at 221.
It is obvious from the facts and circumstances of the present case that Fuentes’ money, when taken from his apartment by the police, was not lost, mislaid or treasure trove. Therefore, ownership of the locus in quo is a legally insignificant fact in the present case.
_________Footnote
8 But inferior to the true owner of the unclaimed property for whom the property is held as bailee. See Campbell v. Cochran, 416 A.2d at 221-22. Thus, the adage “finders keepers, losers weepers” does not represent an accurate statement of the common law.
Reversed and remanded with directions.
DISSENT BY: BASKIN (omitted)
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