Amicus Curiae Brief — Florida v. White

— —

Hupf * . N

FILED

JAN 11 1999

No. 98-223

In the Supreme Court of the United States

OCTOBER TERM, 1998

FLORIDA, PETITIONER

U.

TYVESSEL TYVORUS WHITE

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Fourth Amendment permits the

warrantless seizure and subsequent inventory search of

an automobile based on probable cause to believe that

the vehicle is subject to forfeiture pursuant to a state

statute authorizing such seizures, the Florida Con-

traband Forfeiture Act, Fla. Stat. Ann. $§ 932.701 et

seq. (West 1996 & Supp. 1999).

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of

Argument:

The Fourth Amendment permits a warrantless

seizure and subsequent inventory search of property

based on probable cause to believe that the property

is subject to forfeiture, so long as the seizure involves

no intrusion on privacy rights

A. This Court has repeatedly upheld warrantless

seizures based upon probable cause, so long as

the seizure is effected in a manner that does not

involve any intrusion on privacy interests

B. The seizure at issue in this case satisfied the

requirements set forth in this Court’s decision

in Horton v. California

C. The absence of exigent circumstances does not

invalidate the seizure of respondent's auto-

mobile

D. So long as the police had probable cause to believe

that respondent’s vehicle had previously been

used to facilitate narcotics trafficking, the seizure

of the automobile was valid

E. So long as the inventory search of respondent’s

car was conducted pursuant to appropriate

(IID)

cont

10

11

16

*

IV V

TABLE OF AUTHORITIES

Cases—Continued: Page

Canes: United States v. Lasanta, 978 F 2d 1300 (2d Cir.

Andresen v. Maryland, 427 U.S. 463 (1976) 22-28 1992) 6,7

Arizona v. Hicks, 480 U.S. 321 (1987) 10, 11, 14 United States v. Lee, 274 U.S. 559 (1927) 12, 19

15, 18, 19 United States v. Linn, 880 F. 2d 209 (9th Cir.

California v. Carney, 471 U.S. 386 (1985) 23 1989) 6

Colorado v. Bertine, 479 U.S. 367 (1987) 24, 26 United States v. One 1978 Mercedes Benz, Four-

Coolidge v. New Hampshire, 403 U.S. 443 (1971)... 7, 15, 17 Door Sedan, 711 F 2d 1297 (Sth Cir. 1983) 6

Cooper v. California, 386 U.S. 58 (1967) 25 United States v. Pace, 898 F. 2d 1218 (7th Cir.), cert.

Florida v. Wells, 495 U.S. 1 (1990) 24 denied, 497 U.S. 1030 (1990) 6

Frazier v. Cupp, 394 U.S. 731 (1969) 13 United States v. Place, 462 U.S. 696 (1983) 13,14

G.M. Leasing Corp. v. United States, 429 U.S. 338 United States v. 8 29,000-U.S. Currency, 745 F. 2d

(1977) 13 853 (4th Cir. 1984) 6

Harris v. United States, 390 U.S. 234 (1968 12-13 United States v. Valdes, 876 F.2d 1554 (11th Cir.

Horton v. California, 496 U.S. 128 (19900 passim 1989) 5,6

Illinois v. Andreas, 463 U.S. 765 (1983) 12 United States v. Watson, 423 U.S. 411 (1976) 5,9,

Minnesota v. Dickerson, 508 U.S. 366 (1993) .......... 10, 12, 13 15, 21

on tin ‘eka aaa he * Zurcher v. Stanford Daily, 436 U. S. 547 (1978) . 22

v. New q —ͤ— 0

region . 2 16 Constitution and statutes:

Soldal v. Cook County, 506 U.S. 56 (1992) 10, 11 U.S. Const. Amend. IV

South Dakota v. Opperman, 428 U.S. 364 Florida Contraband Forfeiture Act, Fla. Stat. Ann.

(1976) 24, 25 932.701 et seg. (West 1996 & Supp. 1999) . 1,2

Taylor v. United States, 286 U.S. 1 (1932) 20 92. 701% )- (Supp. 1999) 2

Terry v. Ohio, 392 U.S. 1 (1968) 14 § 982.701(a)5 (Supp. 1999) 2, 23

Texas v. Brown, 460 U.S. 730 (1983) . 12, 14, 18,19 § 982.702(1) 2

United States v. Bush, 647 F.2d 357 (3d Cir. § 932.702(2) 2

1981) 6 92.7023) 2

United States v. Di Re, 332 U.S. 581 (1948) 21 § 932.702(4) 3

United States v. Dixon, 1 F.3d 1080 (10th Cir. § 982.703(1)(a) (Supp. 1999) 3

1993) 6 § 982.703(1)(c) (Supp. 1999) 3

United States v. Jacobsen, 466 U.S. 109 (1984) . 10, § 982.703(1)(d) (Supp. 1999) 3

12, 13 § 982.703(2)(a) (Supp. 1999) 3

United States v. Kemp, 690 F.2d 397 (4th Cir. § 982.703(2)(c) (1993) “a4

1982) 23 § 982.703(6)(a) (Supp. 1999) 3

21 U.S.C. Sa) 1

21 U.S.C. SS1 1,2

VI

In the Supreme Court of the United States

Miscellaneous: Page OCTOBER TERM, 1998

Asset Forfeiture & Money Laundering Section, U.S.

Dep't of Justice, Asset Forfeiture Law and Practice

Manual, Ch. 2 (June 1998) 2 No. 98-223

FLORIDA, PETITIONER

.

TYVESSEL TYVORUS WHITE

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The seizure in this case was effected pursuant to

the Florida Contraband Forfeiture Act, Fla. Stat. Ann.

