# Petitioners Brief — Florida v. White

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0218%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 559

## Text

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
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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

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bed
rm
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| 434 (1971) (forfeit property has

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0218%3A05. Public record. Not legal advice.