Florida v. White – Oral Argument – March 23, 1999

Media for Florida v. White

Audio Transcription for Opinion Announcement – May 17, 1999 in Florida v. White

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William H. Rehnquist:

We’ll hear argument first this morning in No. 98-223, Florida v. Tyvorus.

Ms. Snurkowski.

Carolyn M. Snurkowski:

Mr. Chief Justice, and may it please the Court:

Today the State is here before the Court seeking to have the Florida Supreme Court opinion in White v. State reversed based on that court’s determination that a requirement under Florida law and under the Fourth Amendment to the United States Constitution mandates that there be a neutral magistrate sought and a warrant obtained prior to the seizure of a vehicle under the Florida Contraband Forfeiture Act.

The State would direct its attention to cases, in particular, Cooper, in particular, United States v. Watson as controlling in this case.

The Solicitor General will focus on the applicability of Horton to this case and the plain view theory that has been presented in some of the briefs.

William H. Rehnquist:

The way this came up, Ms. Snurkowski, was that evidence was found in the ashtray or something of the car and that was introduced at trial?

Carolyn M. Snurkowski:

Yes, Mr. Chief Justice.

What happened on October 14th, 1993, the defendant was at his place of business.

The Officer Pierce and Officer Stewart had the ability to go there under a search warrant to arrest him for unrelated drug charges.

At that time, he was placed under arrest.

His keys were taken from him.

The keys to his car, which was in a parking lot, which was the Sam’s parking lot… the car was taken, driven to the task force community.

It was not searched.

It was just seized at that point.

It was taken to the task force facility.

At that point it was searched.

Two crack cocaine rocks were found wrapped in toweling in the ashtray of the car.

Anthony M. Kennedy:

And was the car taken because it was forfeitable, or was it taken just because he was arrested and something had to be done with the car?

Carolyn M. Snurkowski:

This was not incident to a lawful arrest and it was not because of anything more than the officers’ belief that it was under forfeiture.

There had been three previous occasions when Mr. White was seen dealing drugs out of the car, and under Florida statutes 920… 32.701 through 04, the State has the ability to seek forfeiture of a vehicle that’s used as an instrumentality.

Anthony M. Kennedy:

So, from the moment they… they put the key in it and took it away it was because it was forfeitable.

Carolyn M. Snurkowski:

Yes, Your Honor.

Sandra Day O’Connor:

And how long–

–Did they have probable cause to believe that the vehicle had been used for the transportation of drugs?

Carolyn M. Snurkowski:

I’m sorry.

I didn’t hear the first part of your question.

Sandra Day O’Connor:

Did the officers… has it been determined that they had probable cause to believe that the vehicle, which they seized, had been used to transport illegal drugs?

Carolyn M. Snurkowski:

Yes, Your Honor.

There had been three previous occasions where one of these officers had personally observed and there were videotapes of the defendant actually selling drugs out of the car.

Sandra Day O’Connor:

And Florida law makes the car used for that purpose to be… makes it possible to forfeit it to the State.

Carolyn M. Snurkowski:

Subject to forfeiture.

Sandra Day O’Connor:

Now, you don’t rely on the G.M. Leading Corporation case?

Carolyn M. Snurkowski:

Yes, we do, Your Honor.

Sandra Day O’Connor:

I would have thought that was the closest case.

You didn’t even mention it.

Carolyn M. Snurkowski:

I believe that that has been mentioned in the other briefs.

But, yes, in looking at this case, we believe that that is a pertinent and germane case to this one.

The reason the State started out with the Cooper decision is it’s believed that that in that case there, the subject matter of scrutiny was the search following the seizure, and the seizure at that point was… was under a forfeiture statute and was not in question.

It seems reasoned and followed that if in this instance where the inventory search is not in question in this instance, that both the seizure and the search are satisfied… satisfies the Fourth Amendment with regard to practices engaged in by the Florida authorities.

Ms. Snurkowski, what–

Carolyn M. Snurkowski:

Yes.

Antonin Scalia:

–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.

Carolyn M. 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–

Antonin Scalia:

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.

Carolyn M. Snurkowski:

–Well, in all due respect, I think that under Whren, this Court has indicated that we are looking at an objective standard as opposed to a subjective standard.

The police officers have a legitimate basis under Florida’s Contraband statute to seize the vehicle.

Antonin Scalia:

So, they could have done it 3 years later, 5 years later.

Carolyn M. Snurkowski:

Well, there is certainly case law that reflects that the time… the… the… it seems to me that the probable cause doesn’t become stale, doesn’t change because the vehicle itself is the criminal act–

Not–

Carolyn M. Snurkowski:

–the fact that it was used.

Antonin Scalia:

–That’s exactly what troubles me, but you… you… you acknowledge that… that it could have been seized 10 years later.

Carolyn M. Snurkowski:

Well, it probably could have been, but the… the likelihood of it passing scrutiny with regard to the ultimate review of the search itself… we are talking about whether you have to go to a neutral magistrate to seize the car.

It’s–

Ruth Bader Ginsburg:

Would you apply this, Ms. Snurkowski, to a Venice-type case?

Let’s say, the… the city has an ordinance that if you engage in prostitution in your car, it will be forfeit, and then the police say, oh, we saw this guy two, three times in the summer.

And then it gets to be October, and his car is sitting out there in a shopping mall.

And they say, oh, now, well, now, we can take the car because we saw it three times this summer, and if we are questioned about it after, we’ll say that, but we don’t have to go before any magistrate or anything like that.

I take it from what you’ve said so far that that would also be okay.

Carolyn M. Snurkowski:

–Yes, I believe–

Ruth Bader Ginsburg:

There’s no distinction between those two situations.

Carolyn M. Snurkowski:

–I… I believe that the instrumentality itself, the car is what is the offender here, not the actions.

The actions may precipitate that the car is being used, and it may be incident.

And, in fact, under Florida statute there is a defense to incidental or accidental use by the vehicle and therefore it’s not subject to forfeiture.

But if it’s… if it’s part of the criminal conduct, and in this instance perhaps where one is soliciting for prostitution, the car in and of itself might not be–

Ruth Bader Ginsburg:

I’m giving you a local ordinance–

Carolyn M. Snurkowski:

–I’m sorry.

Ruth Bader Ginsburg:

–that was before this Court where the car was forfeit if it had been used for an act of prostitution.

Carolyn M. Snurkowski:

Right.

Ruth Bader Ginsburg:

And I asked you if in that particular case, the car was impounded on the spot.

But suppose it hadn’t been taken then, and the police said, well, it’s forfeit, so we’ll take it 2 months later.