§§ 932.701 et seg. (West 1996 & Supp. 1999). A similar

federal statute provides for forfeiture of, inter alia, any

vehicle that is used or intended for use in transporting

or in any manner facilitating the transportation, sale,

receipt, possession, or concealment of various described

property, including controlled substances. 21 U.S.C.

881(a)(4). The federal statute specifically authorizes the

seizure of property without prior judicial process when

“the Attorney General has probable cause to believe

that the property is subject to civil forfeiture under this

subchapter.” 21 U.S.C. 881(b)(4). Because the Court’s

(1)

2

decision in this case will likely affect the ability of fed-

eral law enforcement officers to exercise the authority

conferred by Section 881(b)(4), the United States has an

interest in the outcome of this case.

STATEMENT —

1. The Florida Contraband Forfeiture Act, Fla. Stat.

Ann. §§ 932.701 et seq. (West 1996 & Supp. 1999),

establishes substantive and procedural rules for the for-

feiture of, inter alia, property used in the commission of

a felony. The Act defines the term Ae lontraband arti-

cle” to include “[aJny controlled substance as defined in

chapter 893,” id. § 932.701(2)(a)1 (Supp. 1999), as well as

“any vessel, aircraft, * * * [or] vehicle of any kind,

* * * which was used or was attempted to be used as

an instrumentality in the commission of, or in aiding

or abetting in the commission of, any felony,” id.

§ 932.701(a)5 (Supp. 1999). The Act makes it unlawful

to transport any contraband article “by means of any

vessel, motor vehicle, or aircraft,” id. § 932.702(1)

(1996); “[t]o conceal or possess any contraband article,”

id. § 932.702(2) (1996); to use any real or personal pro-

perty “to facilitate the transportation, carriage, convey-

ance, concealment, receipt, possession, purchase, sale,

barter, exchange, or giving away of any contraband

article,” id. § 932.702(3) (1996); or to “use any contra-

band article as an instrumentality in the commission of

As a matter of policy, particularly in light of the fact that the

federal courts of appeals have reached differing conclusions as to

the propriety of warrantless seizures of forfeitable property (see

note 3, infra), the Department of Justice encourages the use of

prior seizure warrants whenever practical. See Asset Forfeiture

& Money Laundering Section, U.S. Dep’t of Justice, Asset For-

feiture Law and Practice Manual, Ch. 2, at 20-21 (June 1998). The

federal statute, however, contains no such requirement.

3

or in aiding cr abetting in the commission of any felony

or violation of the Florida Contraband Forfeiture Act,”

id. § 932.702(4) (1996).

The Florida Contraband Forfeiture Act states:

Any contraband article, vessel, motor vehicle,

aircraft, other personal property, or real property

used in violation of any provision of the Florida

Contraband Forfeiture Act, or in, upon, or by means

of which any violation of the Florida Contraband

Forfeiture Act has taken or is taking place, may be

seized and shall be forfeited subject to the pro-

visions of the Florida Contraband Forfeiture Act.

Fla. Stat. Ann. § 932.703(1)(a) (West Supp. 1999). The

Act provides that “{aJll rights to, interest in, and title to

contraband articles * * * shall immediately vest in

the seizing law enforcement agency upon seizure,” id.

§ 932.703(1)(c) (Supp. 1999), though the seizing agency

is prohibited from using the seized property until its

susceptibility to forfeiture has been finally determined,

see id. § 932.703(1)(d) (Supp. 1999). Under the Act,

Aplersonal property may be seized at the time of the

violation or subsequent to the violation,” so long as the

person from whom the property is seized is promptly

notified of his right to a post-seizure hearing. Id.

§ 932.703(2)(a) (Supp. 1999). The Act also provides that

“[pjroperty may not be forfeited under the Florida

Contraband Forfeiture Act unless the seizing agency

establishes by a preponderance of the evidence that the

owner either knew, or should have known after a rea-

sonable inquiry, that the property was being employed

or was likely to be employed in criminal activity.” Id.

§ 932.703(6)(a) (Supp. 1999). The Act contains no pro-

vision requiring that seizures of contraband articles be

authorized by a judicial warrant.

4

2. On October 14, 1993, respondent Tyvessel Tyvo-

rous White was arrested at his workplace on a charge of

selling a controlled substance (a charge unrelated to the

instant case). After he was taken into custody and the

police obtained the keys to his car, the arresting officers

seized respondent’s automobile from the parking lot at

his place of employment. The officers had not obtained

a judicial warrant for the seizure. The basis for the

seizure was the officers’ belief, based on police eye-

witnesses and videotapes, that the car had been used in

the delivery and sale of cocaine on three previous occa-

sions in July and August 1993. The car was transported

to police headquarters, where an inventory search re-

vealed two pieces of crack cocaine in the ashtray. Re-

spondent was then charged with possession of cocaine.

Pet. App. A2-A3 & n.2, A25-A26.

Respondent moved to suppress the cocaine. The trial

court reserved ruling on the motion to suppress until

after the jury had rendered its verdict. After the jury

found respondent guilty, the court denied the motion.

Pet. App. A26.

3. The Florida First District Court of Appeal af-

firmed respondent’s conviction. Pet. App. A24-A45.

The court first held that the warrantless seizure was

consistent with the Florida Contraband Forfeiture Act.

Id. at A27-A29. The court explained that “the only pre-

seizure procedural requirement under the Forfeiture

Act is the giving of a notice of the right to a subsequent

hearing,” and that respondent did not allege a violation

of that requirement. Id. at A27-A28. The court also

rejected respondent’s contention that the seizure was

invalid because the seizing officers did not have

probable cause to believe that the vehicle contained

contraband at the time the seizure occurred. Rather,

the court explained, “{u]nder the Forfeiture Act, the

5

seizing agency is required only to have probable cause

to believe that the property sought to be seized ‘was

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

intended to be used’ in violation of the Forfeiture Act.”

