(c) Adam Weisholtz (fall 1999)
Nova Southeastern University
I. INTRODUCTION 1
II. BACKGROUND 2
A. The Fourth Amendment and Exceptions 2III. A CRITIQUE OF THE CASE 7
B. Asset Forfeiture Generally 2
C. The Florida Contraband Forfeiture Act 3
D. Florida v. White 3
1. The case against Tyvessel White 3
2. The First District Court of Appeal of Florida 4
3. The Supreme Court of Florida 5
a. The Dissent 6
4. The United States Supreme Court 6
a. Justice Stevens' Dissent 6
A. Bad Jurisprudence 8IV. CONCLUSION 10
1. The Court's Fourth Amendment analysis 8
2. Reliance on G.M. Leasing 8
B. Bad Foundation 8
C. Bad Results 9
1. Pretext 9
2. Pecuniary interests and more 9
Tyvessel Tyvorus White knew he was taking an enormous risk when he chose to get "back into the business" of selling crack cocaine in July of 1993.(1) It is what he did not know that resulted in a United States Supreme Court ruling nearly six years later: his drug deals were being videotaped by the Panama City Police,(2) and, he was forfeiting his Fourth Amendment rights by using his car in the transactions.(3) Under the Florida Contraband Forfeiture Act, the fact that the police had probable cause to suspect that White had previously used his 1983 Toyota to deliver and sell cocaine meant that the car itself was deemed "contraband," and was, therefore, seizable by, and forfeitable to, the police.(4) How can an automobile be considered contraband? One might say, "there is nothing even remotely criminal in possessing an automobile," as the Supreme Court itself wisely stated over thirty-four years ago in One 1958 Plymouth Sedan v. Pennsylvania.(5) Thoughts like these must be set aside when analyzing this case because the rules, from common sense to constitutionally enumerated, seem to go out the window in the "bizarre world of asset forfeiture."(6)
Based on the legal fiction of deodand,(7) asset forfeiture laws have existed in the United States since colonial times and before.(8) But, with law enforcement agencies facing an uphill battle in fighting both organized crime and the futile war on drugs, these laws have taken on a life of their own.(9) Today, police agencies, both state and federal, are armed with a statutory tool that provides both a generous source of private funding and tangible trophies which evidence their diligence in crime fighting. In Florida, asset forfeiture has grossed state and local law enforcement agencies in excess of 35,000,000 dollars for the 1997-98 fiscal year alone.(10)
Unfortunately, the benefits being reaped by law enforcement agencies have not come without a cost to individual rights. Although asset forfeiture statutes often serve as an important tool on the war on crime, the laws raise questions of whether law enforcement has gone beyond constitutional boundaries in their efforts to fight crime.
In May of 1999, the United States Supreme Court confronted the issue of whether police agencies may make a warrantless seizure of an automobile, based solely on a unilateral determination, by police, that probable cause exists that the automobile is forfeitable contraband.(11) In Florida v. White, the United States Supreme Court reversed the ruling of the Supreme Court of Florida, and, held that the Fourth Amendment does not require that police obtain a warrant before unilaterally seizing a "contraband article" that they have probable cause to believe is forfeitable under Florida law.(12) In analyzing whether the seizure of White's car violated the Fourth Amendment, the Court seemed to squeeze the case at hand somewhere between the plain view and automobile exceptions to the Fourth Amendment's warrant requirement.(13) However, the Court failed to analyze the validity of the statute itself, which can potentially denote any chattel as contraband, and become a vehicle for law enforcement to subvert Fourth Amendment protections. In addition, because White failed to raise due process concerns in his defense, the Court did not balance the interests of the private individual, the interests of the government, and the extent to which safeguards (a probable cause hearing) would have helped to reduce an erroneous deprivation of White's liberty interest, and quickly rubber-stamped the seizure as proper.(14) And simply because the car was parked in a public parking lot, the Court found the seizure to entail no invasion of privacy.(15) Finally, the Court relied heavily on precedent that is readily distinguishable from the instant case.(16)
This article argues that despite the need for effective tools in ferreting
out crime, both the Florida Contraband Forfeiture Act and the White
decision are unsound. While law enforcement must have the resources to
wage a successful and comprehensive battle against crime, it should not
be done by trampling on the Constitution or individual liberty.(17)
The seizure of personal property cannot take place without oversight. Yes,
there are exceptional situations where law enforcement must take immediate
action in order to prevent a crime or preserve evidence.(18)
But the case of Tyvessel White does not fit within any of those exceptional
A. The Fourth Amendment and Exceptions
The Fourth Amendment to the United States Constitution reads as follows:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.(19)
It has been construed and hailed as the protector of our most basic
right as citizens of a free society: an individual's right to be free from
arbitrary intrusion into our lives and effects by agents of the government.(20)
In order for police to conduct a search or seizure of an individual's property,
they must seek approval from a neutral judge or magistrate who will, upon
a valid showing of probable cause, issue a warrant.(21)
Searches and seizures conducted without a warrant are considered "per se
unreasonable."(22) But, over time, the
law has recognized a number of exceptions.(23)
Because of the ready mobility of a vehicle and the danger that evidence
contained in it can be destroyed or quickly spirited away courts have created
an "automobile exception" to the warrant requirement.(24)
Illegal items that a person may expose to the public may be seized without
a warrant under the "plain view" exception.(25)
It is also important to mention that persons whom police have probable
cause to know have committed a felony may be arrested without a warrant.(26)
These are the exceptions which, coupled with the language of Florida's
forfeiture law, form the basis which the seizure, and subsequent inventory
search, of White's car have been upheld as constitutional.
