### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JANE JEISCHA ALDANA PEREZ
, as Personal Representative of the

ESTATE OF JHOURDAN HERNANDEZ
, Appellant,

v.

GREGORY TONY
, as Sheriff of Broward County

, Appellee

.

No. 4D 20 2 3

- 0377

[ April 3, 2024 ]

Appeal of nonfinal order from the C ircuit Court for the Seventeenth Judicial Circuit, Broward County ; Fabienne Fahnestock , Judge; L.T. Case

No. CACE22014700

.

Eric Rudenberg of Rudenberg & Glasser, P.A., Fort Lauderdale, for appellant

.

Kristin Mackenzie, Assistant General Counsel, Broward County Sheriff’s Office, Fort Lauderdale, for appellee.

M AY
, J.

The difference between speculation and probable cause create s the issue in this appeal. The personal representative of an estate appeals a

non

- final order denying the decedent’s motion to suppress and finding probable cause to support the continued seizure of cash by t he Broward County Sheriff’s Office ( “ BSO ” ). 1 She argues the trial court erred in finding probable cause existed for the seizure and subsequently denying her motion to suppress on those grounds . We agree and reverse.

The BSO alleged the decedent was engaged in a workers’ compensation

insurance fraud scheme. On the date of the search and seizure, BSO officers saw the decedent leaving a check cashing store with what they

1 The seized property ’s original claimant died while this appeal was pending. His wife, as personal representative of his estate, was substituted.2 believed was a backpack full of cash . They stopped t he car and seized the

cash

.

The BSO alleged the cash was subject to forfeiture for two reasons : first, because the decedent used or a ttempted use the cash as an instrumentality in a suspected insurance fraud scheme under section 932.701(2)(a)5., Florida Statutes (2022) ; and second, because the

decedent used the cash in the course of, derived from, or realized through racketeering activity under section 895.05(2)(a), Florida Statutes (2022).

• The Investigation, Stop, and Seizure

According to the probable cause affidavit for the seizure

, the BSO investigated the decedent between June and September 2022 and concluded he was operating a workers’ compensation insurance fraud scheme. The detective who wrote the affidavit alleged he was familiar with

t his type of scheme through his “training and experience” as part of the BSO’s money laundering task force.

He explained that i n a typical scheme

, a n individual set s up a “shell

company , ” which is generally structured as a limited liability compan y

. Then, the individual obtai n s a workers’ compensation insurance policy

based on the shell company ’s lowly projected payroll expense , thus securing a correspondingly low premium. The shell company ’s owner then

“rents out” its certificate of insurance to uninsure d construction companies

. T hose companies are then able to secure construction contracts they would not have been able to lawfully obtain without proof

of valid workers’ compensation insurance.

The construction company’s customers pay the shell company

, as identified on the certificate of insurance. The shell company’s owner

ca sh es the checks, which the uninsured construction companies then use to pay their workers. The shell company ’s owner usually cashes the checks at check cashing stores to avoid the extensive paper trail which

traditional banks create . The shell company’s owner then dissolves the

company and sets up a new one before the insurance company ’s annual

audit.

Here, t he decedent incorporated a construction company called JMHA Global, LLC (“JMHA”) in October 2021. JMHA obtained a workers’ compensation insurance policy in November 2021 based on an expected annual payroll of $120,000

, which requir ed a n annual premium of about $16,00 0.3 The insurance company cancelled JMHA’s policy in July 2022, allegedly because no payroll had been reported. While the policy was in effect from

November 2021 through July 2022, financial records show the decedent cashed more than $9 million in checks written to JMHA.

The BSO allege d the decedent used the $9 million for payroll expenses

which JMHA did not report to its insurance company. The BSO estimate d JMHA avoided paying more than $1 million in premiums by failing to report the additional payroll. Further, the BSO allege d the decedent incorporated JMHA “for the sole purpose of defrauding [its] contracted insurance company

. . . [and] laundering [his] business

- to

- business checks through complicit money service businesses.”

T he BSO staged an enforcement action at a check cashing store on September 16, 2022

. The decedent was witnessed getting out of the passenger side of a car and entering the store with a flat black Puma backpack. About 18 minutes later, he exited the store wearing a “more

v oluminous” backpack

, got back into the passenger side , and the car pulled away.

The BSO followed the car and eventually stopped it. The BSO allege d it had probable cause to believe the occupants of the car were “involved in a crime” and in possession of currency obtained through an “organized

scheme to defraud.” BSO officers searched the car and seized more than $170,000 in cash from the decedent ’s backpack. However, t he BSO never arrested or charged the decedent or the driver with any crime related to

th e investigation.