And let’s take another case in that same line.

Let’s suppose the city has a measure that says, cars that are driven by drunk drivers are forfeit.

Carolyn M. Snurkowski:

Right.

Ruth Bader Ginsburg:

And someone is apprehended for drunk driving, and the police decide, for whatever reason, they’re not going to take the car that day and 3 months later they see it at the parking lot of the place of employment and they take it.

Carolyn M. Snurkowski:

Well, I think it depends upon… again, we’re… the case before the Court is the forfeiture act with regard to the drugs and other criminal endeavors.

But to expand it to the argument or the suggestion that you have made that it has do with drunk driving, as we have seen news stories out of… coming out of the State of New York, that very well may be a basis if, in fact, it’s the instrumentality used to… for help and involved in the crime itself.

William H. Rehnquist:

I don’t suppose getting… if delay is a problem, I don’t suppose getting a warrant would change things.

Carolyn M. Snurkowski:

Absolutely.

And–

David H. Souter:

Well, but would this issue come… I mean, the reasonableness of the search is going to be judged in part by reference to the… to the… or the reasonableness of the seizure is going to be judged in part by reference to the object of the seizure.

Here the object of the seizure is… is punishment.

It’s an extra penalty for… for the… for the… the act involving the contraband.

And I think it’s probably accepted… I think it’s accepted… theory today that the further in time between the act that is being punished and the imposition of the penalty, the less effective it is, the less reasonable it is to be imposing it.

So, it would see to me that there’s a fair argument that the longer the police wait without some kind of… or the State waits without some justification, the further removed the seizure becomes from the… the… a reasonable relationship to its object.

And at some point I suppose that would affect the Fourth Amendment analysis.

And I also assume it would affect the Fourth Amendment analysis if a warrant were being applied for.

Is that an illegitimate argument?

Carolyn M. Snurkowski:

–I think there is probably some truth to the fact that time could pass along, but it doesn’t mean that the probable cause in any way deteriorates.

It may be other factors–

David H. Souter:

Well, that’s… that’s right, but the ultimate question is the reasonableness of the search, and you’ve got to have the probable cause, but we all know probable cause can, in fact, be dissipated or… or rendered nugatory by various things that happen after you get it.

And in Justice Scalia’s example, the 5-year wait… I mean, it… it really stretches credibility to say that a 5-year wait without, you know, some extraordinary excuse that we don’t have in our hypo, can reasonably be related to the ostensibly punitive object of the law.

And if that is so, don’t we in, let’s say, the 5-year example… don’t we have to confront the unreasonableness of the search in relation to its object?

Carolyn M. Snurkowski:

–Yes, Your Honor.

And in fact, I don’t–

David H. Souter:

Well, would you agree that the 5-year search would violate the–

Carolyn M. Snurkowski:

–It very well–

David H. Souter:

–I keep saying search.

You know–

Carolyn M. Snurkowski:

–Right.

Seizure.

David H. Souter:

–I mean seizure.

Carolyn M. Snurkowski:

It very well… it very well may be, but it doesn’t impact with regard to the probable cause.

It impacts upon the reasonableness.

I–

And that certainly would be something that would be under scrutiny upon a challenge to the validity–

–Well, it might affect the–

–of the seizure and ultimate search.

John Paul Stevens:

–It might affect the probable cause determination in this regard.

If you get a warrant, you have the judge or the magistrate makes the determination, whereas there is an advantage there.

John Paul Stevens:

And secondly, presumably the magistrate would make it promptly, and then you’d have the warrant in the… in your desk to use whenever you want to serve it.

Whereas, if you wait 3 years or 6 months to do it, then you have to… your probable cause determines… is based on what you can remember of what happened 6 months earlier and the facts are less clear than if they’re established and the warrant obtained at the time.

Carolyn M. Snurkowski:

That’s true, but the underpinnings of the probable cause here is that some… an instrumentality, a car, was used during the course of the criminal endeavor.

That’s the basis upon which the probable cause arises under the Florida statute.

William H. Rehnquist:

Well, again, if… if delay is a problem, do you think the problem would be alleviated by keeping a warrant in the police officer’s desk for 3 years and then serving it?

Carolyn M. Snurkowski:

No, Your Honor, and that was what I was trying to get to.

The… the point is that on the facts of this case and I believe most of the facts as presented in the hypotheticals, a magistrate would have issued a warrant the next day or 10 days or 100 days because it was… if there’s probable cause to believe that that vehicle in fact was used during the course of a criminal endeavor, to wit, selling drugs, that… that car cannot wipe–

Yes, but–

–itself away of the crime.

John Paul Stevens:

–But that also survives transfer of ownership.

Say somebody… say the car was sold in the meantime.

You’d still be able to seize the car.

If you had the warrant and you go to the new owner and say this is why I’m seizing it.

The judge decided it was used this way.

If you go to the new owner 3 or 4 months later and say, well, your predecessor owner used this car improperly, we’re going to seize it, it seems to me there’s a… factually the citizen might react a little differently to the service in the two cases.

Carolyn M. Snurkowski:

But in fact… but in fact under the statute, there is a very speedy ability to have redress with regard to wrongful taking of the vehicle, and in fact, under–

John Paul Stevens:

But it wouldn’t be a wrongful taking, would it?

Carolyn M. Snurkowski:

–Well–

John Paul Stevens:

I mean, the new… the new owner wouldn’t have a defense, would he?

Carolyn M. Snurkowski:

–Yes, because under the statute, it applies to those individuals who… under the Florida statute, it applies to those individuals who are innocent with regard to–

John Paul Stevens:

Well, but then it’s not just the vehicle is… it’s not like the deodand.

The vehicle is not the… the criminal.

Carolyn M. Snurkowski:

–Well, it… it can be wiped clean in… in–

John Paul Stevens:

By selling it?

Carolyn M. Snurkowski:

–Pardon me?

John Paul Stevens:

You can… you can exonerate the vehicle by selling it?

Carolyn M. Snurkowski:

Well, under the Florida statute, it shows… we have a provision that says, for example, a spousal ownership.

If that person can demonstrate that they had no knowledge with regard to that, that the car will not be forfeited.

So, there are provisions that protect, but that doesn’t mean to say that because we put provisions that protect, that the instrumentality suddenly is cleansed.

It just means that we’re not going to forfeit because this is not the car that–

John Paul Stevens:

Put the spousal one aside.

What about sale to an innocent, bona fide purchaser?

Is that person subject to forfeiture or not?

Does that cleanse the car?

Carolyn M. Snurkowski:

–The car is not cleansed.