B. Asset Forfeiture Generally
Procedurally, asset forfeiture proceedings come in three types: administrative, criminal, and civil.(27) Administrative forfeiture is basically a default proceeding: if a defendant does not contest the forfeiture in a timely manner, the property is turned over to the government by default.(28) Criminal forfeiture actions are filed in personam, against the person, contemporaneously with criminal charges against a criminal defendant.(29) They are intended as additional punishment against a defendant that may have either purchased it with proceeds from criminal activity or used it as an instrumentality in the illegal activity.(30) Hence, any property forfeited under a criminal forfeiture action is done so only after a criminal conviction, in which the government has the burden of proving its case beyond a reasonable doubt.(31) As a result, many forfeiture actions filed by the government today are civil forfeitures, in order to avoid the jurisdictional hurdles, heightened burden of proof, and evidentiary rules of a criminal action.(32)
Thus, under civil asset forfeiture law enforcement officials can seize
a person's car, boat, airplane, bank account, currency, or other tainted
chattel without a notice or hearing, upon an ex parte showing of mere probable
cause to believe that the property has somehow been "involved" in a crime.(33)
Since the property itself is deemed the offender,(34)
the case then proceeds in rem, against the property, not the person, and,
the government's burden is significantly reduced to a preponderance-of-the-evidence
standard.(35) "And the probable cause showing
may be based on nothing more than hearsay, innuendo, or even the paid,
self-serving testimony of a party with interests adverse to the property
C. Florida's Contraband Forfeiture Act
Florida's Contraband Forfeiture Act affords a defendant a few more protections
than the federal statutes it is modeled after.(37)
It gives a defendant a post-seizure, adversarial preliminary hearing "to
determine whether probable cause exists to believe that such property has
been or is being used in violation of the [law],"(38)
puts the burden on the government to prove that the seized property is
truly contraband, and, forces the government to prove their case by a clear
and convincing standard before forfeiture is adjudicated.(39)
However, each of these procedures are predicated on the assumption that
the defendant owner is not incarcerated, located in another jurisdiction,
or otherwise unable to be found. Although, the seizing agency is required
to make a "diligent search and inquiry" into the ownership of the property,(40)
many owners never receive timely notice or plainly choose not to seek recovery
of their property.(41) "Moreover, if the
owner has been involved in activity that in any way might lead to criminal
charges - however trivial or baseless those charges might ultimately prove
to be - the risk of self-incrimination entailed by any effort to get the
property back has to be weighed against the value of the property."(42)
But, the problem at issue in White is not the fairness of the procedural
hurdles or the standard by which the burden must be proven. The issue is
whether law enforcement may invoke this statute as a method of seizing
a person's property without seeking a warrant, or, at least justifying
the warrantless seizure by a showing of exigent circumstances.
D. Florida v. White
1. The case against Tyvessel White
On October 14, 1993, Tyvessel White was arrested at his place of employment by police officers from the Bay County Joint Narcotics Task Force (Panama City, Florida) on charges of illegal trafficking of a controlled substance.(43) Because the police had knowledge, and videotaped evidence, that White had previously used his car to deliver and sell cocaine, they also confiscated the keys to his automobile and subsequently seized it.(44) The police officers did not obtain a warrant to seize White's car, they did not have knowledge that the car contained contraband, nor did they claim that the seizure was incident to White's arrest.(45) Rather, the basis for the seizure was that the arresting officers had knowledge that White had previously used the car for his drug transactions.(46) As far as the officers were concerned, because of White's alleged use of the car for selling drugs, the car itself was now "imbued with a personality" and was guilty of a crime.(47) Hence, by selling cocaine out of the car, the car itself was now deemed "contraband" under Florida law.(48) By seizing the car, all rights White had in the ownership of the car were immediately stripped and vested in the seizing law enforcement agency at the time of the seizure.(49)
After seizing White's car, police conducted a routine inventory search
and discovered two pieces of crack cocaine wrapped in a paper bag and stuffed
into the ashtray of the car.(50) Because
of the subsequent discovery, White was also charged with possession of
a controlled substance. Although White was never tried nor convicted for
his alleged role in trafficking drugs, it was the possession charge which
stemmed from the seizure of his car that eventually landed him in jail.(51)
Although his attorney objected to the admission of the evidence at trial
on the grounds that the seizure violated his constitutional rights, the
trial court reserved ruling and let the case go to the jury.(52)
Subsequent to the guilty verdict, the trial court denied White's motion
to suppress the evidence arising from the seizure of his car.(53)
2. The First District Court of Appeal of Florida
