Amicus Curiae Brief — Florida v. White

Supreme Court, U.S.

‘) FILED

JAN 11 1999

OF THE CLERK

No. 98-223

In the

Supreme Court of the United States

October b Sadnee 1998

STATE OF FLORIDA,

Petitioner,

Vv.

TYVESSEL TYVORUS WHITE,

P Respondent.

On Writ of Certiorari

To the Saprome Sars of Florida

BRIEF OF THE STATES OF ARKANSAS

CALIFO DELAW GEORGIA, HAWAII,

IDAHO, ILLINOIS, IND IOWA, SAS

MARYLAND, MICHIGAN, MONTANA, NEBRASKA,

NEVADA, NEW JERSEY, NORTH DAKOTA, OHIO,

OKLAHOMA, PENNSYLV SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, UTAH, VIRGINIA

WASHINGTON, AND WYOMING AS AMICI CURIAE

_ INSUPPORT OF PETITIONER

WINSTON BRYANT

Attorney General of Arkansas

* Davip R. RAUPP

Senior Assistant Attorney General

Catlett-Prnen Building

323 Center Street

Little Rock, AR 72201

(501) 682-3657

Of Counsel:

Dan Schweitzer _

National Association of

Attorneys General

750 First Street, N.E.

Washin cone D.C. 20002

on, D.C.

(202) 356-6010

* Counsel of Record was

additional counsel listed on inside cover]

Qo?

BILL LOCKYER

Attorney General of California

1300 I Street

Sacramento, CA 95814

M. JANE BRADY

Attorney General of Delaware

820 N. French St.

Wilmington, DE 19801

THURBERT E. BAKER

Attorney General of Georgia

Georgia of Law

40 i , SW

Capitol

Atlanta, GA 30334-1300

MARGERY S. BRONSTER

Attorney General of Hawaii

425 Queen Street

Honolulu, HI 96813

ALAN G. LANCE

Attorney General of Idaho

P.O. Box 83720

Boise, ID 83720-0010

JAMES E. RYAN

Attorney General of Illinois

100 West Randolph St.

Chicago, IL 60601

JEFFREY A. MODISETT

Attorney General of Indiana

219 State House

Indianapolis, IN 46204

THOMAS J. MILLER

Attorney General of lowa

Hoover Building

Des Moines, IA 50319

CARLA J. STOVALL

Attorney General of Kansas

301 S.W. 10" Avenue

Topeka, KS 66612-1597

QUESTION PRESENTED

Does the Fourth Amendment require law enforcement

officers to obtain a warrant before they may seize a motor

vehicle which they have probable cause to believe is subject to

forfeiture under state law?

nr

—_—

il

TABLE OF CONTENTS

Page

eee i

SR Oe FRED 6 5 vi xbcs iW estes ill

INTEREST OF THE AMICI CURIAE ................ l

DEACITE CP DENGUE occ ccccceccccccoecess 2

SUMMARY OF ARGUMENT ...................... 3

GEE osssisceeatigindch sadsriacels 5

I. THE FOURTH AMENDMENT DOES NOT REQUIRE

POLICE TO OBTAIN A WARRANT TO SEIZE A

VEHICLE WHICH THEY HAVE PROBABLE CAUSE

TO BELIEVE IS SUBJECT TO FORFEITURE ...... 5

A. Since the Founding, Contraband and Vehicles

it Have Been Considered Forfeitable and Subjext

Seizure Without a Warrant .................... 5

B. The Warrantless Seizure of White’s Automobile was

rs +l RR ene

“We SE MDC ccc i cckieebicncenewesu.

C. The Exigency Underlying the “Automobile 5

to the Warrant Requirement Also Justifies the

Warrantless Seizure of White’s Automobile ..... 11

Il. ADUE PROCESS ANALYSIS WOULD NOT TURN ON

THE USE OF AWARRANT ................... 15

GE oO he oo te eA oe 17

SPO, e406 behead duwcadcaeiiniicnnie ee la

TABLE OF AUTHORITIES

Page

CASES:

Arizona v. Hicks, :

eT ee ae ae ee

Bennis v. Michigan, :

SIG US. 442 (1998S) 0... cc ccc cer ec eesees

Cady v. Dombrowski,

Lt |. .. rr: ree a 14

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974)... . 2.62 eee eee 6, 10, 13, 16

California v. Carney, -

tit & 1... | ee ee

Carroll v. United States,

y pil Bit). eee 5, 6, 12, 13, 15

Chambers v. Maroney, ”

POPUB. 42 (ISTO) 2. nc ccc ccc ce sesecces

v. New Hampshire, .