What happens is that the purpose for forfeiture has changed because it’s no… the car no longer is being forfeited because somebody engaged in a criminal endeavor, if an innocent person now owns that car.

That person didn’t do anything to that.

John Paul Stevens:

No, but the car had been used… the car committed the crime I thought under your theory.

Carolyn M. Snurkowski:

That’s right.

Under forfeiture theory, the crime… when the crime occurs, the car becomes an offender or offendee–

John Paul Stevens:

And it ceases to be an offender when it’s sold.

Carolyn M. Snurkowski:

–Well, it doesn’t cease to be that, but it certainly… it has… it has less basis for support for the ultimate forfeiture of that vehicle.

Ruth Bader Ginsburg:

I don’t see why.

Is time for executing a warrant unlimited in Florida?

If a magistrate gives a warrant, can it be executed 3 months later or 4 months later?

Carolyn M. Snurkowski:

There’s no specific provision that allows for a time limitation.

Thank you.

William H. Rehnquist:

Thank you, Ms. Snurkowski.

Mr. Stewart, we’ll hear from you.

Mr. Stewart, would you mind telling us exactly what kind of an exception to the warrant requirement you’re supporting here?

It certainly isn’t clear to me from the State’s argument–

Malcolm L. Stewart:

The rule–

Sandra Day O’Connor:

–what the State’s asking for.

Malcolm L. Stewart:

–The rule we’re advocating… and I think it is supported by a number of this Court’s decisions… is that when items of personal property are found in public areas, they may be seized by law enforcement officials based on probable cause without a prior judicial warrant.

Now, some of this Court’s–

Sandra Day O’Connor:

So… so, if the vehicle had been parked in the owner’s driveway, could it have been seized?

Malcolm L. Stewart:

–The driveway is a close question.

If it had been parked in the owner’s garage, for instance, an area in which the owner would clearly have a reasonable expectation of privacy, the car could not have been seized on our view without a warrant.

Sandra Day O’Connor:

So, what’s your position on the driveway or the curtilage?

Malcolm L. Stewart:

Our position on the… our position on the driveway, generally speaking, is that a driveway is not within the curtilage, and therefore the owner would not have a reasonable expectation of privacy in it.

Malcolm L. Stewart:

There was actually a case in the Seventh Circuit, United States v. Redman, that involved a related issue in which law enforcement officials conducted a search of trash cans located at the… the point of the individual’s driveway that was closest to the house.

And the en banc Seventh Circuit split 8 to 5, held that the individual did not have a reasonable expectation of privacy in his driveway.

We think the same rule would apply to seizures of a vehicle from a driveway, but in fairness, given the way that the Seventh Circuit divided, we can’t say that that’s a settled question.

William H. Rehnquist:

It depends on how much is left of the Coolidge decision.

Malcolm L. Stewart:

That’s correct.

But… but at any rate, the dividing line would be as to any particular location, did the individual have a reasonable expectation of privacy in this place?

The garage, clearly yes.

A public parking lot, clearly no.

The driveway is… is somewhere in between.

Anthony M. Kennedy:

Is the purpose for the forfeiture, as you understand it, because this particular chattel is… is a nuisance?

It is a dangerous instrumentality.

It should be removed from the–

Malcolm L. Stewart:

Well, I mean, a car–

Anthony M. Kennedy:

–from the streets?

Malcolm L. Stewart:

–A car is not per se dangerous.

Clearly part of the–

Anthony M. Kennedy:

Why are we forfeiting?

In order to impose a punishment?

Malcolm L. Stewart:

–It is partly to impose a punishment.

It is partly out of a belief that so long as the car remains in the hands of this owner who has previously utilized it to facilitate criminal activity, there is a danger that that activity will… will occur in the future.

So–

Anthony M. Kennedy:

Now, if… if the latter is the rationale, then doesn’t the delay that we’re concerned about enter into the calculus?

That is to say, if there’s a long, long delay before the automobile is seized, doesn’t that indicate that it is not such a dangerous instrumentality, that forfeiture should be used?

I’m… I’m trying to… to find some standard by which we could protect owners against the unreasonableness that is caused by deliberate delay, which can be used to harass persons.

Malcolm L. Stewart:

–I guess I’d have a couple of responses.

The first is that at least in most cases, the owner can’t claim to be injured simply by the fact that he’s allowed to retain and use his property longer than he might have been.

I think second we would draw an analogy to warrantless seizures of the person, warrantless arrests.

That is, it’s established law that a warrantless arrest may be conducted in a public place without a warrant even though a warrant would be required in a private place, and it might seem intuitively as though once police have probable cause to believe that an individual had committed a crime, the natural thing to do would be to arrest him immediately in order to remove the… the danger from the streets.

However, I think it’s generally understood that there may be countervailing concerns that would justify some form of delay.

The police might want to see whether this person was acting in confederation with others, might want to see whether it could locate bigger operatives within the criminal organization.

Malcolm L. Stewart:

And, therefore, the police are not required to arrest an individual as soon as they have probable cause to believe that he has committed a crime.

David H. Souter:

Then you’re saying there’s sort of a notion of reasonable delay, but conversely I assume there… there… there is the thought in… in what you’re saying that there might be an unreasonable delay in seizures.

Malcolm L. Stewart:

Well, certainly the… the primary limitation on the amount of delay that would be considered reasonable in the arrest context is the statute of limitations.

That is, as a practical matter, the… the police couldn’t wait so long to arrest the individual that the statute of limitations had expired.

David H. Souter:

Okay.

Well, let’s get to a case, you know, a seizure case like this.

I threw out the idea in… in talking with… with your colleague that if the… if the object is… is essentially punitive, then there’s a point at which the punitive rationale really begins to evaporate, and I don’t know when that point was reached, but we thought perhaps if there had been a 5-year wait, it would have evaporated.

Would you agree with that?

Malcolm L. Stewart:

I… I think it would depend upon the… the circumstances.

I think the first place we would look is to see whether the legislature that had established the forfeiture statute had itself made the determination as to what period of delay was unreasonable.

David H. Souter:

You know, that might be a good basis for us to inform ourselves about contemporary standards of reasonableness, but at some point the reasonableness would dissipate, I take it, on… on your rationale.

Malcolm L. Stewart:

At some point.

I think that has nothing, with respect, to do with the warrant requirement.

That is, if for instance–

David H. Souter:

I… I… I agree with that.

Malcolm L. Stewart:

–If, for instance, Florida by statute had said property can’t be forfeited based on its use in criminal activity more than 5 years ago, then if police have evidence that the car had been used to facilitate narcotics offenses 6 years ago, the seizure would be no good because there would be no probable cause to believe that the property was forfeitable under the statute.