White appealed his conviction on the sole constitutional ground that the seizure of his car violated his rights under the Fourth Amendment.(54) Since the seizure was made without a warrant and the police faced no exigent circumstances which allowed a valid seizure and search of the car, White contented that the search was unreasonable.(55) The court looked to the language of the Florida Contraband Forfeiture Act and relevant case law and concluded that as long as the police had probable cause to know that White's vehicle was used in violation of the Act, there was no requirement that the police obtain a warrant before seizing the vehicle.(56) They viewed the absence of specific language in the Act as indicative, and, as such, declined to read a warrant requirement into it.(57)
Since White did not raise due process objections in his appeal, the court glossed over the issue, addressing it only in a footnote, and went on to look carefully at warrantless seizures and their possible encroachment into Fourth Amendment protections.(58) The majority opinion relied heavily on two theories in upholding the seizure of White's car as constitutional. First, the court agreed with the holding of the United States Court of Appeals for the Eleventh Circuit in United States v. Valdes(59) which states that since an arrest of a person may be effectuated without a warrant, then the seizure of a person's property may also be done without a warrant. Quoting from the Valdes opinion, the court stated that White "would have us accord the trafficker's property interest greater deference than his liberty interest; they seem to suggest that the injury caused by erroneous detention (i.e. the period of time between seizure, or arrest, and the magistrate's ruling ending the detention) is somehow greater in the case of one's property than it is in the case of one's liberty. We are not persuaded."(60)
The court was also influenced by The United States Supreme Court's decision
California v. Carney(61) affording
reduced Fourth Amendment protection to automobiles due to their mobile
characteristics.(62) Recognizing the relevance
of the "automobile exception" the court reasoned that the search and seizure
of an automobile "may pass constitutional scrutiny absent any exigent circumstances
other than the characteristics inherent in a motor vehicle."(63)
The court seemed to be implying that the mere fact that an automobile is
readily mobile can, in itself, be the actual exigent circumstances that
permit police to search or seize it at will.
3. The Supreme Court of Florida
Although the First District Court of Appeals affirmed White's conviction, the court recognized the Fourth Amendment issue as one of great importance and certified the following question to the Supreme Court of Florida: "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 inadmissable in a criminal prosecution." (alteration from original).(64) In turning a wary eye toward the lower court's reasoning, the court addressed the automobile exception first, then moved on to the comparison between the warrantless arrests of persons versus the warrantless seizures of chattels.
Critical of the lower court's interpretation of Carney, the court reasoned that the automobile exception may only be used when contraband is known to be concealed in an automobile.(65) Distinguishing Carney from the case at hand, the court pointed out that "the automobile exception is predicated upon the existence of exigent circumstances consisting of the known presence of contraband in the automobile at the time, combined with the likelihood that an opportunity to seize the contraband will be lost if it is not immediately seized because of the mobility of the automobile."(66) Since there was no evidence submitted that police had any probable cause to suspect that White's car contained contraband, it concluded that "Carney and the automobile exception are inapposite as authority."(67)
Moving on to the lower court's reliance on Valdes, more discerning
analysis was given to the 'arrest of the person' theory.(68)
Reacting to the first district's analysis, the court concluded that a reliance
on such a connection would ultimately "amend the Fourth Amendment out of
the Constitution and do away with the requirement of a warrant entirely
for the search and seizure of property" merely because a warrantless arrest
of a person is qualifiedly permissible.(69)
Recognizing the propriety of the holding of Coolidge v. New Hampshire,(70)
the court drew extensively from its language in pointing out that "no amount
of probable cause can justify a warrantless search or seizure absent 'exigent
circumstances.'"(71) The facts that the
police had no knowledge that White's car contained drugs coupled with the
three month delay in seizing his car (during which a warrant could have
been secured) caused the court to reason that there was no exigency in
the need to seize White's car, and, therefore concluded that the seizure
a. The Dissent
The dissenting opinion in White is heavily influenced by the precedential
value of other lower state court opinions and the federal district courts
of appeal which have ruled on this issue.(73)
Justice Wells has an especially difficult time accepting the effect that
the court's holding will have in putting state seizures in Florida (which
would require a warrant) in derogation with federal seizures in Florida
(which would not require a warrant).(74)
Although he recognizes that the court is "not bound to do it," he opines
that the highest court in Florida should fall into accord with the Eleventh
Circuit.(75) He believes the majority of
federal circuits are in accord with Valdes, and, he views them as
the more appropriate arbiter on Fourth Amendment application.(76)
4. The United States Supreme Court
Recognizing the split in federal circuits and unhappy with the ruling, the Attorney General of Florida chose to appeal the ruling to the United States Supreme Court. The Court granted certiorari and in a 7-2 decision, reversed the judgment of the Supreme Court of Florida.
