Petitioners Brief — Florida v. White

Supreme Court, U.S.

d FILED

Case No. 98-223 JAN 11

In The CLERK

Supreme Court Of The United S

October Term 1998

STATE OF FLORIDA,

Petitioner,

v.

TYVESSEL TYVORUS WHITE,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

PETITIONER’S BRIEF ON THE MERITS

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 THE ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

COUNSEL FOR PETITIONER

5300

oe

4 ‘ ae, a ee

: PO a ™ -

QUESTION PRESENTED

The in Florida’ for writ of

ee $ petition

WHETHER THE DECISION OF THE FLORIDA

STATES V. VALDES

STATE COURTS ADDRESSING THIS ISSUE?

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED .........22ceecsecees i

TABLE OF CONTENTS .....cccsccccscuveses ii

TABLE OF AUTHORITIES ..............-555. ill

OPINIONS BELOW .....cncccvesccesvccstaes 1

FURIE TIOIN 6 occ ccc ewwWeees sen bse eens 2

CONSTITUTIONAL AND

STATUTORY PROVISIONS ...........-50555:. 2-3

STATEMENT OF THECASE ................ 4-5

SUMMARY OF ARGUMENT .............+++. 5-6

ARGUMENT ....ccsvccsteveveousd ane mee 7-28

CONCLUSION .. ww cn cvecvcteusnn esse 29

ce 10,11,15,16

Carroll v. United States,

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

re 10,11,13,14

399 U.S. 42, 90S. Ct 1975,

26 L. Ed. 24 419 (1970) .... 2... cee 10,11,16

Coolid New H hi

403 U.S. 443, 91 S. Ct. 2022,

29 L. BG. 26 SE4 (IGT) 0 ww cc wee eeecves 16

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

SF 2 PEE nc bot tecveseabbers 10,14

Florida v. Meyers,

466 U.S. 380, 104 S. Ct. 1852,

ji a S ) | ores nes es 10

Gerstein v. Pugh,

420 U.S. 103, 113, 95 S.Ct. 854,

me Se 5h). SPT ETT Eee TT s

390 U.S. 234, 88 S. Ct. 992,

27 & | 4 Faery rT Tete 10

Husty v. United States,

282 U.S. 694, 51 S. Ct. 240,

ofS 5 =P ris wees te oh te 10

254 U.S. 505, 41 S. Ct. 189,

)@ S|. | ee eere rere eee 1]

Katz v. United States,

389 U.S. 347, 88 S. Ct. 507,

hs, Es TD. ccccccecccvevbacasses &

Mathews v. Eldridge,

424 U.S. 319, 96 S. Ct. 893,

GF i Ce ED cece te ckewsceeeeedecds 17

458 U.S. 259, 102 S. Ct. 3079,

73 L. BA. 26 TSO CIGSS) nw cc ccc creer eeeens 10

Scher v. United States,

305 U.S. 251, 59 S. Ct. 174,

83 L. Ed. 20 151 (1938) 0. ww eee wee 10

The Palmyra,

25 U.S. 1, 12 Wheat. 1, 6 L. Ed. 531 (1827) ........ 12

461 Bib 555, 103 S. iso ‘

I Bors cng sc ccceccecssces 21

U.S. v. Ross,

456 U.S. 798, 102 S. Ct. 2157,

IES. gg conn We acccececeacoce 28

United States v. Bush,

GE, BED Chic cccccccesececes 7

Se Dk. ok ks olbie b eo cube 7

510 U.S. 43, 114 S. Ct. 492,

SU IEE “a o's Go ee sc ccccccces 12,17

United States v. Johns,

469 U.S. 478, 105 S. Ct. 881,

a ck bebe we 10

United States v. Kemp,

MD. etc eseeceens 7

United States v. Lasanta,

978 F.2d 1300 (2d Cir. 1992) ........... 7,9,14,25-27

nr, MD, . os cS otald pd aie oe 6 7

United States v. One 1978 Mercedes Benz

ihe Fo U6ofClU ss BS PPT 7

United States v. Pace,

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

cert. denied, 497 U.S. 1030,

110 S. Ct. 3286, 111 L. Ed. 2d 1218 (1990) ........ 7

401 U.S. 715, 91 S. Ct. 1041,

ys F | |, PPP reerererr reer 11,23

United States v. Valdes,

876 F.2d 1554 (llth Cir. 1989) ............ 7-9,22,23

United States v. Ventresca,

380 U.S. 102, 85 S. Ct. 741,

ED o's ohn Sb wae aa ho CED bs 14

United States v. Watson,

" § § @ 6 See oe eae 8,14,15

Bernie v. State,

_ “Ee fF 0 er 8,22

Blackmon y. Brotherhood Protective

232 Ga. 671, 208 S.E.2d nz ee hoo 5 A 24

Davis v. State,

PS Foy ft | | Sa A Are re 25

ee ane 8,9

Duckman vy. State,

ee es sc n'a ee bt eles ca c'0's 12

In. re Forfeiture of Ten Thousand Seven Hundred

580 So. 2d 855 (Fla. 2d DCA 1991) .......... “spa

Indialantic Police Zi :