That would be so regardless of whether the police attempted to seize the vehicle without a warrant or whether they went to a magistrate with a warrant.

And as the Chief Justice pointed out, I think to the extent that the Court regards the possibility of unreasonable delay as a problem, it’s not a problem that would be solved by imposition of a warrant requirement.

Sandra Day O’Connor:

Do you rely here at all on the fact that the car is a movable object and–

Malcolm L. Stewart:

Certainly we think… the rule we propose is not automobile-specific, but we certainly think that the mobility of automobiles reinforces the general principle announced in this Court’s decisions–

Sandra Day O’Connor:

–I would have thought the principle didn’t rest at all on that.

Am I wrong?

Malcolm L. Stewart:

–Well, what… what the Court has said in–

Sandra Day O’Connor:

In this case where there’s a forfeiture statute because of the use of the vehicle.

Malcolm L. Stewart:

–Well, the general principle this Court has announced is that items of personal property found in a public place may be seized with… without a warrant, and one of the justifications the Court has given for that general rule is that, at least in many instances, the property… personal property, is susceptible of being moved away quickly, and we think that is all the more true in the case of an automobile.

But the… the rule, as we propose, as I say, is not automobile-specific.

It is probably the type of rule that is particularly likely to be invoked with respect to automobiles simply because the automobile is a type of personal property that is very often left in… in public places.

David H. Souter:

Mr. Stewart, you said a second ago… I agreed with you a second ago… that the problem of staleness and dissipation of reasonableness is going to occur whether there’s a warrant or whether there isn’t, and I… I think that’s right.

It doesn’t, though, I think follow as… as you suggested a second later that that makes the warrant requirement irrelevant because it seems to me that if there is a warrant requirement, we’re going to have some magistrate considering at the time the warrant is issued, i.e., prior to the actual seizure, whether in fact the delay has dissipated the reasonableness of the search on… on the… on the theory on… on which forfeitures are… are required.

And, therefore, we… we will have a situation, if there’s a warrant requirement, in which some cars are not going to be seized illegally.

David H. Souter:

And so, it would seem to me that if there is, in fact, a dissipation rationale, there is a good reason, therefore, to… to have a… a warrant requirement so that there is… there is some neutral judgment between the officer and what may be a quite unlawful seizure.

Malcolm L. Stewart:

I think… I think that that is not true because the problem you hypothesize is no different in principle from the problem that may always occur when the police undertake a warrantless seizure of property from a public place.

That is, it is always the case that police might misjudge the question of whether there is probable cause to effect the seizure.

David H. Souter:

Yes, but here we’re not talking about… I mean, you’re quite right.

They… they may get the probable cause wrong.

But now we have yet a… a further element, and it’s not a probable cause kind of judgment.

And therefore, doesn’t the further element at least provide a further reason for saying that… that a warrant would… would, in fact, be helpful in effectuating the Fourth Amendment?

Malcolm L. Stewart:

Well, the–

David H. Souter:

That’s true, maybe we can get by without it, but something would be served by recognizing it.

Malcolm L. Stewart:

–Well, the further element would simply be the legal determination of what period of delay would be regarded under the law as unreasonable.

And that again is no different in principle from the judgment that police may, when they decide whether to effect a warrantless arrest… that is, in order to determine the existence of probable cause, they have to decide not only what has this person done, but what does the law require or prohibit.

And consequently, the probable cause determination is inevitably entwined with police officers’ judgments about the applicable legal standards.

They may get those wrong and it’s true that interposing a magistrate might reduce the incidence of error.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Stewart.

Mr. Gauldin, we’ll hear from you.

David P. Gauldin:

Mr. Chief Justice, and may it please the Court:

The State of Florida had 68 to 80 days in which to obtain a warrant to seize this vehicle.

They didn’t bother.

The State of Florida has now had 6 years and about 20 minutes to explain to explain why they didn’t get a warrant.

They haven’t done so adequately.

Simply our position is this.

None of the traditional warrant exceptions to the Fourth Amendment apply.

There is no civil forfeiture exception to the Fourth Amendment, and under the circumstances of this case, the police were required to get a warrant–

William H. Rehnquist:

How do you distinguish the Cooper case and the G.M. Leasing case?

David P. Gauldin:

–Cooper v. California only dealt with a subsequent inventory search after the car had been seized.

The issue was not placed before the Court as to whether the seizure was appropriate.

No one argued that, so that issue was not decided by this Court.

William H. Rehnquist:

Well, but the Court certainly assumed that the seizure was appropriate.

David P. Gauldin:

It may well have assumed it, but that just simply was not an issue before the Court.

David P. Gauldin:

At that point, it was assumed that it was valid, and the only issue that you decided was once it came lawfully into the police’s hands… into the police hands, whether they have a right to conduct an inventory search.

And Cooper v. California, as far as I read the decision, simply stands for that proposition.

Sandra Day O’Connor:

How about G.M. Leasing?

David P. Gauldin:

G.M. Leasing represents the tax levied on a public street exception of the Fourth Amendment.

In G.M. Leasing, as you’ll recall, the revenue agents went first to the home of who turned out to be the fugitive tax debtor 2 days prior to the seizure of the car, and they informed the wife, I believe it was, of the tax debtor and also the son that there was a tax debt and that their assets were subject to–

Sandra Day O’Connor:

Well, G.M. Leasing involved a warrantless seizure of a vehicle in a public place, and this Court upheld it.

David P. Gauldin:

–Yes, but G.M. Leasing was not a forfeiture case.

G.M. Leasing was a case where the Government had a tax debt that it was satisfying, which it did by first filing a lien 2 days prior to the seizure in the Salt Lake City County courthouse and then proceeded to levy on the Government’s debt.

Moreover–

William H. Rehnquist:

Why should it make any difference the fact that it wasn’t a forfeiture?

Why should forfeiture produce a special… a special class of rules in connection with a warrant and no warrant?

David P. Gauldin:

–Probably because tax assessments seemed to create a special class.

The tax assessments–

William H. Rehnquist:

Well, is that what… the Court didn’t say that in G.M. Leasing.

David P. Gauldin:

–What the Court did say–

William H. Rehnquist:

I mean, you… you can… you know, you can say that South Dakota against Opperman, the inventory case, involved a van, so it doesn’t cover a car, but we don’t distinguish cases that way.

David P. Gauldin:

–What the Court said in G.M. Leasing, it went back to the history of the tax legislation and the taxing power, which is a constitutional power, it went back to the history of that and said almost–

William H. Rehnquist:

Well, you say… you say the taxing power is a constitutional power.