403 U.S. 443 (1971) . 0. ee ee eee eee

County of Riverside v. McLaughlin, o

$00 U.S. 44(1991) 2... cece eee eee

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

42D USB. BBB CIGT) wc ccc ccc cce cece cscsees

Horton v. | ,

496 U.S. 128 (1990) awe pre Sy eee eee

iV

J.W. Goldsmith, Jr.-Grant Co. v. United States,

SP es EE 6 0-0. ob vs Be wee etre 6 eta 7

Maryland vy. Wilson,

a rr Soak a at ee 12

Minnesota v. Dickerson,

EY i rd: A Nene Pi ee Sy TANG 2 7

New York v. Belton,

A nae ot ana 12, 14

Payton v. New York,

RU a ee a ek 8,9

South Dakota v. Opperman,

Se ee eS ii Ss ois 5 6 hRE PS ce 3 15

Tennessee v. Garner,

I I oe a i ee eo ae 7

Texas v. Brown,

Car a SS . Sai walk cw a kh 8, 10, 11, 14

United States v. Jacobsen,

GES Us Ps bch anew edad eked 11

United States v. James Daniel Good Real Property,

FOO ENE: 6s e's was BN. ROWAN duke 16

United States v. Johns,

en I ing AT Tee ae 11

United States v. Lovasco,

Ge ee I oo oo keen bbws cece car 10

United States v. One Assortment of 89 Firearms,

PN 6:46 d 6b VE OA E ie ned aie bw; 9

Vv

United States v. Robinson, 1

414 U.S. 218 (1973) 0. eee meee e tes

United States v. Ross, aan

456 U.S. 798 (1982)... 2.62 - eee eee cere ees ‘

United States v. Ursery, in

$18 U.S. 267 (1996) .. 0... eee ce eee ee eres "

United States v. Watson, a

423 U.S. 411 (1976) 2... ee ee eee

STATUTES:

PR. Laws Ann. tit. 24, §2512(b) ...--. 6. eee ees 16

Section 932.702(3), Florida Statutes .......----+>-> 2

Section 932.703(2)(a), Florida Statutes ...........-. 2

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. IV... 2... eee eens passim

OTHER MATERIALS

Wayne R. LaFave,

c 14

§7.3(b) (3rd ed. 1996)... ee eee eee eee

INTEREST OF THE AMICI CURIAE

Amicus State of Arkansas, together with 26 other amici

States, write in support of the Petitioner, State of Florida,

urging the Court to reverse the decision of the Florida Supreme

Court. All of the amici have statutes permitting the forfeiture

of vehicles that have been used in drug transactions, most of

which also permit seizure of a vehicle without judicial process

where officials have probable cause to believe the vehicle is

subject to forfeiture under the law. See Appendix. The

decision below concluded, however, that the Fourth

Amendment requires such forfeiture seizures be made only

with a warrant.

The ability to seize vehicles without a warrant where there

is probable cause to believe they are subject to forfeiture is an

issue of great concern to amici for both legal and practical

reasons. First, forfeitures are an effective and important tool in

combating criminal activity, particularly drug crimes. Second,

the goals served by forfeiture would be unnecessarily impeded

by a rule requiring that police officers obtain a warrant to seize

a vehicle which they have probable cause to believe is subject

to forfeiture — just as the necessity of obtaining a warrant would

unnecessarily impede the objectives of the search of a vehicle

which police have probable cause to believe contains

contraband. Law-enforcement officials need to make decisions

about vehicle seizures in light of the practicalities of ongoing

criminal investigations and the exigencies present in dealing

with automobiles, including the decision whether to obtain a

warrant. Because most of the amici’s statutes provide police

that flexibility, amici join together to defend those statutory

schemes and to ask the Court to reverse the lower court’s

conclusion that the Fourth Amendment erects an obstacle to the

important goals served by those statutes.

l

oe 8 de

Oo

2

STATEMENT OF THE CASE

Sometime in late July and early August 1993, police

observed and videotaped Respondent White’s car being used to

conduct illegal drug trafficking. On October 14, 1993, police

officers from the Bay County Joint Narcotics Task Force

arrested White at work for making an unrelated drug sale.

Before arresting White, the officers concluded that his car was

subject to forfeiture under the Florida Contraband Forfeiture

Act based on the drug trafficking observed in the summer.!

Consistent with that law, the officers seized White’s car from

his employer’s parking lot without a warrant and took it (and

him) to the task force headquarters. In a later inventory search

of the car, officials found two rocks of crack cocaine in its

ashtray. Pet. App. A-2 & n.2, A-15, A-25, A-26.