Id. at A28 (quoting Fla. Stat. Ann. § 932.703(2)(c)

(1993)). The court of appeal also observed that

AInjothing in the Forfeiture Act requires the obtaining

2 warrant or court order before seizing a vehicle.“

Ibid.

The court next held that the warrantless seizure of

respondent’s automobile did not violate the Fourth

Amendment. The court principally relied on the Elev-

enth Circuit’s decision in United States v. Valdes, 876

F.2d 1554 (1989), which upheld a warrantless seizure

conducted pursuant to the federal forfeiture statute

(see note 1, supra) on the ground that if federal law

enforcement agents, armed with probable cause, can

arrest a drug trafficker without repairing to the magis-

trate for a warrant, we see no reason why they should

not also be permitted to seize the vehicle the trafficker

has been using to transport his drugs.” Id. at 1559-1560

(quoted at Pet. App. A31).? The district court of appeal

stated that it was “also influenced in [its] holding by the

fact that the property seized here was a motor vehicle,

a type of property found by the Supreme Court to have

less Fourth Amendment protection against warrantless

searches and seizures under the so-called ‘automobile

exception.“ Pet. App. A31. The court also held that

2 The Eleventh Circuit in Valdes placed substantial reliance on

this Court’s decision in United States v. Watson, 423 U.S. 411

(1976), which held that the Fourth Amendment permits warrant-

less arrests in public places, where the arresting officer has pro-

bable cause to believe that an individual has committed a felony.

See 876 F. 2d at 1558-1559.

6

“[blecause * * * the police properly seized the

[respondent’s] vehicle under the Forfeiture 4a, °° *

the subsequent inventory search was reasonable and,

thus, the cocaine seized in the vehicle was properly

admitted at trial.” Jd. at A382. N oting that the federal

courts of appeals were in conflict as to the propriety of

warrantless seizures under the federal forfeiture

statute,’ the district court of appeal certified to the

Florida Supreme Court the question whether the war-

rantless seizure in this case complied with the Fourth

Amendment. See id. at A33.

4. The Florida Supreme Court reversed. Pet. App.

AI-A22. The court held that in the absence of exigent

circumstances, the Fourth Amendment requires that

the seizure of property pursuant to the state Forfeiture

Act must be preceded by an ex parte preliminary

hearing before a neutral magistrate. Id. at A4-A8. The

court found the “automobile exception” to be inappli-

cable to this case because the seizing officers did not

have probable cause to believe that the vehicle con-

Six courts of appeals have concluded that the Fourth Amend-

ment permits the warrantless seizure, pursuant to the federal

forfeiture statute, of vehicles found in public areas. See United

States v. Dixon, 1 F.3d 1080, 1084 (10th Cir. 1993) (finding warrant

requirement generally applicable, but holding that warrantless

seizure of vehicle left in public place was justified under “plain

view” exception to warrant requirement); United States v. Pace,

898 F.2d 1218, 1241-1242 (7th Cir.), cert. denied, 497 U.S. 1030

(1990); Valdes, 876 F.2d at 1558-1560 & n.14; United States v.

$29,000-U.S. Currency, 745 F.2d 853, 856 (4th Cir. 1984); United

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

1297, 1299-1303 (5th Cir. 1983); United States v. Bush, 647 F.2d

357, 368-370 (3d Cir. 1981). Two courts of appeals have issued con-

trary decisions. See United States v. Lasanta, 978 F.2d 1300, 1303-

1306 (2d Cir. 1992); United States v. Linn, 880 F. 2d 209, 214-215

(9th Cir. 1989).

7

tained contraband at the time of the seizure. Id. at A8-

All. The court also noted that there were no exigent

circumstances that might have made it impractical to

obtain a warrant. Id. at All. The court relied heavily

on the Second Circuit’s decision in United States v.

Lasanta, 978 F.2d 1300 (1992), which concluded that a

judicial warrant is constitutionally required in order to

effect a seizure of property under the federal forfeiture

statute. See Pet. App. A4-A6 & n.4, Al0-All. The

court also relied on Coolidge v. New Hampshire, 403

U.S. 448 (1971), for the proposition that “absent exigent

circumstances, police must secure a warrant for the

search and seizure of an automobile.” Pet. App. Alg

n.8.

Two justices dissented, noting that the weight of

authority supports the view that no warrant is needed

for a seizure of a vehicle when there is probable cause

to believe that the vehicle is subject to forfeiture. Pet.

App. Al4-A21.

SUMMARY OF ARGUMENT

1. Because a seizure of property affects the owner's

possessory interest, while a search intrudes upon

expectations of privacy, this Court has recognized that

the standards of reasonableness governing the two

forms of government action are not equivalent. The

Court has repeatedly held that warrantless seizures

* The Florida Supreme Court rejected the district court of

appeal’s conclusion that “since a defendant’s person can be seized

without a warrant his property should be no different.” Pet. App.

Al2. The court stated that “{i]f we were to follow that i

to its logical conclusion we would, in essence, amend the Fourth

Amendment out of the Constitution and do away with the require-

ment of a warrant entirely for the search and seizure of property.”

Ibid.

8

based on probable cause are presumptively constitu-

tional, so long as law enforcement officers are legally

present at the site and the seizure is effected in a

manner that does not involve any unauthorized intru-

sion on privacy interests. When this Court has invali-

dated warrantless probable-cause seizures of property,

it has done so on the ground that the seizure in question

was facilitated by an unauthorized search. The Court

has applied the same principles to seizures of the

person, permitting warrantless felony arrests in public

places, but holding that the intrusion on privacy

inherent in a home arrest requires a judicial warrant.

