State v. Pomerance, 82-1172

• Decision Date: 16 February 1983
• Docket Number: No. 82-1172,82-1172
• Citation: 434 So.2d 329
• Parties: STATE of Florida, Appellant, v. Daniel POMERANCE, Appellee.
• Court: Florida District Court of Appeals

Page 329

434 So.2d 329

STATE of Florida, Appellant, v. Daniel POMERANCE, Appellee.

No. 82-1172.

District Court of Appeal of Florida,

Second District.

Feb. 16, 1983.

Rehearing Denied March 17, 1983.

Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellant.

Mark Krasnow, Miami, for appellee.

BOARDMAN, Acting Chief Judge.

The state appeals the trial court's order granting appellee Daniel Pomerance's motion to suppress. We reverse.

Appellee was arrested at Sambo's Restaurant in Lee County, Florida, for conspiracy to deliver cocaine. The automobile driven by appellee was then seized by the officers pursuant to sections 932.702 and 932.703, Florida Statutes (1981). At the sheriff's office the automobile was searched and inventoried. A brown paper bag was found in the trunk, and three and one-half ounces of cocaine wrapped in white freezer paper were found inside the bag.

Appellee filed a motion to suppress the cocaine. The trial court ruled that the vehicle in question was lawfully seized under the forfeiture statute, but suppressed the cocaine based on Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981).

Robbins has since been overruled by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Furthermore, the search of the automobile here was an inventory search performed following seizure under the forfeiture statutes, not a search incident to an arrest, as in Robbins. Therefore, the propriety of the search and inventory of the vehicle in question is not controlled by either Robbins or Ross.

The issue before us, then, is whether the automobile was properly seized and impounded without a warrant at the time of appellee's arrest. If so, the search of the trunk of the car was a proper inventory search. Godbee v. State, 224 So.2d 441 (Fla. 2d DCA 1969); Waterhouse v. State, 256 So.2d 397 (Fla. 3d DCA 1972).

We have found no case addressing this issue. However, section 932.703, Florida Statutes (1981), which provides for the forfeiture of motor vehicles used to transport, conceal, or facilitate the sale of contraband, in violation of section 932.703, 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. The courts have long distinguished between automobiles and houses in the context of a search. E.g., Chambers...