677 So. 2d 1307 (Fla. Sth DCA 1996) ............ 20

684 So. 2d 204 (Fla. 4th DCA 1996) ............. 19

State v. Brickhouse,

20 Kan. . 2d 495,

890 P.2d 353 (Kan. App. 1995) ................. 24

State v. Gwinner,

59 Wash. App. 119,

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

review denied, 117 Wash. 2d 1004,

Re I 0 Beads. 0d 6 civ'nle oss cee ox 24

White y. State,

680 So. 2d 550 (Fla. lst DCA 1996) .......... 1,5,12

White v. State,

710 So. 2d 949 (Fla. 1998). .... 1,5,9,10,12,13,16,22,24

DOCKETED CASES

LL. vy. State,

Case No. 90,361 (Fla. December 17, 1998) ......... 25

FEDERAL STATUTES

33 DUAR Bee 6 ec even ceeetasnbstateabes 20

BG Utes HEU wie ccc een tenevetvouts 12,26

34 UBS. GEee Gee 7506 ve ee wed ew WEN 12,26,27

Me URad. GG cover eile ROVE ee, 2

STATE STATUTES

Ala. Code §20-2-93(O)(4) 2.0... cee eee ees 27

Ark. Code Ann. §5-64-SOS(b)(4) 2... ee 27

Cal. Health & Safety Code §11471(d) ............. 27

Col. Rev. Stat. Ann. §16-13-504(1) 2... ......005, 27

Del. Code Ann. Title 16 §4784(c)(4) ........6055. 27

Ga. Code Ann. §16-13-49(g)(2) .. 0... ees 27

Haw. Rev. Stat. Ann. Ch. 712A-6.(1)(cMiv) ........ 27

Idaho Code §37-2744(b)(4) 2... ee ees 27

Kan. Stat. Ann. §60-4107(b) ... 2... 2 ees 27

Ky. Rev. Stat. Ann. §218A.415(1)(d) ............. 27

Md. Ann. Code Art. 27, §297(d)(iv) .........555. 27

Me. Rev. Stat. Ann. Title 15 §5826.D ............ 27

Mich. Stat. Ann. Title 14 §14.15 (7522)(d) ......... 27

Miss. Code Ann. §41-29-153(b)(4) 6. ww ee eee 27

Mont. Code Ann. §44-12-103(1) ... 2.6... 65.2 ee. 27

- viii -

N.D. Cent. Code §19-03.1-36.2.d ............04.5. 27

N.H. Rev. Stat. §318-B: 17-b-I-b(b) .... 2.2.0.2... 27

N.M. Stat. Ann. §30-31-35.B.(4) ...........05.. 27

Neb. Rev. Stat. §28-431(1)(f) ...........200005. 27

Nev. Rev. Stat. Ann. §179.1165.2() ............. 27

Okla. Stat. Title 63, §2-504.4 ..............055, 28

POU Ge ED og Cs ce ccctcieescevede 28

Pe Os SPMD wb es bcccrveswccesiven 12

R.I. Gen. Laws §21-28-5.04.2(cK3)(D) ........... 28

Rev. Stat. Ann. §16-13-S04(1) 2... 0... 0.000055. 27

S.C. Code Ann. §44-53-S20(b)(4) 2... ee eee 28

S.D. Codified Laws §34-20B-75.(4) .............. 28

Tenn. Code Ann. §53-11-451(b)(4) ... 2... 6. eee 28

V.I. Code Ann. Title 19, §623(b)(4) .............. 28

Wash. Rev. Code Ann. §69.50.505(b)(4) .......... 28

Wis. Stat. Ann. §961.55(2)(d) ..............005. 28

Wyo. Stat. Ann. §35-7-1049(b)iili) 6. ee, 28

- ix -

Case No. 98-223

In The

Supreme Court of the United States

October Term, 1998

STATE OF FLORIDA,

Fetitioner,

Vv.

TYVESSEL TYVORUS WHITE,

Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

OPINIONS BELOW

The opinion of the Supreme Court of Florida is reported as

White v, State, 710 So.2d 949 (Fla. 1998). (JA 64-84).

The opinion of the District Court of Appeal, First District

of Florida is reported as White v. State, 680 So.2d 550 (Fla.

Ist DCA 1996). (JA 44-63).

Respondent filed a motion to suppress which is not

reported. The trial court reserved ruling on the motion to

suppress. (JA 25). The trial court denied the motion. (JA

10,41).

JURISDICTION Supreme Court construing the 4th Amendment to the

United States Constitution.

The Supreme Court of Florida issued its decision on

February 26, 1998. Petitioner’s Motion for Rehearing was

denied on June 1, 1998. On July 31, 1998, Florida a

petition for writ of certiorari, which the Court granted on

Tre 1998. This court has jurisdiction pursuant to 28

S.C. §1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment of the United States Constitution

provides:

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

Warrant shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the person or

things to be seized.

The Fourth Amendment is applicable to the states

— through the Fourteenth Amendment of the United

States Constitution which provides in pertinent part:

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

of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the law.

Article I, §12 of the Florida Constitution provides in

pertinent part:

Searches and seizures. This right shall be construed in

conformity with the 4th Amendment of the United

States Constitution, as interpreted by the United States

Supreme Court. Articles or information obtained in

violation of this right shall not be admissible in

evidence if such articles or information would be

inadmissible under decisions of the United States

o@< -3-

Lee SSSSSSSaaaa._——— eee eee

STATEMENT OF THE CASE

The material facts, as set out in the body of the Florida

Supreme Court’s decision, are as follows:

On October 14, 1993, petitioner Tyvessel Tyvorus

White (White) was arrested at his place of emp

on charges unrelated to his case. After taking White

into custody on those unrelated charges, and nag

the keys to his automobile, aie aed

his automobile from the of White's s

employment. The police pr prey not seize the vehicle

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

or warrant to authorize the seizure. , 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.

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

it.

White’s Fourth Amendment right to be secure against

unreasonable searches and seizures.

(JA 65-66).