2. In Horton v. California, 496 U.S. 128 (1990), this

Court set forth the criteria governing warrantless

seizures of property based on probable cause. Such

seizures are permissible if (a) the seizing officers are

lawfully present at the vantage from which they view

the relevant items, (b) the requisite probable cause is

“immediately apparent” without a search of the items

themselves, and (c) the officers have a lawful right of

access to the seized objects. The seizure at issue in this

case satisfies those requirements. Because respon-

dent’s automobile was seized from the parking lot of

respondent’s place of employment, rather than from a

location where respondent possessed a reasonable

expectation of privacy, no judicial warrant was required

for the officers to view or approach the vehicle. And

because no intrusion into the car itself was necessary to

establish the requisite probable cause, the automobile’s

susceptibility to forfeiture was “immediately apparent”

within the meaning of this Court’s decisions.

3. The absence of exigent circumstances does not

invalidate the seizure of respondent’s automobile. This

Court has not suggested that a warrantless seizure of

property found in plain view must be supported by a

9

case-specific showing of exigent circumstances. The

Florida Supreme Court’s Suggestion that such a show-

ing is required improperly conflates the constitutional

rules governing seizures with those that apply to

searches. In United States v. Watson, 423 U.S. 411

(1976), this Court specifically rejected the contention

that a warrantless felony arrest in a public place re-

quires exigent circumstances, and the Watson Court’s

reasoning is equally applicable to seizures of property.

4. So long as the seizing officers had probable cause

to believe that respondent’s automobile had previously

been used to facilitate narcotics trafficking, the seizure

was valid. The vehi: 'e’s Susceptibility to forfeiture did

not depend on proof that the car contained contraband

at the time it was seized; use for illicit purposes at any

time in the past suffices under the Florida forfeiture

law. The propriety of the seizure therefore did not

depend on whether the police had probable cause to

believe that the car contained drugs at the time it was

seized.

5. Inventory searches of vehicles taken into police

custody are not subject to the warrant and probable

cause requirements that ordinarily apply to searches.

Those searches are reasonable so long as they are con-

ducted pursuant to standardized criteria that ade-

quately constrain police discretion in individual cases.

The Florida district court of appeal upheld the post-

seizure search of respondent’s vehicle as a permissible

inventory search. The Florida Supreme Court did not

Suggest that the search was impermissible under this

Court’s inventory search jurisprudence; its suppression

of the evidence discovered during the search was based

on the perceived impropriety of the earlier seizure.

Assuming that the search was conducted pursuant to

appropriate standardized criteria, the evidence seized

10

from the vehicle was properly admitted at respondent’s

criminal trial.

ARGUMENT

THE FOURTH AMENDMENT PERMITS A WAR-

RANTLESS SEIZURE AND SUBSEQUENT INVEN-

TORY SEARCH OF PROPERTY BASED ON PRO-

BABLE CAUSE TO BELIEVE THAT THE PROPERTY

IS SUBJECT TO FORFEITURE, SO LONG AS THE

SEIZURE INVOLVES NO INTRUSION ON PRIVACY

RIGHTS

The Fourth Amendment forbids both unreasonable

“searches” and unreasonable “seizures.” U.S. Const.

Amend. IV. This Court has recognized, however, that

“the interest protected by the Fourth Amendment

injunction against unreasonable searches is quite

different from that protected by its injunction against

unreasonable seizures.” Arizona v. Hicks, 480 U.S. 321,

328 (1987). “A ‘search’ occurs when an expectation of

privacy that society is prepared to consider reasonable

is infringed. A ‘seizure’ of property occurs when there

is some meaningful interference with an individual’s

possessory interests in that property.” United States v.

Jacobsen, 466 U.S. 109, 113 (1984); accord Soldal v.

Cook County, 506 U.S. 56, 62-63 (1992); Horton v. Cali-

fornia, 496 U.S. 128, 133 (1990).

Seizures may be undertaken by means of or in

conjunction with searches, but that is not always the

case. The seizure of respondent’s automobile from the

parking lot of his place of employment, for example,

involved no intrusion on any constitutionally protected

privacy interest. See, e.g., Minnesota v. Dickerson, 508

U.S. 366, 377 (1993) (“The seizure of an item whose

identity is already known occasions no further invasion

of privacy.”); Horton, 496 U.S. at 133 (“If an article is

11

already in plain view, neither its observation nor its

seizure would involve any invasion of privacy,“). The

sole immediate effect of the seizure was an intrusion on

possessory interests.

Even where (as here) a seizure is effected in a man-

ner that involves no intrusion on privacy, it remains

subject to the Fourth Amendment’s reasonableness

requirement. See Soldal, 506 U.S. at 62-66 (rejecting

contention that seizures involving no intrusion on

privacy or personal liberty are immune from scrutiny

under the Fourth Amendment). To satisfy that re-

quirement, such seizures must generally be supported

by probable cause. See id. at 66; Hicks, 480 U.S. at 326-

327. But this Court has repeatedly recognized that a

warrant is not required for a seizure based on probable

cause, so long as the seizure is effected in a manner that

involves no intrusion on privacy rights.

A. This Court Has Repeatedly Upheld Warrantless Sei-

zures Based Upon Probable Cause, So Long As The

Seizure Is Effected In A Manner That Does Not

Involve Any Intrusion On Privacy Interests

In a broad variety of circumstances, this Court has

recognized that warrantless seizures based on probable

cause are presumptively constitutional, so long as law

enforcement officers are legally present at the site and

the seizure is effected in a manner that does not involve

any unauthorized intrusion on privacy interests. In

Payton v. New York, 445 U.S. 573 (1980), the Court

stated that it is:

well settled that objects such as weapons or

contraband found in a public place may be seized by

the police without a warrant. The seizure of pro-

perty in plain view involves no invasion of privacy

and is presumptively reasonable, assuming that

12

there is probable cause to associate the property

with criminal activity.

