Petition for Writ of Certiorari — Florida v. White

FILED

() 98 228 auc; 199

Case No. MEEIOE M6 THE CLERK

IN THE UNITED STATES SUPREME COURT

October Term 1997

STATE OF FLORIDA,

Petitioner,

Vv.

TYVESSEL TYVORUS WHITE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CAROLYN SNURKOWSKI

ASSISTANT DEPUTY ATTORNEY

GENERAL

FLORIDA BAR NO. 158541

DANIEL A. DAVID

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0650412

OFFICE OF ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300 Ext. 4573

COUNSEL FOR PETITIONER

QUESTION PRESENTED

WHETHER THE DECISION OF THE FLORIDA SUPREME

COURT HOLDING THAT A WARRANT IS REQUIRED BY

THE FOURTH AMENDMENT TO SEIZE A MOTOR

VEHICLE UNDER A CONTRABAND FORFEITURE ACT

AND FOR SUBSEQUENT SEARCH OF SAID VEHICLE

CONFLICTS WITH DECISIONS OF THE COURT IN

CARROLL V. UNITED STATES,

PEARSON YACHT LEASING, AND COOPER __V.,

CALIFORNIA, THAT OF THE ELEVENTH CIRCUIT IN

UNITED STATES V. VALDES AND THE MAJORITY OF

STATE COURTS ADDRESSING THIS ISSUE?

TABLE OF CONTENTS

Page(s)

CS UNE» bb co vic bd bb 0b 6 Chee 66 we i

py 8 GS ey I aki: @

TABLE OF AUTHORITIES .............. -.. diievi

i ee ase as ca bbcode 1

EE en re ae 2

CONSTITUTIONAL AND STATUTORY

ye Oe 6 By 6B 2,3

STATEMENT OF THE CASE ........-.s0-00: 3,4

REASONS FOR GRANTING THE WRIT. ........... 5

THE COURT SHOULD ACCEPT JURISDICTION

TO RESOLVE THE CONFLICT BETWEEN THE

FLORIDA SUPREME COURT AND THIS COURT

AS TO WHETHER A WARRANT IS REQUIRED

UNDER THE FOURTH AMENDMENT TO SEIZE

A MOTOR VEHICLE UNDER A CONTRABAND

FORFEITURE STATUTE AND SUBSEQUENTLY

EES oes ken pases esecees 5

RIES Cr pee ee a 16

ae i ee Ch eae ed eee cee neee 17

TABLE OF AUTHORITIES

FEDERAL CASES

——?

516 U.S. 442, 116 S. Ct. 994,

SPUN EEE Cb cee ctccccscceces 10, 11

416 U.S. 663, 94S. Ct. 2080,

4O L. BG. 26 452 (1974)... ees 6, 9, 12, 13, 15

Carroll v, United States,

267 U.S. 132, 45 S. Ct. 280,

2 . 6, 7, 8, 9, 11, 15

386 U.S. 58, 87 S. Ct. 788,

17 L. Ed. 2d 730 (1967) ............ 6, 9, 10, 13, 15

519 U.S. 33, 117 S. Ct. 417,

136 L. Ed. 2d 347 (1996) .. 0. ees 5

Torres v. Puerto Rico,

442 U.S. 465, 99 S. Ct. 2425,

DC cae éectbecevescsosent 11

TETRA OTS NO et ae CAS ore 6

1 Phd 1006 lowe Ch 1995) Pea tees ied ee 5ae 6

SOO 2d 397 ince ON PPO ree a

oe Dod 1500 2d Ca i992, es ice, 4, 6, 13, 14

880 F.2d 209, 876 F.2d 1554 (11th Cir. 1989) ....... 6

United States v, One 1978 Mercedes Benz

y, $F 4 aa nag pete RE 6

United States v. Pace,

898 F.2d 1218 (7th Cir.),

cert. denied, 497 U.S. 1030,

110 S. Ct. 3286, 111 L. Ed. 2d 795 (1990) ......... 6

United States vy. Ursery,

518 U.S. 267, 116 S. Ct. 2135,

Sp EEE bn 5 oo ob dhib's Citielele Gale ale 7

United States v. Valdes,

876 F.2d 1554 (11th Cir. 1989) ....... 6, 11, 12, 13, 15

United States v. Watson,

423 U.S. 411, 96 S. Ct. 820,

Gs ee Es. 6c 6 60% bbe 04.0 68 0b Ok 12

In re Warrant to Seize One 1988

Chevrolet Monte Carlo,

SLUM \onb ice dicracce ca oes 6

STATE CASES

Anntication of Harniechfneer.

158 Misc. 2d 299, 600 N.Y.S.2d 894 (Sup. 1993) ..... 14

Bernie vy. State,

Se, ee SD ns cow e ee oeentenivene 5

Blackmon y. Brotherhood Protective

232 Ga. 671, 208 S.E.2d - ee 7 ee | 13

Davis y, State,

3f S bis | ¥en 14, 15

Frail v. $24,900 in United S C

192 W. Va. 473, 453 S.E.2d 307 (W. Va. 1994) ..... 14

State v. Brickhouse,

20 Kan. . 2d 495,

Se rae ee Gy BOOED noc dcdcccccece 13

State v. Gwinner,

59 Wash. . 119,

796 P.2d 728 (Wash. App. 1990),

ied, 117 Wash. 2d 1004,

TY ee ee eee 14

White v. State,

680 So. 2d 550 (Fla. Ist DCA 1996). ........... 1,8

White v. State,

PP ee ME CRN EE 6 ove ccececeuese l

FEDERAL STATUTES

Be WA: GOREN cece ccvenwsss 6, 11, 13, 14, 15

8 SS ee eee Pre 12

Se ee EE: Ath Gard eh da Chee aw ee 2

STATE STATUTES

Sections 932.701-932.707, Florida Statutes (1993) .. 4, 12

Section 932.703(2)(a), Florida Statutes (1993) ...... 12

Section 932.703(2)(f), Florida Statutes (1993) ....... 13

Section 932.702(3), Florida Statutes (1993) ........ 13

Section 932.701(2)(a)1, Florida Statutes (1993) ..... . 13

Chapter 893.03(2)(a)4, Florida Statutes .......... 13

Section 11611, California Health & Safety Code ..... 10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV .... 2,3, 4,5, 6,7, 9, 11, 12, 14

US. Comst. amemO. Vw. ccc ccc ccecvcvennss 10

U.S. Comet. amend. XIV, §1 .. 2... ccc evcees 2, 10

Pie. Comm. ast.E, § 12 .ncccccccccccveccens 2,3, 5

CASENO. _—

IN THE UNITED STATES SUPREME COURT

October Term 1997

STATE OF FLORIDA,

Petitioner,

v.

TYVESSEL TYVORUS WHITE,

Respondent.

OPINION BELOW

The decision from which Petitioner seeks to invoke the

i i review of this Court is reported as White y. State,

710 So.2d 949 (Fla. 1998).

Petitioner’s ix contains the opinion of the Florida

poe a , Case No. ies tA 23). Tee eppondin

court’s ing ing. ( ). ix

Sear aautenes Gus entation el too Plecite Paes Diem Court

of Appeal, White v. State, 680 So.2d 550 (Fla. Ist DCA 1996).

24-45). The parties will be referred to as they appear before

or as they stood in the court(s) below’ .

‘The symbol “A” followed by the appropriate page number

expresses a citation to the materials contained in the Appendix to this

pleading.

- =

JURISDICTION violation of this right shall not be admissible

in evidence if such articles or information

The decision below was entered on February 26, 1998. would be inadmissible under decisions of the

Petitioner's Motion for Rehearing was denied June 1, 1998. United States Supreme Court ees been

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a). 4th Amendment to the United

Constitution.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED STATEMENT OF THE CASE

Petitioner contends that the following amendments to the The material facts, as set out by the Florida Supreme Court

United States Constitution are involved: in the body of its decision are as follows:

The Fourth Amendment of the United States Constitution On October 14, 1993, petitioner Tyvessel

provides: Tyvorous White (White) was arrested at his

: place of employment on charges unrelated to

The right of the people to be secure in their this case. After taking White into custody on

persons, houses, papers, and effects, against those unrelated charges, and securing the hon

unreasonable searches and seizures, shall not to his automobile, the arresting officers seized

be violated, and no Warrant shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be_searched, and the persons or

things to be seized.

his automobile from the parking lot of White’s

employment. The police did not seize the

vehicle incident to White’s arrest or obtain a

prior court order or warrant to authorize the

seizure. Rather, the basis of the seizure was

the arresting officers’ belief that White's

The Fourth Amendment is applicable to the states through automobile had been use several months

the Fourteenth Amendment of the United States Constitution earlier to deliver illegal drugs, and therefore

which provides in pertinent part: the vehicle was subject to forfeiture bv the

Section 1. No State shall...deprive any person

of life, liberty, or property, without due

of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

Article I, § 12 of the Florida Cor-‘itution provides in

pertinent part:

Searches and seizures. - This right shall be

construed in conformity with the 4th

Amendment to the United States Constitution,

as interpreted by the United States Supreme

Court. Articles or information obtained in

se

government. After confiscation of the vehicle,

a subsequent search turned up two pieces of

crack cocaine in the ashtray.

Based on the discovery of the cocaine,

White was charged with possession of a

controlled substance. White subsequently

objected to the introduction into evidence of

the cocaine seized during the post-arrest

search of his automobile. The trial court

reserved ruling on the issue and allowed the

evidence to go to a jury. White was thereafter

convicted of possession of cocaine, and

subsequently the trial court formally denied

-3-

White’s objection and motion to suppress the

cocaine evidence.

On appeal, the First District affirmed

White’s conviction and approved _ the

government’s warrantless seizure of White’s

car. The majority opinion found that the

government met the requirements of the

Florida Contraband Forfeiture Act, sections

932.701-932.707, Florida Statutes

(1993)(hereinafter Forfeiture Act) in that the

warrantless seizure of White’s automobile was

based upon probable cause to believe that the

vehicle had facilitated illegal drug activity at

some time in the past. Further, the majority

found that the warrantless seizure did not

violate White’s Fourth Amendment right to be

secure against unreasonable searches and

seizures.

(A 2-3, footnotes deleted)

The Florida Supreme Court held that on these facts, the

District Court’s opinion was in error and adopted the out-of-

circuit decision in United States v, Lasanta, 978 F.2d 1300 (2d

Cir. 1992). This minority view, which is contrary to the

controlling authority of the Eleventh Circuit, provides that a

warrant was required under the Fourth Amendment for seizure

and search of Respondent’s vehicle.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE FLORIDA SUPREME COURT IS

IN DIRECT CONFLICT WITH DECISIONS OF THE

COURT THAT NO WARRANT IS REQUIRED UNDER

THE FOURTH AMENDMENT TO SEIZE, SEARCH AND

FORFEIT A MOTOR VEHICLE PURSUANT TO A CIVIL

FORFEITURE ACT, AND DIRECTLY CONFLICTS AS

WELL WITH DECISIONS OF THE ELEVENTH CIRCUIT

AND THE MAJORITY OF STATE COURTS ON THIS

POINT. THEREFORE, THIS COURT SHOULD ACCEPT

JURISDICTION TO RESOLVE THE CONFLICT BETWEEN

THE DECISION OF THE FLORIDA SUPREME COURT

AND THOSE OF THE COURT THE ELEVENTH CIRCUIT,

AND THE MAJORITY OF STATE COURTS.

The decision of the Florida Supreme Court holding that a

warrant is required by the Fourth Amendment for seizure of an

automobile under a contraband forfeiture statute is contrary to

controlling precedent of the Court and that of ghe Eleventh

Circuit, the controlling federal circuit for Florida*, as well as

the majority of state courts addressing this issue.

*Under the Florida Constitution there cannot be an independent and

adequate state ground to support the decision of the Florida Supreme Court.