Based on that evidence, White was charged with possession

of a controlled substance. White challenged the admission of

the rocks of cocaine discovered in his car, but the trial court

reserved a ruling on his suppression motion until after the jury

returned its verdict. After the jury found White guilty and after

a subsequent hearing, the trial court denied White’s motion.

On appeal to the District Court of Appeal of Florida, First

District, White challenged the initial, warrantless seizure of his

car as a violation of the Fourth Amendment because it was

conducted without a warrant or probable cause to search the

vehicle. Pet. App. A-3, A-26. Relying on the “automobile

' Section 932. 702(3) of the Florida Statutes authorizes the state to seize

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

away of any contraband article.” Section 932.703(2)(a) provides that

eae ne Oe Oe am ee

subsequent to the violation. .

3

exception” to the warrant requirement and precedent from other

courts (including the Eleventh Circuit), the District Court of

Appeal concluded that the police could seize White’s car

without a warrant and that the forfeiture law required only that

they have probable cause to believe the car was subject to

forfeiture, not that it currently contained contraband. /d. at A-

28 to A-32.

Finding an absence of precedent directly on point, the

District Court of Appeal certified to the Florida Supreme Court

the question whether a warrantless seizure under the “Florida

Forfeiture Act” violates the Fourth Amendment. Pet. App. A-

33. The Florida Supreme Court answered that question in the

affirmative. The court reasoned that the “automobile

exception” to the warrant requirement did not apply because

the “government had no probable cause to believe that

contraband was present in White’s car.” It further reasoned that

no exigency existed because police had White in custody at the

time of the seizure. Jd. at A-9 to A-11.

SUMMARY OF ARGUMENT

I. A. Forfeiture statutes are older than the Nation itself, and

statutes enacted by the early Congresses permitted police to

search vehicles without a judicial warrant when they had

probable cause to believe the vehicles contained contraband

subject to forfeiture. Some of these early laws expressly

permitted law enforcement officers to seize not only contraband

found within the vehicles but also the vehicles themselves.

Florida’s forfeiture statute not only is part of a long historical

tradition, it is commonplace today. Almost all states have a

statute that authorizes warrantless seizure of vehicles under a

drug-forfeiture law.

4

B. Warrantless seizures of vehicles which police have

probable cause to believe are subject to forfeiture are

categorically reasonable, consistent with two longstanding

Fourth Amendment doctrines. First, the “plain view” doctrine

permits the police to seize items without a warrant when the

police are otherwise lawfully present and they have a right of

access to the items — as they do with respect to vehicles subject

to forfeiture and parked in public places. This Court has made

clear that individuals do not retain privacy interests in objects

placed in public view, and any Possessory interest of the

individual is outweighed by the state’s compelling interest in

forfeiture. The lower court’s concern about the absence of

exigent circumstances is misplaced. The “plain view” doctrine

does not depend upon the presence of exigent circumstances;

any delay between the police’s obtaining probable cause to

seize for forfeiture and the actual seizure has no constitutional

significance.

C. Second, the “automobile exception” permits police to

act on probable cause without a warrant due to the inherent

mobility of automobiles. That same concern dictates reversal

here. The compelling interests served by forfeiture statutes

would be undermined if police had to obtain warrants before

seizing vehicles that are easily movable. On the other side of

the balance, as discussed with respect to the “plain view”

doctrine, seizure of property subject to forfeiture and placed in

public view does not invade any reasonable expectation of

privacy.

Il. Although no due process question is presented by the

case, amici briefly address the issue because the Florida

Supreme Court touched upon it in its Fourth Amendment

holding. This Court has already held that the due process

5

requirements of pre-seizure notice and a hearing are not

required to seize a vehicle subject to forfeiture, due to the

mobility of the vehicle, the significance of the governmental

interest, and the fact that the seizure is directed to public

purposes. Each of these considerations is satisfied when the

police seize, without a warrant, a vehicle which they have

probable cause to believe is subject to forfeiture.

ARGUMENT

I. THE FOURTH AMENDMENT DOES NOT REQUIRE

POLICE TO OBTAIN A WARRANT TO SEIZE A

VEHICLE WHICH THEY HAVE PROBABLE CAUSE

TO BELIEVE IS SUBJECT TO FORFEITURE

Warrantless seizures by police of items subject to forfeiture

— including vehicles — have been understood as reasonable

since the Founding. This historical practice is consistent with

present Fourth Amendment doctrine, which teaches that

(1) police may seize objects that are in “plain view” without a

warrant and (2) warrantless seizures of automobiles based on

probable cause are permissible given the inherent mobility of

automobiles.