Id. at 586-587. In Jacobsen, the Court referred to the

“well settled” rule “that it is constitutionally reasonable

for law enforcement officials to seize ‘effects’ that

cannot support a justifiable expectation of privacy

without a warrant, based on probable cause to believe

they contain contraband.” 466 U.S. at 121-122. In

Dickerson, the Court explained that “if police are

lawfully in a position from which they view an object, if

its incriminating character is immediately apparent,

and if the officers have a lawful right of access to the

object, they may seize it without a warrant.” 508 U.S.

at 375. See also, e.g., Illinois v. Andreas, 463 U.S. 765,

771 (1983) (seizure authorized if officer has some prior

Fourth Amendment justification for presence and “has

probable cause to suspect that the item is connected

with criminal activity”); Texas v. Brown, 460 U.S. 730,

739 (1983) (plurality opinion) (this Court’s “decisions

have come to reflect the rule that if, while lawfully

engaged in an activity in a particular place, police

officers perceive a suspicious object, they may seize it

immediately”); id. at 748 (Stevens, J., concurring in

judgment) (“if an officer has probable cause to believe

that a publicly situated item is associated with criminal

activity, * * * [t)he officer may * * * seize it without

a warrant”).

The Court has applied that principle in a variety of

circumstances: to a boat seized on public waters, where

Coast Guard officers had probable cause to believe that

revenue laws were being violated so as to render the

vessel subject to forfeiture, United States v. Lee, 274

US. 559, 563 (1927); to evidence found in an impounded

car in the course of securing the vehicle, Harris v.

13

United States, 390 U.S. 234, 235-236 (1968); to items

found in a private place where a third party had given

consent to search, Frazier v. Cupp, 394 U.S. 731, 740

(1969); to cars found in public streets or parking lots,

when officers had probable cause to believe that the

cars were subject to seizure for satisfaction of tax

assessments, G.M. Leasing Corp. v. United States, 429

U.S. 338, 351-352 (1977); to a package containing illegal

drugs when private parties had already opened the

package and revealed the suspicious substance, Jacob-

sen, 466 U.S. at 120-122; and to evidence found in plain

view in a house being searched pursuant to a warrant,

Horton, 496 U.S. at 131, 139-141.

When this Court has invalidated warrantless seizures

of property, it has not suggested that a seizure qua

seizure—i.e., a deprivation of possessory interests un-

accompanied by any intrusion on privacy—itself

requires a judicial warrant. Rather, it has explained

that the seizure in question was facilitated by an

unauthorized search.“ Thus, in Dickerson, a po ice

recognized exception to the warrant requirement is present,“ and

it gave as an example of such an exception the established rule that

“objects such as weapons or contraband found in a public place

14

officer conducted a weapons patdown (see Terry v.

Ohio, 392 U.S. 1 (1968)) near a building known to be a

site of cocaine trafficking. See 508 U.S. at 368-369. The

state supreme court found that, although the patdown

was initially justified, the officer continued to probe the

contents of the suspect’s pocket even after ascertaining

that it did not contain a weapon. See id. at 378. The

officer ultimately discovered and seized a lump of crack

cocaine. Id. at 369. This Court held that the seizure

would have been lawful if the cocaine’s identity as

contraband had become apparent during the authorized

Terry search. See id. at 375-376. The Court held, how-

ever, that because the officer had violated the Fourth

Amendment by continuing the search after determining

that the suspect did not possess a weapon, the sub-

sequent warrantless seizure of the cocaine was

unconstitutional. Id. at 379. Similarly in Hicks, the

Court invalidated the seizure of stolen stereo

equipment because the seizing officers had obtained

may be seized by the police without a warrant.” J/bid. (quoting

Payton, 445 U.S. at 587).

The thrust of this Court’s “plain-view” cases is that a seizure

does not require a judicial warrant so long as it is effected in a

manner that involves no intrusion on privacy interests. The Court

in Place characterized that principle as an exception to a general

rule that warrantless seizures of property are prohibited. Alterna-

tively, one might say that a warrant is not required for a seizure of

property qua seizure, but only for the search that frequently

facilitates a seizure. Cf. Brown, 460 U.S. at 737-739 (plurality

opinion). On that view, if a police officer’s course of conduct in-

volves both a search and seizure, and the officer neither obtains a

warrant nor acts pursuant to an exception to the warrant require-

ment, the seizure is unreasonable because it is accomplished by

means of an unlawful warrantless search. Compare Dickerson, 508

U.S. at 379. The difference between the two formulations, how-

ever, has no substantive significance.

15

probable cause to believe that the equipment was

stolen only after conducting an unauthorized search.

480 U.S. at 324-329; see Dickerson, 508 U.S. at 378-879

a Hicks).

Court has applied the same principles to seizures

of the person. Consistent with the Fourth Amendment,

officers may arrest an individual in a public place

without a warrant based on probable cause to believe

that the person has committed a felony. See United

States v. Watson, 423 U.S. 411, 416-424 (1976). A war-

rant is presumptively required for a felony arrest

within the home, however. See Payton, 445 U.S. at

583-590. The Payton Court explained that such an

arrest involves a substantial intrusion into an individ-

ual’s “zone of privacy.” See id. at 587-590. The Court

relied, by way of analogy, on the established “distinc-

tion between a warrantless seizure [of property] in an

open area and such a seizure on private premises,”

tain until after the interiors were swept and examined microscopi-

16

concluding that “this distinction has equal force when

the seizure of a person is involved.” Jd. at 587."

B. The Seizure At Issue In This Case Satisfied The Re-

quirements Set Forth In This Court's Decision In

Horton v. California

This Court’s decision in Horton sets forth the criteria

governing warrantless seizures. The seizure of respon-

dent’s automobile satisfies the requirements announced

in that opinion.