Under Art. I, § 12 of the Florida Constitution, Fourth Amendment issues in

the Florida courts must be decided in conformity with decisions of this

court, and the Florida courts can afford no higher level of Fourth

Amendment protection. Bernie vy, State, 524 So.2d 988, 990-991 (Fla.

1988). The Florida Supreme Court explicitly recognized this constraint in

its decision below: "In 1982, article I, section 12 of the Florida Constitution

was amended to add what has become known as the conformity clause

because ‘we are bound to follow the interpretations of the United States

Supreme Court with relation to the fourth amendment and provide no greater

protection than those interpretations.’" (A 3, n.3). Therefore, this Court's

decisions interpreting the Fourth Amendment are conclusive on the issue

presented; definitionally there is no independent and adequate state ground

to support the decision below. See Ohio v, Robinette, 519 U.S. 33, 117

S.Ct. 417, 136 L.Ed.2d 347 (1996).

x a

In reaching this contrary decision, the state court ignored

well settled doctrine of the Court expressed in cases such as

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.

543 (1925), Calero-Toledo v. Pearson Yacht Leasing, 416 U.S.

663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), and

California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

The state court rejected as well the majority view of the Federal

Circuits on this issue, expressed, in the Eleventh Circuit’s

decision in United States v. Valdes’, 876 F.2d 1554 (11th Cir.

1989), and opted instead for the minority view, as set out in the

Second Circuit’s decision in United States v. Lasanta’, 978

F.2d 1300 (2d Cir. 1992).

As a result, there now exists in Florida the inherently

anomalous situation that an automobile seized by state officers

cannot be searched and forfeited without warrant as the Fourth

Amendment is interpreted by the Florida Supreme Court, while

that same automobile, seized for identical reasons by federal

officers, can be searched and forfeited without warrant under

*The majority view of the federal circuits, as set out in Valdes is

that no antecedent warrant is required for seizure, search, and forfeiture of

an automobile under a civil forfeiture act. United States v. Pace, 898 F.2d

1218 (7th Cir.), cert. Denied, 497 U.S. 1030, 110 S.Ct. 3286, 111 L.Ed.2d

795 (1990); United States v, One 1978 Mercedes Benz, 711 F.2d 1297 (Sth

Cir. 1983); United States v. Kemp, 690 F.2d 397 (4th Cir. 1982); United

States vy. Bush, 647 F.2d 357 (3d Cir. 1981). The minority view, as

expressed in United States v. Lasanta, 978 F.2d 1300 (2d Cir. 1992) is that

a warrant is required before seizure, search and forfeiture. The Tenth

Circuit has adopted Lasanta in United States vy, Dixon, 1 F.3d 1080 (10th

Cir. 1995), holding that either a warrant or a recognized exception thereto

is required for a valid seizure. An intermediate approach is adopted by other

circuits, limiting the validity of warrantless seizure under a forfeiture statute

to situations where exigent circumstances exist, In re Warrant to Seize One

1988 Chevrolet Monte Carlo, 861 F.2d 307 (ist Cir. 1988), or where there

is a recognized exception to the warrant requirement, United States v. Linn,

880 F.2d 209 (9th Cir. 1989).

“In Lasanta, the Second Circuit expressly acknowledged its

construction of federal civil forfeiture statute 21 U.S.C. § 881(b)(4) directly

conflicted with that of Valdes. 978 F.2d 1304.

the Fourth Amendment, as interpreted by the Eleventh Circuit.

Such a result cannot be permitted to stand.

_As is apparent, the result of the Florida Supreme Court’s

decision is that there are now two different Fourth Amendment

standards applying to seizures, searches, and forfeitures in

Florida. The Florida Supreme Court’s holding is contrary to

this Court’s decisions as well as contrary to the Eleventh

Circuit’s decision on this subject matter.

The decisions of this Court on seizure questions arisin

under the Fourth Amendment make clear that no potter

warrant is required for law enforcement to validly seize a motor

vehicle or other readily moveable instrumentality. That has

been settled law from this court for three quarters of a century.

Carroll v, U.S., 267 U.S. 132, 45 S.Ct. 280

(1935). , 69 L.Ed. 543

In Carroll, the court upheld warrantless stop of a vehicle

search of the interior, lccaen of commebets liquor found

therein and potential forfeiture of the automobile under a

federal prohibition forfeiture act®. The facts of Carroll] show

that on September 29th, 1921 federal agents attempted to set up

a liquor buy of three cases of whiskey in a Grand Rapids,

Michigan, apartment. The sellers, Kurska, Carroll and Kiro

never brought the liquor. The officers noted they were driving

an Oldsmobile. On October 6th, the officers saw Carroll and

Kiro in the same car on the Grand Rapids-Detroit road, and

followed them, but eventually lost them. On December 15,

1921, the officers spotted Carroll and Kiro in the same car

heading into Grand Rapids from the direction of Detroit. The

federal officers and a state trooper turned around and stopped

the car about 16 miles east of Grand Rapids. A search of the

car uncovered bottles of liquor hidden behind the seat

upholstery. 267 U.S. at 134-136. “The officers were not

anticipating that the defendants would be coming through on the

highway at that particular time, but when they met them there

The Court has affirmed that forfeitures are in rem civil

proceedings, not in personam criminal proceedings, and do not impose

punishment. United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135

L.Ed.2d 549 (1996).

ie.

they believed they were carrying liquor, and hence the search,

seizure, and arrest.” Jd. at 136.

On these facts, the Court found probable cause to stop,

conduct the search, no basis for suppression of the liquor, but

eligibility of the vehicle for seizure under a Prohibition

forfeiture act. This Court stated in Carrol], “The right to search

and the validity of the seizure are not dependent on the right to

arrest. They are dependent on the reasonable cause the seizing

officer has for the belief that the contents of the automobile

offend against the law.” 267 U.S. at 158-159. After extens‘ve

review of the long standing doctrine that no warrant is needed

for stop and search of vessels, wagons, and other readily

mobile instrumentalities, the court stated that by

what is shown by this record, it is clear the

officers here had justification for the search

and seizure. This is to say that the facts and

circumstances within their knowledge and of

which they had reasonably trustworthy

information were sufficient in themselves to

warrant a man of reasonable caution in the

belief that intoxicating liquor was being

transported in the automobile which they

stopped and searched.

267 U.S. 162

To pose the question addressed in Carrolj to the instant

matter: What reasonable cause did the seizing officer here have

for the belief that the contents of Respondent’s automobile

offend against the law? This record demonstrates that the facts

here are just as strong as, if not more so, than those found by

the Court in Carrol] to be clearly sufficient to establish basis for

a lawful stop, search and seizure.

Respondent here was seen by police eyewitnesses, and was

videotaped utilizing his automobile to deliver and sell cocaine.

White v. State, 680 So.2d 550, 551 (Fla. Ist DCA 1996), (A

25). These events occurred on July 26, August 4 and August 7,

1993. (A 2, n.2). Appellant was arrested on unrelated charges

on October 14, 1993, and his car seized by the officers on

belief that it had been used in the above noted drug

transactions. (A 2).

In Carroll, the Court found reasonable cause to believe the

car was being utilized to transport contraband liquor when it

was seen on a public highway some two and a half months after

one failed liquor transaction. Here, the car was seized some

two and a half months after three successfully completed

narcotics transactions.

Once a valid seizure has been established, supra, it

naturally, logically, and legally flows as a result of that seizure

that the vehicle can be searched, incriminating evidence

uncovered as a result of that search introduced against

petitioner at trial, and the vehicle can be forfeited. Indeed, this

is precisely what the Court has held in cases pursuant to the

long established doctrine set down in Carrol].

For example, in Calero-Toledo v. Pearson Yacht Leasing

Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), the

Court permitted seizure and forfeiture under a Puerto Rican

drug statute of a pleasure yacht without prior warrant or prior

adversary hearing, even though the yacht owner, the leasing

company, was completely unaware of illegal activity on the

vessel. The seizure of the vessel took place two months after

the offense, and the boat was forfeited to the Puerto Rican

government.

The Court in Calero-Toledo noted that preseizure notice of

forfeiture could well frustrate the interests served by the statute

because a readily moveable instrumentality such as a yacht --or

in this case, an automobile -- could be moved out of the

jurisdiction, damaged, destroyed, or concealed if advance

warning were given. The Court further noted that forfeiture

Statues serve an important governmental interest by removing

from circulation the conveyance, which can be used to facilitate

illegal activity time and time again, and, by forfeiture of the

conveyance, rendering the illegal activity as a whole

unprofitable.

In Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17

L.Ed.2d 730 (1967), the Court upheld against Fourth

Amendment challenge the seizure, subsequent search, and

introduction of narcotics into evidence. Appellant in Cooper

was arrested for narcotics charges, and his car seized without

warrant and i for evidence and subsequent forfeiture

under California law’. As here, the basis of the seizure was

evidence which showed the car had been used to carry on

narcotics possession and transportation. The car was searched

a week after seizure without warrant at the impound yard, and

the Court held that evidence discovered during that search was

validly introduced during trial. The car was forfeited to the

state four months after the seizure. The Court stated, 386 U.S.

58, 62:

It is no answer to say that the police coud

have obtained a search warrant, for the

relevant test is not whether it is reasonable to

obtain a warrant, but whether the search was

reasonable. Under the circumstances of this

case, we cannot hold unreasonable under the

Fourth Amendment the examination or search

of a car validly held by officers for use as

evidence in a forfeiture proceeding.

(internal bracketing, quotations and citation deleted)

Of recent note, the Court in Bennis v. Michigap, 516 U.S.

442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) held there was no

constitutionally ired “innocent owner” defense to

forfeiture, and such did not offend the component

of the Fifth Amendment made icable to the states through

the due process clause of the ourteenth Amendment. This

holding is in direct conflict with the rationale of the Florida

Supreme Court in the instant case that, “We simply cannot

accept the government’s position that it may act at anytime,

®The statute, Section 11611 of the California Health and Safety

Code specified that when making a narcotics arrest, the arresting officer was

to seize “any vehicle used to store, conceal, transport, sell or facilitate the

possession of narcotics[.]” 386 U.S. 58, 60. The car was to be held as

evidence by the state until a forfeiture or release was ordered. Id. Section

11610 of the California code specified that the owner of any automobile used

for such purposes forfeited his ownership interest in the vehicle to the state.

Id. at n.1.

-10-

anywhere, and regardless of the existence of exigent

circumstances, or a change in ownership or possession, to seize

a citizen’s property once believed to have been used in illegal

activity, without , securing authorization of a neutral

magistrate.” (A 8)’.

Besides being contrary to controlling decisions of this

Court, the Florida Supreme Court decision is in opposition to

settled law of the Eleventh Circuit. In United States v. Valdes,

876 F.2d 1554 (11th Cir. 1989) the Eleventh Circuit rejected

the proposition adopted by the Florida Supreme Court here,

namely that the Fourth Amendment requires a pre-seizure

warrant to validly effect a seizure under a forfeiture statute. In

so doing, the Eleventh Circuit found that 21 U.S.C. § 881(b)(4)

plainly and unambiguously authorized the government to seize

an 0 ing vehicle where there was probable cause to believe

it forfeitable. 876 F.2d at 1557. The Eleventh Circuit upheld

the seizure and subsequent search even though there were no

exigent circumstances. Jd. The Court stated, 876 F.2d at 1558:

Appellants contend that the seizures in this

case were unreasonable, and thus violated the

amendment, because they were made without

a warrant, and no exigent circumstances

which made the acquisition of a warrant

impracticable existed. Hence, the district

court should have invoked the exclusionary

rule and the challenged evidence.

See, e.g., Torres v. Puerto Rico, 442 U.S.

465, 471, 99 S.Ct. 2425, 2430, 61 L.Ed.2d 1

(1979).

The agents seized Valdes’ Cadillac on the

street, in front of " house; they seized

Lopez’ Oldsmobile Toronado in his garage.

Neither appellant contends that the agents

’There simply was no change of ownership or possession of this

automobile. Bennis. Police could validly seize the vehicle later, at a

different location, without obtaining any intervening warrant, and subject the

vehicle to forfeiture. Carroll.