Do you think that the enactment of a forfeiture statute by Florida is not a constitutional power?

David P. Gauldin:

–No.

It’s a statutory… it’s a statutory right that they’re giving law enforcement.

William H. Rehnquist:

Well, but certainly under the allocation of government in our system, the Florida government has as much right to enact a forfeiture statute as the United States has to enact a taxing statute, does it not?

David P. Gauldin:

It certainly does that.

But first, the Constitution specifically provides for the collection of taxes.

Secondly, in Bull v. United States and various other cases that you have dealt with in relation to taxes, you have justified this on the base… basis of the prompt collection of the revenue of taxes saying that, in fact, the very realm… or the very United States Government depends upon the prompt collection of taxes.

Stephen G. Breyer:

Well, I think the question, at least mine, would be, how could it be a reasonable thing to seize a car in a public place without a warrant to satisfy a tax debt, but it wouldn’t be a reasonable thing to seize an instrumentality of a crime, the car, in a public place?

I mean, how could the one be reasonable but the other isn’t?

An instrumentality of a crime would seem as historic, as necessary, at least as seizing a car to satisfy a tax debt.

I mean, that’s the same question, but I’m looking for the distinction.

David P. Gauldin:

Well, one thing, of course, the tax debt has been determined to be a tax debt.

David P. Gauldin:

According to your tax bases, they–

Stephen G. Breyer:

You mean you have to determine it beyond probable cause?

In other words, just having the probable cause to seize the car to satisfy the debt, they wouldn’t have been able to do it?

David P. Gauldin:

–To satisfy the debt or the forfeiture?

Stephen G. Breyer:

No.

To satisfy the debt.

I mean, does… what was the… is that… is that open?

I mean, in other words, you’re saying of G.M. Leasing, if they hadn’t had… if they just had probable cause, it would have been constitutionally forbidden?

Is that the point?

David P. Gauldin:

Well, G.M. Leasing was not a case that involved probable cause.

What G.–

Sandra Day O’Connor:

No, but the Court in G.M. Leasing specifically said it took the case limited to the Fourth Amendment issue, and because there was probable cause, even though it was a warrantless seizure, it occurred in a public place and it was valid under the Fourth Amendment.

Now, I mean, the Court didn’t get into this tax issue at all.

I think you have a very hard time distinguishing the principle involved in that case.

Whether it’s reasoned or not… whether it did or didn’t get into it, my problem is one of logic or reason, not a problem of precedent.

I don’t see the distinction between… well, you heard what I said.

David P. Gauldin:

–Okay, well–

Stephen G. Breyer:

What is the distinction in your view?

David P. Gauldin:

–The distinction, at least in my view, is that at least in the civil forfeiture area, they did not have a specific exception that has been validated by this Court to the Fourth Amendment for a seizure.

There now exists, as I said early, a specific exception for the seizure for tax levies, which means a tax judgment, because a tax assessment is equivalent to a tax judgment.

Antonin Scalia:

Well, we make a lot of exceptions to other constitutional principles in the tax field, don’t we?

I mean–

David P. Gauldin:

Yes, we do and I hope–

Antonin Scalia:

–We… we allow the Government to take your property before the… the actual tax judgment is issued, don’t we?

David P. Gauldin:

–Yes, we do, and in fact Bull v. United–

Antonin Scalia:

They can take it now and… and… you know, and try the tax case later.

David P. Gauldin:

–That’s exactly right.

Antonin Scalia:

We don’t generally allow that in the criminal law, do we?

David P. Gauldin:

No, we do not, and that’s what Bull v. United States says, that that’s the system that we have in taxing: the assessment comes first and the defense comes second.

Antonin Scalia:

Maybe… I don’t… maybe we trust tax gatherers more than we trust criminal law officials.

Antonin Scalia:

[Laughter]

David P. Gauldin:

I don’t know, but in light of the legislative problems and hearings recently, maybe you’ll reconsider that.

But that’s not the case here.

The case here–

Antonin Scalia:

I want to… I’m sorry.

I want to make sure I understand your… your… your response to Justice Breyer.

Was it your response, in effect, as to G.M. that in the G.M. case there had, in fact, been a tax judgment and that that would have been the analog of the hearing before the magistrate and, therefore, there was a kind of process that had been satisfied there going to the question of the reasonableness of the seizure?

David P. Gauldin:

–There was not only a kind of process because first a tax assessment had occurred, which is equivalent apparently in tax law to a tax judgment.

Secondly, a lien had been filed, and third, they had gone to the place and informed at least the wife of the tax debtor of the imminence of that.

So, they had notice and opportunity that the seizure would occur.

David H. Souter:

Okay, but I take it then… I just don’t remember this.

They… there had never been even an ex parte judicial proceeding in the G.M. case, had there been?

David P. Gauldin:

No, other than that they went to the county courthouse and filed a tax lien so at least you had notice and opportunity, which is more than… than you have here.

Antonin Scalia:

Notice and opportunity to do what?

–may not even know it.

David P. Gauldin:

To institute whatever procedures–

Antonin Scalia:

Stake out in front of the car and… and meet the seizure with armed force?

David P. Gauldin:

–Well–

Antonin Scalia:

What… what good did the notice do you?

David P. Gauldin:

–Well, the notice did do them something because they hauled a bunch of crates of information and stuff in the other part of G.M. Leasing.

David H. Souter:

Well, notice provides legal notice in… as… on a constructive notice theory, but in fact, the… the owner of the property may not have any actual notice whatsoever.

I mean, a filing is simply a filing.

David P. Gauldin:

True, although… and you’re right, they’re placed on constructive notice.

But the owner of the property, at least the wife’s owner did know, and the only the reason the owner of the property didn’t know because he was a tax fugitive at the time.

David H. Souter:

But this was not part of the Court’s rationale in G.M., was it?

David P. Gauldin:

That was part of the foundation from which the Court’s rationale sprung.

That is to say–

David H. Souter:

Well, it was the… it was a fact of the case, but the Court did not explain that fact as being essential to its holding, did it?

David P. Gauldin:

–No.

The Court essentially explained that the immediacy for the collection of revenues has historically been an exception for a seizure of that sort for a tax assessment.

David P. Gauldin:

And that… I think it’s paragraph C. I forget.

It’s just a very narrow, little area where they actually talk about the seizure of the car in G.M. Leasing.

David H. Souter:

So, you’re saying there was a kind of economic exigency rationale in G.M.?

David P. Gauldin:

The Court in G.M. indicated it was an economic exigency, and they cited about three or four very old cases for that proposition, Bull v. United States, Springer, and several other cases.