The probable cause affidavit for the seizure state d the cash was seized pursuant to the Florida Contraband Forfeiture Act, sections 932.701

– 7062, Florida Statutes (2022) (“the Forfeiture Act”). The BSO specifically allege d the cash wa s subject to forfeiture under section 932.701(2)(a)5

. because it “was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of,” any of the following felonies:

(1) organized fra ud, in violation of section 817.034(4)(a)1.,

Florida Statutes (2022) ;

(2) workers’ compensation insurance fraud, or conspiracy to

commit that fraud , in violation of section 440.105(4)(f)3.,

Florida Statutes (2022) ;4 (3) first

- degree grand theft, or conspiracy to commit that

theft , in violation of section 812.014(2)(a)1., Florida Statutes (2022) ;

(4) operating an unlicensed money service business, in

violation of section 560.125(5)(c), Florida Statutes (2022) ;

(5) money laundering, in violation of section 896.101(5)(c),

Florida Statutes (2022) ; or

(6) racketeering and/or conspiracy to commit racketeering, in violation of section 895.03(1) and/or (4), Florida Statutes (2022)

.

The BSO allege d the cash wa s also subject to forfeiture under the Florida RICO Act, sections 895.01

– .06, Florida Statutes (2022) (“the RICO Act”), bec ause it was “used in the course of, derived from, or realized through” conduct in violation of the Act. See § 895.05(2)(a) , Fla. Stat

. (2022).

• The Motion to Suppress and Adversarial Preliminary Hearing

The decedent moved to suppress the cash as evidence and requested an adversarial preliminary hearing to determine whether probable cause

existed to support its continued seizure. See generally § 932.703(3)(a), (3)(c), Fla. Stat. (2022) ; Golon v. Jenne , 739 So. 2d 659, 661 (Fla. 4th DCA 1999)

.

T he motion to suppress argued the cash was inadmissible because th e BSO did not have reasonable suspicion or probable cause to justify the stop of the driver ’s car

. Further, the BSO lacked evidence of the “core element” of the alleged workers’ compensation in surance fraud scheme

— i.e., evidence the decedent had misrepresent ed JMHA’s payroll expenses

to its insurance company

.

The decedent argued cashing a large volume of checks is not illegal and

the BSO had no evidence he used any of the $9 million on unreport ed payroll. The decedent suggested the cash could have been used to pay for

JMHA’s equipment

, supplies, rent, or subcontractors who carried their

own workers’ compensation insurance

.

The BSO responded the stop was justified under the “automobile exceptio n” because the officers had probable cause to believe t he car5 contained evidence of cri minal activity

, specifically workers’ compensation insurance fraud and money laundering.

The court heard the motion to suppress at the adversarial preliminary hearing. There, t he BSO presented testimony from the detective who led the investigation and wrote the probable cause affidavit.

The detective testified he first noticed the decedent w hen he was conducting surveillance of another subject at a check cashing store in

June 2022

. That day, the detective observed the decedent go into the store carrying a black backpack that appeared “very light and flat” and then exit with the backpack that was “obvious[ly]” heavier and “more voluminous.”

The detective saw the decedent go into the check cashing store about thirty more times between June and July 2022.

The dete ctive then determined

, through law enforcement databases

, the

decedent had cashed more than $9 million in checks written to JMHA

between November 2021 and June 2022. He confirmed JMHA had a workers’ compensation insurance policy with an effective start da te in

November 2021 based on an expected payroll of $120,000 and would have paid more than $1 million in additional premiums if it had reported a payroll of $9 million. The detective believed the insurance company had cancelled the policy in July 2022 bec ause JMHA had not reported any payroll.

The detective personally believed JMHA was a shell company primarily because it was registered at a residential address and failed to report any legitimate payroll

. He also testified he had never seen the decedent go to
an actual construction site.

After JMHA’s insurance policy was cancelled

, the detective saw the

decedent going into the check cashing store about forty more times between July and September 2022

. But d uring that time, the decedent no longer cash ed checks written to JMHA

. Instead, t he d etective believed the

decedent was cashing checks written to two different entities , both of

which the detective believed were “additional shell companies engaged in the same type of fraud.”

The det ective testified the decedent’s personal banking records substantiated this belief by show ing transfers to and from those entities

. O ther records showed the checks written to those entities had been cashed

when the decedent had been at the check cashing s tore

.6 The d etective testified t his type of activity is “typical” of a workers’ compensation insurance fraud scheme. He testified that o n the day of the stop, h e observed the decedent enter the check cashing store and com e out with a backpack that “appear ed hefty

. ” That was when he decided to stop the car

. He believed the cash in the decedent’s backpack was “supposed to be for payroll,” based on his experience with workers’ compensation insurance fraud cases.

