Louis Tidwell v. State of Florida, 2

• Decision Date: 21 April 1999
• Docket Number: 2,98-02274
• Parties: 24 Fla. L. Weekly D1023, Forfeiture of 1977 Mercedes Benz 450SEL, 1989 Florida tag: BJN86U, VIN: 11603312064950, In re, (Fla.App. 2 Dist. 1999) In re FORFEITURE OF 1977 MERCEDES BENZ 450SEL, 1989 Florida tag: BJN86U VIN: 11603312064950. Louis F. Tidwell, Appellant, v. State of Florida, ex rel. City of Tampa, for the use and Benefit of the City of Tampa Police Department, Appellee.
• Court: Florida District Court of Appeals

24 Fla. L. Weekly D1023, Forfeiture of 1977 Mercedes Benz 450SEL, 1989 Florida tag: BJN86U, VIN: 11603312064950, In re, (Fla.App. 2 Dist. 1999)

In re FORFEITURE OF 1977 MERCEDES BENZ 450SEL, 1989 Florida tag: BJN86U VIN: 11603312064950 Louis F. Tidwell, Appellant, v. State of Florida, ex rel. City of Tampa, for the use and Benefit of the City of Tampa Police Department, Appellee.

No. 98-02274.

District Court of Appeal of Florida Second District.

April 21, 1999.

Appeal from the Circuit Court for Hillsborough County; William Fuente, Judge.

Louis F. Tidwell, pro se.

Nancy B. Silva, Assistant City Attorney, Tampa, for Appellee.

GREEN, Judge.

The appellant, Louis F. Tidwell, challenges the trial court's order which denied his motion for reconsideration based upon the trial court's earlier order granting a final judgment of forfeiture of appellant's 1977 Mercedes Benz 450SEL. The trial court held that appellant's vehicle was used as an instrumentality to a felony and therefore lawfully seized by authorities without a warrant pursuant to the Florida Contraband Forfeiture Act. See §§ 932.701-932.704, Fla. Stat. (1989). Since the trial court failed to properly apply the recent ruling in White v. State, 710 So.2d 949 (Fla.), cert. granted, Florida v. White, --- U.S. ----, 119 S.Ct. 508, 142 L.Ed.2d 421 (1998), we reverse.

In 1989, law enforcement officers began investigating the appellant for alleged instances of sexual activity with minors and various drug offenses. The officers also received information that appellant's automobile was used in the furtherance of these alleged unlawful activities. On October 13, 1989, the police executed a search warrant on two residences owned by the appellant. The officers intended to seize appellant's vehicle at the time of the execution of the search warrant but due to an "oversight" the automobile was not seized until October 16, 1989. The appellant's vehicle was seized, without a search warrant, from a gated condominium complex. Thereafter, the State instituted an action for forfeiture of the appellant's vehicle.

The appellant pleaded nolo contendere to numerous counts of lewd and lascivious activities with a child and to counts relating to delivery and possession of cocaine. In 1991, the appellant was sentenced to a term of imprisonment to be followed by community control and probation. For reasons not entirely clear from the record, the forfeiture proceeding was delayed apparently due to appellant's incarceration.

An evidentiary hearing was held on October 3, 1997, on the forfeiture proceedings. The trial court entered an order in support of forfeiture of the vehicle on October 9, 1997. The appellant filed a motion for rehearing and reconsideration which the trial court denied. The appellant filed a timely notice of appeal.

At the time the trial court entered the final judgment of forfeiture in this case, the Florida Supreme Court case of White v. State, 710 So.2d 949 (Fla.), cert. granted, Florida v. White, --- U.S. ----, 119 S.Ct. 508, 142 L.Ed.2d 421 (1998), had not yet been decided. Thus, the trial court ruled that the law enforcement officers did not need to obtain a warrant to confiscate the appellant's automobile, pursuant the Florida Contraband Forfeiture Act, sections 932.701-932.704, Florida Statutes (1989). However, before the trial court issued its order denying appellant's motion for reconsideration, the Florida Supreme Court released the White opinion.

The facts of White are strikingly similar to appellant's case. White was arrested at his place of employment and his vehicle was later seized from the parking lot since the arresting police officers had determined that the automobile was used several months earlier to deliver drugs. See White, 710 So.2d at 950. The vehicle was not seized incident to White's arrest nor was a court order or warrant obtained to authorize the seizure. Id. After the car was confiscated, a subsequent search turned up cocaine and White was charged with possession of a controlled substance. Id. White sought to have the evidence suppressed but both the trial court and the First District held that the government met the requirements of the Florida Contraband Forfeiture Act and the seizure was valid. Id.

The First District certified a question to the Florida Supreme Court as to whether the warrantless seizure of a vehicle under the Florida Contraband Forfeiture Act violates the Fourth Amendment of the Constitution of the United States so as to render evidence seized in a subsequent inventory search of the vehicle inadmissible in a criminal prosecution. The court answered the certified question in the affirmative and stated,

We simply cannot accept the government's position that it may act at anytime, anywhere, and regardless of the existence of exigent circumstances, or a change in ownership or possession, to seize a citizen's property once believed to have been used in illegal activity, without securing the authorization of a neutral magistrate.

White, 710 So.2d at 952.

In its order denying the appellant's motion for reconsideration, the trial court attempted to distinguish White from appellant's case. The trial court reasoned that the certified question in White was narrowly tailored to...