The dates of those prior occasions when White’s

automobile was used to facilitate illegal drug activity were July

26, August 4, and August 7, 1993. (JA 65, n.2). On those

occasions, White was seen by police eyewitnesses, and was

videotaped utilizing his car to deliver cocaine. (JA 33, 45).

White’s conviction was affirmed by the Florida First

District Court of . White v. State, 680 So.2d 550 (Fila.

Ist DCA 1996). to Florida law, the District Court

certified the followi question to the Florida Supreme Court

as being 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.

(JA-52).

The Florida Supreme Court accepted jurisdiction and

answered the in the decision under review here, White

vy. State, 710 So.2d 949 (Fla. 1998). (JA 64-84).

SUMMARY OF ARGUMENT

The decision of the Florida Supreme Court that the Fourth

Amendment requires a warrant for seizure of an automobile

under a contraband forfeiture act is not compelling. Such

conclusion is contraindicated by decisions of the Court on the

subject matter, erects an inflexible procedural barrier in the

path of effective law enforcement, and adds no new protection

for the owner of the automobile seized. The decision ignores

that the property itself, rather than the owner, is deemed

“guilty” for forfeiture purposes and provides more

constitutional process for the property than for the owner.

In so deciding, the Florida Supreme Court rejected

controlling Eleventh Circuit expressing the majority

view and adopted instead minority view in a

Second Circuit decision. The Florida Supreme Court’s warrant

requirement under the Fourth Amendment does what is neither

required nor practical: it elevates the judicial preference for

warrants under the Fourth Amendment into a rigid absolute.

The result, as here, is an unsupportable infringement on

practical, flexible law e.forcement.

The Court should apply settled law, that the Fourth

Amendment does not require a warrant for forfeiture where

probable cause exists and further conclude that the automobile

exception to the warrant requirement of the Fourth Amendment

equally applies to forfeiture proceedings.

ARGUMENT

WHETHER THE FOURTH AMENDMENT

AN ANTECEDENT WARRANT FOR

OF A MOTOR VEHICLE UPON

PROBABLE CAUSE UNDER A CONTRABAND

FORFEITURE ACT (RESTATED)

The decision of the Florida Supreme Court below, holding

that the Fourth Amendment requires a warrant before seizure

of a vehicle under a contraband forfeiture act, is

constitutionally unsound because it (1) reaches a result contrary

to the Court’s precedents on the subject matter, (2) elevates the

judicial preference for warrants under the Fourth Amendment

" In Calero-Toledo v, Person Yacht Leasing Co., 416 U.S.

663 (1974), the court, in deciding whether ex parte seizures of

forfeited property met due process concerns held that the government

could seize a yacht under the forfeiture statute without prior notice

or judicial hearing. See also: United States v. Valdes, 876 F.2d

1554 (llth Cir. 1989) (ex parte seizure of automobile under

forfeiture statute does not violate Fourth Amendment under any

Supreme Court precedent). 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 1218

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

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

1982); United States v. Bush, 647 F. 2d 357 (3d Cir. 1981). The

minority view as discussed in United States v. Lasania, 978 F. 2d

1300 (2d Cir. 1992), was adopted by the Tenth Circuit in United

States vy. Dixon, | F. 3d 1080 (10th Cir. 1995), wherein the court

held that either a warrant or a recognized exception thereto was

required for a valid seizure. An intermediate approach has been

adopted by other circuits, limiting the validity of warrantless seizure

under forfeiture statutes to situations where there is an exigent

exception to the warrant requirement. See for example: United

States v. Linn, 880 F. 2d 209 (9th Cir. 1989).

mY

to a rigid, unwarranted constitutional mandate,” (3) frustrates

and hampers effective, flexible law enforcement by engrafting

a procedural requirement that affords no additional protectiog

and (4) elevags protection od un cement opeanang dear Oot

elevates an s over

of his Florida Supreme

person. Court characterized its

seen S eee Se ee

957, 965 (Fla. 1991), that “we were only able to uphold the

constitutionality of Florida’s forfeiture act by imposing

numerous restrictions and safeguards on the use of the act in

? While other jurisdictions may be inclined or have statutory

or constitutional provisions authorizing judicial intervention prior to

a seizure in forfeiture, the Florida Supreme Court, since 1982, has

been prohibited from interpreting the fourth amendment in a fashion

contrary to decisions of this Court. See: Art. I, Sec. 12 of the

Florida Constitution, known as the conformity clause, mandates that

the court be “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 vy. State.

524 So. 2d. 988, 990-91 (Fla. 1988) (emphasis added).

* See United States v. Valdes, supra, where the court, citing

to United States v. Watson, 423 U.S. 411 (1976), observed “The

Court upheld Watson’s arrest by balancing the interest of the

individual citizen in maintaining his liberty against the public’s need

to control crime. The Court then concluded that if it gave

“maximum protection [to] individual rights . . . by requiring a

magistrate’s review of the factual justification prior to any arrest,” it

would create “‘an intolerable handicap for legitimate law

enforcement.’” Jg., at 417-18, 96 S.Ct at 825 (quoting Gerstein v.

Pugh, 420 U.S. 103, 113, 95 S.Ct. 854, 862, 43 L.Ed.2d 54

(1975)).” 876 F.2d at 1559.

* See: Katz v. United States, 389 U.S. 347, 351, 88 S. Ct.

507, 511, 19 L. Ed. 2d 576 (1967) (The instrumentality of the drug

dealer’s criminal conduct should gain no greater protection than the

dealer himself.)

. Lamar [y. Universal Supply Co.,

479 So.2d 109 (Fla. 1985)], 479 So.2d at 110. When

t is read in full

White, 710 So.2d. at 956 (Fla. 1998) (Wells, dissenting).