O n cross

- examination, however, the d etective admitted he had no

evidence the decedent had “lent out” JMHA’s certificate of insurance. He

admitted he had no specific evidence to show how the decedent had used the money from cashing the checks. He also admitted th e decedent could

have used the cash to make large purchases or pay its subcontractors, which would not have constituted a payroll expense if the subcontractors had their own workers’ compensation insurance

. And a lthough the

detective testified he had seen the decedent on one occasion leaving the check cashing store and giving “the bag” to a person in a Jeep, he also

conceded he could not ru le out that person was a subcontractor with its

own insurance. 2

In short , the detective admitted his belief the decedent was involved in workers’ compensation insurance fraud was based solely on his general training and experience. His investigation was limited to the decedent ’s “illegal [] cashing [of] checks at a Check Cashing Store,” and the detective did not have any specific evidence of how the decedent had us ed the cash.

• The Trial Court’s Ruling

The trial court denied the motion to suppress

. The trial court found

the stop of the car was lawful under the automobile exception because the

BSO had probable cause to believe t he decedent had committed several

crimes and the car contained evidence of those crimes

. The trial cou rt
made no findings regarding probable cause to support the continued

seizure of the cash. The decedent moved for reconsideration , which the

court failed to rule on

.

The decedent, and now his Estate, appeals from the trial court’s order.

2 The detective also relied on the driver ’s statements made in an interview following the stop, but those statements are not relevant to whether probable cause existed to justify the stop. See Baptiste v. State , 995 So. 2d 285, 293

– 95 (Fla. 2008) ( explaining that an anonymous tip by itself is not enough for an officer to have probable cause ).7 • The Appeal

The decedent raises two arguments on appeal: (1) the trial court erred in denying his motion to suppress because the BSO lacked probable cause for the stop; and (2) the trial court erred in finding probable cause to support the continued seizure because t he BSO failed to demonstrate probable cause the cash w as an instrumentality in the commission of a felony. We agree the trial court erred in denying the motion to suppress

and reverse.

We apply a mixed standard of review to a trial court’s ruling on a mo tion
to suppress : the trial court’s findings of fact are entitled to deference, but its legal conclusions are reviewed de novo. Lowery v. State , 201 So. 3d 791, 793 (Fla. 4th DCA 2016)

.

Here, t he trial court denied the decedent’s motion to suppress beca use it agreed with the BSO that the stop was lawful under the automobile exception to the warrant requirement. Under the automobile exception,

law enforcement may stop and search a car without a warrant if an officer

has probable cause to believe the car contains evidence of a crime. State

v. Betz , 815 So. 2d 627, 631 (Fla. 2002) ( citing Carroll v. United States , 267

U.S. 132 , 149 (1925) ). T his right , however, is not absolute , and if an officer has probable cause only for the trunk, then that officer can search only

the trunk

. Se e id. ; see also United States v. Ross , 456 U.S. 798 , 823 (1982) ( “The scope of a warrantless search based on probable cause is no

narrower

- and no broader

- than the scope of a search authorized by a warrant supported by p robable cause.” )

.

Probable cause only exists where “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable

caution in the belief t hat an offense has been or is being committed.” Betz

, 815 So. 2d at 631 (quoting Brinegar v. United States , 338 U.S. 160, 175

– 76 (1949) ).

Here, t he BSO argued, and the trial court ultimately found

, BSO

detectives had probable cause to believe th e car contained evidence of workers’ compensation insurance fraud and money laundering. 3

3 The reliance on money laundering may have been misplaced because the

detective who wrote the probable cause affidavit alleged a belief the decedent had

committed only workers’ compensation insurance fraud.8 The crime of workers’ compensation insurance fraud, as alleged in this case, requires proof th e decedent knowingly assisted, conspired with, or urged a nother to knowingly make a false, fraudulent, or misleading statement, or to knowingly omit

, or conceal

, material information required by section 440.381, Florida Statutes (2022) , for the purpose of diminishin g JMHA’s workers’ compensation insurance premiums. § 440.105(4)(b)4., (b)5. , Fla. Stat. (2022).

The crime of money laundering, as alleged in this case, requires proof

th e decedent knowingly conducted or attempted to conduct a financial

transaction involv ing the proceeds of “specified unlawful activity,” for the purpose of either (1) concealing or disguising the nature, location, source, ownership, or control of proceeds, or (2) avoiding a transaction reporting requirement. § 896.101(3)(a)2. a.