Justice Thomas, writing for the majority, revisits the automobile exception from Carney, but adds a twist recognizing that, although White's car did not contain contraband, under the Florida law, White's car was contraband.(77) Expressly ignoring the excessive delay between the time White was witnessed dealing drugs and the time the police seized his car (sixty-eight to eighty days),(78) the court heralded the importance of "the need to seize readily movable contraband before it is spirited away"(79) originally recognized in Carroll v. United States.(80) In Carroll, the Court relied upon early federal statutes, similar to the Florida Contraband Forfeiture Act, which authorized the seizure of merchant ships which carried goods subject to duties.(81)
An emphasis was also paid to the "greater latitude" often given law enforcement officials when carrying out their duties in public place as opposed to private dwellings.(82) Similar to the reasoning the lower court used in Valdes, the Court drew from its holding in United States v. Watson(83) which ruled that a warrantless arrest was valid because it was made in an open, public area.(84) Thomas bridged the gap between warrantless arrests of a person in public and warrantless seizures of contraband found in public places with his reliance on Payton v. New York.(85) These cases appear to turn on the reduced expectation of privacy one has when outside of a dwelling.
Finally, the Court synthesized its reasoning and found that the facts
in the case at hand were "nearly indistinguishable from those in G.M.
Leasing Corp. v. United States."(86)
In G.M. Leasing,(87) the Supreme
Court concluded that federal agents did not violate the Fourth Amendment
when seizing a defendant's automobiles in order to satisfy an income tax
a. Justice Stevens' Dissent
Although recognizing that the majority opinion "does not expressly disavow
the warrant presumption," the dissenting opinion is blatant in its criticism
of the majority.(89) Justice Stevens reasons
that adding forfeiture to the growing list of exceptions to the warrant
requirement suggests that the exceptions have "all but swallowed the general
rule."(90) Ultimately, it is the facts
of the White case that convince him that the seizure was unreasonable.(91)
White was in custody at the time of the seizure, so an exigent circumstance
rationale is simply not proper.(92) An
automobile is clearly lawful to possess, so a plain view exception is similarly
improper.(93) Considering the lengthy delay
in the effectuation of the seizure and the circumstances surrounding the
seizure itself, no fear for officer safety or loss of evidence was present,
nor raised by the prosecution.(94) All
of these considerations lead Justice Stevens to conclude that the seeking
a warrant was reasonable under the circumstances and indispensable in such
III. A CRITIQUE OF THE CASE
"It should take more than pronouncing the magic word "contraband"
to nullify a U.S. citizen's rights."(96)
A. Bad Jurisprudence
The Second Circuit Court of Appeals hit the nose on the head when it
stated, "[w]e find no language in the fourth amendment suggesting that
the right of the people to be secure in their 'persons, houses, papers,
and effects' applies to all searches and seizures except civil-forfeiture
seizures in drug cases."(97) Asset forfeiture
statutes such as Florida's Forfeiture Contraband Forfeiture Act have now
virtually laid to rest the last protections of the Fourth Amendment that
may have withstood the many exceptions that have been assimilated into
search and seizure jurisprudence. Now, not only can law enforcement make
a unilateral claim that the exigency of a situation necessitates a search
of a person, his automobile, or nearly anything else, but, there is now
free reign to seize belongings one may have simply because there is probable
cause to believe that they were somehow involved in a past crime. The mere
language of the Florida law deems any item, including one's own home, as
forfeitable "contraband" simply because such item was "used" or "was attempted
or intended to be used" in a crime.(98)
While the Court did consider the application of the Forfeiture Act and
whether it affected the reasonableness of the seizure of White's car, it
failed to address the reasonableness of a statute that may transform any
given chattel into "contraband" by the sole decision of a police officer.
Keep in mind that many of the crimes which invoke the statute include many
victimless crimes such as mere drug use or simple possession,(99)
gambling,(100) tax violations,(101)
or violations of "beverage or tobacco laws."(102)
1. The Court's Fourth Amendment analysis
Although the majority opinion in White has relied on the "automobile exception," as laid out in Carney, it has "failed to address the fundamental requirement of Carney."(103) That is, the police may effectuate a search or seizure of a vehicle without the authorization of a magistrate "so long as the overriding standard of probable cause [to believe contraband is in the vehicle] is met."(104) Although, Justice Thomas opines that the need to seize an automobile is "equally weighty"(105) when the automobile itself is deemed contraband, adherence to stare decisis proves otherwise.(106)
In addition, the majority's reliance on both Watson and Payton
is misguided. Yes, a person located in a public place whom police have
probable cause to believe has committed a felony may be arrested without
a warrant when exigent circumstances are present (a lowered expectation
of privacy and the need to prevent other crimes). But, exigent circumstances
are dictated by "now or never" situations.(107)
Here, the police faced no such exigency because the evidence of White's
alleged crime was collected between sixty-eight and eighty days prior to
the seizure. "Indeed, the particularly troubling aspect of this case is
not that the State provides a weak excuse for failing to obtain a warrant
either before or after White's arrest, but that it offers no reason at
all. . . On this record, one must assume that the officers who seized White's
car simply preferred to avoid the hassle of seeking approval from a judicial
officer."(108) Such police practices should
not stand as a model for effective law enforcement let alone a new rule
limiting constitutionally enumerated rights.