Moreover, the majority in White, finding no guidance in

decisions from this Court, rejected a controlling circuit opinion

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

and opted for a minority view from another circuit in United

States v. Lasanta, 978 F.2d 1300 (2d Cir. 1992), concluding:

a

4

cf

h

if

pocket. White.

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.

710 So.2d at 953-954.

As a result of the Florida coer te

opportunity to resolve an oat) gy

416 U.S. 663,

Calero-Toledo v. Pearson Yacht Leasing Co... 4

94 S.Ct. 2080, 2090, 40 L.Ed.2d 452, n.14 (1974), has arisen.

Specifically, whether the warrant or probable cause

requirements of the Fourth Amendment are i to a

forfeiture statute and, whether, as the court in opined, to

what extent “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.”

ee eee eg oe See ees

strongly suggest the answer is “no

° No warrant was obtained in Calero-Toledo. Nor was a

warrant required for the seizure in Carroll v. United States, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or in Cooper vy. California,

386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), nor in Cardwell]

y. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974);

Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed.

1879 (1949); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75

L.Ed. 629 (1931). No intervening warrant was necessary for the

search of the car in Chambers vy. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419 (1970), after it had already been stopped on

probable cause and the car was later searched; see also Harris v.

United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968);

Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed.2d 151

(1938); and United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83

L.Ed.2d 890 (1985), no warrant required where the vehicle search

occurred three days after appellant was arrested and his truck seized

for marijuana smuggling at a remote desert airstrip; Florida v.

Meyers, 466 U.S. 380, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984), no

warrant for a second search of a vehicle after it had been impounded

for eight hours in a secure impound lot. Michigan vy. Thomas, 458

- 10-

porta tang come 417

S.Ct. 2464, 2469. 41 41 L.Ed.2d 325 (1974):

. United States, 267 U.S. 132,

South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49

L.Ed.2d (1976):

(Internal quotation marks and citations deleted).

Under well established caselaw regarding the forfeiture

doctrine, the Framer Noll j itself is deemed the offender. Austin v.

U.S. 602, 113 S.Ct. 2801, 2808, 125

LE 2d 488 (1993): "The fiction that ‘the thing is primarily

law.", citing to |. W, Goldsmith, Jr..-Grant Co, vy, United

States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. ay a

United States v. United States Coin and Currency, 401 U

U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750(1982), no warrant for

second search extending to opening the air vents under the dashboard

of a car whose occupants had been arrested for open container of

alcohol, following an original inventory search which uncovered two

bags of marijuana in the unlocked glove compartment.

-11-

715, 719-720, 91 S.Ct. 1041, 28 L.Ed.2d 434 pres ome gon

seized under forfeiture is believed to have the

crime); and The Palmyra, 25 U.S. 1, 12 Wheat. 1, 6 L.Ed. 531

(1827). In the instant circumstances, bee orn we teh

not cleanse itself of its taint in 68 days. Once

existed for forfeiture, it remained eligible for forfeiture baring

some “external event” which, could have changed the

complexion of the basis to seize.

White used his automobile to sell and deliver cocaine. He

was seen by police Gyewitnesses on three occasions, and was

caught on videotape.’ White v, State, 680 So.2d 550, 551 (Fla.

Ist DCA 1996). White’s car thus falls ly within the

proscription of pection 932.702(3), of the Florida Contraband

Forfeiture Act’ making it unlawful to “use any ... motor

vehicle ... to facilitate the transportation, carriage, conveyance,

concealment, receipt, possession, purchase, sale, barter,

exchange, or giving away of any contraband article." Upon

® From the date of White’s last auto-based dope deal on

August 7, 1993 (710 So.2d 949, 950, n.2), until his arrest on other

drug charges (680 So.2d 550, 551) on October 14, 1993 (710 So.2d

949, 950), only 68 days had passed.

’ Apparently, at least one of the videotaped sales was

directly out of the car, where appellant handed the drugs out through

the window of his car to a person parked next to him. (JA 33).

* Sections 932.701-932.707, Florida Statutes (1993). Like

the Florida Contraband Forfeiture Act, its federal analogue, 21

U.S.C. Sec. 881 (b)(4), provides for warrantless seizure on probable

cause. The forfeiture statute under attack in Calero-Toledo (P.R.

Laws Ann., Title 24, Sec. 2512 (Supp. 1973)), was modeled upon

the 1970 version of Sec. 881. See Good, 510 U.S. 43, 114 S. Ct.

492, 500, 126 L. Ed. 2d 490 (1993). See Calero-Toledo, at n. 25:

“But for unimportant differences, P.R. Laws Ann., Title 24, s. 2512

(a) (Supp. 1973) is modeled after 21 U.S.C. s. 881 (a).” The Florida

Supreme Court in Duckman vy. State, 478 So. 2d 347, 349, n. 3 (Fla.

1985), similarly concluded the state and federal forfeiture provisions

were the same.

-12-

_ event (using vehicle to sell and deliver cocaine), the

the iolation pe iin wey ae ‘Violations. }" Section

Vv or m

932.703(2)(a), Florida Statutes (1993) (emphasis added).

The failure of police to seize the vehicle immediately

without warrant at the time of the sale rather than later under

the contraband forfeiture act precipitated the Florida

Court to hold the later warrantless seizure ran afoul of the

Fourth Amendment, 710 So.2d 949, 953:

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 mot acted on immediately, and the altogether

different ition of permitting the di

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 Court, in Carroll y. United States, 267 U.S. 132, 149, 45

S.Ct. 280, 283-284, 69 L.Ed.2d 543 (1925), stated however,

On reason and authority the true rule is that if the

~ search and seizure without a warrant are made upon

probable cause, that is, upon a belief, reasonably

arising out of circumstances known to the seizing

officer, that an automobile or other vehicle contains

that which by law is subject to seizure and destruction,

the search and seizure are valid.