– b

. , Fla. St at. (2022).

Thus, both crimes alleged require evidence th e decedent knowingly

made a false statement or material omission to JMHA’s insurance
company as to its expected payroll expenses. See § 440.105(4) (b)4

. , (b)5.

, Fla. Stat. (2022) ; § 440 .381(1)

, Fla. Stat. (2022) ; § 896.101(3)(a) 2. , Fla.

Stat. (2022).

But these are the only facts which the BSO’s officers knew at the time of the stop. First, t he decedent incorporated JMHA in October 2021 and registered it at a residential address. Secon d, JMHA obtained a workers’ compensation insurance policy in November 2021 based on a n expected annual payroll of $120,000. Third, the decedent used a check cashing store to cash more than $9 million in checks to JMHA between November 2021 and July 2022

. Fourth, JMHA’s insurance policy was cancelled in July 2022 because it never reported any payroll.

Last, t he d e cedent was repeatedly observed going into a check cashing

store between June and September 2022. Each time, he was seen entering

the store with a n empty backpack and leaving with a “more voluminous”

one . He was also seen deliver ing cash to an unidentified person on at least

one occasion . On the date of the stop, he was seen leaving a check cashing store with a black backpack that appeared heavy.

The d etective who led the investigation and drafted the probable cause

affidavit testified about Florida’s “typical” workers’ compensation

insurance fraud scheme . He admitt ed, however, th e BSO did not have any

evidence the decedent had allow ed anyone else to use JMHA’s certificate

of insurance

. He also admitted the BSO did not have any evidence as to
how the decedent had spent the money from JMHA ’s cashed checks

.9 The detec tive testified the money was “supposed to be for payroll,” but

admitted this belief was based solely on his experience with Florida’s “typical” workers’ compensation insurance fraud scheme , not case

- specific

evidence. He also admitted t he decedent could have used the money for any number of things other than payroll

.

T he decedent now argues on appeal the stop was unlawful

, because

without evidence he had used the money from cashing the checks written to JMHA for payroll, th e BSO lacked probable ca use to believe he had made

a false statement or material omission to JMHA’s insurance company

about its expected payroll. See § 440.105(4) (b)4., (b)5. , Fla. Stat. (2022); § 440 .381(1) , (2), Fla. Stat. (2022) ; § 896.101(3)(a) 2

. , Fla. Stat

. (2022).

The decedent also argues the BSO did not have probable cause to
believe th e car contained evidence of the alleged crimes . JMHA’s insurance policy had been cancelled by the time of the stop , and the

detective testified the decedent was no longer cashing ch ecks written to

JMHA

. T hus, t here was “no logical way” the car could have contained

evidence of JMHA’s alleged insurance fraud scheme.

Although the detective testified he had suspected t he decedent had

been cashing checks made out to two other shell com panies around the time of the stop

, the BSO did not present any evidence of who wrote the check(s) cashed immediately before the stop was made

. Nor did t he BSO allege either of the two additional shell companies had obtain ed a workers’ compensation insura nce polic y based on misrepresented payroll expenses.

We hold t he trial court erred in denying the decedent’s motion to

suppress. The BSO’s reliance on the automobile exception to justify the stop of the car is unavailing as it lacked probable cause to believe the car contained evidence of workers’ compensation insurance fraud or money laundering. The BSO did not and cannot point to any specific information justifying its belief the cash in the decedent’s backpack came from c ashing a check written to any company with a workers’ compensation insurance policy based on a false statement or material omission as to the company’s payroll expenses

. See § 440.105(4)(b)5. , Fla. Stat. (2022); § 440 .381(1)

, Fla. Stat. (2022) ; § 896.101( 3)(a) 2

. , Fla. Stat

. (2022).

The detective may have had a n educated “hunch” based on his training and experience that the decedent had been engaged in a “typical” workers’ compensation insurance fraud scheme . B ut his “hunch” or “ mere suspicion ” does not equate to probable cause to justify the stop of the car.

See Ray v. State , 40 So. 3d 95, 98 (Fla. 4th DCA 2010) ( holding an officer ’s10 narcotics sale training does not compensate for a lack of other factors that would support probable cause ).

Be cause we conclude the trial court erred in denying the motion to

suppress , we n eed not address whether the trial court erred in finding probable cause to support the continued seizure of the cash

. On remand,

the trial court shall order the BSO to return t he seized cash to the

decedent’s e state.

Reversed and remanded with instructions

.

C IKLIN and F ORST

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.