In Horton, a police officer obtained a warrant to

search the home of a person suspected of involvement

in an armed robbery. The warrant issued by the magis-

trate authorized a search for the proceeds of the crime,

including three specifically described rings. 496 U.S. at

131. The officer conducting the search did not find the

stolen property. In the course of performing the search,

however, the officer found in plain view weapons

resembling those used in the robbery, as well as other

The Florida Supreme Court rejected the analogy between

seizures of the person and seizures of property, stating that to

treat the two similarly “would, in essence, amend the Fourth

Amendment out of the Constitution and do away with the require-

ment of a warrant entirely for the search and seizure of property.”

Pet. App. Al2. The court’s apparent premise was that searches of

property should logically be subject to the identical constitutional

constraints as seizures of property. That analysis overlooks this

Court's repeated recognition that because the burden imposed by a

seizure of property (deprivation of the owner’s pocsessory in-

terest) is different in kind from the invasion of privacy caused by a

search, the Fourth Amendment reasonableness of those two types

of government action must be assessed according to different

criteria. The state court's rejection of the analogy between sei-

zures of property and seizures of the person is especially ill-

considered since this Court expressly relied on that analogy in

holding that a warrant is presumptively required for an arrest

within the home. See Payton, 445 U.S. at 586-587.

17

items linking the homeowner to the crime. See ibid.

Those items were introduced into evidence at trial, and

Horton was convicted. Ibid.

This Court held that the officer had acted properly in

seizing the items found in plain view during the course

of the search, even though no judicial warrant author-

ized the seizure. The Court found that the officer had

probable cause to believe that the seized items incul-

pated Horton in the armed robbery. 496 U.S. at 142. In

addition to the probable cause requirement, the Court

identified three prerequisites to warrantless seizures of

property under the Fourth Amendment:

[1] It is, of course, an essential predicate to any valid

warrantless seizure of incriminating evidence that

the officer did not violate the Fourth Amendment in

arriving at the place from which the evidence could

be plainly viewed. There are, moreover, two addi-

tional conditions that must be satisfied to justify the

warrantless seizure. [2] * * * [NJot only must the

item be in plain view; its incriminating character

must also be “immediately apparent.” [Coolidge v.

New Hampshire, 403 U.S. 443, 466 (1971)]; see also

Arizona v. Hicks, 480 U.S., at 326-827. Thus, in

Coolidge, the cars were obviously in plain view, but

their probative value remained uncertain until after

the interiors were swept and examined microscopi-

cally. [3] * [Not only must the officer be

lawfully located in a place from which the object can

be plainly seen, but he or she must also have a law-

ful right of access to the object itself. As the United

States has suggested, Justice Harlan’s vote in Cool-

idge may have rested on the fact that the seizure of

the cars was accomplished by means of a warrant-

less trespass on the defendant’s property.

18

Id. at 136-137 (footnote omitted). The seizure con-

ducted in this case satisfies each of those requirements.

1. The first requirement articulated in Horton is

that the officer conducting the seizure must lawfully be

present at the vantage from which the seized item is

viewed. That requirement may generally be satisfied in

either of two ways. In some instances (as in Horton

itself), officers may lawfully be present in a non-public

place, pursuant to (for example) a judicial warrant or

the consent of the resident. See Brown, 460 U.S. at 738

n.4 (plurality opinion). “Alternatively, police may need

no justification under the Fourth Amendment for their

access to an item, such as when property is left in a

public place.” Ibid.

The officers in this case were lawfully present at the

location from which the seized car was viewed. Respon-

dent’s automobile was seized not from a place (such as a

residential garage) that was inaccessible to the public

generally, but from the parking lot of respondent’s

employer. Neither of the courts below suggested that

the police, in ascertaining the location of the vehicle and

in effecting the seizure, intruded on any location where

respondent (or anyone else) had a legitimate expecta-

tion of privacy.

2. The automobile’s susceptibility to seizure was

“immediately apparent” within the meaning of this

Court’s decisions. That requirement is satisfied so long

as an item’s susceptibility to seizure can be ascertained

“without conducting some further search of the object.”

Dickerson, 508 U.S. at 375. See also id. at 378-379;

Hicks, 480 U.S. at 324-329 (seizure of stereo equipment

from private residence was not justified by “plain view”

doctrine, since officers obtained probable cause to be-

19

lieve the item was stolen only as a result of an

unauthorized search).

In this case, the police had probable cause, “based on

police eyewitnesses and videotape,” to believe that

respondent’s car had been used in drug trafficking

activity and was therefore subject to forfeiture. See

Pet. App. A25-A26. Neither of the courts below sug-

gested that any intrusion into the car itself was

required in order to establish the requisite probable

cause. Because the susceptibility of the car to seizure

was established without resort to any Fourth Amend-

ment “search,” that susceptibility was “immediately

apparent” to the seizing officers.

The requirement that an item’s susceptibility to seizure be

“immediately apparent” does not require a level of certainty

greater than probable cause. See Brown, 460 U.S. at 741-742 (plur-

ality opinion); see also id. at 746 (Powell, J., concurring in judg-

ment) (applying probable cause standard); id. at 748 (Stevens, J.,

concurring in judgment) (same). Susceptibility to seizure may be

“immediately apparent,” moreover, even if close scrutiny or artifi-

cial illumination is required in order to verify the existence of

probable cause, so long as the officers’ scrutiny of what is in plain

view does not involve a “search” within the meaning of the Fourth

Amendment. See id. at 739-740 & n.5 (plurality opinion); Lee, 274

U.S. at 563; compare Hicks, 480 U.S. at 329 (contrasting a “search”

with “close observation of what lies in plain sight”).

