author: McCORD, Judge. BOOTH, Judge,

text:
    ST. JOE PAPER COMPANY, Appellant, v. Hubert R. ADKINSON, Property Appraiser of Walton County, Florida; Jack Little, Tax Collector of Walton County, Florida; Bob Anderson, Lawton Mathews, Hughie Infinger, Milford Bass and Johnnie Moore, as members of the Board of Tax Adjustment of Walton County, Florida; and J. Ed Straughn, Director, Department of Revenue, State of Florida, Appellees.
    No. LL-134.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    On Motion for Clarification July 1, 1981.

      Fred H. Kent, Jr., of Kent, Watts, Dur-den, Kent & Mickler, for appellant.
    Jim Smith, Atty. Gen., Joseph C. Melli-champ, III, Asst. Atty. Gen., for appellee Department of Revenue.
    George R. Miller, DeFuniak Springs, for appellees Tax Collector and Property Appraisal Adjustment Board.
   McCORD, Judge.

This is an appeal and cross-appeal from a final judgment which denied agricultural classification to certain properties owned by St. Joe Paper Company (St. Joe), appellant, and adjudicating the nonagricultural values placed on the land. We affirm in part and reverse in part.

The appeal arose out of three actions filed in the trial court by St. Joe against appellees. The complaints in the three suits are almost identical and involve basically the same lands. Each suit contests the classification, assessment and taxation of those lands — the first suit for the year 1974, the second for the year 1975 and the third for the year 1976. The three suits were consolidated by the trial court, and a final judgment and amended final judgment were entered on the three consolidated cases.

St. Joe’s first point on appeal questions the denial by appellee property appraiser of Walton County of agricultural classification to certain of its lands. St. Joe’s Point II and appellees’ cross-appeal relate to the nonagricultural values placed on the land.

St. Joe owns and operates a paper mill and two box plants in the State of Florida and numerous box plants outside the State of Florida. In order to supply the mill with pulpwood, St. Joe owns and utilizes large tracts of timberland in both Florida and Georgia, including Walton County, Florida. Its Walton County tract contains approximately 37,500 acres which lie between Choe-tawhatchee Bay and the Gulf of Mexico in south Walton County. Prior to the three suits contesting the 1974, 1975 and 1976 appraisals involved in this appeal, the property appraiser had reappraised all of the lands in Walton County in 1973. He carved from the edge of the St. Joe tract a strip along the shore of the Gulf of Mexico 210 feet deep and denied agricultural classification to that strip. St. Joe filed suit in the Circuit Court of Walton County both on its 1973 assessment and the denial of agricultural classifications. A final judgment was consented to by the parties and entered by the court in that case. The judgment applied to the assessment of St. Joe’s lands for both 1973 and 1974 except for the Gulf frontage and two tracts described in that judgment. In 1974 and subsequently, the strip of Gulf frontage was broadened from 210 feet to 660 feet in depth, and in addition, the property appraiser denied agricultural classification to other portions of St. Joe’s tract situated on small lakes near the Gulf. It is the denial of agricultural classification on the 660-foot deep strip of Gulf frontage and the property on the small lakes that is in controversy here.

Section 193.461, Florida Statutes (1977), provides that the property appraiser shall, on an annual basis, classify for assessment purposes all lands within the county as either agricultural or nonagricultural. Subsection (4)(a) provides in pertinent part as follows:

The property appraiser shall reclassify the following lands as nonagricultural:
1. Land diverted from an agricultural to a nonagricultural use;
2. Land no longer being utilized for agricultural purposes;
3. Land that has been zoned to a nonag-ricultural use at the request of the owner subsequent to the enactment of this law; or
4. Land for which the owner has recorded a subdivision plat subsequent to the enactment of this law.

Subsection (3)(b) sets out the factors to be considered in determining whether the use of the land for agricultural purposes is bona fide as follows:

1. The length of time the land has been so utilized;
2. Whether the use has been continuous;
3. The purchase price paid;
4. Size, as it relates to specific agricultural use;
5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
7. Such other factors as may from time to time become applicable.