A. Since the Founding, Contraband and Vehicles

Carrying it Have Been Considered Forfeitable and

Subject to Seizure Without a Warrant

Laws passed by the early Congresses provide good evidence

of what searches and seizures should be considered reasonable

under the Fourth Amendment. Carroll v. United States, 267

U.S. 132, 150-51 (1925). Those laws supnort the

constitutionality of the Florida statute. Statutes authorizing

6

civil forfeiture have a long historical pedigree. As this Court

has observed, “almost immediately after adoption of the

Constitution, ships and cargoes involved in customs offenses

were made subject to forfeiture under federal law.” Calero-

Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683

(1974) (footnote omitted). Those forfeiture proceedings were

in rem actions against the goods themselves, whose jurisdiction

depended upon the seizure of the goods. United States vy.

Ursery, 518 U.S. 267, 277 (1996).

More to the point, both before the Founding and at the time

of adoption of the Fourth Amendment, forfeiture statutes

authorized warrantless searches and seizures of contraband.

See Carroll, 267 U.S. at 149-53. Thus, in Carroll, the Court

listed a variety of early federal forfeiture Statutes that

authorized searches of vessels and the seizure of contraband

within them — and emphasized that those statutes did not

require law enforcement officers to obtain warrants. Jd. at 151.

The Court contrasted this with the general requirement to

obtain a warrant before searching a dwelling. and Pat

Some early laws expressly permitted (or were interpreted to

permit) law enforcement officers not only to search vessels and

seize contraband within them without a warrant, but also to

seize the vessels themselves without a warrant. Carroll, 267

U.S. at 151-53 (containing examples). The exigency that

militated in favor of a warrantless search likewise militated in

7

favor of a warrantless seizure of the vessel. Americans have

therefore also long been on notice that, if their vehicles are

subject to forfeiture, the vehicles may be seized without a

warrant, just as they could be searched without one.

foregoing demonstrates that even if Florida’s contraband

forfeiture law were unique today it would be in rather good

historical company. But far from unique, Florida’s law is not

unlike that in nearly all the states, virtually all of which

authorize warrantless seizure of vehicles under a drug-forfeiture

law. See Appendix. The widespread use of such statutory

schemes enqpete Gat now, os ot Go Founding, cosh opm

are understood to be reasonable. Cf. Tennessee v. Garner, “sa

U.S. 1, 15-16 (1985) (discussing state practice as see tw

meaning of Fourth Amendment reasonableness). Indeed, |

ep Reetiiee of an tenneest eneer’s prpmty Sone

Bennis v. Michigan, 516 U.S. 442, 448 (1996) (quoting J. *

Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, ne

(1921)), “too firmly fixed in the punitive and remedi

jurisprudence of the country to be now displaced.

B. The Warrantless Seizure of White’s Automobile

was Permissible Under a Straightforward

Application of the “Plain View” Doctrine

l Under the “plain view” doctrine, “if police are lawfully

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

incriminating character is immediately apparent, and if the

aGiioas have «lewis sight of assess to Go ehjent, Cs) way

seize it without a warrant.” Minnesota v. Dickerson, 508 wt

366, 375 (1993). The purpose of the doctrine 1s to —_

nonpublic places such as the home . . . the police

longstanding authority to make warrantless seizures in public

places of such objects as weapons and contraband.” Arizona v.

Hicks, 480 U.S. 321, 326-27 (1987) (citing Payton v. New

York, 445 U.S. 573, 586-87 (1980)).

Properly understood, the doctrine is not an exception to the

warrant requirement, but reflects the recognition that if “an

article is already in plain view, neither its observation nor its

seizure would involve any invasion of privacy.” Horton v.

California, 496 U.S. 128, 133 (1990); see G.M. Leasing Corp.

v. United States, 429 U.S. 338, 351 (1977) (the “seizures of the

automobiles . . . took place on public streets, parking lots, or

other open places, and did not involve any invasion of

privacy”). A seizure may implicate an owner’s possessory

interest in the article. /d. at 134. But as Justice Stevens has

explained, “if an officer has probable cause to believe that a

publicly situated item is associated with criminal activity, the

interest in possession is outweighed by the risk that such an

item might disappear or be put to its intended use before a

warrant could be obtained.” Texas v. Brown, 460 U.S. 730, 748

(1983) (Stevens, J., concurring in the judgment).

The “plain view” doctrine fully applies when the object in

plain view is subject to seizure under a forfeiture statute. See

Brown, 460 U.S. at 737 (for “plain view” doctrine to apply, “it

must be ‘immediately apparent’ to the police that the items they

observe may be evidence of a crime, contraband, or otherwise

subject to seizure”) (citing Coolidge v. New Hampshire, 403

U.S. 443, 466 (1971)). Any suggestion that an exception to the

doctrine should be made for property subject to contraband

forfeiture statutes not only is inconsistent with this Court’s

precedents but ignores the important public purposes

underlying those statutes.