Antonin Scalia:

It is your position, as I understand it, that a warrant would have been necessary even if that car had been seized when they first saw it being used in an illegal drug transaction, assuming… assuming that there were no exigent circumstances, that they… they had time to get a warrant.

David P. Gauldin:

If there were no exigent circumstances, yes.

If none of the traditional exceptions applied, yes, they would have had to get a warrant.

Antonin Scalia:

It isn’t just if you… if you don’t seize it right away when you’re seeing it being used illegally and you want to seize it later you need a warrant.

You need a warrant all the time.

David P. Gauldin:

No, you don’t need a warrant all the time.

If they actually came upon him while he was, for instance, selling drugs out of the car and they had probable cause to believe that drugs were in the car–

Antonin Scalia:

Right.

David P. Gauldin:

–and that the car was movable or may be moved because the occupants were alerted, then I think the car exception would apply, at least to the point where they could–

William H. Rehnquist:

Well, so then… then your answer is that if… if they had seized this particular car when they first saw him dealing drugs out of the car, they could have done it without a warrant.

David P. Gauldin:

–Yes, if they had done it right then.

Yes.

William H. Rehnquist:

So, it’s just… that certainly wasn’t the reasoning of the Supreme Court of Florida.

The… I don’t think the Supreme Court–

David P. Gauldin:

What the Supreme Court–

William H. Rehnquist:

–I’m… I haven’t finished.

David P. Gauldin:

–I’m sorry.

William H. Rehnquist:

I think what the Supreme Court of Florida relied on was just the fact that you need the warrant regardless of any delay.

David P. Gauldin:

The Supreme Court of Florida I think said that there were no exigent circumstances and that that was admitted by the parties below, and that that’s why the car exception was inapplicable.

William H. Rehnquist:

Yes, and so… but did you read the opinion of the Supreme Court of Florida as relying on this delay factor?

David P. Gauldin:

I think delay was intrinsic in it because once there’s a delay–

William H. Rehnquist:

You say it was intrinsic.

Did the Florida Supreme Court mention the word delay in its opinion?

David P. Gauldin:

–The Florida Supreme Court set out the dates that occurred between the illegal activities that occurred and the ultimate arrest of the person and the seizure of the car.

William H. Rehnquist:

But did they rely on that in their reasoning?

David P. Gauldin:

What they… well, their reasoning was that simply the car exception didn’t apply because there were no exigent circumstances.

Stephen G. Breyer:

Can you help me with another thing which I haven’t found–

David P. Gauldin:

Sure.

Stephen G. Breyer:

–and you probably know.

I have a bell in my mind that there used to be something called the Government’s power to seize contraband in a public place or an instrumentality of a crime.

Is there no such historical tradition that the Government can take the instrumentality of a crime in a public place?

David P. Gauldin:

Well, I think what you’re talking about is–

Stephen G. Breyer:

Yes.

What am I talking–

David P. Gauldin:

–the plain view exception, and under the plain view exception, that if the officers are in a public place and they come across either evidence of a crime or per se contraband, that is, contraband which is just unlawful for anyone at any time to possess, then they can seize–

Stephen G. Breyer:

–What about an instrumentality of a crime?

David P. Gauldin:

–No.

I think what we have here is derivative–

Stephen G. Breyer:

No, but I’m… I’m saying in terms of what you just said, is it part of that tradition that they could seize in plain view an instrumentality of a crime, which I guess would be evidence of a crime?

David P. Gauldin:

–Yes, if it’s evidence of a crime.

The car–

Stephen G. Breyer:

There’s not… there’s no separate thing for instrumentality of a crime.

David P. Gauldin:

–No.

The two that I understand are evidence to be used in a crime or contraband, per se contraband.

Now, in One 1958 Plymouth Sedan, you stated that a car, such as the car in this circumstance, where drugs may have been sold out of it… in that case I think it was alcohol that carried it… that that is derivative contraband.

That’s not the same thing as per se–

Stephen G. Breyer:

No, no.

That’s not contraband, but the reason that this is not evidence of a crime is?

David P. Gauldin:

–First place, they didn’t seize it as evidence of a crime.

They didn’t introduce it below as evidence of a crime, and more importantly, when an officer seizes evidence of a crime, an officer doesn’t then take the evidence back and proceed to either sell the evidence and keep the proceeds or to use the evidence for their own personal benefit, which the statute allows.

The statute allows the seizing agency to either keep the car that they seize for the agency’s purposes or–

Stephen G. Breyer:

I thought forfeited items were often evidence of the crime and would often be sold, if that’s what the law provides.

I mean, isn’t the car that you’re selling drugs out of often, if not here, evidence of a crime, namely the crime of selling drugs?

David P. Gauldin:

–Not usually.

There may be purposes for which it can be.

For instance, Cardwell v. Lewis.

David P. Gauldin:

In Cardwell v. Lewis, they came and take… took paint chips off of the car and then the car might have been evidence in a crime because their theory in Cardwell v. Lewis was that the car bumped a victim off and hit the victim’s car.

And, therefore, it was evidence of crime, but that’s not the situation here.

David H. Souter:

Mr. Gauldin, what do you make of the… the history which I… I think was put forward in the Government’s brief that… that on the heels of the proposal and the adoption of the Fourth Amendment, the Congress of the United States passed legislation which, among other things, authorized the seizure of… of ships that had been used in carrying contraband and smuggling and… and… and it authorized the seizure without any warrant?

And this apparently has… was… was never thought challengeable at the time and is, therefore, some evidence of… of the extent that they understood the warrant requirement of their… their… their new… their new search and seizure provision to… to cover.

David P. Gauldin:

Well, for ships are… I hate to mix analogies, but a horse of a different color.

Ships are on international waters.

You have one option with a ship, and that is to seize the ship because if you don’t–

David H. Souter:

Well, yes, the ship can… can leave the harbor.

The car can, you know, be driven to California.

It seems to me that there’s a pretty good analogy there.

David P. Gauldin:

–Well, at least if it’s driven to California, it’s still within the continental United States and it’s much easier to locate a car–

Antonin Scalia:

Mexico.

Baja California.

[Laughter]

That’s what he meant.

David P. Gauldin:

–Even then it’s limited, but it’s easier to track a car at least while it’s doing that, through registration and various other means, than it is to track a vessel on international waters, particularly a vessel owned by foreign powers.

David H. Souter:

Do… do you have another basis for distinguishing that practice?

David P. Gauldin:

What the maritime?

Other than it’s historic for maritime because that was the only… that was the only practical thing they could do for a ship.

A foreign power owned the ship.

If they didn’t bring the res before the court, they could do nothing except maybe go to war with the other country.