The property appraiser gave three reasons for denying agricultural classification to the lands in question: (1) it is not economically feasible for agricultural use; (2) it is not being utilized for agricultural purposes; (3) it will act as a deterrent to the timely and orderly expansion of the area. The third of the foregoing reasons is not a legitimate consideration for the tax assessor in determining whether or not he will deny agricultural classification to lands or reclassify lands nonagricultural. This consideration may be made only by the board of county commissioners. Subsection (4)(b) of Section 193.461, Florida Statutes (1977), provides:

The board of county commissioners may also reclassify lands classified as agricultural to nonagricultural when there is contiguous urban or metropolitan development and the board of county commissioners finds that the continued use of such lands for agricultural purposes will act as a deterrent to the timely and orderly expansion of the community.

No similar language is contained in the statutory directions to the property appraiser in his classification or reclassification of lands as agricultural.

The parties agree that the 660-foot strip of Gulf frontage is composed of beach and sand dunes and that pine will not grow readily along this strip. St. Joe points out, however, that this strip is less than 1.5% of the area of the entire tract; that the record is clear that St. Joe is conducting a bona fide timber operation on its Walton County tract; that opening up the area along the beach to the public would have a negative effect upon their operation in that, as one expert witness testified, there would be increased traffic and more population in the area, all of which would result in increased exposure from fire, trespass, and a possibility of accidents that might occur because of interference with forest management operations; that also there would be an increased garbage problem. St. Joe argues that its Walton County tract is all one unit; that in any tract of forest land there will be a small percentage that is nonproductive; that such nonproductive land should not be removed from its large tract and classified nonagricultural. While there is some logic to this argument, we do not agree that this beach property should be classified agricultural merely to protect the remainder of the tract from increased traffic, trespass, fire and garbage. The edge of any large agricultural tract that fronts upon a publicly used area would be subject to the same problem, and there is nothing in the foregoing statute which would authorize a continuation of agricultural classification to effect such purposes. Under the circumstances shown by the record in this case, we consider that the nonproductive strip of beachfront property, lying as it does on the perimeter of the large tract, was properly classified nonagricultural.

The lake frontage which was classified nonagricultural falls in a different category. It is inland and the record shows that it is forested with considerable merchantable timber. The fact that it would, in all probability be desirable for other uses is not an authorized predicate upon which to classify it nonagricultural. The record shows that it is an integral part of St. Joe’s Walton County tract which is used exclusively for growing timber for its paper mill. We, therefore, affirm the classification of the beach frontage as nonagricultural land but reverse the classification of the lake frontage as nonagricultural.

The next point relates to the valuation of the beach frontage as nonagricultural land. The discount methods of appraisal of the Gulf front strip used by the two appraisers (Messrs. Campbell and Teel) presented as witnesses by the Property Appraiser and the alternate (discount) method used by St. Joe’s appraisal witness, Earl Adkinson, are appraisal methods which have previously been disapproved by this Court as producing land values that are too speculative upon which to base findings of value for tax assessment purposes. See R-C-B-S Corporation v. Walter, 225 So.2d 426 (Fla. 1st DCA 1969). By this method, the three appraisers determined future use value of these undeveloped lands upon their being subdivided into small lots and the appraisers then discounted the value back to the present. This method involves speculation as to the costs and time required to provide access to the property, surveys, utilities, and approval by governmental agencies. It then requires further speculation as to the period of future time required to sell the volume of lots which would be created. Because those appraisals improperly were based on speculation and conjecture as to future value and use, they should not have been considered in arriving at the assessment.

The Property Appraiser’s testimony also was predicated erroneously upon the value of subdivided Gulf front lots. The value of this tract for tax purposes must be its value in its existing state as raw undeveloped acreage and not its value derived through speculation as to its future value in a state which does not now exist followed by a process of discounting that future value back to the present time. The trial court erred in relying to any extent on the speculative testimony.