The Florida Supreme Court’s "immediacy" requirement,

to-wit: the necessity that officers act co y upon

their belief that the vehicle contains , or else the

® The search here after seizure, which uncovered the cocaine

in the ashtray, was for inventory purposes. (JA 23-24). Such a

search is unquestionably valid, South Dakota v. Opperman, 428 U.S.

364, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976), and its validity

is not the subject of inquiry in this case.

-13-

seizure and subsequent search is bad'®, is refuted by Carroll,

1972," 94 S.Ct. at 2082, and seized the vessel pursuant to the

forfeiture statute on July 11, 1972. Ig. at 2083. In CarrolJ, the

Court found probable cause for federal ibition agents to

search a motor vehicle sans warrant on 15, 1921,

some 16 miles away from where it had been seen transporting

the participants to a failed liquor sale on September 29, 1921.

267 U.S. at 134-136. Likewise, in Cooper, the Court found a

search without warrant of a vehicle that had already been

impounded in a garage for a week comported with the Fourth

Amendment. 386 U.S. at 58, 62.

In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820,

827, 828, 46 L.Ed.2d 598 (1976), the court observed in the

context of warrantless arrests of persons, which was based on

statutory authority, that:

Law enforcement officers may find it wise to seek

arrest warrants where practicable to do so, and their

judgments about probable cause may be more readily

accepted where backed by a warrant issued by a

magistrate. See United States v. Ventresca, 380 U.S.

102, 106, 85 S.Ct. 741, 744-745, 13 L.Ed.2d 684

(1965); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct.

1509, 1512, 12 L.Ed.2d 723 (1964); Wong Sun v.

United States, 371 U.S. 471, 479-480, 83 S.Ct. 407,

412-413, 9 L.Ed.2d 441 (1963). But we decline to

transform this judicial preference into a constitutional

rule when the judgment of the Nation and Congress

‘© The Florida Supreme Court stated: "Critically, there must

be probable cause to believe contraband is inthe 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.", 710 So.2d at 953 (footnote deleted),

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

L.Ed.2d 406 (1985), and United States v. Lasanta, 978 F.2d 1300

(2d Cir. 1992), respectively, for these propositions.

whtiin

has for so long been to authorize warrantless public

arrests on probable cause rather than to encumber

criminal prosecutions with endless litigation with

respect to the existence of exigent circumstances,

whether it was practicable to get a warrant, whether

the suspect was about to flee, and the like.

In Watson, the Court noted that arrest without warrant of

a person was the rule at both the state and federal levels since

at least colonial times. 96 S.Ct. at 825-826. As the Court has

recognized, exigent circumstances as to an automobile can

develop virtually instantaneously. See Cardwell v. Lewis, 417

U.S. 583, 94 S.Ct. 2464, 2478-2468, 41 L.Ed.2d 325 (1974)

(plurality opinion). There, after the defendant was arrested for

murder, the police took his keys and seized his car from a

public commercial parking lot a half-block away from the

station house. The car was then towed to a police impound lot.

The Court found the car validly seized under these

circumstances, 94 S.Ct. 2472:

exigent circumstances. Assuming that probable

cause previously existed, we know of no case or

principle that suggests that the right to search on

probable cause andthe reasonableness of slzing

car under exigent circumstances are foreclosed if a

warrant was not obtained at the first practicable

moment. Exigent circumstances with regard to

vehicles are not limited to situations where probable

cause is unforeseeable and arises only at the time of

situation's necessitating prompt police action.

(Emphasis added).

The time frame in which the Court found the automobile

seizure without warrant in Cardwell permissible under the

Fourth Amendment compares directly with the time frame the

- 15-

Florida Supreme Court sub judice found impermissible.

Moreover, to the extent that the rationale of the Florida

Supreme Court finds any succor whatsoever in Coolidge v.

New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d

564 (1971), that reliance is misplaced.'' The Court in

Cardwell specifically distinguished Coolidge when the seizure

of the automobile occurs in a public, commercial parking lot as

opposed to a residential driveway, which is precisely the factual

situation here, 94 S.Ct. 2464, 2471:

Respondent asserts that this case is indistinguishable

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

S.Ct. 2022, 29 L.Ed.2d 564 (1971). We do not agree.

The present case differs from Coolidge both in the

scope of the search and in the circumstances of the

seizure. Since the Coolidge car was parked on the

defendant's driveway, the Seizure of that automobile

required an entry upon private p . Here, as in

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975,

26 L.Ed.2d 419 (1970), the automobile was seized

from a public place where access was not meaningfully

restricted. This is, in fact, the ground upon which the

Coolidge plurality opinion distinguished Chambers,

403 U.S., at 463 n. 20, 91 S.Ct., at 2036. See also

Cady v. Dombrowski, 413 U.S. 433, 446--447, 93

S.Ct. 2523, 2530--2531, 37 L.Ed.2d 706 (1973).

Nor does the decision of the Florida Supreme Court find

any support from any principle of due process applicable to

"' "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, 91 S.Ct. at 2039 (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, 110 S.Ct.

at 2310. Minus that incidental reasoning, Coolidge remains good

law." 710 So.2d 949, 954, n.8.