2. Reliance on G.M. Leasing
The Court found solace in relying on a prior Supreme Court decision that had addressed this type of Fourth Amendment question before. In G.M. Leasing, an automobile leasing corporation filed suit against the federal government seeking the return of, among other things, automobiles that were seized by internal revenue agents in order to satisfy the income tax liability of its general manager.(109) Although the Court found that the warrantless entry of agents into the defendant's office was an invasion of privacy, it held that the automobile seizures, which occurred in a public parking lot, did not involve an invasion of privacy.(110) Apparently, since White's car was also located in a public parking lot at the time of seizure, no invasion of his privacy occurred, thereby eliminating the need for any due process analysis. In today's modern society, is the need to use one's automobile a compelling interest? More compelling than the need to use a pleasure yacht?(111) We may never know.
The problem with this rationale is the distinguishable facts surrounding the circumstances of the seizure in G.M. Leasing. "The seizure in that case was supported by an earlier tax assessment that was 'given the force of a judgment.'"(112) Tax collection, no matter what one's moral judgment of it may be, is a constitutionally enumerated power expressly given to the federal government.(113) And the very existence of the federal government depends on the prompt collection of such taxes.(114) There is certainly no such authority or importance behind asset forfeiture laws.
When a vehicle is parked in a public lot, the owner retains very little
privacy interests.(115) However, the owner
does not lose possession, or any possessory interests, simply due to the
public nature of its parking space.(116)
In fact, the Forfeiture Act expressly states the purpose of seizures under
the Act which distinguish them from the more commonplace seizures such
as vehicle towing, repossession, and the satisfaction of tax liens.(117)
B. Bad Foundation
Asset forfeiture laws are inherently immoral. They represent punishment against an individual, yet the government is not bound to a beyond-a-reasonable-doubt standard. They were created to deprive a person of his ill-gotten goods, yet the charges are brought against the thing itself, not the individual. They are designed as modern-day devices to help law enforcement battle crime, but they are derived from ancient practices as old as the Bible itself. Ironically, it was Justice Thomas who recently articulated his apprehension for the scope of asset forfeiture statutes. In concurring in part and dissenting in part in the case of United States v. James Daniel Good Real Property,(118) he stated, "[g]iven that current practice under [federal forfeiture law] appears to be far removed from the legal fiction upon which the civil forfeiture doctrine is based, it may be necessary - in an appropriate case - to reevaluate our generally deferential approach to legislative judgments in this area of civil forfeiture."(119) The case of Tyvessel White was that appropriate case, but, the Court did not seize the opportunity.
Contraband is considered illegal for what it is, not how it is used.(120)
Hence, by enacting a law that deems any article illegal merely for how
it is used, the Florida legislature has clearly "eliminate[d] the judiciary's
role in that task of constitutional construction."(121)
The wisdom of our Constitution lies in the fact that its protections cannot
be modified by the votes of elected officials.(122)
Here, the legislature has succeeded in creating a law that has more than
modified those protections, it has plainly eliminated them.
C. Bad Results
With the holding in White, what will stop law enforcement from
seizing vehicles under the guise of the Contraband Forfeiture Act for the
true purpose of obtaining evidence of other crimes? The Supreme Court recognized
the potential for abuse while reviewing the case, but did little to guard
against this type of abuse with its holding.(123)
Since it was ultimately the drug possession charge (stemming from the inventory
search of his seized vehicle) that resulted in White's conviction, we can
guess that the police in Panama City may have started that type of trend.
Armed with the knowledge that evidence of White's drug trafficking could
be unreliable, or easily suppressible at trial, the seizure of White's
car may have only served as pretext for an anticipated discovery of cocaine
inside the car.
2. Pecuniary interests and more
What about the unthinkable? Could the police seize personal property simply because they like it and want to keep it? Maybe the seizable item (which may be currency) is of great value. Would a high-profile seizure, big enough to put a government agency in the black for a year or two, not be something to herald in the court of public opinion? Think of the possibilities. An agency could make itself financially independent while bolstering its tough-on-crime perception all with one big bust.(124) Governmental agencies already rely heavily on the funding that arises out of forfeiture.(125) A comment from the city manager for the city of San Jose, California illustrates this point all too accurately. When asked by the city's police chief why there was no money allocated for police equipment in the city budget he replied, "you guys seized four million dollars last year. I expect you to do better this year."(126)
And the forfeiture net appears to be expanding into a variety of new
crime fighting areas. Seeking an opportunity to get their piece of the
forfeiture pie, local governments are now looking to forfeiture in order
to eradicate the ills of their cities. In New York City, a first time DUI
offense will now not only land you in jail, but also may land your vehicle
in the impound lot (permanently).(127)
In Cicero, a suburb of Chicago, you may find yourself walking to your destination
should you look like you could be a member of a local street gang.(128)
Declaring the entire city a "gang free zone," the city gets to keep your
car (and fines you $500) if a hearing, subsequent to the confiscation,
determines that the car was operated with the knowledge of the owner.(129)
And this could be just the beginning.