-11-

We are aware of no Supreme Court

precedent that would require us to hold that,

on these facts. the agents needed a warrant to

seize appe! ams’ automobiles.

In so holding, the Eleventh Circuit analogized to this

court’s decision in United States vy. Watson, 423 U.S. 411, 96

S.Ct. 820, 46 L.Ed.2d 598 (1976), upholding warrantless arrest

of a person by postal inspectors on statutory authority. The

Eleventh Circuit concluded by relying on this Court’s decision

in Calero-Toledo, supra for the proposition that, “If federal law

drug trafficker without repairing to the istrate for a

warrant, we see no reason why they shou not also be

It is readily apparent from an examination of the federal

forfeiture statute, 21 U.S.C. § 881, poy ee yt to

require no pre-seizure warrant under the

and the operative state statute here

Forfeiture Act, sections 932.701-932.

(1993), interpreted by the Florida Supreme Court to require a

warrant under the Fourth Amendment, that the two enactments

are analytically indistinguishable on the issue presented. Both

provide for warrantless seizure of a vehicle on probable cause

:

*Section 932.703(2)\(a), Florida Statutes (1993) provides: “Personal

that the car was used "to transport, or * * * to facilitate the

ns sale, Te possession, or concealment of”

substances, 21 U.S.C. § 881 (b)(4), or, as phrased

by the state statute, “to facilitate the ion, carriage

conveyance, concealment, receipt, possession, purchase, sale

barter, exchange, or giving away of contraband article.”

Section 932.702(3), Florida Statutes (1993), oe

Section 932.701(2)(a)1, Florida Statutes (1993) defi

contraband as including apy substance controlled under Chapter

893, Florida Statutes", and any substance, device

paraphernalia, currency, or other means of exchange used or

a in violation of the provisions of chapter

_ The Florida Supreme Court decision is also contrary to the

a8 Opposed to state constitutional . In

Lodge No. 1820, 232 Ga. 671, 208 S.E. '483 (Ga. 1974)

Georgia Supreme Court permited warrantless seizure ad

wa gy tw ee ara: & 8 cockel chad in a “dry”

county. Calero-Toledo v. Pearson Yacht

Georgia court found that opportunity for post-seizure _

to contest the validity of the seizure was “sufficient |

_ law under the Federal Constitution{.]” 208 S.E.2d at 485. In

State v. Brickhouse, 20 Kan. App. 2d 495, 890 P

App. 1995), the Xansas court upheld usados bee.

search and forfeiture of an under state forfeiture

§881(b)(4) persuasive on the issue, but reversing the j

because it found there was insufficient cause in the

case to justify the original seizure. In i , 59

Wash. App. 119, 796 P.2d 728 (Wash. . 1990), review

denied, 117 Wash. 2d 1004, 814 P.2d (1991), a state

challenge to the warrantless search and seizure, finding the

federal officers had probable cause, all that is required under §

881(b)(4). The state court recognized that

reasonableness of a search by federal officers is to, be judged

under federal, not state search and seizure doctrine’® .

Seemingly, only two state courts have reached a result in

alignment with that of the Florida Court in this case.

In Davis v. State'’, 813 P.2d 1178 (Utah 1991), the Utah

Supreme Court read its state forfeiture statute (similar to §

‘This point is significant in that under the Florida Constitution, see

n. 2, supra, there is no state standard. Search and seizure questions can only

be resolved by reference to Fourth Amendment decisions of the Court.

"'The other is Application of Harnischfeger, 158 Misc.2d 299, 600

NYS 2d 894 (Sup. 1993) in which the court observed in dicta that the

constitutionality of warrantless seizure authorized by a state forfeiture statute

was in doubt in light of the then recently issued Lasania decision of the

Second Circuit. 600 NYS 2d 894, 896-897. Harnischfeger was issued by a

trial level New York court, and a Shepherd’s check turns up no subsequent

citations to it.

-14-

881(b)(4)) as requiring either a warrant or exigent

circumstances for seizure under that state statute. The court

stated it was reached this result because the Utah statute was

See Can Ge Sees low besenen & ns net

based on ty principles. 813 P.2d 1178, 1182-1183.

Necessity for obtaining an antecedent warrant under the

Fourth Amendment for seizure and forfeiture of a conveyance

has been rejected by this Court in the context of both federal,

Carrol], and state or territorial forfeiture statutes, Calero-

Toledo, as well as for search post-seizure of such a

conveyance, Cooper. Necessity of an antecedent warrant under

the Fourth Amendment for seizure under an analytically

indistinguishable federal civil forfeiture statute has been

rejected by the Eleventh Circuit. Valdes.

It is thus seen that the Florida Court clearly erred

in its ey ion of well law established the

decisions o this Court and of the Eleventh Circuit in helding

that the Fourth Amendment requires issuance of a warrant for

seizure, pursuant to the Florida Contraband Forfeiture Act, of

a conveyance reasonably believed to have been utilized for the

transportation and to facilitate the sale of cocaine.

-15-

CONCLUSION

The decision of the Florida Court below is in

conflict with well established Amendment law as set

down in decisions of this Court as well as a decision of the

Eleventh Circuit. Because of this conflict,

respectfully requests this Court to grant the petition for writ of

certiorari.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CAROLYN SNURKOWSKI

Asst. Deputy Attorney General

Florida No. 158541

DANIEL A. DAVID

Assistant General

Florida Bar No. 0650412

OFFICE OF ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300 Ext. 4573

COUNSEL FOR PETITIONER

- 16 -

CASE NO.

IN THE UNITED STATES SUPREME COURT

October Term 1997

STATE OF FLORIDA,

Petitioner,

v.

TYVESSEL TYVORUS WHITE,

Respondent.

APPENDIX TO WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

Attorney General

CAROLYN SNURKOWSKI

Asst. Attorney General

Florida No. 158541

DANIEL A. DAVID

Assistant A General

Florida Bar No. 0650412

OFFICE OF ATTORNEY GENERAL

The Capitol

Tallahassee, FL. 32399-1050

(850) 414-3300 Ext. 4573

COUNSEL FOR PETITIONER

YF

SUPREME COURT OF FLORIDA

TYVESSEL TYVORUS WHITE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

No. 88,813

[February 26, 1998]

ANSTEAD, J.

We have for review the opinion in White v. State, 680 So.

2d 550 (Fla. ist DCA 1996). We accepted jurisdiction to

answer the following question certified to be of great public

importance:

WHETHER THE WARRANTLESS SEIZURE OF

A MOTOR VEHICLE UNDER THE FLORIDA

FORFEITURE ACT (ABSENT OTHER EXIGENT

CIRCUMSTANCES) VIOLATES THE FOURTH

AMENDMENT OF THE UNITED STATES

CONSTITUTION SO AS TO RENDER

EVIDENCE SEIZED IN A SUBSEQUENT

INVENTORY SEARCH OF THE VEHICLE

INADMISSIBLE IN A CRIMINAL

PROSECUTION.

Id. at 555. We have jurisdiction. Art. V, § 3(b)(4), Fla.

Const. For the reasons expressed below, we answer the

certified question in the affirmative. We hold that a citizen's

property is protected by the federal and Florida constitutions

against warrantless seizure even when the seizure is done

pursuant to a statutory scheme for forfeiture.

MATERIAL FACTS!

On October 14, 1993, petitioner Tyvessel Tyvorus White

(White) was arrested at his place of employment on charges

unrelated to this case. After taking White into custody on those

unrelated charges, and securing the keys to his automobile, the

arresting officers seized his automobile from the parking lot of

White’s employment. The police did not seize the vehicle

incident to White’s arrest or obtain a prior court order or

warrant to authorize the seizure. Rather, the basis of the

seizure was the arresting officers’ belief that White’s

automobile had been used several months earlier to deliver

illegal drugs, and therefore the vehicle was subject to forfeiture

by the government.’ After confiscation of the vehicle, a

subsequent search turned up two pieces of crack cocaine in the

ashtray.

'The following facts are taken from the First District's opinion. White,

680 So. 2d at 551-55.

>The dates of the alleged prior illegal activities were July 26, 1993, and

August 4 and 7, 1993. We commend the State’s candor in providing these

dates during oral argument. As both parties noted at oral argument, the

record is unclear as to the actual dates. The State noted that these dates are

contained in White’s motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850.

A-2

Based on the discovery of the cocaine, White was charged

with possession of a controlled substance. White subsequently

objected to the introduction into evidence of the cocaine seized

during the post-arrest search of his automobile. The trial court

reserved ruling on the issue and allowed the evidence to go to

a jury. White was thereafter convicted of possession of

cocaine; and subsequently the trial court formally denied

White’s objection and motion to suppress the cocaine evidence.

On appeal, the First District affirmed White’s conviction

and approved the government’s warrantless seizure of White’s

car. The majority opinion found that the government met the

requirements of the Florida Contraband Forfeiture Act, sections

932.701-932.707, Florida Statutes (1993) (hereinafter

Forfeiture Act) in that the warrantless seizure of White's

automobile was based upon probable cause to believe that the

vehicle had facilitated illegal drug activity at some time in the

past. Further, the majority found that the warrantless seizure

did not violate White’s Fourth Amendment right to be secure

against unreasonable searches and seizures.’ In dissent, Judge

Wolf asserted that the "warrantless seizure of an automobile

absent exigent circumstances violates the Fourth Amendment of

the United States Constitution even though probable cause

exists to believe that the automobile is subject to forfeiture as

*“The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.” Amend. IV, U.S. Const. In 1982,

article I, section 12 of the Florida Constitution was amended to add what has

become known as the conformity clause because “we are bound to follow the

interpretations of the United States Supreme Court with relation to the fourth

amendment and provide no greater protection than those interpretations.”

Bernie v. State, 524 So. 2d 988, 990-91 (Fla. 1988); see Soca v. State, 673

So. 2d 24, 27 (Fla.), cert. denied, 117 S. Ct. 273 (1996).

A-3

a result of prior narcotics transactions." White, 680 So. 2d at

557 (Wolf, J., concurring in part and dissenting in part).

Because the court found that neither this Court nor the

United States Supreme Court had addressed the issue of

whether law enforcement agencies must obtain a warrant prior

to seizing a citizen’s property under the Florida Contraband

Forfeiture Act, the First District certified the issue as one of

great public importance to this Court.

LAW AND ANALYSIS

In holding that no prior court authorization was required in

order to seize and search White’s vehicle, the First District

majority applied the “automobile exception" to the warrant

requirement. While we recognize the continuing validity of the

"automobile exception" to the warrant requirement, we find it

inapposite here.

In his dissent, Judge Wolf relied primarily on the opinion

of the United States Court of Appeals for the Second Circuit in

U.S. vy. Lasanta, 978 F.2d 1300 (2d Cir. 1992).

“Because Lasanta contains a comprehensive and reasoned treatment of

this issue, we quote from the Second Circuit’s opinion at length:

A threshold question presented here is whether the

government's seizure of the car, without a warrant, as a

civil forfeiture, was authorized. The forfeiture statute, 21

U.S.C. §881, gives power to the attorney general to seize

for forfeiture, inter alia, a vehicle that is used to facilitate

a narcotics transaction. In carrying out such a statutorily

authorized seizure, however, agents of the attorney

general must also obey the constitution, particularly the

fourth amendment's command that there be no

unreasonable seizures.

A-4

We find no language in the fourth amendment

suggesting that the right of the people to be secure in their

“persons, houses, papers, and effects” applies to all

searches and seizures except civil-forfeiture seizures in

drug cases. U.S. Const. amend. IV. We reject out of

hand the government's argument that congress can

conclusively determine the reasonableness of these

warrantless seizures, and thereby eliminate the judiciary's

role in that task of constitutional construction. See U.S.