*

- 16 -

forfeiture of an automobile. In United States v. James Danie}

, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d

490 (1993), the Court held that government seizure of real

property implicates both the Fourth Amendment and the Due

Process Clause of Fifth Amendment. In Good, the Court

explored the procedural protections due for seizure of real

Property and found that a heightened level of procedural

Protection was due for real property as opposed to mobile

_ Whether ex parte seizures of forfeitable property

Satisfy the Due Process Clause is a question we last

confronted in Calero-Toledo v. Pearson Yacht Leasing

Co., supra, which held that the Government could

seize a yacht subject to civil forfeiture without

affording prior notice or hearing. Central to our

analysis in Calero-Toledo was the fact that a yacht was

the “sort [of property] that could be removed to

another jurisdiction, destroyed, or concealed, if

advance warning of confiscation were given.” Id., at

679, 40 L Ed 2d 452, 94 S Ct 2080. The ease with

interests in the forfeitable property created a “‘special

need for very prompt action’” that justified the

postponement of notice and hearing until after the

seizure.

(Citations deleted).

_Calero-Toledo provides a rational, working analysis from

which to draw for any automobile seizure under forfeiture. As

meee Fe ay contention can be asserted that the seizure

impermissible under Calero-Toledo. The Court

in Good noted the three part test of idge, 424

U.S. 319-96 S.Ct. 893, 47 L.Ed. 218 (1976), “provides

guidance" in the forfeiture and seizure area. 510 U.S. at 53.

Noting that this test was applied in Good in the context of

forfeiture of real property, which the Court found to have

heightened procedural protection over movable property, it also

satiny roy in this case involving highly mobile property,

-17-

The Mathews analysis requires us to consider the

private interest affected by the official action; the risk

of an erroneous deprivation of that interest through the

procedures used, as well as the probable value of

additional safeguards; and the Government’s interest,

including the administrative burden that additional

procedural requirements would impose.

(Citations deleted).

Applying those factors in seriatim to the instant action

shows that the antecedent warrant requirement added onto the

Fourth Amendment where probable cause exists to seize a

vehicle is not constitutionally mandated.

Private interest affected by the official action.

The private interest affected here is temporary deprivation

of one’s automobile. Chapter 932.703(2)(a) of the Florida

Contraband Forfeiture Act provides for notice at the time of

seizure, or by return receipt certified mail, of the right to an

adversarial preliminary hearing after the seizure to determine

probable cause wh¢ther the property has been, or is being used

to violate the act.

"2 Indeed, the notion that some “protection” will accrue is

highly suspect at best. The best constitutional protection is the

expeditious testing before a magistrate of the circumstances derived

from the seizure.

'® The same section of the act directs the seizing agency to

make diligent efforts to notify the person affected, in any case within

five working days after the seizure, if done by certified mail. The

notice must state that the person entitled to notice may request an

adversarial preliminary hearing within 15 days after receipt of the

notice. Such hearing, if requested, must be held within 10 days after

the request, or as soon thereafter as is practicable. The Act provides

additional procedural protections for the persons with an interest in

- 18 -

A person aggrieved by seizure and potential forfeiture of

his car can have, the issue judicially resolved in a prompt and

timely fashion. It is of further note that such ivation of

the automobile can well be temporary. Section 932. 03(2\(c) of

the Act provides that at the hearing, if the court concludes there

seizure or continued seizure of the property. A rtiori, if

insufficient probable Cause is established at the i are be

adversarial preliminary , the property is to be returned

to the owner. Such “seizure judicial determination is

constitutional. é . It protects the interests of both

the owner of the seized and society. The owner of the

property has the propriety of the seizure upon probable cause

the affected property, noting that replevin may be sought to recover

the property if forfeiture proceedings are not initiated within 45 days

after the seizure. The court can extend the 45 days to initiate seizure

proceedings to 60 days upon good cause. Chapter 932.703(3),

Florida Statutes (1993). Other protections afforded by the act

include affirmative defenses for an "innocent owner,” §§ (6)(a);

bonafide lienholder, §§ (6)(b); ownership interest of a joint husband

and wife, §§ (6)(c); car rental company, §§ (6)(d); and innocent co-

owner, §§ (7).

14

Florida courts have strictly enforced the time limit

Provisions against the government. See State Department of

iver, 684 So.2d 204

(Fla. 4th DCA 1996), affirming trial court's dismissal of forfeiture

action and order requiring return of seized cash to person from

whom it was seized due to a 5 day delay in setting the hearing. In the

White case, White has never claimed any lack of notice, nor

challenged the adequacy of post seizure hearings, or asserted a due

process claim.

-19-

circulation.’ Also, if there is no innocent owner defense to

forfeiture itself, Bennis vy. Michigan, 516 U.S. 442, 116 S.Ct.

994, 134 L.Ed.2d 68 (1996), the guilty owner here cannot

complain that the judicial determination of forfeiture is held

later rather than sooner.

Risk of erroneous de n through current procedures and

probable value of additional safeguards.

White’s vehicle could only be validly seized upon

cause that it had been, or was being used, in violation of the

Florida Contraband Forfeiture Act. Section 932.703 (2)(c),

Florida Statutes (1993)."° White was utilizing his vehicle to

sell and deliver cocaine, thus making his vehicle eligible for

forfeiture. The crux of the Florida Supreme Court’s quarrel is

that the probable cause for forfeiture determination was made

and acted upor by law enforcement without intervening review

by a magistrate.

All persons who have their car seized on probable cause to

believe the vehicle is being used to violate the Florida

Contrabapd Forfeiture Act are entitled to post seizure

hearing. The Florida Contraband Forfeiture Act provides a

'® Note in Indialantic Police Dept. v. Zimmerman, 677

So.2d 1307 (Fla. Sth DCA 1996), where the seizing agency appealed

the determination that there was no probable cause for the initial

vehicle stop and thus the vehicle must be handed back to the owner.