9

Among the important goals of state forfeiture statutes are

encouraging property owners to take measures to prevent their

nuisances, preventing further illicit uses of property, removing

dangerous or forbidden goods from circulation, and ensuring

that persons do not profit from their illegal acts. See Ursery,

518 U.S. at 284. The ability to accomplish those objectives is,

however, “dependent upon the seizure of a physical object.”

Id. at 277 (quoting United States v. One Assortment of 89

Firearms, 465 U.S. 354, 363 (1984)).

2. Application of these “well settled” principles, Payton,

445 U.S. at 586, resolves this case. Respondent White’s car

was in his employer’s parking lot, a public place; the police

were lawfully in that lot when they viewed and then seized the

car; and the police had probable cause to believe the car was

subject to forfeiture under state law. Accordingly, the “plain

view” doctrine applied and the police were not required to

obtain a warrant before seizing the car. The outcome is no

different than if White had left a bag of cocaine or a gun on the

parking lot. By leaving in a public place an object that was, on

its face, subject to seizure, White lost any right to demand

additional Fourth Amendment safeguards as to its seizure.’

Whether a vehicle’s statutory classification makes it

contraband per se or derivative contraband (e.g. as an

instrumentality of a crime), does not change the reasonableness

of its warrantless seizure. The car owner has still lost any

privacy interest against the car’s seizure by leaving it in a

? White has not challenged, and the Question Presented does not

address, the police’s mght to conduct the inventory search of White’s car or

the scope of that search assuming the seizure of the car was valid.

10

public place, and the car is still lawfully subject to seizure

under state law. Moreover, the government has compelling

interests in seizing vehicles that served as instrumentalities of

crimes. Calero-Toledo, 416 U.S. at 687.

The Florida Supreme Court held that the Fourth Amendment

required the police to obtain a warrant before seizing White’s

car because it concluded that no exigent circumstances were

established. Pet. App. A-8. The “plain view” doctrine,

however, does not depend upon the presence of exigent

circumstances. Although exigent circumstances are sometimes

necessary to justify a warrantless invasion of a person's

privacy, they are not required before the police may seize

contraband when there is a “prior justification for an officer’s

‘access to an object.”” Brown, 460 U.S. at 739 (plurality

opinion).

The lower court’s concern about the delay between the

underlying facts supporting the seizure and the actual seizure

is misplaced for two additional reasons. First, it rests on the

faulty premise that probable cause to seize (a person or

contraband) becomes stale over time. Although the Fourth

Amendment protects a seized person by the requirement of a

prompt judicial determination that a warrantless arrest is

founded upon probable cause, see County of Riverside v.

McLaughlin, 500 U.S. 44, 53 (1991), even that protection

accommodates the practicalities of law enforcement. /d. Just

as “[t]here is no constitutional right to be arrested,” because

“no one’s interests would be well served by compelling

prosecutors to initiate prosecutions as soon as they are legally

entitled to do so,” United States v. Lovasco, 431 U.S. 783, 792

& n.13 (1977) (internal quotations and citations omitted), there

is no Fourth Amendment right to speedy seizures.

11

‘ — — wee tn catia ahem

suspects or contraband misapprehends the nature of ongoing

ia been enatnbett igntions, if any,

exist in isolation, but are often connected to other

investi igations and many officers. Whether by design or

circumstance, police may either need or happen to make an

arrest or other seizure at a time removed from that when the

The time frame involved in this case, a matter of months,

cannot raise any serious constitutional concerns in light of the

practicalities of law enforcement.’

C. The Exigency Underlying the “Automobile

Exception” to the Warrant Requirement Also

Justifies the Warrantless Seizure of White’s

Automobile

1. Even where, unlike here, police conduct implicates

privacy concerns, this Court has not required police to obtain

warrants in all circumstances. Because reasonableness is the

touchstone of the Fourth Amendment, the Court has approved

warrantless searches in a variety of circumstances where it is

generally reasonable for the police not to obtain a warrant. See,

> The Court has suggested that some privacy or possessory interests

might make the length of time a vehicle is kept by police before being

searched unreasonable. See United States v. Johns, 469 U.S. 478, 487

(1985). Itis also not inconceivable that the length of time a vehicle remains

seized before being forfeited might umplicate similar interests, see United

States v. Jacobsen, 466 U.S. 109, 124 & n.25 (1984), although such

interests are de minimis at the time of seizure. See Brown, 460 U.S. at 739

(plurality opimion) (describing interests in a contraband object as “merely

those of possession and ownership”). Neither of these concerns has been

raised in this case, and neither suggests any basis to conclude that an initial

warrantless seizure based on probable cause would be unreasonable.