David H. Souter:

Well, I would have supposed that if there was a ship in the harbor that had been shown to… to have goods being smuggled in, that they could have gotten a warrant for it.

David P. Gauldin:

I suppose they could, but again because of what… the–

David H. Souter:

In any case, your argument is that the ship involves again a… a justification of exigency and that that’s not present with the car?

David P. Gauldin:

–Pardon me.

I didn’t hear that.

David H. Souter:

That the seizure of the ship without a warrant rests on a justification of exigency, whereas the seizure of a car under a statute like this does not.

David P. Gauldin:

Yes, yes, yes.

Which brings up actually Calero-Toledo.

In Calero-Toledo v. Pearson Yacht Leasing Company, a vessel was involved, and what they sought in Calero-Toledo was an adversarial pre-seizure hearing.

David P. Gauldin:

And in Calero-Toledo, you said that there were three reasons as to why that they were not entitled to an adversarial hearing prior to seizure of the ship.

The first reason was that it would place these people on notice that the owners or possessors, in that case the possessors, of the vessel… it would place them on notice, and that they then might abscond with the vessel.

The second thing you were concerned about in Calero-Toledo was that if you gave them an adversarial hearing, which we’re not asking for here… that if you gave them an adversarial hearing, the delay occasioned by that would allow them to continue to use the vessel for illicit purposes.

And the third thing you noted in Calero-Toledo was… or the third reason for which you decided Calero-Toledo was that the disinterested government was the seizing agency and not some interested private… private agency.

Taking the first reason first, we’re not asking for an adversarial hearing.

An adversarial hearing might put the person in the car that allegedly has carried illicit contraband on notice, and might give him a reason to flea, but an ex parte judicial warrant won’t do that.

Secondly, there is certainly no evidence in this case that the government was concerned about continued use of the car for illicit purposes.

If they had been concerned about that, they wouldn’t have waited 68 to 80 days until, what I contend based on the record, they cavalierly went down and seized the car.

And thirdly, the third reason in Calero-Toledo, the government is not disinterested in this case.

The seizing agency benefits from this.

In Harmelin v. Michigan, you said when the government benefits… when the government benefits, you have to scrutinize the government more closely.

That is the situation that exists here.

The government is going to benefit.

The seizing agency is going to benefit, and human nature being such it… as it is, that is going to color the issue of probable cause.

When a neutral and detached magistrate makes the determination of probable cause, the neutral, detached magistrate is not only not engaged in the competitive enterprise of ferreting out crime, but the neutral and detached magistrate is not going to get a piece of what’s seized or revenue for what’s seized.

Antonin Scalia:

Why… why was that not the situation in Calero-Toledo?

That was not a government seizure?

David P. Gauldin:

No.

It was a government seizure, but they said the disinterested government.

Antonin Scalia:

Oh, that was a disinterested government.

David P. Gauldin:

Right, right.

Antonin Scalia:

How do you tell the one from the other?

David P. Gauldin:

All I know is that in Florida we’ve got an interested government because–

Antonin Scalia:

I see.

[Laughter]

David P. Gauldin:

–the seizing agency is going to get the proceeds.

Antonin Scalia:

Who was going to get the proceeds from the ship in… in Calero-Toledo?

David P. Gauldin:

I don’t know and I’m not sure how the… that was a Puerto Rican statute and I’m not sure exactly what occurred with the Puerto Rican statute.

Antonin Scalia:

You think maybe it was going to be distributed as a tax refund to the populace at large?

[Laughter]

David P. Gauldin:

I doubt it.

Antonin Scalia:

I don’t see any difference between that case and this one.

I think it very likely that the money was going to go into the government’s treasury.

David P. Gauldin:

It may… there’s a difference between the money going into the government’s treasury where it goes into the general fund as opposed to where the seizing agency, the officers that get to seize it, get to either keep the vehicle and, say, use it for under cover purposes or later–

David H. Souter:

I see.

Well, do they… I know this happens in some cases.

I don’t know if it’s in Florida.

But if they sell the… the seized vehicle, does the money go into, in effect, an appropriation account for the police agency itself?

Do they… can they fund themselves out of this?

David P. Gauldin:

–Yes, yes, although there’s… there’s a formula I think set up in the Florida statute as to which police agencies and hierarchy and all that get a cut and how, but the seizing agency does get a cut.

David H. Souter:

But it’s law enforcement that gets funded, in effect, with this money.

David P. Gauldin:

Yes, law enforcement does or law enforcement… the agency gets to use the car.

If it likes your SUV and wants to–

David H. Souter:

Yes.

David P. Gauldin:

–they can keep it.

They don’t even have to put it in the pot.

They don’t have to go sell it.

They can use it under the statute.

David H. Souter:

And I… do you know… I mean, I think… I think I can suspect the correct answer, but I’ll ask anyway.

Do you know whether there was any such scheme as this in place in… in the 1790s in the instance of the ship seizure that I was talking with you about earlier–

David P. Gauldin:

No, I don’t–

–whether the–

–No, I don’t know whether the… the people that seized it got it.

No.

David H. Souter:

–That’s probably a modern notion I would imagine–

David P. Gauldin:

Oh–

David H. Souter:

–that you… that you fund your agency out of the proceeds of… of your forfeitures.

David P. Gauldin:

–Yes, very modern, in fact.

In fact, as I understand that, that was the idea behind the Federal statute.

And the Federal statute is similar to the Florida statute in this respect, that is, that the seizing agency gets the option of either… of either being able to keep the… the goods themselves.

Antonin Scalia:

That’s a healthy incentive to enforce the law, don’t you–

David P. Gauldin:

It is indeed, and too healthy if a magistrate hasn’t reviewed it to make sure… the magistrate serves an auditing function in the sense that… you know, not that I imply that the law officers are dishonest, but it will keep them honest.

Moreover, on the real borderline cases, this is all the more reason that you want a disinterested, neutral, and detached magistrate.

Finally, the government I think relies upon the Watson case with the idea that if you can seize a person in a public place, why can you not seize the property itself.

You have already addressed that.

The answer to that, of course, is that, first, this is a civil forfeiture case.

This is not a criminal case.

You have certain safeguards of a constitutional nature, Gerstein v. Pew, for the seizure of a–

William H. Rehnquist:

–You say that Watson… Watson was a criminal case–

David P. Gauldin:

–Watson was a criminal case, yes, but this is a forfeiture case.

William H. Rehnquist:

–And does… why is that different?

David P. Gauldin:

Pardon?

Oh, because in… you have civil remedies.