The appellate court reversed the lower court’s determination that

there was no probable cause for the stop and subsequent search.

‘© An examination of the federal forfeiture statute, 21

U.S.C. Sec. 881, interpreted in Valdes, to require ao pre-seizure

warrant and the statute under scrutiny are analytically

indistinguishable to the issue presented. .

‘7 At such hearing, the court shall review the verified

affidavit, any supporting documents, and take any testimony to

determine whether there is probable cause the property was used, is

z -20-

Forfeiture of conveyances that have been used--and

may be used again--in violation of the narcotics laws

fosters the served by the underlying criminal

sana. bot by preventing fre ic te of he

veyance an economic ;

thereby rendering ilegs) behtvior unprofitabhe 4

Calero-Toledo, 416 U.S. 663, 94 S.Ct. 2080, 2094, 40

L.Ed.2d 543 (1974). And. as further noted ;

94 S.Ct. at 2000. ~ in Calero-Toledo,

interests served by the statutes, ieee ana

seized--as here, a yacht--will often be of a sort that

From a due perspective, the Court has recognized

that "the overarching factor is the length of dhe ac, " between

Seizure and a hearing to contest the seizure. US. v. Eight

. rs U.S. 555, 103 S.Ct. 2005, 2012, 76 L.Ed.2d

143 (1983). The Court indicated the key to this inquiry is

whether the claimant has been prejudiced by the delay.

The primary inquiry here is whether the delay has

being used, was attempted to be used, or was intended to be used to

violate the act. Section 932.703 (c), Florida Statutes (1993).

-21-

hampered the claimant in a defense on the

merits, through, for example, the loss of witnesses or

other important evidence. Such could be a

the Added Procedural Requirement Imposes

The additional administrative burden laid upon every

seizure by the Florida Court in the

application of the Fourth is i See

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

(Eleventh Circuit decideg pape gener Renan I her to the

weet ey Lom

acide SoOeediccive pale tnveclgpticn ls wawanranned. The

added procedural burden imposed by

decided in conformity with decisions of the Court, and the Florida

courts can afford no higher level of Fourth Amendment protection,

Bernie v. State, 524 So.2d 988, 990-991 (Fla. 1988). See White,

710 So.2d 949, 950, n.3. Thus, by operation of the Florida

Constitution, there is no federalism issue because there is no

independent state law basis to support the decision of the Florida

Supreme Court. The issue is thus governed solely by the Fourth

Amendment as interpreted by the Court.

'® A case illustrating this potential state-federal effort is Ip

($10,788.00) in U.S, Currency, 580 So.2d 855 (Fla. 2d DCA 1991),

-m.-

In .s_-2.—Valias. 876 F.2d 1

E

bed

rm

=

aS

| 434 (1971) (forfeit property has

te

it

at

hi

fi

:

|

Fh

i

i

+

#

i

iH

LE

af

ive

stat

ie

Pell

it

fen

A bee

abate

where the Florida Department of Law Enforcement (FDLE) sought

forfeiture in a state court proceeding of cash from a loansharking

-23-

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

(Footnotes deleted).

In rejgeting the majority view, the Florida Supreme Court

observed,“ 710 So.2d 949, 954:

*° The Florida Supreme Court decision is also contrary to

a majority of state courts which have addressed this issue under

federal, as opposed to a state constitutional grounds. In Blackmon

; ; : | : 20

232 Ga. 671, 208 S.E. 2d 483 (Ga. 1974), the Georgia Supreme

Court permitted warrantless seizure and subsequent forfeiture of

liquor kept at a social club in a “dry” county. Relying upon Calero-

Toledo, the court found that opportunity for post-seizure hearing to

contest the validity of the seizure was “sufficient process of law

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

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

the Kansas court upheld warrantless seizure, search and forfeiture of

an automobile under a state forfeiture act because police officers had

probable cause to believe the car was being used to violate state drug

laws. Relying on Cooper and Valdes, and rejecting Lasanta the

Kansas court stated it found the majority view persuasive and held

the warrantless seizure and subsequent search of the car under the

state forfeiture act based on probable cause, not to violate the Fourth

Amendment. In State vy. Gwinner, 59 Wash. App. 119, 796 P. 2d

728 (Wash. App. 1990), review denied, 117 Wash. 2d 1004, 814 P.

2d 266 (1991), a state officer provided a tip to federal officers which

ultimately led the DEA agents to seize and search a truck without a

warrant pursuant to Sec. 881 (b)(4). The state court in considering

the validity of search, found the challenge to the seizure did not

- 24-

Finally, the ing of the district court

majority, that since a ’S person can be seized

without a warrant his should be no different,

simply proves too much. If we were to follow tha

reasoning to its logical conclusion we would

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

Pecanase wane seizure as to property entirely, simply

because we have permitted the warrantless arrest of a

(Footnote deleted).

ia ‘adopting the minority view*' of United States y.

Lasanta, 978 F.2d 1300 (2d Cir. 1992), the Florida Supreme

Court not only rejected controlling authority of this circuit, but

violate the Fourth Amendment under the federal law. The state

court recognized that although valid under the Fourth Amendment,

it might be invalid under the state constitution, however, the federal

officers were to be judged under federal, not state law.

*" Only two state courts have reached a result akin to that of

the Florida Supreme Court: Davis y. State, 813 P. 2d 1178, 1182-

1183. (Utah 1991); Application of Harnuschfeger. 158 Misc. 2d 299,

600 NYS 2d 894 (Supp. 1993).

‘The Florida Supreme Court has recently reached out once

again to adopt a minority view of Fourth Amendment search and

seizure jurisprudence. In LL. v. State, Case No. 90,361 (Fla.