12

e.g., New York v. Belton, 453 U.S. 454, 460-61 (1981)

(reasonable to search passenger compartment of vehicle

incident to arrest); United States v. Robinson, 414 U.S. 218,

234-35 (1973) (reasonable to search arrestee incident to arrest);

Carroll, 267 U.S. at 153 (reasonable to search automobile

where police have probable cause to believe that it contains

contraband). In any such case, the balance is between “the

public interest and the individual’s night to personal security

free from arbitrary interference by law officers.” Maryland v.

Wilson, 519 U.S. 408, 411 (1997) (internal quotation marks and

citation omitted).

Even were we to assume that the police’s “plain view”

seizure of White’s automobile invaded his privacy interests, the

balance would still favor the police acting without a warrant.

Several of the exceptions to the warrant requirement sanctioned

by this Court arise from concerns specific to moving vehicles.

See, e.g., Carroll, 267 U.S. at 153 (automobile exception),

Ross, 456 U.S. at 825 (when police conduct a warrantless

search under Carroll, they may search all compartments and

containers within the car). In particular, the Court has

recognized “the impracticability of securing a warrant in cases

involving the transportation of conaband goods” and “that an

immediate intrusion is necessary if police officers are to secure

the illicit substance.” Ross, 456 U.S. at 806-07 (footnote

omitted). This exigency is fully present when police seek to

seize an automobile that is subject to a state’s forfeiture law.

To begin with, as noted in subsection B above, the public

interest in contraband forfeiture statutes is significant. That

interest would be jeopardized by a warrant requirement when

the object to be seized is an automobile. Automobiles, by their

nature, are property that is “of a sort that could be removed to

13

another jurisdiction . . . or concealed.” Calero-Toledo, 429

U.S. at 679. Any delay occasioned by securing a warrant once

the police have lawfully come across a vehicle subject to

forfeiture will place the seizure at risk. This is true regardless

of the location of the vehicle or its owner at the time of the

seizure. The Court does not “distinguish between ‘worthy’ and

‘unworthy’ vehicles,” California v. Carney, 471 U.S. 386, 394

(1985) — all vehicles are susceptible to being “quickly moved.”

Carroll, 267 U.S. at 153; see also Chambers v. Maroney, 399

U.S. 42, 51-52 (1970) (search of vehicle founded on probable

cause may be conducted on spot or later at station house).

Thus, the Florida Supreme Court’s conclusion, Pet. App. A-10,

that White’s arrest removed any exigency was incorrect;

White’s car was still a “fleeting target” of seizure. Chambers,

399 U.S. at 52.

Moreover, when police seize a vehicle subject to forfeiture

as contraband under state law, their probable cause

determination is especially reliable because it is typically Uased

on the fruits of a prior valid search or arrest or, at the very least,

on information that would support a valid search or arrest. For

example, the facts supporting seizure in this case included

eyewitness and videotape evidence that the car was used in

drug transactions. Pet. App. A-25 to A-26. Indeed, it is hard

to conceive that vehicles will ever be seized under the Florida

forfeiture statute in circumstances less certain than those that

would support probable cause to search for contraband in the

first instance under the automobile exception.

2. To this point, we have assumed in this subsection that the

police’s seizure of White’s car invaded his privacy interests.

As demonstrated in the discussion of the “plain view” doctrine,

however, the seizure did not in fact invade any such interests.

14

A person does not have a legitimate expectation of privacy in

an object placed in public view, as White’s car was.* And any

possessory interest White retained “must yield to society’s

interest in making sure that the contraband does not vanish

during the time it would take to obtain a warrant.” Brown, 460

U.S. at 749-50 (Stevens, J., concurring in the judgment).

The Florida Supreme Court may be correct in stating (Pet.

App. A-9) that the automobile exception does not literally

apply here — the police did not conduct a warrantless search of

a car based on probable cause to believe the car contained

contraband. But the fact that the police conducted a seizure,

not a search, only strengthens the validity of the police’s acting

without a warrant because no privacy interests were invaded.

It would be anomalous to require a warrant to seize a vehicle

when no warrant is required in analogous circumstances to

search it. See 3 Wayne R. LaFave, Search & Seizure §7.3(b),

at 516 (3d ed. 1996). Moreover, there is no reason why

warrantless police actions are less justified when the probable

cause pertains to the car itself as opposed to contraband within

a Car.

Other situations where police are permitted to act without

warrants further show the anomalous nature of the lower

court’s ruling. First, police may, without a warrant, search

passenger compartments incident to arrest and conduct

inventory searches of impounded cars — without any probable

cause to believe contraband will be found. Belton, 453 U.S. at

* As a general proposition, of course, citizens’ privacy interests in

automobiles are diminished considerably due to both their mobility and the

great amount of noncriminal official contact to which they are subject by

extensive regulation and use in public. See Cady v. Dombrowski, 413 U.S.