Const. art. VI, cl. 2. While congress may have intended

civil forfeiture to be a “powerful weapon in the war on

drugs", United States v. 141st Street Corp, by Hersh, 911

F.2d 870, 878 (2d Cir. 1990) (noting statute's legislative

history), cert, denied, 498 U.S. 1109, 111 S. Ct. 1017,

112 L. Ed. 2d 1099 (1991), it would, indeed, be a Pyrrhic

victory for the country, if the government's relentless and

imaginative use of that weapon were to leave the

constitution itself a casualty.

To be valid, therefore, this warrantless seizure must meet

one of the recognized exceptions to the fourth

amendment's warrant requirement. Coolidge v, New

Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032,

29 L. Ed. 2d 564 (1971). Surely the government cannot

argue that the canister, tucked underneath the driver's

seat, was found in the plain view of an investigative

officer in a place she was entitled to be. See, ¢.g.,

Horton v, California, 496 U.S. 128, 110 S. Ct. 2301, 110

L. Ed. 2d 112 (1990) (explaining the elements of a

plain-view seizure). Nor does the government claim that

the search was incident to Cardona's arrest, which

occurred on the doorstep of Cardona's home. See, ¢.g.,

Chimel v, California, 395 U.S. 752, 762-63, 89 S. Ct.

2034, 2039-40, 23 L. Ed. 2d 685 (1969) (police may

search arrestee's person and area within his immediate

control incident to arrest). The substantial distance

between the site of Cardona's arrest and the vehicle in the

driveway forecloses any question uf the agents’ need to

search the vehicle for weapons to ensure their safety

during the arrest. Chimel, 395 U.S. at 763, 89 S. Ct. at

A-5

He also noted this Court’s opinion in Department of Law

Enforcement v. Real Property, 588 So. 2d 957, 963 n.14 (Fla.

1991), wherein we recognized that because “article I, section

12 of the Florida Constitution expressly requires conformity

with the fourth amendment of the United States Constitution,

2040 (noting that safety animates this seizure rationale).

The government does not even suggest that exigent

circumstances might justify its warrantless seizure of the

vehicle. See, ¢.g., Chambers vy, Maroney, 399 U.S. 42,

90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (outlining the

automobile exception to the warrant requirement); Carrol)

vy. United States, 267 U.S. 132, 146, 45 S. Ct. 280, 282,

69 L. Ed. 543 (1925) (noting rationale of automobile

exception). Investigative agents could have held no

realistic concern that the car, parked not in a public

thoroughfare, but in Cardona's private driveway, might be

removed and any evidence within it destroyed in the time

a warrant could be obtained. Cardona was not operating

the vehicle, nor was he in it or even next to it; when the

agents knocked on his door to arrest him, he was inside

his house, asleep.

Nor was it impractical for the agents to obtain a warrant

to seize Cardona's car. See, ¢.g., United States vy.

Paroutian, 299 F.2d 486, 488 (2d Cir. 1962) (search

upheld when exceptional circumstances rendered it

impractical to secure warrant). Previous surveillance had

made agents aware of the vehicle's presence, thus

enabling them to have requested and obtained a search

warrant during either of their two attempts to secure a

warrant to arrest Cardona. Even if the agents had been

surprised by the presence of the limousine, and even if

they harbored probable cause to suspect it contained

evidence of narcotics-related activity, they still could have

posted an agent to remain with the vehicle, and then

secured a search warrant.

Id. at 1303-06. This reasoning is sound and speaks for itself.

A-6

the warrant requirement of article I, section 12 also applies to

seizures in forfeiture actions under Florida law." White, 680

So. 2d at 558 (Wolf, J., concurring in part and dissenting in

part).

DEPARTMENT OF LAW

ENFORCEMENT

In Department of Law Enforcement, we were able to

uphold the constitutionality of Florida’s forfeiture act only by

imposing numerous restrictions and safeguards on the use of the

act in order to protect a citizen’s property from arbitrary action

by the government. In discussing the act we declared:

The Act raises numerous constitutional concerns

that touch upon many substantive and procedural

rights protected by the Florida Constitution. In

construing the Act, we note that forfeitures are

considered harsh exactions, and as a general rule

they are not favored either in law or equity.

Therefore, this Court has long followed a policy

that it must strictly construe forfeiture statutes.

588 So. 2d at 961. The major thrust of our holding was that in

order to comply with constitutional due process requirements,

the government must strictly observe a citizen’s constitutional

protections when invoking the drastic remedy of forfeiture of

a citizen’s property. In addition to expressly holding that the

Fourth Amendment applies to forfeiture attempts by the

government, we specifically explained:

In those situations where the state has not yet

taken possession of the personal property that it

wishes to be forfeited, the state may seek an ex

parte preliminary hearing. At that hearing, the

A-7

court shall authorize seizure of the personal

property if it finds probable cause to maintain the

forfeiture action.

Id. at 965. We conclude that the government’s unauthorized

and warrantless seizure, absent exigent circumstances not

established here, clearly violated the constitutional safeguards

we recognized in Department of Law Enforcement.

The government did not seek a warrant or an "ex parte

preliminary hearing" here in order to secure a neutral

magistrate’s determination of probable cause. The government

just seized the property, thereby putting the property owner and

any others claiming an interest in the property in the position

of having to take affirmative action against the government in

order to protect their rights. This is the very antithesis of the

cautious procedure we mandated in Department of Law

Enforcement. We simply cannot accept the government's

position that it may act at anytime, anywhere, and regardless of

the existence of exigent circumstances, or a change in

ownership or possession, to seize a citizen’s property once

believed to have been used in illegal activity, without securing

the authorization of a neutral magistrate.

AUTOMOBILE EXCEPTION

As previously noted, the only basis asserted for the

unauthorized government seizure here is the so-called

automobile exception to the warrant requirement. The district

court majority cited California v. Carney, 471 U.S. 386, 391

(1985), for the proposition that automobiles are afforded less

Fourth Amendment protection against warrantless searches and

seizures due to their “ready mobility" and diminished

expectations of privacy due to their pervasive governmental

regulation. The automobile exception is predicated upon the

A-8

existence of exigent circumstances consisting of the known

presence of contraband in the automobile at the time, combined

with the likelihood that an opportunity to seize the contraband

will be lost if it is not immediately seized because of the

mobility of the automobile. See Chambers v. Maroney, 399

U.S. 42 (1970). For example, in Carney, law enforcement

paver sce setae marnen Mae in gsc ghnage

Accordingly, the Court concluded that the officers "

sheild caahieani caida pany Gates Gas iabis oe

evidence of a crime." Carney, 471 U.S. at 395.

Since it is conceded that the government had no probable

cause to believe that contraband was present in White's car, we

conclude that Carney and the automobile exception are

inapposite as authority. There is a vast difference between

permitting the immediate search of a movable automobile based

on actual knowledge that it then contains contraband and that an

opportunity to seize the contraband may be lost if not acted on

immediately, and the altogether different proposition of

permitting the discretionary seizure of a citizen’s automobile

based upon a belief that it may have been used at some time in

the past to assist in illegal activity. The exigent circumstances

implicit in the former situation are simply not present in the

latter situation.

The automobile exception is a narrow, situation-dependent

exception which requires much more than the fact that an

automobile is the object sought to be seized and searched.

Critically, there must be probable cause to believe contraband

*A young man who had just left the motor home only moments before

told agents of the Drug Enforcement Administration that he had received

marijuana from the suspect while in the motor home. Carney, 471 U.S. at

388.

A-9

is in the vehicle at the time of the search and seizure, Carney,°

and there must be some legitimate concern that the automobile

“might be removed and any evidence within it destroyed in the

time a warrant could be obtained.” Lasanta, 978 F.2d at 1305.

The majority opinion below simply failed t» address the

fundamental requirement of Carney:

In short, the pervasive schemes of regulation, which

necessarily lead to reduced expectations of privacy,

and the exigencies attendant to ready mobility

justify searches without prior recourse to the

authority of a magistrate so long as the overriding

standard of probable cause [to believe contraband is

in the vehicle] i '

471 U.S. at 392 (emphasis added).

As is vividly demonstrated in the Lasanta case, cited by

Judge Wolf, the automobile exception does not apply to either

the facts of that case or White's case. See White, 680 So. 2d

at 557 (Wolf, J., concurring in part and dissenting in part)

(noting that White was arrested at his workplace, his car keys

were in his pocket, and his car was parked outside in his

company's parking lot). In Lasanta, the court could easily have

been writing about this case when it described the obvious

absence of exigent circumstances in the government's forfeiture

seizure:

“See also Pennsylvania v. Labron, 116 S. Ct. 2485, 2487 (1996)

(reaffirming Carney in reasoning that if a car “is readily mobile and

probable cause exists to believe it contains contraband, the Fourth

Amendment thus permits police to search the vehicle without more”);

California v. Acevedo, 500 U.S. 565, 580 (1991) (holding that “[t}he police

may search an automobile and the containers within it where they have

probable cause to believe contraband or evidence is contained”).

A-10

The government does not even suggest that

exigent circumstances might justify its warrantless

seizure of the vehicle. See, e.g., Chambers v.

Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed.

2d 419 (1970) (outlining the automobile exception

to the warrant requirement); Carroll v. United

States, 267 U.S. 132, 146, 45 S. Ct. 280, 282, 69

L. Ed. 543 (1925) (noting rationale of automobile

exception). Investigative agents could have held no

realistic concern that the car, parked not in a public

thoroughfare, but in Cardona's private driveway,

might be removed and any evidence within it

destroyed in the time a warrant could be obtained.

Cardona was not operating the vehicle, nor was he

in it or even next to it; when the agents knocked on

his door to arrest him, he was inside his house,

asleep.

978 F.2d at 1305. Similarly, the absence of probable cause to

believe contraband was in the vehicle combined with an

obvious lack of any other exigent circumstances renders the

automobile exception inapplicable here. The exception does

not apply when no probable cause exists and the police arrest

either a sleeping suspect, Lasanta, or a suspect at work with the

keys in his pocket. White. There simply was no concern

presented here that an opportunity to seize evidence would be

missed because of the mobility of the vehicle. Indeed, the

entire focus of the seizure here was to seize the vehicle itself as

a prize because of its alleged prior use in illegal activities,

rather than to search the vehicle for contraband known to be

therein, and that might be lost if not seized immediately.

SEIZURE OF PROPERTY VS.

SEIZURE OF PERSON

A-11

Finally, the reasoning of the district court majority, that

since a defendant’s person can be seized without a warrant his

property should be no different, simply proves too much. If we

were to follow that reasoning to its logical conclusion we

would, in essence, amend the Fourth Amendment out of the

Constitution and do away with the requirement of a warrant

entirely for the search and seizure of property.” It will always

be more intrusive to seize a person than it will be to seize his

property. That is the nature of human values. However, such

an approach would apparently have us do away with the

constitutional law of search and seizure as to property entirely,

simply because we have permitted the warrantless arrest of a

person.

The United States Supreme Court has purposely subjected

the Fourth Amendment to only a “few well-delineated

exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 455

(1971). For example, the courts have carefully restricted the

law of search and seizure to permit a limited search of an

arrestee and his person "incident" to a valid arrest. See Chime]

y. California, 395 U.S. 752 (1969). However, the reasoning

of the district court "aajority, if carried to its logical bounds,

would do away with the limitations established to a search

incident to a lawful arrest and now permit a search of anything,

anywhere, based upon probable cause, without a warrant, since

those actions involving property would obviously be less

’As Chief Justice Kogan recently reminded us, the genius of our federal

and state constitutions is that they define basic rights that neither the

legislative nor executive branches can modify. Krischer v. Mclver, 697 So.

2d 97, 112 (Fla. 1997) (Kogan, C.J., dissenting). These remarkable

documents fenced off from the “ordinary political process" these rights

guaranteed all Americans by ensuring they “could not be repealed by a mere

majority vote of legislators nor . . . alter{ed] through any process cxcept

constitutional amendment." Id, at 112-13.