The protections of the Fourth Amendment have been whittled away little by little since the Supreme Court articulated that the occupants of an automobile have a lower expectation of privacy in Carroll.(130) Today, the bottom line is that one should walk an extreme straight and narrow line when venturing outside of the home. Police can now seize and search your vehicle with a mere showing of probable cause that it was involved in a crime. And that probable cause can remain fresh as long as needed until the seizure or search will net the police the best possible evidence of a crime. The White decision represents yet another exception to the presumption that police must procure a warrant before searching or seizing your person, personal effects, or dwelling. It effectively gives the police another option to choose from in order to avoid the "hassle" of seeking a warrant. White chose to hang his hat on the shaky authority of the Fourth Amendment. Only another challenge, one raising critical due process defenses, may change the rapid decline of search and seizure protections in asset forfeiture cases.
1. White v. State, 680 So. 2d 550, 552 (Fla. 1st Dist. Ct. App. 1996).
2. Id. at 551; Brief for Petitioner at 12, Florida v. White, 119 S. Ct. 1555 (1999) (No. 98-223).
3. Florida v. White, 119 S. Ct. 1555 (1999), rev'g White v. State, 710 So. 2d 949 (Fla. 1998), rev'g 680 So. 2d 550 (Fla. 1st Dist. Ct. App. 1996).
4. A "contraband article"includes "(a)ny personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of. . . a felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act." (emphasis added). FLA. STAT. § 932.701(2)(a)(5) (1993). However, it is a subsequent section that states that any contraband article "may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act." Id. § 932.703(1)(a).
5. 380 U.S. 693, 699 (1965).
6. James Bovard, Your Car May Be Committing Crimes, USA TODAY, May 27, 1999, at 15A.
7. "Deodand" is defined as "any personal chattel which was the immediate occasion of the death of any reasonable creature, and which was forfeited to the crown to be applied to pious uses, and distributed in alms by the high almoner"(emphasis in original). BLACK'S LAW DICTIONARY 436 (6th ed. 1990); "At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness" (citations omitted). Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-81 (1974).
8. Terrence G. Reed, On the Importance of Being Civil: Constitutional Limitations on Civil Forfeiture, 39 N.Y.L. SCH. L. REV. 255 (1994).
9. Id. at 264-65; See, e.g., Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda, 65 U. CHI. L. REV. 35 (1998) (since the Nixon administration declared the "war on drugs" by creation of the Drug Enforcement Administration ("DEA"), Congress has indirectly given both state and federal law enforcement agencies financial benefits through provisions authorizing the seizure of drug-related assets).
10. FLA. DEPT. LAW ENF. CONTRABAND FORFEITURE SEMIANNUAL REP. (reporting periods of 4/1/97 through 9/30/97 & 10/1/97 through 3/31/98).
11. White, 119 S. Ct. 1555.
14. White, 680 So. 2d at 553 n.4 (stating that White has not challenged the seizure on due process grounds).
15. Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (delineating the three-part balancing test for determining constitutionality for deprivation of an individual's liberty or property interest.).
16. White, 119 S. Ct. at 1562 n.6 (Stevens, J., dissenting).
17. Oversight of Federal Asset Forfeiture: Its Role in Fighting Crime: Hearing on H.R. 1658 Before the Subcomm. on Criminal Justice Oversight of the Senate Judiciary Comm., 106th Cong. 2 (1999) (statement of Roger Pilon, Vice President for Legal Affairs, CATO Institute). [hereinafter "Subcommittee Testimony"] Dr. Pilon stated that, "forfeiture is an important tool in the war on crime. . .. But, in a free society, not any forfeiture law or practice will do. To state the point most generally, in our society, law enforcement officials may not use any means they wish in their efforts to reduce or remedy crime. After all, a police state would doubtless reduce crime. Be we cannot have a police state in this nation because we have a Constitution and a body of law promulgated under it that limits what police, prosecutors, courts, and Congress may do - both substantively and procedurally." Id.
18. See Chimel v. California, 395 U.S. 752 (1969) (if there is a criminal suspect close enough to the automobile so that evidence might be destroyed, the police may make a search of an appropriately limited scope); See also California v. Carney, 471 U.S. 386 (1985) (discussing the mobility of a vehicle as a factor in warrantless search and seizure).
19. U.S. CONST. amend. IV.
20. Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971) (quoting Wolf v. Colorado, 338 U.S. 25, 27-28 (1949)) ("The security of one's privacy against arbitrary intrusion by the police - which is at the core of the Fourth Amendment - is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause."); Id. (quoting Gouled v. United States, 255 U.S. 298, 303-304 (1921)) ("It would not be possible to add to the emphasis with which the framers of our Constitution and this court . . . have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments [the Fourth and Fifth]. The effect of decisions cited is: that such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of other fundamental rights of the individual citizen . . ..").
21. Coolidge, 403 U.S. at 454-55.
22. See id.
23. Catherine A. Shepard, Comment, Search and Seizure: From Carroll to Ross, the Odyssey of the Automobile Exception, 32 CATH. U. L. REV. 221, 221-22 (1982).