433, 441-42 (1973).

15

460; South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976).

It makes no sense to impose a stricter rule when there is

probable cause with respect to the very object being seized.

Second, police may arrest persons in public places without a

warrant. See United States v. Watson, 423 U.S. 411, 418-24

(1976). The lower court decision would have the anomalous

consequence of making it easier to seize people than to seize

their property.

In the end, whatever limits may be found from other

constitutional sources (such as the Due Process Clause), states

surely do not violate the Fourth Amendment through drug

contraband-forfeiture laws applied to vehicles any more than

Congress exceeded it with respect to contraband liquor as in

Carroll. History and doctrine lead to the same conclusion: the

numerous state statutes across the country that authorize

warrantless seizures of automobiles that are subject to forfeiture

are consistent with the Fourth Amendment.

II. A DUE PROCESS ANALYSIS WOULD NOT

TURN ON THE USE OF A WARRANT

Although the Question Presented asks only a Fourth

Amendment question, the Florida Supreme Court reached its

holding in part by conflating notions of due process and the

Fourth Amendment. Pet. App. A-7 to A-8. Because that court

did so, amici briefly address due process. This Court’s two

principal authorities on point suggest that police serve any due

process interests at stake in the seizure of a vehicle subject to

forfeiture equally well whether they act on probable cause

alone or with a warrant.

16

As to the seizure of real property, the Court has concluded

that the Fourth Amendment warrant requirement is inadequate

to protect due process interests. See United States v. James

Daniel Good Real Property, 510 U.S. 43, 50-52 (1993). On the

other hand, in Calero-Toledo, the Court held that the due

process requirements of pre-seizure notice and a hearing are not

required to seize a vehicle, there a yacht, due to the mobility of

the vehicle, the significance of the governmental interest, and

the fact that the seizure was pursuant to a statute, as opposed to

a writ of replevin meant to accomplish private ends. 416 U.S.

at 679.

The Court’s reference to the statute, which required some

judicial process, in no way suggested that due process requizes

the government to obtain a warrant before seizing vehicles

subject to forfeiture. Rather, the statute, as noted, simply

confirmed in that case that the seizure served a public purpose

— which was surely the case here as well.’ All three concerns

identified by the Court in Calero-Toledo supporting seizure

without a hearing or notice are served whether the means of

seizure is judicial process or simply a probable-cause

determination. The public interests served by seizure and

forfeiture (in rem jurisdiction and prevention of illicit use, to

name two) and the possibility that they will be frustrated by

pre-seizure delay due to the mobility of vehicles are certainly

the same whether a warrant is obtained or not. In addition,

with or without a warrant, a forfeiture seizure is made to serve

public goals, not the private interests of a lien holder. The

> Calero-Toledo addressed Puerto Rico law, which, unlike the laws of

most amici, required the use of process. P.R. Laws Ann. tit. 24, §2512(b);

see 416 U.S. at 679-80 n.4; Appendix.

17

police’s seizure of White’s car was fully consistent with due

process principles.

CONCLUSION

The judgment of the Florida Supreme Court should be

reversed.

Respectfully submitted,

WINSTON BRYANT

Attorney General of Arkansas

* DAVID R. RAupP

Senior Assistant Attorney General

Catlett-Prien Building

323 Center Street

Little Rock, AR 72201

(501) 682-3657

Counsel for Amici States

Of Counsel:

Dan Schweitzer

National Association of

Attorneys General

750 First Street, N.E.

Suite 1100

Washington, D.C. 20002

(202) 326-6010

* Counsel of Record

January 11, 1999

APPENDIX

la

Statutes that Provide for the Forfeiture

of Vehicles and Seizure Without a Warrant

Ala. Code §20-2-93(a)(5) & (b)(4) (Repl. 1997).

Alaska Stat. §§17.30.110(4) & 17.30.114(a)(3) (1998).

Ariz. Rev. Stat. §13-4305A.3(c) (Cum. Supp. 1998).

Ark. Code Ann. §5-64-505(a)(4) & (b)(5) (Repl. 1997).

Cal. Health & Safety Code §§ 11470(c) & 11471(d) (Cum.

Supp. 1998).

Colo. Rev. Stat. §§16-13-504(1) (contraband) & §18-18-410

(nuisance) (1998) .

Conn. Gen. Stat. Ann. §§ 21a-246(d)(4) & 54-33g (nuisance)

(West 1998).