December 17, 1998), the state court refused to adopt a firearms

exception to the general rule that corroboration of only innocent

details in an anonymous tip does not provide police officers with

- 28 -

acknowledged that language found in 21 U.S.C. Sec. 881 (b)(4)

supported a warrantless seizure of Cardona’s vehicle, and noted

that the “attorney general claims to have had probable cause to

believe Cardona’s vehicle was used ‘to transport, or ... to

facilitate the transportation, sale, receipt, possession, or

concealment of controlled substances. 21 U.S.C. Sec. 881

(a).” Lasanta, 978 F. 2d at 1304. The court however,

characterized the government's actions as erroneous and

contrary to the fourth amendment opining:

The government disclaims the need to justify its

warrantless seizure of Cardona’s limousine with any of

the traditional ions to the fourth amendment. It

contends that the plain language of the civil forfeiture

statute absolves it of any responsibility to obtain a

warrant in executing seizures of property in

connection with controlled-substance ions.

The government argues that the forfeiture statute

represents congress’s decision to create a new

exception to the Fourth Amendment's warrant

requirement. In essence, it argues that congress has

amended the constitution. To state the position is to

refute it, because congress cannot authorize by

legislation what the constitution forbids....

978 F. 2d at 1304.

The court fashioned the government's argument as being,

the civil forfeiture statute

represents congress’s considered exemption of the

executive branch from the strictures of the fourth

amendment; and that the war on drugs justifies a

ruli that courts deem warrantless seizures

reasonable suspicion of criminal activity. In so doing, as pointed out

by the dissent, the court adopted a holding “contrary to the view of

the overwhelming majority of jurisdictions that have considered the

issue.”

=

_ - a

transactions in narcotics,

U.S.C. Sec. 881 (b)(4). oo

—

war on drugs) were jo leave the constitution i casualty.”

978 F. 2d at 1305. csatetuccamee

This minority view starts off on the wrong footing; it

creates a procedural step of requiring a warrant before seizure

under a forfeiture statute where no such requirement exists. It

erects arbitrary roadblocks in the path of effective law

enforcement and transforms a judicial preference for a warrant,

Watson, supra, into a newly found constitutional imperative, in

an effort to prevent the government’s “re s and

imaginative use of that weapon” in the war on drugs.

*° It should be noted that in spite of these harsh and dire

pronouncements, the court found “any constitutional upheaval” to be

harmless error and affirmed Cardona’s conviction.

; ** Represeutative of this is Ala. Code §20-2-93(b)(4), which

provides that “Seizure without process may be made if: (4) the state,

county, or municipal law enforcement agency has probable cause to

believe that the property was used or is intended to be used in

violation of this chapter.” Similar provisions are to be found in Ark.

Code Ann. §5-64-505(b)(4); Cal. Health & Safety Code §11471(d);

Col. Rev. Stat. Ann. §16-13-504(1); Del. Code Ann. Title 16

§4784(c)(4); Ga. Code Ann. §16-13-49%(g)(2); Haw. Rev. Stat. Ann.

Ch. 712A-6.(1)(cMiv); Idaho Code §37-2744(b)(4); Kan Stat. Ann.

§60-4107(b); Ky. Rev. Stat. Ann. §218A.415(1)(d); Me. Rev. Stat.

Ann. Title 15 §5826.D.; Md. Ann. Code Art. 27, §297(d)iv); Mich.

Stat. Ann. Title 14 §14.15 (7522)(d); Miss. Code Ann. §41-29-

153(b)(4); Mont. Code Ann. §44-12-103(1); Neb. Rev. Stat. §28-

431(1)(f); N.H. Rev. Stat. §318-B: 17-b-I-b(b); N.M. Stat. Ann.

§30-31-35.B.(4); Nev. Rev. Stat. Ann. §179.1165.2(d); N.D. Cent.

-27-

Additionally, the settled doctrine of seizure of an

automobile without warrant does not “amend the Fourth

Amendment out of the Constitution{.]". Application of the

doctrine to White’s automobile, for example, does nothing

more than apply the limited automobile exception to the warrant

requirement of the Fourth Amendment to an automobile. The

Florida Supreme Court and the minority view, in fact, do

“away with the constitutional law of search and seizure as to

property entirely," ee

and subsequent search of an automobile on probable cause

Beyond peradventure, the majority view requiring no

preseizure warrant for seizure of instrumentalities under

forfeiture statutes satisfies all requirements under the Fourth

Amendment.

Code §19-03.1-36.2.d.; Okla. Stat. Title 63, §2-504.4; 42 Pa.

C.S.A. §6801(b)(4); R.I. Gen. Laws §21-28-5.04.2(c\(3\(D); S.C.

Code Ann. §44-53-520(b)(4); S.D. Codified Laws §34-20B-75.(4);

Tenn. Code Ann. §53-11-451(b)(4); V.1. Code Ann. Title 19,

§623(b)(4); Wash. Rev. Code Ann. §69.50.505(b)(4); Wis. Stat.

Ann. §961.55(2)(d); Wyo. Stat. Ann. §35-7-1049(b)(iii).

8 *The exception recognized in Carroll is unquestionably

one that is ‘specifically established and well delineated.’" U.S. y.

Ross, 456 U.S. 798, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982).

Based on the foregoing, the Petitioner

that the decision of the Florida Supreme

reversed.

CONCLUSION

y submits

ourt should be

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CAROLYN SNURKOWSKI

ASSISTANT 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

COUNSEL FOR PETITIONER