24. Id.; See Carroll v. United States, 267 U.S. 132 (1925) (police may search a moving automobile without a warrant when there is probable cause to believe the vehicle contains contraband); See also California v. Carney, 471 U.S. 386, 391 (1985) (due to their "ready mobility," automobiles are given less Fourth Amendment protection).
25. Horton v. California, 496 U.S. 128, 133 (1990) (the seizure of an article in plain view would not involve an invasion of privacy).
26. United States v. Watson, 423 U.S. 411 (1976).
27. Subcommittee Testimony at 5.
29. Reed, supra, note 9, at 266-67.
30. Id. at 265; See also One 1958 Plymouth Sedan, 380 U.S. at 701 (stating that asset forfeiture is clearly additional punishment for a criminal offense).
31. Reed, supra, note 9 at 267 (citing 18 U.S.C. § 1963(e) (1988), which states that a criminal conviction is a necessary predicate for forfeiture).
32. Id. at 266.
33. "The allegation of "involvement" may range from a belief that the property is contraband to a belief that it represents the proceeds of crime (even if the property is in the hands of someone not suspected of criminal activity), that it is an instrumentality of crime, or that it somehow "facilitates" crime." Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y.L. SCH. L. REV. 311, 313 (1994); Since 1993, the government has had to give notice and an opportunity for a hearing before real property may be seized. United States v. James Daniel Good Property, 510 U.S. 43 (1993).
34. See, e.g., Calero-Toledo, 416 U.S. at 685 (noting that the offense attaches to the property without regard to any personal responsibility).
35. Pilon, supra note 32, at 313.
37. "The Florida Forfeiture Act . . . is substantively similar to the federal forfeiture statute, see, 21 U.S.C. § 881, and the Uniform Controlled Substances Act, see, 9 U.L.A. § 505." White, 680 So. 2d at 553.
38. § 932.703(2)(a).
39. Id. § 932.704(8).
40. Id. § 932.704(6)(c).
41. "Four out of five forfeitures are uncontested because in most cases the evidence is so overwhelming that contesting the forfeiture would be pointless." Stefan D. Cassella, Forfeiture is Reasonable, and it Works, CRIMINAL LAW AND PROCEDURE NEWS (The Federalist Society), Spring 1997, at 8.
42. Pilon, supra, note 32, at 314.
43. White, 710 So. 2d at 950.
44. White had been witnessed and videotaped trafficking crack cocaine on three previous occasions: July 26, August 4 and 7, 1993. Id. at n.2.
45. Id. at 950.
47. Pilon, supra, note 33, at 313.
48. § 932.701(2)(a)(5).
49. § 932.703(1)(b).
50. White, 710 So. 2d at 950.
51. Id. White's drug trafficking charge is wholly separate from the possession charge and not at issue in the cases brought before any of the courts relative to this case. However, it appears utterly amazing that the dismissal of the drug trafficking charge was not mentioned a single time in any official document linked to this case. We are left to speculate that there was either weak evidence on behalf of the prosecution, or that the government was determined to turn this case into a landmark decision on the seizure power conferred by forfeiture laws. For a brief mention of the demise of the drug trafficking charge, see Bovard, supra, note 6.
52. White, 710 So. 2d at 950.
54. White, 680 So. 2d at 552.
56. Id. at 552-53.
57. Id. at 553; See also State v. Pomerance, 434 So. 2d 329, 330 (Fla. 2d Dist. Ct. App. 1983) (The Forfeiture Act "nowhere mentions obtaining a warrant; it simply states that an offending vehicle 'shall be seized.' We know of no rationale for judicially engrafting onto the statute a requirement that a warrant be obtained.").
58. Whtie, 680 So. 2d at n.4.
59. 876 F.2d 1554 (11th Cir. 1989).
60. Id. at 1560.
61. 471 U.S. 386 (1985).
62. Id. at 390-91.
63. White, 680 So. 2d at 554-55.
64. White, 710 So. 2d at 950.
65. Id. at 952-53 & n.5.
66. Id. at 952.
67. Id. at 953.
68. Id. at 954.
69. White, 710 So. 2d at 954.
70. 403 U.S. 443 (1971).
71. Id. at 468.
72. White, 710 So. 2d 949.
73. Id. at 955-57 (Wells, J., dissenting).
74. Id. at 955.
75. Id. at 957.
77. White, 119 S. Ct. at 1559.
78. Id. at n.4 ("We express no opinion about whether excessive delay prior to a seizure could render probable cause stale, and the seizure therefore unreasonable under the Fourth Amendment.").
79. Id. at 1559.
80. 267 U.S. 132 (1925).
81. Id. at 151.
82. White, 119 S. Ct. at 1559.
83. 423 U.S. 411 (1976).
84. See id. at 416-424.
85. 445 U.S. 573, 587 (1980) ("It is also well established that objects such as weapons or contraband found in a public place may be seized by the police without a warrant.").
86. White, 119 S. Ct. at 1559.
87. 429 U.S. 338 (1977).