A-12

intrusive than seizing the person. Obviously, we are not

willing to accept such a proposition and its implications.*

CONCLUSION

In the end, the maintenance of an orderly society mandates

that a citizen’s property should not be taken by the government,

in the absence of exigent circumstances, without the

intervention of a neutral magistrate. Certainly the warrant

requirement would have posed no undue burden on the

government here where the vehicle was parked safely at the

petitioner’s place of employment and the government had the

keys and the petitioner in custody. Moreover, any

*As Judge Wolf correctly observed in his dissent below, the Fourth

Amendment mandates that absent exigent circumstances, police must secure

a warrant for the search and seizure of an automobile. Coolidge vy, New

Hampshire, 403 U.S. 443 (1971). Indeed, Coolidge’s holding remains good

law to the extent that "no amount of probable cause can justify a warrantless

search or seizure absent ‘exigent circumstances.'" Jd, at 468. Moreover,

in the case that overruled Coolidge in part, Horton v, California, 496 U.S.

128 (1990), the Supreme Court not only reaffirmed Coolidge's essential

holding but also noted that it had extended “the same rule to the arrest of a

person in his home." Jd, at 137 n.7. Therefore, since no exigent

circumstances existed in this case, the warrantless seizure of White's car

was unconstitutional. See Coolidge, 403 U.S. at 454-55 (reaffirming rule

that “searches conducted outside the judicial process, without prior approval

by judge or magistrate, are per _se unreasonable under the Fourth

Amendment--subject_only to a few specifically established and well-

delineated exceptions") (emphasis added). Even though automobiles are

afforded lesser Fourth Amendment protection, there is still a strong

presumption against warrantless searches and seizures of a citizen’s property

by the government, absent exigent circumstances. See Coolidge, 403 U.S.

at 468 (reiterating that “even where the object is contraband, this Court has

repeatedly stated and enforced the basic rule that the police may not enter

and make a warrantless seizure"). Coolidge’s requirement that a “plain

view” seizure must also be "inadvertent" was overruled in Horton, 496 U.S.

at 140. Minus that incidental reasoning, Coolidge remains good law.

A-13

inconvenience to the government pales in comparison to the

consequences for our justice system and constitutional order if

such abuses are left unchecked. See Department of Law

Enforcement. As the Second Circuit poignantly observed in

Lasanta, 978 F.2d at 1305, "it would, indeed, be a Pyrrhic

victory for the country, if the government’s imaginative use of

that weapon [civil forfeiture] were to leave the constitution

itself a casualty."

In summary, we answer the certified question in the

affirmative and hold that the warrantless seizure of a citizen’s

property is protected by the federal and Florida constitutions

even when the seizure is made pursuant to a statutory forfeiture

scheme. Accordingly, we quash the First District’s opinion and

remand this case for proceedings consistent herewith.

It is so ordered.

KOGAN, C.J., SHAW and HARDING, JJ., and GRIMES,

Senior Justice, concur.

WELLS, J., dissents with an opinion, in which OVERTON, J.,

concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED.

WELLS, J., dissenting.

For more than twenty-three years, Florida's forfeiture

statute has been enforced by Florida courts, including this

Court, as the legislature wrote it. Today, by this decision, the

majority judicially amends this twenty-three-year-old statute

and places Florida in the minority of federal and state

jurisdictions, which require a preseizure warrant in order to

enforce forfeiture statutes. Today's decision also puts our state

A-14

procedure at odds with federal forfeitures in Florida since the

Eleventh Circuit is among the majority of jurisdictions which

recognize that warrantless seizures pursuant to forfeiture

statutes are not in violation of the Fourth Amendment to the

United States Constitution.

I dissent because I agree with the majority of jurisdictions

and the Eleventh Circuit and do not believe that this change in

the law of Florida is suddenly required by the Fourth

Amendment. The case of United States v. Lasanta, 978 F.2d

1300 (2d Cir. 1992), upon which the majority opinion relies,

is clearly the minority view.

The seizure in this case was not an unusual enforcement of

Florida's forfeiture law or contrary to forfeitures which the

appellate courts of Florida have approved since the inception of

the statute. Clearly, the period of time between when the

police eyewitnesses and the video-tape evidence showed the

vehicle being used in the delivery and sale of cocaine and the

seizure of the vehicle was within previous approvals by Florida

courts. Soon after the forfeiture statute became effective on

October 1, 1974, it was recognized that proof of past violations

may be the basis for forfeiture. State v. One 1977

Volkswagen, 455 So. 2d 434 (Fla. lst DCA 1984) (police

properly seized a vehicle based upon drug transaction occurring

almost two months prior to seizure), approved, 478 So. 2d 347

(Fla. 1985); Knight v. State, 336 So. 2d 385, 387 (Fla. Ist

DCA 1976), cert. denied, 345 So. 2d 427 (Fla. 1997).

In 1983, the Second District directly confronted the issue of

whether a preseizure warrant needed to be obtained. The

Second District held that it did not in State v. Pomerance, 434

So. 2d 329, 330 (Fla. 2d DCA 1983), stating:

A-15

We have found no case addressing this issue.

However, section 932.703, Florida Statutes (1981),

which provides for the forfeiture of motor vehicles

used to transport, conceal, or facilitate the saie of

contraband, in violation of section 932.703,

nowhere mentions obtaining a warrant; it simply

states that an offending vehicle "shall be seized."

We } f ‘onale for judiciall fi

;

obtained.

(Emphasis added.)

In 1985, in Duckham vy. State, 478 So. 2d 347 (Fla. 1985),

this Court did an analysis of the forfeiture statute and cases

from our district courts and federal circuit courts and upheld

the forfeiture of a motor vehicle seized almost two months after

the vehicle had been used to facilitate a drug transaction. It is

important to note that this seizure of the motor vehicle was not

based upon there being probable cause to believe that there was

contraband in the vehicle at the time of or before its seizure.

The district court's decision in Duckham was approved with

this Court noting:

Even though no drugs had been transported in the

car, no conversations had taken place in the car, the

policeman had never been in the car, and Duckham

used the car solely to transport himself to the

restaurant where he struck the deal and then to his

apartment, the district court found that Duckham

used his car to facilitate the sale of contraband

within the meaning of subsection 932.702(3),

Florida Statutes (1981).

478 So. 2d at 348.

A-16

Also in 1985, this Court upheld the forfeiture statute against

a due-process attack in Lamar v. Universal Supply Co., Inc.,

479 So. 2d 109 (Fla. 1985). This Court specifically stated:

The seizure of property pursuant to a forfeiture

Statute constitutes an extraordinary situation in

which postponement of notice and hearing until

after seizure does not deny due process. Calero-

Toledo v, Pearson Yacht Leasing Co., 416 U.S.

663, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974). The

due process rights of claimants are adequately

protected, therefore, by the requirement that the

State attorney promptly file a forfeiture action

following seizure. § 932.704(1), Fla. Stat. (1983).

479 So. 2d at 110.

In 1989, in an opinion written by Justice Overton, this

Court did another extensive analysis of this statute in State v,

Crenshaw, 548 So. 2d 223 (Fla 1989), and strongly upheld the

enforcement of this statute.

The majority here cites to this Court's 1991 analysis of the

forfeiture statute in Department of Law Enforcement v. Real

Property, 588 So. 2d 957 (Fla. 1991). However, the majority's

quote omits the following sentence which completes the

paragraph from which the quote in the majority opinion is

taken: "In those situations where a law enforcement agency

already has lawfully taken possession of personal property

during the course of routine police action, the st»te has

effectively made an ex parte seizure for the purposes of

initiating a forfeiture action." 588 So. 2d at 965. Through the

date of that opinion (in fact until today) law enforcement

agencies were considered to have lawfully taken possession of

personal property when possession was taken on the basis of

A-17

and in conformity with the forfeiture statute. Lamar, 479 So.

2d at 110.

When Department of Law Enforcement is read in full

context, that decision cannot be fairly said to engraft a warrant

requirement into the statute. This was the reading given to that

decision by the Second District in In re Forfeiture of 1986

Ford, 619 So. 2d 337, 338 (Fla. 2d DCA 1993), when it held

that "nothing in [Department of Law Enforcement] or the

forfeiture statute requires a warrant, consent or exigent

circumstances."

Furthermore, the majority opinion here incorrectly states

that "the only basis asserted for the unauthorized government

seizure here is the so-called automobile exception to the

warrant requirement." Majority op. at__. What the district

court actually said was, "We are also influenced in our holding

by the fact that the property seized here was a motor vehicle .

..." White v. State, 680 so. 2d 550, 554 (Fla. Ist DCA

1996). The district court's opinion therefore correctly pointed

out that privacy interests in a motor vehicle have a lesser

degree of Fourth Amendment protection because of a vehicle's

mobility and because the expectation of privacy is less than that

relating to one's home or office, citing to California v, Carney,

471 U.S. 386 (1985). The statement by the district court

majority is indisputably correct.

However, the clear reason for the district court majority's

decision is the compelling development of precedent in Florida

in respect to the statute, which the majority in this Court simply

casts aside without mention, and the weight of authority from

both federal and state jurisdictions, which the majority fails to

acknowledge. One case representing the majority view is from

the Eleventh Circuit: United States v. Valdes, 876 F.2d 1554

(11th Cir. 1989). The district court majority followed the

A-18

reasoning of the Eleventh Circuit in Valdes. The rejection of

Valdes by this Court's majority places Florida in the illogical

(and I believe untenable) situation of there being a warrantless

seizure available to federal law enforcement pursuant to the

federal forfeiture statute because it is not a violation of the

Fourth Amendment to the United States Constitution and a

warrantless seizure not being available to Florida law

enforcement pursuant to a substantially similar state forfeiture

statute because of a holding by this Court that a warrantless

seizure is in violation of the Fourth Amendment to the United

States Constitution. Though we are not bound to do it, I

believe this Court should apply the Fourth Amendment to the

United States Constitution in accord with its application by the

federal circuit court that has Florida within its jurisdiction.

This is particularly so when the Eleventh Circuit's decision is

in accord with the majority of other jurisdictions.

I believe the Seventh Circuit clearly expressed correctly the

state of the law in federal and state jurisdictions in United

States v. Pace, 898 F.2d 1218, 1241 (7th Cir. 1990), when it

said:

may seize a car without a warrant pursuant to a

forfeiture statute if they have probable cause to

believe the car is subject to forfeiture. See, e.g.,

United States v. Valdes, 876 F.2d 1554, 1558-60

(11th Cir. 1989); United States v. $29,000--U.S.

Currency, 745 F.2d 853, 856 (4th Cir. 1984);

United States v, One 1978 Mercedes Benz, 711

F.2d 1297, 1302 (Sth Cir. 1983); United States v.

One 1977 Lincoln Mark V Coupe, 643 F.2d 154,

158 (3d Cir. 1981); United States v, One 1975

Pontiac LeMans, 621 F.2d 444, 450 (1st Cir. 1980)

(citing cases). We agree with the majority

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approach. The federal courts' overwhelming

approval of warrantless forfeiture seizures based on

probable cause, along with the historical acceptance

of the constitutionality of such searches, are

evidence that such searches have been generally

accepted as reasonable. See United States v. Bush,

647 F.2d 357, 370 (3d Cir. 1981) (citing cases). It

is difficult to ignore this general acceptance.