You have civil standards; that is to say, probable cause and all is the ultimate standard for the forfeiture of the vehicle.

William H. Rehnquist:

But you would think perhaps that there would be more protections against seizure in a criminal case than there would be in a civil case.

David P. Gauldin:

There are for a person.

For instance, you get a first appearance in Florida within 24 hours.

You get the right to counsel if–

William H. Rehnquist:

But you… but you can be arrested without a warrant.

David P. Gauldin:

–You can be arrested without a warrant for a felony outside of your home under Watson, under the circumstances of Watson.

Stephen G. Breyer:

So, if the police need a warrant to… to arrest, in effect, or seize a car in a public place where they have probable cause to know that the… the car was an instrumentality of a crime, I would certainly think a fortiori they would need a warrant to arrest a person in a public place, although they have probable cause to believe that the person is or has engaged in a crime.

David P. Gauldin:

Well, the Watson decision holds otherwise in that respect–

Stephen G. Breyer:

No, no.

I’m talking about logic.

David P. Gauldin:

–Oh, yes, logically… not only logically, but as I recall Justice Powell said that logic would dictate that, but that history is against it.

Stephen G. Breyer:

All right.

So, what we do if we decided in your favor, we would then have to say that these other cases were wrong but simply established the law through precedent.

David P. Gauldin:

Well, no, I don’t think you have to say that these other cases were wrong, if you mean Watson, because that’s dealing… it’s different because in Watson you have given them certain constitutional protections such as the right to a first appearance within 24 hours or 48 hours at the most, the right to a probable cause hearing where the burden is on the government to prove probable cause, the right to appointment of counsel if you’re an indigent to help you make that decision when you don’t have those rights, and any rights that you do have here are merely of a statutory and evanescent nature.

David H. Souter:

But isn’t there a… a public safety rationale behind the… the warrantless arrest which does not apply here?

David P. Gauldin:

Yes, there is.

David P. Gauldin:

And, in fact, in Watson, they specifically cited an old Massachusetts case, Rohan v. Swain I think, in which they stated that the public safety was implicated in their decision.

That’s what they referred to in… in basing it on Watson.

Ruth Bader Ginsburg:

And was there also a factor that a person is mobile and here there was no assertion that this car, as the cars that are under the car exception, might go across the border?

I mean, the car had been there and visible and able to be taken for some period of time.

David P. Gauldin:

There was certainly no assertion and the record doesn’t support any idea that the car was going to go anywhere.

I mean, they wouldn’t have waited 68 to 80 days if they had thought that the car or the individual was going to be… abscond.

Anthony M. Kennedy:

How long had the car been in the parking lot where it was seized?

David P. Gauldin:

That I don’t know, but what I can say–

Anthony M. Kennedy:

It hadn’t been there 80 days, had it?

David P. Gauldin:

–No, but it might been there every day–

Anthony M. Kennedy:

Nothing in the record indicates it was there for 80 days.

David P. Gauldin:

–Pardon?

Anthony M. Kennedy:

Nothing in the record indicates it was there for 80 days.

David P. Gauldin:

No.

Anthony M. Kennedy:

Nothing in the record indicates that the police had it under surveillance for 80 days, does it?

David P. Gauldin:

No, no.

However, the record does indicate that he was arrested at his… at his place of employment.

Ruth Bader Ginsburg:

And there was no suspicion that at that time the car was carrying contraband.

The crack happened to turn up–

David P. Gauldin:

No, no.

That was conceded below by the State, and in fact, you can find that in the Florida Supreme Court opinion.

Antonin Scalia:

–Have we held that you can have an arrest of a person without a warrant for an offense less than a felony?

David P. Gauldin:

Watson dealt with a felony.

Not that I know of.

Antonin Scalia:

So, you… you… you can argue that this is more analogous to a misdemeanor arrest than it is to a felony arrest, the seizing of property that is… that is forfeited.

David P. Gauldin:

Yes, without a warrant.

Sandra Day O’Connor:

Do you say that we have not held that a police officer can arrest someone without a warrant for a misdemeanor committed in the presence of the officer?

David P. Gauldin:

Oh, no, no, no.

I wouldn’t say that.

No, if that occurred in his presence.

David P. Gauldin:

The problem here, of course, is, is th at what occurred occurred 68 to 80 days earlier.

At this point, if there are no further questions, thank you very much.

William H. Rehnquist:

Thank you, Mr. Gauldin.

Ms. Snurkowski, you have 4 minutes remaining.

Carolyn M. Snurkowski:

Thank you, Your Honor.

Forfeiture is a process.

It’s not just the activity of seizing the car, and the Florida statute is very clear with regard to that.

The seizure of the vehicle commences forfeiture proceedings.

It is not the end all.

So, to suggest that somehow the police are acting beyond the pale and doing something that they shouldn’t do because there’s going to be monies coming to the agency at some point I believe is not a sound basis to suggest that forfeiture is not a valid basis upon which to be able to seize without a… a warrant.

Watson I believe is very controlling with regard to this instance whether a individual, who has committed a felony and there’s probable cause by the police officers to arrest or, in fact, he sees the individual committing a misdemeanor in his presence, I don’t believe that there’s a dime’s worth of difference, to be very frank, between that and the bottom line of seizing a vehicle where the officers understand, believe, and have knowledge and probable cause based on that knowledge, that this vehicle is an instrumentality in a criminal endeavor.

In this particular instance, the police did not just willy-nilly go down to the Sam’s parking lot and seize the car.

They had an arrest warrant and they arrested Mr. White on other charges, on other narcotics charges.

And as a part of that, they seized the vehicle because they had the requisite probable cause based on earlier conduct by this defendant.

The State would submit that there’s nothing been done during this event, nor any other event, that similarly tracks the ability of the government to go and seize vehicles without a pre-seizure warrant.

In fact, that is done throughout this country on a daily basis based on the Federal forfeiture acts and other State forfeiture acts.

And, in fact, many States and many… in particular, other supreme courts and the Federal Government have relied heavily with regard to the applicability of the Cooper decision, of the applicability of Watson, and of G.M.–

And with regard to our G.M. argument, the reason… one of the reasons why I believe that we did not rely so heavily on that was the second prong of this, was that we want to make sure that the… the Court understood that we’re not talking about real property.

There was a discussion with regard to the Florida Supreme Court about Florida Department of Law Enforcement versus real property in their opinion, and that case dealt with real property.

We are talking about personal property such as vehicles and other instrumentalities of criminal act, not real property which is an exception under the Florida statutes with regard to forfeiture.

Thank you.

William H. Rehnquist:

Thank you, Ms. Snurkowski.

The case is submitted.