89. White, 119 S. Ct. at 1561.
91. Id. at 1562.
94. White, 119 S. Ct. at 1562.
95. Id. at 1561 ("Nevertheless, I would look to the warrant clause as a measure of reasonableness in such cases. . ., and the circumstances of this case do not convince me that the role of neutral magistrate was dispensable.") (citations omitted).
96. Bovard, supra, note 6.
97. White, 710 So. 2d at 951 n.4 (quoting United States v. Lasanta, 978 F.2d 1300, 1305 (2nd Cir. 1992).
98. § 932.701(2)(a)(1)-(6).
99. § 932.701(2)(a)(1).
100. § 932.701(2)(a)(2).
101. § 932.701(2)(a)(4) (referring to the failure to pay a "motor fuel tax.").
102. § 932.701(2)(a)(3).
103. White, 710 So. 2d at 953.
104. Id. (quoting Carney, 471 U.S. at 392).
105. Id. at 1559.
106. Id. at n.6 (citing Pennsylvania v. Labron, 518 U.S. 938, 940-41 (1996), and, California v. Acevedo, 500 U.S. 565, 580 (1991), which stand for the reasoning that police are permitted to search a vehicle if there is probable cause to know that the vehicle, or the containers within it, contain contraband).
107. Roaden v. Kentucky, 413 U.S. 496, 505 (1973); "Exigent circumstances" are defined as "situations that demand unusual or immediate action." BLACK'S LAW DICTIONARY 574 (6th ed. 1990).
108. White, 119 S. Ct. at 1563 (Stevens, J., dissenting).
109. See G.M. Leasing, 429 U.S. 338.
111. See Calero-Toledo, 416 U.S. 663 (warrantless seizure of a pleasure yacht without notice or a hearing did not deny due process).
112. White, 119 S. Ct. at 1562-63 n.6.
113. U.S. CONST. amend. XVI.
114. "But taxes are the lifeblood of government, and their prompt and certain availability an imperious need." Bull v. United States, 295 U.S. 247, 259 (1935).
115. G.M. Leasing, 429 U.S. at 351-52.
117. "It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes. . .." § 932.704(1).
118. 510 U.S. 43 (1993).
119. Id. at 515.
120. "Contraband" is defined as, "any property which is unlawful to produce or possess." BLACK'S LAW DICTIONARY 322 (6th ed. 1990).
121. White, 710 So. 2d at 951 n.4 (quoting United States v. Lasanta, 978 F.2d 1300, 1305 (2nd Cir. 1992).
122. See White, 710 So. 2d at 954 n.7.
123. The Court questioned the petitioner on the law's potential for abuse:
QUESTION: Ms. Snurkowski, what--
MS. SNURKOWSKI: Yes.
QUESTION:--what troubles me about the case is the long time interval between the--between the time when the--the police had probable cause to believe that the vehicle had been used for a crime and the time when they elected to--to seize it as forfeit. I--it just raises the possibility of--of the police creating a--a sort of a evidence depository by simply identifying a car and just leaving that car out there for years and years until they--until they finally determine that it--it has evidence that they'd like to have, whereupon they--they move in and seize it. What--what assurance is there? I mean, that doesn't seem right to me.
MS. SNURKOWSKI: Well, first of all, in this instance, all of the activities that occurred that generated the need or the ability by the State to forfeit occurred prior to any activity going on with regard to this--this last event. It wasn't that the car was suddenly sitting out there doing nothing. There had been three occasions when Mr. White was selling drugs out of his car. The probable cause that generated--was generated by that--was to forfeit the car. It was not to ascertain or have probable cause to seize the car. In fact, the car couldn't have been seized at the moment they saw the drugs being dealed--
QUESTION: Well, I know that, but that's my very point. If you say they seize it right away, I don't see a potential for abuse, but if you say once they see it being used for a drug transaction, they can thereafter just put in their file, you know, license number, whatever, can be seized at any time, and then wait until they think there may be some evidence in that car. And the real reason they're seizing it thereafter, or at least the real reason for their timing, is to obtain the evidence and not to--and not to forfeit the car.
Record at 7-8, Florida v. White, 119 S. Ct. 1555 (1999) (No. 98-223).
124. See generally Blumenson & Nilsen, supra, note 9.
126. John Hendren, Government Agencies Rangle Over Seizure Spoils (visited July 29, 1999), THE NANDO TIMES, <http://www.nando.com/noframes/story/0,2107,67405-106696-753266-0,00.html>.
127. Alexandra Varney McDonald, You Booze, You Lose, NYC Seizure of Autos in First Time DUI Cases May Grease Skids for Federal Bill Encouraging Forfeiture, ABA JOURNAL, June 1999, at 36.
128. Joseph T. Hallinan, Town Puts a Hold on Seizure of Gang Cars, Law Suspended After ACLU Files Lawsuit (visited July 31, 1999), CHICAGO TRIBUNE ONLINE EDITION, <http://chicagotribune.com/version1/article/0,1575,SAV-0007290198,00.html>.
130. See Carroll, 267 U.S. 132.