Furthermore, under a civil forfeiture statute, "the

vehicle . . . is treated as being itself guilty of

280S, 618 F.2d 453, 454 (7th Cir. 1980). Thus,

seizing a car from a pubic place based on probable

cause is analogous to arresting a person outside the

home based on probable cause. Such an arrest,

even without a warrant, does not violate the Fourth

Amendment, although it is possibly a more

significant intrusion on privacy interests than

seizing an unoccupied car. See Bush, 647 F.2d at

~370 (citing United States vy. Watson, 423 U.S. 411,

96 S. Ct. 820, 46 L. Ed. 2d 598 (1976)); see also

Valdes, 876 F.2d at 1559; One 1978 Mercedes

Benz, 711 F.2d at 1302. And the Supreme Court

has approved warrantless seizures in a similar

situation. In G.M, Leasing Corp. v, United States,

429 U.S. 338, 97 S. Ct. 619, 50 L. Ed. 2d 530

(1977), Internal Revenue Service agents seized cars

subject to tax liens without a warrant. The Court

held that the seizures did not violate the Fourth

Amendment; the agents had probable cause to

believe that the cars were subject to seizure, and the

seizures took place "on public streets, parking lots,

or other open places." See id, at 351-52, 97 S. Ct.

at 627-28; G.M. Leasing provides strong support

for the majority position. See One 1975 Pontiac

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LeMans, 621 F.2d at 450, which adopted the

panel's reasoning in United States v. Pappas, 600

F.2d 300, 304 (1st Cir.), vacated 613 F.2d 324 (1st

Cir. 1979); Bush, 647 F.2d at 369; see also 3

Wayne R. LaFave, Search and Seizure § 7.3(b), at

83 (2d ed. 1987). For all these reasons, we

conclude that it was proper for the police to seize

Pace's and Besase's cars from the parking lot of

Savides' condominium complex, if the police had

probable cause to believe the cars were subject to

forfeiture.

(Emphasis added; footnote omitted.) See also United States v.

Musa, 45 F.3d 922, 924 (Sth Cir. 1995). I would continue

Florida's adherence to this view.

Assuming that the warrantless seizure was authorized, there

is no doubt that the inventory search was appropriate. See

Caplan v, State, 531 So. 2d 88 (Fla. 1988); Padron vy. State,

449 So. 2d 811 (Fla. 1984).

OVERTON, J., concurs.

Application for Review of the Decision of the District Court of

Appeal - Certified Great Public Importance

First District - Case No. 94-2823

(Bay County)

Nancy A. Daniels, Public Defender and David P. Gauldin,

Assistant Public Defender, Second Judicial Circuit,

Tallahassee, Florida,

for Petitioner

A-21

Robert A. Butterworth, Attorney General; James

Bureau Chief, Criminal Appeals and Danie

Assistant Attorney General, Tallahassee, Florida,

for Respondent

A-22

SUPREME COURT OF FLORIDA

MONDAY, JUNE 1, 1998

TYVESSEL TYVORUS WHITE, *

Petitioner, °

* CASE NO. 88,813

v. * District Court of Appeal

* Ist District-No.94-2823

STATE OF FLORIDA, .

*

Respondent. °

*

Se eeeeeeeeeeeeeeeee se

Respondent’s Motion for Rehearing is hereby denied.

KOGAN, C.J., SHAW, HARDING and ANSTEAD, JJ., and

GRIMES, Senior Justice, concur.

OVERTON and WELLS, JJ., dissents.

A True Copy TC

cc: Hon. Jon S. Wheeler, Clerk

TEST Hon. Harold Bazzel, Clerk

Hon. Clinton E. Foster, Judge

Sid J. White Mr. David P. Gauldin

Clerk, Supreme Court Mr. James W. Rogers

Mr. Daniel A. David

A-23

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

Tyvessel Tyvorus WHITE, Appellant,

STATE of Fleride, Appellee.

No. 94-2823.

July 29, 1996.

Defendant was convicted in the Circuit Court, Bay County,

Clinton Foster, J., of possession of cocaine, which was found

during inventory search of his automobile following its

warrantless seizure pursuant to Florida Contraband Forfeiture

Act. Defendant appealed. On motion for certification, the

District Court of Appeal, Van Nortwick, J., held that: (1) Act

authorized warrantless seizure of vehicle based on probable

cause to believe that defendant had previously used vehicle to

facilitate sale of cocaine; (2) Act did not violate Fourth

Amendment; and (3) defendant's pre-Miranda statement was

involuntary.

Affirmed.

Wolf, J., issued concurring and dissenting opinion.

Nancy A. Daniels, Public Defender; David P. Gauldin,

Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Douglas

Gurnic, Assistant Attorney General, Tallahassee, for Appellee.

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ON MOTION FOR CERTIFICATION

VAN NORTWICK, Judge.

We grant appellant's motion for certification, withdraw our

prior opinion in this cause, substitute the following opinion in

its stead, and certify a question of great public importance to

the Florida Supreme Court.

Tyvessel Tyvorus White appeals his judgment and sentence

for possession of cocaine. White argues that the trial court

erred in denying his motion to suppress the introduction into

evidence of cocaine found in White's car during a warrantless

inventory search of the car following its seizure pursuant to the

Florida Contraband Forfeiture Act, sections 932.701--932.707,

Florida Statutes (1993), and in failing to exclude the testimony

of a police officer relating to a prejudicial statement made by

White prior to receiving "Miranda warnings." (FN1) Because

we conclude (i) that the police had probable cause to seize

White's vehicle under the Forfeiture Act and the subsequent

inventory search of the seized car was a reasonable procedural

measure and (ii) that White's statement was freely and

voluntarily given without interrogation or its functional

equivalent, we affirm.

Factual and Procedural Background

In October 1993, White was arrested at his place of

employment by police officers with the Bay County Joint

Narcotics Task Force and charged with the sale of a controlled

substance. (FN2) Prior to his arrest, the arresting police

officers had determined to seize White's automobile under the

Forfeiture Act on the grounds that, based on police eye-

witnesses and videotape, it had been used in the delivery and

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sale of cocaine. As contemplated by the Forfeiture Act, section

932.703, Florida Statutes (1993), no prior court order or

warrant was issued authorizing the seizure. The car was seized

and removed to the task force headquarters, where a routine

inventory search revealed two pieces of crack cocaine in the

ashtray. Based on the seizure of this crack cocaine, White was

also charged with possession of a controlled substance, his

conviction for which is the subject of the instant appeal.

White was also transported to the task force headquarters.

Prior to the arresting officer reading White his constitutional

warnings, and during the course of the officer explaining to

White the charges for which he was arrested, White remarked

that "He had recently got back into the business." Because of

prior discussions between the arresting officer and White, the

officer understood the "business" to mean the sale of cocaine.

White moved to suppress the cocaine seized during the

search of his car and, at trial, objected to the introduction of his

statements made prior to receiving the Miranda warnings. The

trial court reserved ruling on these issues and allowed the

evidence and statements to go to the jury. White was found

guilty as charged. At a subsequent hearing, White's

suppression motion was denied.

Forfeiture Seizure and Subsequent Search

On appeal, White argues that the trial court should have

suppressed the cocaine seized from his car. He contends that

the seizure of his vehicle was impermissible since it was made

without warrant or probable cause and the subsequent search

was unreasonable under the Fourth Amendment since the

forfeiture seizure was improper and the police had no probable

cause to search the vehicle.

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The Florida Contraband Forfeiture Act authorizes law

enforcement agencies to seize vehicles “of any kind" used "to

facilitate the transportation, carriage, conveyance, concealment,

receipt, possession, purchase, sale, barter, exchange, or giving

away of any contraband article." s 932.701(2)(a)5; 932.702(3),

Fla. Stat. (1993). The Forfeiture Act defines "contraband

article" to include “any controlled substance as defined in

chapter 893." s 932.701(2)(a)1, Fla. Stat. (1993). Chapter 893

includes cocaine and its derivatives in its list of controlled

substances. s 893.03(2)(a)4, Fla. Stat. (1993). Thus, the

Forfeiture Act clearly authorizes the police to seize vehicles

used to facilitate the sale of cocaine.

The Forfeiture Act sets forth the procedure to be used in

seizing personal property, as follows:

Personal property may be seized at the time of the violation

or subsequent to the violation, provided that the person

entitled to notice is notified at the time of the seizure or by

certified mail, return receipt requested, that there is a right

to a(sic) adversarial preliminary hearing after the seizure

to determine whether probable cause exists to believe that

such property has been or is being used in violation of the

Florida Contraband Forfeiture Act.

s 932.703(2)(a), Fla. Stat. (1993). A post-seizure

adversarial preliminary hearing may be requested within 15

days after receipt of this notice and the hearing must be set and

noticed by the seizing agency and held by the court within 10

days of receipt of the hearing request or as soon as practicable

thereafter. Jd. At the hearing, the court must determine

whether probable cause existed for the seizure. s 932.703(2)(a),

Fla. Stat. (1993). Thus, the only pre-seizure procedural

requirement under the Forfeiture Act is the giving of a notice

A-27

of the right to a subsequent hearing. Here, White does not

claim this notice requirement was violated.

White's argument that to seize his car under the Forfeiture

Act the police were required to have probable cause to believe

the vehicle contained contraband at the time of seizure is

without merit. Under the Forfeiture Act, the seizing agency is

required only to have probable cause to believe that the

property sought to be seized "was used, is being used, was

attempted to be used, or was intended to be used" in violation

of the Forfeiture Act. s 932.703(2)(c), Fla. Stat. (1993). The

fact that the police, as here, did not have probable cause to

believe the vehicle contained contraband or was being used in

violation of the Forfeiture Act at the moment they seized the

vehicle does not render the seizure unlawful under the Act.

Having probable cause to believe there was prior usage of the

vehicle in violation of the Forfeiture Act is sufficient. (FN3)

See, Knight v. State, 336 So.2d 385, 387 (Fla. 1st DCA 1976),

cert. denied, 345 So.2d 424 (Fla.1977)(Forfeiture Act "clearly

contemplates that proof of past violations of the act may

provide the basis for forfeiture."); State v. One (1) 1977

Volkswagen, 455 So.2d 434 (Fla. lst DCA 1984), approved,

478 So.2d 347 (Fla.1985)(police properly seized a vehicle

based upon a drug transaction occurring almost two months

prior to the seizure); Jn re Forfeiture of 1979 Toyota Corolla,

424 So.2d 922, 924 (Fla. 4th DCA 1982)("[T]ransportation by

automobile of a key figure to the site of a drug transaction

constitutes a sufficient nexus to justify the forfeiture of the

car.").

Similarly, White's argument that the police were required

to obtain a warrant or court order before seizing the vehicle is

without merit. Nothing in the Forfeiture Act requires the

obtaining of a warrant or court order before seizing a vehicle.

See, State v. Pomerance, 434 So.2d 329, 330 (Fla. 2d DCA

A-28

1983)(The Forfeiture Act “nowhere mentions obtaining a

warrant; it simply states that an offending vehicle ‘shall be

seized.’ We know of no rationale for judicially engrafting

onto the statute a requirement that a warrant be obtained."); Jn

re Forfeiture of 1986 Ford PU, 619 So.2d 337, 338 (Fla. 2d

DCA 1993)(Forfeiture Act does not require a warrant, consent,

or exigent circumstances prior to seizing a vehicle used in

violation of the statute).

The fact that the Florida Legislature has authorized by

statute the warrantless seizure of a vehicle based upon probable

cause that it had been used to facilitate a drug transaction,

however, does not end our inquiry. The further question raised

here is whether such a warrantless seizure of a motor vehicle

violates constitutional prohibitions against illegal search and

seizure. (FN4) We hold that it does not.

Neither the Florida nor United States Supreme Court has

directly addressed whether the Fourth Amendment requires law

enforcement officers to obtain a warrant prior to seizing a

vehicle under the Florida Forfeiture Act or similar statute. The

Florida Forfeiture Act, however, is substantively similar to the

federal forfeiture statute, see, 21 U.S.C. s 881, and the

Uniform Controlled Substances Act, see, 9 U.L.A. s 505.

Thus, decisions of federal courts and courts of certain sister

states are useful to our consideration here.

The federal circuits are split in their analysis of this issue.

