Opinion
No. 98-02274.
Opinion filed 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.
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, 119 S. Ct. 508 (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 ofWhite v. State, 710 So.2d 949 (Fla.), cert. granted, Florida v. White, 119 S. Ct. 508 (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 distinguishWhite from appellant's case. The trial court reasoned that the certified question in White was narrowly tailored to address the issue of admissibility of evidence seized in an inventory search conducted subsequent to the forfeiture of a vehicle without a warrant. The trial court concluded that because the exclusion of evidence from appellant's vehicle was not an issue in appellant's case, White was inapplicable.
We do not believe that White can be distinguished from appellant's case on these grounds. The reason the court held that the evidence secured from White's vehicle was inadmissible was because the seizure of White's car occurred without obtaining a warrant and absent exigent circumstances.See White, 710 So.2d at 952. Therefore, the court concluded that the evidence found in the vehicle was the fruit of an illegal seizure. Id. The White case stands for the proposition that even though an automobile may be seized under the Florida Contraband Forfeiture Act, a warrant for its seizure must be issued absent exigent circumstances. See White, 710 So.2d at 950 (holding that a citizen's property is protected by the federal and Florida constitutions against warrantless seizure even when the seizure is done pursuant to a statutory scheme for forfeiture). Therefore, since no exigent circumstances existed, the officers were required to obtain a warrant to seize appellant's car.
Nonetheless, the trial court stated in its order that even ifWhite were factually analogous, the opinion was issued five months after the trial court's final judgment of forfeiture in appellant's case and therefore the White decision could not be applied retroactively. The trial court's understanding of retroactivity is incorrect.
A question of retroactivity is not implicated in this case because this case is a "pipeline case." See Reed v. State, 565 So.2d 708 (Fla. 5th DCA 1990). A "pipeline case" is one that is not final by trial or appeal at the time a controlling decision is issued by the supreme court.See Smith v. State, 496 So.2d 983 (Fla. 3d DCA 1986). A judgment is final when the appellate process, once started, has been completed and mandate is issued. See McCuiston v. State, 507 So.2d 1185 (Fla. 2d DCA 1987). Since the appellant's case was not final by trial or appeal at the time White was issued, we are required to apply theWhite holding to appellant's case. See Cantor v. Davis, 489 So.2d 18 (Fla. 1986).
We, therefore, hold that the trial court erred by entering the forfeiture order since a warrant was required to seize the appellant's vehicle according to White. Because theWhite decision should have been applied to appellant's case and cannot be factually distinguished, we reverse the trial court's order and remand for proceedings consistent herewith.
Reversed.
PATTERSON, A.C.J., and FULMER, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.