Finally, an item’s susceptibility to seizure may be “immediately

apparent” even if the propriety of seizure depends in part on pre-

existing information that cannot be gleaned purely from observa-

tion of the object itself. In Horton, for example, the incriminating

character of the relevant items was immediately apparent because

those items matched descriptions given by witnesses to the crime

for which the homeowner was investigated. See 496 U.S. at 130-

131. Similarly in Brown, the finding of probable cause was based in

part on the seizing officer’s expertise concerning the manner in

which narcotics are customarily packaged. See 460 U.S. at 742-743

(plurality opinion); id. at 746 (Powell, J., concurring in judgment).

20

3. For essentially the same reason that the police in

this case were lawfully at the location where they

viewed respondent’s car, the officers hald] a lawful

right of access to the object itself.“ Horton, 496 U.S. at

137. Because the car was located in a public place, its

seizure did not involve an official intrusion into any area

protected by the Fourth Amendment.’ The seizure of

respondent’s automobile therefore satisfied each of the

three requirements for a warrantless seizure set forth

in this Court’s opinion in Horton.

C. The Absence Of Exigent Circumstances Does Not

Invalidate The Seizure Of Respondent's Automobile

The Florida Supreme Court’s decision in this case

rests in part on its determination that no exigent

circumstances prevented the police from obtaining a

judicial warrant. See Pet. App. All, Al2-A13 & n.8. In

upholding warrantless seizures of property found in

® Situations may occasionally arise in which the first Horton

requirement has been satisfied ie, “the officer did not violate the

Fourth Amendment in arriving at the place from which the evi-

dence could be plainly viewed,” 496 U.S. at 136—but the officer

nevertheless lacks “a lawful right of access to the object itself,” id.

at 137. For example, in Taylor v. United States, 286 U.S. 1 (1982),

prohibition officers were able to smell whiskey coming from a

garage on private property and could see through an opening in

the garage “many cardboard cases which they thought probably

contained jars of liquor.” Id. at 5. Although the Court’s opinion is

not altogether clear on this point, the agents appear to have been

lawfully situated in a public area at the time they made their

observations. (The Court described the garage as being located “on

the corner of a city lot,” ibid., and it indicated that the agents’

observations could have formed the predicate for the issuance of a

warrant and a subsequent lawful search, id. at 6.) The Court

nevertheless held that the agents’ seizure of whiskey was unlawful,

since it was effected by means of a warrantless entry into the

garage itself. Jd. at 5-6; see Horton, 496 U.S. at 137 n.7.

21

open view, however, this Court has not suggested that

such a seizure must be supported by a case-specific

showing of exigent circumstances. The Florida court’s

analysis improperly conflates the constitutional rules

governing seizures with those that apply to searches, in

derogation of this Court’s repeated recognition that the

two forms of government action implicate different

private interests and are accordingly subject to differ-

ent constraints.

In Watson, this Court specifically rejected the con-

tention that the propriety of a warrantless felony arrest

in a public place depends on a showing of exizent cir-

cumstances. See 423 U.S. at 415. The Court acknowl-

edged that “[l]aw 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.” Jd. at 423. The Court nevertheless “de-

elineld] to transform this judicial preference into a

constitutional rule” that might “encumber criminal pro-

secutions with endless litigation with respect to the

existence of exigent circumstances.” Ibid.“ The same

analysis applies here.

The Court in Watson relied in part on the fact that “Congress

hald] plainly decided against conditioning warrantless arrest

power on proof of exigent circumstances.” 423 U.S. at 423. The

Court noted the “strong presumption of constitutionality due to an

Act of Congress, especially when it turns on what is ‘reasonable.’”

Id. at 416 (quoting United States v. Di Re, 332 U.S. 581, 585

(1948)). As we explain above (see pp. 1-2, supra), Congress has

specifically ay*horized the seizure of property without prior

judicial process where the Attorney General concludes that there

is probable cause to believe that the property is subject to for-

22

D. So Long As The Police Had Probable Cause To Believe

That Respondent's Vehicle Had Previously Been Used

To Facilitate Narcotics Trafficking, The Seizure Of

The Automobile Was Valid

Respondent’s automobile was seized “on the grounds

that, based on police eyewitnesses and videotape, it had

been used in the delivery and sale of cocaine.” Pet.

App. A25-A26. The seizure occurred on October 14,

1993; the alleged trafficking activities occurred on July

26, 1993, and August 4 and 7, 1993. Id. at A2 & n.2.

Based on police testimony given in the trial court, the

district court of appeal concluded that “the police had

probable cause to believe [respondent’s] vehicle had

been used to facilitate the sale of cocaine.” Id. at A43

n.3.

Although the Florida Supreme Court did not suggest

that the seizing officers lacked probable cause to

believe that respondent’s automobile had previously

been used in drug trafficking activities, it attached sig-

nificance to the fact that “the government had no

probable cause to believe that contraband was present

in [respondent’s] car” at the time the seizure occurred.

Pet. App. A9. The absence of probable cause to believe

that the automobile presently contained contraband

would indeed have precluded the officers from search-

ing the vehicle before its seizure. For a search to be

reasonable, officers must generally have probable cause

“to believe that the specific ‘things’ to be searched for

and seized are located on the property to which entry is

sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556

(1978)." See also Andresen v. Maryland, 427 U.S. 463,

Although the “automobile exception” to the Fourth Amend-

ment warrant requirement authorizes warrantless searches of

movable vehicles, a search conducted pursuant to that exception

23

478-479 n.9 (1976) (where significant delay occurs be-

tween events giving rise to probable cause and actual

search of offices, search is reasonable if items sought

are of a type that would typically be held for an ex-

tended period of time).