The majority of the circuits that have considered this question

have held that a warrantless seizure of a vehicle under the

federal forfeiture act does not violate the Fourth Amendment

and that evidence obtained in a subsequent inventory search is

admissible in a criminal prosecution. U.S. v. Decker, 19 F.3d

287 (6th Cir.1994); U.S. v. Pace, 898 F.2d 1218 (7th

Cir.1990); U.S. v. Valdes, 876 F.2d 1554 (11th Cir.1989);

A-29

U.S. v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F.2d

1297 (Sth Cir.1983); U.S. v. Kemp, 690 F.2d 397 (4th

Cir.1982); U.S. v. Bush, 647 F.2d 357 (3d Cir.1981). Only

three circuits have held the procedure in question to have been

a violation of a defendant's Fourth Amendment rights. See,

U.S. v. Dixon, 1 F.3d 1080 (10th Cir.1993); U.S. v. Lasanta,

978 F.2d 1300 (2d Cir.1992); U.S. v. $149,442.43 in U.S.

Currency, 965 F.2d 868 (10th Cir.1992); U.S. v. Linn, 880

F.2d 209 (9th Cir.1989). (FNS) We have examined these

federal decisions and find the rationale employed by the

majority view to be persuasive.

Several state appellate courts have also addressed this

issue. For example, in State v. McFadden, 63 Wash.App. 441,

820 P.2d 53, 57 (Wash.App.1991), rev. denied, 119 Wash.2d

1002, 832 P.2d 487 (Wash.1992), the Washington court held:

We hold that a motor vehicle seized pursuant to

[Washington forfeiture statute] on probable cause that it is

used to facilitate a drug transaction is subject to a valid

inventory search and evidence found in the course of such

a search is admissible at trial.

See also, Lowery v. Nelson, 43 Wash.App. 747, 719 P.2d

594 (Wash.App.1986), rev. denied, 106 Wash.2d 1013 (1986);

State v. Brickhouse, 20 Kan. App.2d 495, 890 P.2d 353 (1995);

c.f., Davis v. State, 813 P.2d 1178 (Utah 1991).

We join the majority of the federal and state jurisdictions

which have considered this issue and hold that a warrantless

seizure of a motor vehicle based on probable cause that the

vehicle was used in violation of the Forfeiture Act does not

violate the Fourth Amendment prohibition against unreasonable

searches and seizure. Although the decisions upholding a

warrantless forfeiture seizure state various reasons, we prefer

A-30

the rationale adopted by the Eleventh Circuit in U.S. v. Valdes,

876 F.2d at 1559-60. In Valdes, in upholding under the

Fourth Amendment a seizure and subsequent inventory search

of an automobile under the federal forfeiture statute, the court

reasoned and held:

If federal law enforcement agents, armed with probable

cause, can arrest a drug trafficker without repairing to the

magistrate for a warrant, we see no reason why they

should not also be permitted to seize the vehicle the

trafficker has been using to transport his drugs. Appellants

would have us accord the trafficker's property interest

greater deference than his liberty interest; they seem to

suggest that the injury caused by erroneous detention (i.e.

the period of time between seizure, or arrest, and the

magistrate's ruling ending the detention) is somehow

greater in the case of one's property than it is in the case

of one's liberty. We are not persuaded. We therefore hold

that the warrantless seizures of appellants' automobiles,

and the subsequent inventory searches, were not

unreasonable under the fourth amendment. (Footnotes

omitted).

Id.

We are also influenced in our holding by the fact that the

property seized here was a motor vehicle, a type of property

found by the Supreme Court to have less Fourth Amendment

protection against warrantless searches and seizures under the

so-called "automobile exception," California v. Carney, 471

U.S. 386, 390, 105 S.Ct. 2066, 2068, 85 L.Ed.2d 406 (1985).

Although privacy interests in a motor vehicle are protected

under the Fourth Amendment, under the automobile exception

those interests have a lesser degree of protection because "the

vehicle can be quickly moved out of the locality or jurisdiction

A-31

in which the warrant must be sought," id., 471 U.S. at 390,

105 S.Ct. at 2069, and "because the expectation of privacy with

respect to one's automobile is significantly less than that

relating to one's home or office." Jd., 471 U.S. at 391, 105

S.Ct. at 2069. Thus, a warrantless search and seizure of a

motor vehicle may pass constitutional scrutiny absent any

exigent circumstances other than the characteristics inherent in

a motor vehicle. /d. 471 U.S. at 390-91, 105 S. Ct. at 2069.

Logically, for the same reasons, a motor vehicle may be seized

under a forfeiture statute without a prior warrant. See e.g.,

U.S. v. Linn, 880 F.2d at 215; U.S. v. $29,000--U.S.

Currency, 745 F.2d 853 (4th Cir. 1984).

Because we hold that the police properly seized the

appellant's vehicle under the Forfeiture Act, we conclude that

the subsequent inventory search was reasonable and, thus, the

cocaine seized in the vehicle was properly admitted at trial.

Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17

L.Ed.2d 730 (1967); South Dakota v. Opperman, 428 U.S.

364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)(inventory

searches pursuant to standard police procedures are reasonable

under Fourth Amendment); U.S. v. Valdes, 876 F.2d at 1559-

60; State v. Pomerance, 434 So.2d 329, 330 (Fla. 2d DCA

1983)(if the defendant's automobile was properly seized under

the Forfeiture Act "the search of the trunk of the car was a

proper inventory search"). We find Cooper directly applicable

here. In Cooper, the Supreme Court upheld the warrantless

search of a vehicle justified solely on the basis that the vehicle

was in the lawful custody of the state following its seizure

under California's forfeiture statute, ruling:

It would be unreasonable to hold that the police, having to

retain the car in their custody ... had no right, even for

their own protection, to search it. It is no answer to say

that the police could have obtained a search warrant, for

A-32

"[t}he relevant test is not whether it is reasonable to

procure a search warrant, but whether the search was

reasonable." United States v. Rabinowitz, 339 U.S. 56,

66, 70 S.Ct. 430, 435, 94 L.Ed. 653. | Under the

circumstances of this case, we cannot hold unreasonable

under the Fourth Amendment the examination or search of

a car validly held by officers for use as evidence in a

forfeiture proceeding.

Cooper, 386 U.S. at 61-62, 87 S.Ct. at 791.

Nevertheless, because we recognize that neither the Florida

Supreme Court nor United States Supreme Court has directly

addressed the issue presented here, and that the federal circuit

courts have reached different conclusions concerning this

constitutional issue, we certify to the Florida Supreme Court

the following question as one of great public importance:

WHETHER THE WARRANTLESS SEIZURE OF A

MOTOR. VEHICLE UNDER THE FLORIDA

FORFEITURE ACT (ABSENT OTHER EXIGENT

CIRCUMSTANCES) VIOLATES THE FOURTH

AMENDMENT OF THE UNITED’ STATES

CONSTITUTION SO AS TO RENDER EVIDENCE

SEIZED IN A SUBSEQUENT INVENTORY SEARCH

OF THE VEHICLE INADMISSIBLE IN A CRIMINAL

PROSECUTION.

Statement Prior to Miranda Warning

White argues that his statement to the police that "[h]e had

recently got back into the business" was made while he was in

custody during the "functional equivalent" of interrogation and,

therefore, violated the requirements of Miranda. We find,

however, that competent substantial evidence in the record

A-33

supports a conclusion that the statement was spontaneously,

freely, and voluntarily made and, accordingly, the trial court

did not abuse its discretion in admitting the statement into

evidence. Gray v. State, 640 So.2d 186, 194 (Fla. Ist DCA

1994).

Miranda established that "[p]rior to any questioning, the

[suspect] must be warned that he has a right to remain silent,

that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an

attorney, either retained or appointed." 384 U.S. at 444, 86

S.Ct. at 1612. Miranda states, however, that "[a]ny statement

given freely and voluntarily without any compelling influence

is, of course, admissible in evidence." 384 U.S. at 478, 86

S.Ct. at 1630. Nevertheless,

the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the

privilege against self-incrimination. _ By custodial

interrogation, we mean

questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise

deprived of his freedom of action in any significant

way.

384 U.S. at 444, 86 S.Ct. at 1612. Thus, "[t}he

fundamental import of the privilege while an individual is in

custody is not whether he is allowed to talk to the police

without the benefit of warnings and counsel, but whether he can

be interrogated...." 384 U.S. at 478, 86 S.Ct. at 1630.

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In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682,

64 L.Ed.2d 297 (1980), the Court concluded "that the Miranda

safeguards come into play whenever a person in custody is

subjected to either express questioning or its functional

equivalent." /d., 446 U.S. at 300-301, 100 S.Ct. at 1689.

The /nnis court further concluded that the functional equivalent

of interrogation under Miranda refers to practices that the

police “should know" are “reasonably likely to elicit an

incriminating response from the suspect." /d., 446 U.S. at

301, 100 S.Ct. at 1689-1690. This interrogation standard is an

objective one which "focuses primarily upon perceptions of the

suspect, rather than the intent of the police." /d., 446 U.S. at

301, 100 S.Ct. at 1690.

In the instant case, while the arresting officer was reading

the arrest affidavits to White, explaining the charges for which

he was arrested, White made the incriminating statement.

Although at the time the statement was made, White had not

been read his Miranda rights, his statement did not come in

response to any question posed by the police. Thus, to

conclude whether White's statement was properly admissible,

it must be determined whether the statement was made

voluntarily or through the functional equivalent of

interrogation.

The Supreme Court in Jnnis “address[ed] for the first time

the meaning of ‘interrogation’ under Miranda ...," id. 446

U.S. at 297, 100 S.Ct. at 1687-88, and discussed the two-prong

analysis used in determining whether a suspect's statements are

freely and voluntarily given or are the result of interrogation or

its functional equivalent. In /nnis, the defendant was arrested

for murder, kidnapping and armed robbery, during which he

had used a shotgun. Innis, 446 U.S. at 294, 100 S.Ct. at 1686.

At the time of his arrest he was unarmed. /d. After being given

his Miranda rights and stating that he wanted to speak with a

A-35

lawyer he was placed in the back of a police car. Jd. During

the ride to the police station the two arresting officers in the

patrol car began a conversation about the missing shotgun,

mentioning their concerns that one of the handicapped children

from a nearby school might find the gun and injure themselves.

Id., 446 U.S. at 294-95, 100 S.Ct. at 1686-87. The defendant

interrupted the conversation and stated that he would show the

police were the gun was located. Jd., 446 U.S. at 295, 100

S.Ct. at 1687. The Supreme Court concluded that at the time

the statement was made the defendant was not being

interrogated within the meaning of Miranda. Id., 446 U.S. at

302, 100 S.Ct. at 1690. The Supreme Court reasoned as

follows:

It is undisputed that the first prong of the definition of

"interrogation" was not satisfied, for the conversation

between [the] Patrolmen ... included no express

questioning of the respondent...

Moreover, it cannot be fairly concluded that the respondent

was subject to the "functional equivalent" of questioning.

It cannot be said, in short, that [the] Patrolmen ... should

have known that their conversation was reasonably likely

to elicit an incriminating response from the respondent.

Id. The Court went on to explain that, while the officer's

comments obviously “struck a responsive chord" in the

defendant, the conversation did not amount to the functional

equivalent of interrogation. Jd., 446 U.S. at 303, 100 S.Ct. at

1691. The Court reasoned that there was

nothing in the record to suggest that the officers were

aware that the respondent was peculiarly susceptible to an

appeal to his conscience concerning the safety of

handicapped children. Nor [was] there anything in the

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record to suggest that the police knew that the respondent

was unusually disoriented or upset at the time of his arrest.

Id., 446 U.S. at 302-303, 100 S.Ct. at 1690. (Emphasis

added). Therefore, the Court found that the record failed to

show that the police "should have known" the conversation they

had “was reasonably likely to elicit an incriminating response"

from the defendant, id., 446 U.S. at 303, 100 S.Ct. at 1691,

and held the statement was properly admitted into evidence.

Similarly, in the instant case, it is undisputed that White's

statement was not made in response to express questioning.