Del. Code Ann. tit. 16, §4784(a)(4) & (c)(4) (Repl. 1995).

D.C. Code Ann. §33-552(a)(4) & (b) (Repl. 1998).

Fla. Stat. Ann. ch. 932.701-.707 (West 1998).

Ga. Code Ann. §16-13-49(d)(2), (3) & (g)(2) (1996).

9 Guam Code Ann. §67.80(a)(4) & (b)(4) (1996).

Haw. Rev. Stat. §329-55(a)(4) & (b)(4) (Repl. 1996) & §712A-

6(1 (civ) (Supp. 1998).

Idaho Code §37-2744(a)(4) & (b)(4) (1994).

720 Ill. Comp. Stat. 570/505(a)(3) & (b)(4) (Supp. 1998).

Ind. Code Ann. §34-24-1-1(a)(1) & -2(a)(1) (Supp. 1998).

lowa Code Ann. §809A.4.2.a & .6.2 (Supp. 1998).

Kan. Stat. Ann. §65-4156(a)(4) & (b)(3) (1992).

Ky. Rev. Stat. Ann. §218A.410(1)(h) & .415(1)(d) (Repl.

1995).

La. Rev. Stat. Ann. tit. 40, §2604(2)(b) (1992) & §2606A & B

(Supp. 1998).

Me. Rev. Stat. Ann. tit. 15, §§5821.4 & 5822.6.D (Supp. 1998).

2a =

Md. Ann. Code art. 27, §297(b)(4) & (d)(1 (iv) (Supp. 1998).

Mass. Gen. Laws Ann. ch. 94C, §47(a)(3) & (f)(1) (1995).

Mich. Comp. Laws Ann. §§333.7521(1)(d) & 333.7522(d)

(West 1992).

Minn. Stat. Ann. §§609.5311(Subd. 2) & 609.531(Subd. 4)(3)

(Supp. 1998).

Miss. Code Ann. §41-29-153(a)(4) & (b)(4) (1993).

Mo. Ann. Stat. §513.607.1 (Supp. 1998).

Mont. Code Ann. §§ 44-12-102(1)(d) & 44-12-103(2)(d) (West

1998).

Neb. Rev. Stat. Ann. §28-431(1)(f) & (2) (Supp. 1998).

N.H. Rev. Stat. Ann. §318-B:17-b-I(b) & I-b(b) & (d)(1995).

N.J. Stat. Ann. §2C:64-1la(2) & b(2) (West 1995).

N.M. Stat. Ann. §§30-31-34D & 30-31-35B(4) (Repl. 1997).

N.Y. Pub. Health §3388.1(c) (McKinney 1993).

N.C. Gen. Stat. §90-112(a)(4) & (b)(1) (1997).

N.D. Cent. Code §19-03.1-36.1.e & -36.2.d (Supp. 1997).

Ohio Rev. Code Ann. §2925.13(A)(2) & (C\(1\(c), (d) (1997).

Okla. Stat. tit. 63, §§2-503A.4 & 2-504.4 (Supp. 1999).

Or. Rev. Stat. §§475A.020(4) & 475.035(2)(b) (1997).

42 Pa. Cons. Stat. Ann. §6801(a)(4) & (b)(4) (Rev. Supp.

1998).

P.R. Laws Ann. tit. 24, §2512(a)(4) (1994).

R.I. Gen. Laws §21-28-5.04.2(b) & (c)(3)(D) (Repl. 1989 &

Supp. 1998).

S.C. Code Ann. §44-53-520(a)(4) & (b)(4) (Supp. 1997).

S.D. Codified Laws §§34-20B-70(4) & 34-20B-75(4) (1998).

Tenn. Code Ann. §53-11-451(a)(4) & (b)(4) (Supp. 1998).

Tex. Code Crim. P. Ann. arts. 59.01(2) & 59.03(b)(4) (West

Supp. 1999).

Utah Code Ann. §58-37-13(2)(e) & (3)(a)iv) (Repl. 1998).

Vt. Stat. Ann. tit. 18, §§4241(a)(6) & 4242(b)(1) & (3) (Supp.

1997).

3a

Va. Code Ann. §§18.2-249.A(i) & 19.2-386.2 (Michie 1996).

V.1. Code Ann. tit. 19, §623(a)(4) & (b)(4) (1998).

Wash. Rev. Code Ann. §69.50.505(a)(4) & (b)(4) (1997).

W. Va. Code Ann. §60A-7-703(a)(4) & (b) (Repl. 1997).

Wis. Stat. Ann. §961.55(1)(d) & (2d) (Supp. 1997).

Wyo. Stat. Ann. §§35-7-1049(a)(v) & (b)(i), (iii) (1997).