The susceptibility of respondent’s automobile to for-

feiture, however, does not depend on whether it con-

tained narcotics at the time of its seizure. The Florida

Contraband Forfeiture Act defines “[clontraband

article” to include “any vessel, aircraft, * * * [or]

vehicle of any kind, * * * which was used or was

attempted to be used as an instrumentality in the com-

mission of, or in aiding or abetting in the commission of,

any felony.” Fla. Stat. Ann. § 932.701(a)5 (West Supp.

1999). If respondent had in fact used the car to

facilitate the sale of narcotics, as the officers reasonably

believed, the subsequent removal of the drugs from the

vehicle would not have immunized the car from forfei-

ture. And so long as the seizing officers had probable

cause to believe that the automobile was subject to

forfeiture based on its prior unlawful use, the propriety

of the seizure did not depend on any likelihood that the

car presently contained drugs or other incriminating

evidence. See United States v. Kemp, 690 F.2d 397, 401

(4th Cir. 1982) (probable cause to believe that property

has previously been used in violation of the drug laws is

sufficient to justify seizure under the federal forfeiture

statute; “[t]his type of probable cause can never

must be based on probable cause. See California v. Carney, 471

U.S. 386, 392 (£985). As we explain below (see pp. 24-26, infra),

however, the search of respondent’s automobile was conducted

after the car was taken into police custody, and its validity turns

on the applicability of the “inventory search” exception to the

Fourth Amendment’s warrant and probable cause requirements.

24

dissipate as probable cause for a search warrant may

become stale”).

Indeed, even the Florida Supreme Court did not

dispute that respondent’s vehicle could lawfully have

been seized based on probable cause to believe that the

car had previously been used to facilitate narcotics

crimes. The court simply held that the requisite finding

of probable cause must be made by a neutral magis-

trate. For the reasons set forth in Parts A-C above,

that holding is not consistent with this Court’s prece-

dents.

E. So Long As The Inventory Search Of Respondent's Car

Was Conducted Pursuant To Appropriate Standard-

ized Criteria, The Evidence Found During The Search

Was Properly Admitted At Respondent's Trial

Inventory searches of vehicles taken into police

custody are not subject to the warrant and probable

cause requirements that ordinarily apply to searches.

See, e.g., Colorado v. Bertine, 479 UWS. 367, 371-372

(1987); South Dakota v. Opperman, 428 U.S. 364, 369-

376 (1976). Inventory searches further the govern-

ment’s interests in “the protection of the owner's pro-

perty while it remains in police custody; the protection

of the police against claims or disputes over lost or

stolen property; and the protection of the police from

potential danger.” Id. at 369 (citations omitted). Those

searches are reasonable so long as they are conducted

pursuant to “standardized criteria” that adequately

constrain the discretion of officers in individual cases.

Florida v. Wells, 495 U.S. 1, 4 (1990).”

1 Those standardized criteria may appropriately leave room for

a degree of police discretion “so long as that discretion is exercised

* * * on the basis of something other than suspicion of evidence of

criminal activity.” Bertine, 479 U.S. at 375.

In Cooper v. California, 386 U.S. 58 (1967), the Court

upheld an inventory search against Fourth Amendment

challenge in circumstances closely resembling those

presented here. In Cooper, police officers seized and

impounded a vehicle pursuant to a state statute

authorizing the forfeiture of vehicles used to facilitate

the commission of narcotics offenses. Id. at 60. Police

subsequently conducted a warrantless search of the

vehicle and seized incriminating evidence that was

introduced in the petitioner’s trial for heroin distribu-

tion. Id. at 58." The Court held that the search did not

violate the Fourth Amendment, explaining that “[i}t

would be unreasonable to hold that the police, having to

retain the car in their custody for [an extended] length

of time, had no right, even for their own protection, to

search it.” Id. at 61-62."

8 The Court’s opinion in Cooper does not discuss the question

whether the officers who searched the vehicle had probable cause

to believe that it contained contraband. The State apparently did

not seek to demonstrate that probable cause existed, and this

Court has subsequently described Cooper as a case in which

“probable cause to search for the contraband in the vehicle had not

been established.” Opperman, 428 U.S. at 373. The Court's opin-

ion in Cooper appears to assume, but does not discuss, the

propriety of the earlier warrantless seizure of the automobile.

The Court's decision in Horton confirms that an inventory

search may properly be conducted following the warrantless

seizure of a vehicle found in a public place. The Court in Horton

stated the general rule that “the seizure of an object in plain view

does not involve an intrusion on privacy.” 496 U.S. at 141. Ina

footnote, the Court then explained that “[e)ven if the item is a

container, its seizure does not compromise the interest in pre-

serving the privacy of its contents because it may only be opened

pursuant to either a search warrant, or one of th» well-delineated

exceptions to the warrant requirement.” Id. at 14, n.11 (citations

omitted). Immediately following its reference to the ‘well-celine-

ated exceptions to the warrant requirement,” the Court cited

In this case, the district court of appeal upheld the

search of respondent’s vehicle as a permissible inven-

tory search. Pet. App. A32. The court of appeal noted

the requirement that an inventory search must be

conducted “pursuant to standard police procedures,”

and it evidently concluded that the search of respon-

dent’s automobile satisfied that requirement. Ibid. The

Florida Supreme Court did not suggest that the search

was impermissible under this Court’s inventory search

jurisprudence; its suppression of the evidence discover-

ed during the search was based on the perceived

impropriety of the earlier seizure. Assuming that the

search of the car was conducted pursuant to standard-

ized criteria that adequately constrained police discre-

tion, the evidence seized from the vehicle was properly

admitted at respondent’s criminal trial.

Bertine (see ibid.), which explains and reaffirms the

governing inventory searches of vehicles in police custody. The

Court thus clearly contemplated that a vehicle seized in plain view

may properly be made the subject of an inventory search.

27

The judgment of the Supreme Court of Florida

should be reversed.

Respectfully submitted.

JANUARY 1999