Further, it cannot be fairly concluded that White was subject to

the “functional equivalent" of questioning. The arresting

officer's act of explaining the charges to White was reasonable

and understandable given that White had just been placed under

arrest and had asked to know why. Like in Jnnis, the fact that

the officer's explanation may have "struck a responsive chord,"

causing White to interject that "[h]e recently got back into the

business," does not constitute the functional equivalent of an

interrogation. Nothing in the record indicates to us that the

arresting officers should have known that the explanation of

charges to White vas reasonably likely to elicit an

incriminating response. Further, nothing in the record shows

that the officers were aware that White was "peculiarly

susceptible" or so “unusually disoriented or upset" that simply

informing him of the charges would likely evoke incriminating

statements. Because we find that White's statement was made

freely and voluntarily, and not in response to express

questioning or during the functional equivalent of an

interrogation, we hold that the statement was properly

admissible at trial under Miranda. See also, Hawkins v. State,

217 So.2d 582, 583 (Fla. 4th DCA 1969).

AFFIRMED.

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WEBSTER, J., concurs.

WOLF, J., concurs and dissents with written opinion.

WOLF, Judge, concurring in part and dissenting in part.

I concur in the majority's decision to certify a question to

the Florida Supreme Court, but respectfully dissent from their

decision to uphold the warrantless seizure of the automobile.

The warrantless seizure of an automobile absent exigent

circumstances violates the Fourth Amendment of the United

States Constitution even though probable cause exists to believe

that the automobile is subject to forfeiture as a result of prior

narcotics transactions.

Appellant was arrested at his workplace based upon

narcotics transactions unrelated to his present conviction.

Officer Pierce was the arresting officer, and he was

accompanied by Officer Squire. The purpose of Squire's

presence at the arrest was to drive appellant's vehicle which

was to be seized for forfeiture because it had been used to sell

and deliver cocaine. There was no warrant authorizing seizure

of the vehicle.

At the time of appellant's arrest, he had the car keys in his

pocket and the vehicle was parked outside in the parking lot of

his place of employment. The police seized and searched the

vehicle. The subsequent search of the vehicle revealed two

pieces of crack cocaine in the ashtray of the car. It is this

cocaine which is the subject of the charges in the instant case.

The Fourth Amendment requires that police obtain a

warrant for search and seizure of an automobile absent exigent

circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 91

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S.Ct. 2022, 29 L.Ed.2d 564 (1971). While exigent

circumstances may justify a warrantless seizure, no such

circumstances exist in this case. The state argues, however,

that the warrantless seizure is justified based on the fact that

probable cause existed to believe that the car was subject to

forfeiture. There is no Florida case that directly deals with this

issue. In Department of Law Enforcement v. Real Property,

588 So.2d 957 (Fla.1991), the court found that notification was

not constitutionally mandated prior to a seizure pursuant to the

Florida Contraband Forfeiture Act, sections 932.701-932.704,

Florida Statutes (1993). The court did not rule directly on

whether a warrant was required, but stated,

The state conceded at oral argument that the fourth

amendment applies to the seizure

of property in forfeiture actions, and argued that the

fourth amendment protections adequately protect

property owners. We fully agree that the fourth

amendment applies when there has been a seizure.

Department of Law Enforcement, supra at 963. The court

further states in a footnote,

Since article I, section 12 of the Florida Constitution

expressly requires conformity with the fourth amendment

of the United States Constitution, the warrant requirement

of article I, section 12 also applies to forfeiture actions

under Florida law.

Id. at 963 (emphasis added).

The decision of the second district in Jn re: Forfeiture of

1986 Ford PU, 619 So.2d 337 (Fla. 2d DCA 1993), is not

inconsistent with the supreme court's statement concerning the

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applicability of the Fourth Amendment's warrant requirement.

The court ruled that nothing in the case of Department of Law

Enforcement, supra, or the forfeiture statute specifically

requires a warrant, but the court did not specifically rule on

whether a warrantless seizure would violate the Fourth

Amendment. To the extent that the decision could be argued to

support the argument that no warrant is required, it is

unpersuasive because no analysis is presented to support this

position.

Federal courts which have dealt with the necessity of

obtaining a warrant when property is subject to a federal

forfeiture statute have reached different conclusions. The ninth

circuit has held that a warrantless seizure of an automobile

absent exigent circumstances violates the Fourth Amendment,

(FN6) notwithstanding probable cause to believe that the car is

subject to forfewure. UNITED STATES V. MCCORMICK, 502

F.2D 281 (9TH CIR. 1974); UNITED STATES V. SPETZ, 721

F.2D 1457 (9TH CIR.1983). IN U.S. V. LASANTA, 978 F.2D

1300 (2ND CIR.1992)(FN7), the court discussed the cases

which had upheld the warrantless seizures of automobiles

subject to forfeiture and stated,

We find no language in the fourth amendment suggesting

that the right of the people to be secure in their "persons,

houses, papers, and effects" applies to all searches and

seizures except civil-forfeiture seizures in drug cases.

Id. at 1305. In rejecting the attorney general's argument,

the court goes on to state,

While congress may have intended civil forfeiture to be a

“powerful weapon in the war on drugs," it would, indeed,

be a Pyrrhic victory for the country, if the government's

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relentless and imaginative use of that weapon were to leave

the constitution itself a casualty.

Id. at 1305 (citations omitted).

In United States v. Valdes, 876 F.2d 1554 (11th Cir. 1989),

the 11th circuit, however, justified a warrantless seizure of

property subject to forfeiture on the basis that a warrantless

arrest of a person may be made based on probable cause, and

a person's property is entitled to no greater protection than the

person himself. See also U.S. v. Pace, 898 F.2d 1218 (7th

Cir.1990). Such warrantless seizures have also been upheld

based on the lack of reasonable expectation of privacy attached

to a car on a public street. See Pace, supra at 1242; U.S. v.

Bush, 647 F.2d 357 (3rd Cir.1981). This line of reasoning is

based on a statement in the Supreme Court's opinion in G.M.

Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50

L.Ed.2d 530 (1977), where a warrantless seizure of an

automobile by internal revenue agents to satisfy a tax levy was

upheld. (FN8) Other cases seem to adopt the reasoning that

once you have probable cause to seize a vehicle, or believe it

is used for drugs, then exigent circumstances continue to exist

even if the seizure is not made until several months later. U.S.

v. One Mercedes Benz, Four-Door Sedan, 711 F.2d 1297 (Sth

Cir.1983); U.S. v. Kemp, 690 F.2d 397 (4th Cir.1982).

These cases validating a warrantless search absent exigent

circumstances are unpersuasive. The argument concerning no

reasonable expectation of privacy concerning your vehicle on

a public street fails to recognize the factual situation in G.M.

Leasing Corp., supra. That case involved a seizure of an

automobile in order to satisfy a tax debt to the United States, a

situation which is similar to a private repossession of an

automobile to satisfy a debt. The language in this opinion

concerning expectation of privacy on a public street must be

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read in context of the facts of the case. A person who is in

default on a debt or who is subject to a judgment lien does not

have a reasonable expectation that his property will not be

repossessed on a public street. On the other hand, a person has

a reasonable expectation that if the government is seizing his

property other than for purposes of satisfying a debt, a warrant

will be secured. It is difficult to respond to the argument

concerning the theory that if you once believed that the car

contained drugs, you may forever seize the car based on

exigent circumstances. This theory fails to recognize that both

probable cause and exigent circumstances become stale and will

no longer support the legality of a later seizure. C7.

Montgomery v. State, 584 So.2d 65 (Fla. lst DCA 1991).

The argument relied on by the majority for upholding the

search, that property may be seized based on probable cause

much like a person, while having some initial facial appeal, is

still equally unpersuasive. Neither the Supreme Court of the

United States nor the Florida Supreme Court has accepted this

position. General application of this concept would serve to

totally emasculate the warrant requirements for the seizure of

an automobile announced in Coolidge, supra. In addition, the

position taken by the majority does not deviate from the

argument that somehow the forfeiture statute authorizes

warrantless seizures of property absent exigent circumstances,

the very argument which is rejected in Jn re: Warrant to Seize

One 1988 Chevrolet Monte Carlo, 861 F.2d 307, 311 (ist

Cir.1988), and O'Reilly v. United States, 486 F.2d 208, 214

(8th Cir. 1973).

I, therefore, see no reason to depart from the rule

announced by the Supreme Court in Coolidge, supra, and

alluded to by our supreme court in Department of Law

Enforcement, that an automobile is not subject to warrantless

seizure absent exigent circumstances.

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FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966).

FN2. The charges on which White was arrested are not the

subject of the instant appeal.

FN3. Here, the police had probable cause to believe White's

vehicle had been used to facilitate the sale of cocaine, as

indicated by the following trial testimony:

THE COURT: Do you know what basis existed at the

time you made the arrest and searched the car to file a

forfeiture proceeding, what information did you have that

that vehicle had been used in illegal activity?

OFFICER SQUIRE: These were all Doug Pierce's cases,

it's my understanding this vehicle had been used to deliver

and sell cocaine on at least two occasions, maybe three.

PROSECUTOR: And you had been present at at least one

of those sales?

OFFICER SQUIRE: Yes.

THE COURT: A sale from the car?

OFFICER SQUIRE: Yes.

FN4. White has not challenged the forfeiture on due process

grounds and we do not address due process issues here. See,

Calero-Teledo v. Pearson Yacht Leasing Co., 416 U.S. 663,

676-80, 94 S.Ct. 2080, 2088-90, 40 L.Ed.2d 452 (1974)(due

process does not require federal law enforcement officers to

obtain a warrant prior to seizing property they have probable

cause to believe is subject to forfeiture); U.S. v. Valdes, 876

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F.2d 1554, 1560 at fn. 12 (11th Cir.1989)(due process is

satisfied under forfeiture statute "if the government is required

to have a sound basis for believing that property is forfeit, and

the owner has a fair opportunity to regain it."); Smith v.

Hindery, 454 So.2d 663 (Fla. Ist DCA 1984)(Forfeiture Act

does not violate due process).

FNS. In each of Dixon, Lasanta and Linn, the court, while

holding that the warrant requirement applied to seizures for the

purpose of forfeiture, still found another method of admitting

the evidence. In Dixon, the court held the search and seizure

to be illegal, but concluded that a pound of cocaine, found days

after the car was seized and discovered only when the cellular

phone was being removed, was in plain view and admissible

under that exception to the warrant requirement. 1 F.3d at

1084. In Lasanta, after concluding that the search and seizure

was illegal, the court found it to be harmless error and affirmed

the conviction. 978 F.2d at 1306. In Linn, the court found the

warrantless seizure of a motor vehicle was reasonable because

the mobility of the vehicle, in effect, created "exigent

circumstances." 880 F.2d at 215 ("... the ‘mobility’

underpinning of the automobile exception is, of course, closely

related to our ‘exigent circumstances’ analysis, and is the

compelling factor.").

FN6. See also O'Reilly v. United States, 486 F.2d 208, 214

(8th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38

L.Ed.2d 334 (1973); In re: Warrant to Seize One 1988

Chevrolet Monte Carlo, 861 F.2d 307, 311 (1st Cir.1988)

(notes the continuing validity of United States v. Pappas, 613

F.2d 324, 330 (1st Cir.1979), where court held that the federal

forfeiture statute would only be constitutional if construed to

allow seizure “only when seizure immediately follows the

occurrence that gives the federal agents probable cause ... and

the exigencies of the surrounding circumstances make the

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requirement of obtaining process unreasonable or

unnecessary").

FN7. In United States v. Bagley, 772 F.2d 482 (9th Cir.1985),

the court appears to abandon McCormick and Spetz relying on

California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85

L.Ed.2d 406 (1985). Both Bagley and Carney, however,

involve cases where the police had reasonable grounds to

believe that either contraband or evidence would be found in

the vehicle at the time of the seizure or search. Such a

reasonable belief did not exist in this case.

FN8. In U.S. v. Decker, 19 F.3d 287 (6th Cir.1994), relied on

by the majority, the vehicles were properly seized pursuant to

a warrant, and the focus concerned the propriety of the

inventory after the vehicle was searched. I do not quarrel with

the legitimacy of the inventory search but unlike Decker, in the

instant case, the legality of the seizure is at issue.

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