Affirmed in part and reversed in part and remanded for proceedings consistent herewith.

SHAW, J., concurs.

BOOTH, J., concurs in part and dissents in part.

BOOTH, Judge,

concurring in part, dissenting in part:

I would reverse the trial court’s ruling denying agricultural classification both as to the interior lake-front areas and the beach perimeter areas. The entire tract is a unit used for bona fide agricultural purposes and should be so classified. Florida Statutes, Section 193.461(3)(b), requires that the lands be used “primarily” for a bona fide agricultural purpose. Exclusive and total use of every portion of the property by planting, grazing, etc., is not required. Fallow and infertile areas, windbreaks, and buffer zones can be an unavoidable part of a farming operation. The agricultural use need not be a profitable one. The statute does not require physical or economic feasibility as to each portion of the property. In Hausman v. Rudkin, 268 So.2d 407 (Fla. 4th DCA 1972), an 800-acre tract was held properly classified agricultural based on the use of 650 acres as pasture for grazing. The balance of the land, 150 acres, was swamp, not used for the farming operation, but included within the perimeter fence. In the instant case, 1.5 percent of the total tract is beach land, unsuitable for growing pines. The beach land, however, as well as the lake-front land, is surrounded by pinelands, inaccessible to highways, and an integral part of the entire tract.

The purpose of the Greenbelt Law is to encourage the preservation of land for agricultural purposes and to avoid penalizing, through taxation, the landowner who maintains land in agricultural use rather than turning it to more lucrative uses such as residential subdivision and commercial development. This purpose is defeated if the tax assessor can carve out of an agricultural tract portions which are not planted in a crop but which are, nevertheless, an integral part of the tract. The public purpose exemplified by the agricultural classification provision outweighs the benefit sought here from increased tax revenues and the resulting forced commercialization and development with accompanying population increase. The loss of these areas presently maintained in a natural state as part of the forestry operation is irreversible.

I concur with the majority in reversing the trial court as to the lake-front interior areas of the tract but dissent, respectfully, from the majority’s affirmance of the denial of agricultural exemption to the perimeter areas.

ON MOTION FOR CLARIFICATION

By its motion for clarification, appellant calls attention to the fact that our opinion overlooks ruling upon the property appraiser’s denial of agricultural classification and reclassification of lands other than the waterfront lands and lakefront lands. Such lands are 575 acres which were denied agricultural classification and were reclassified by the property appraiser as “raw acreage” and “raw acreage-highway.” Such lands are timberlands which lie between the waterfront lands and the access roads and highway. These lands fall in the same category as the lake frontage which we ruled was erroneously classified nonagricultural. The property appraiser erred in Classifying the “raw acreage” and “raw acreage-highway” lands nonagricultural.

The motion for clarification is granted, and our opinion is modified accordingly.

BOOTH and SHAW, JJ., concur.

      . Fisher v. Schooley, 371 So.2d 496 (Fla. 2d DCA 1979); Straughn v. K&K Land Management, Inc., 347 So.2d 724 (Fla. 2d 1977); affirmed 368 So.2d 588 (Fla. 1979).


source: Caselaw Access Project

license: Public Domain

text:
    Janice E. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. VV-157.
    District Court of Appeal of Florida, First District.
    May 28, 1981.
    Rehearing Denied July 1, 1981.
    Michael J. Minerva, Public Defender, and Thomas L. Powell, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

When Appellant sought to visit an inmate at Tallahassee Community Correctional Center, she was subjected to a warrantless search of her person and possessions, which search disclosed certain drugs in the pocket of her sweater. She was convicted of introducing contraband into a correctional facility, proscribed by Section 944.47, Florida Statutes (1979). The appellate issue presented is whether the trial court erred in denying Appellant’s motion to suppress the evidence seized from her person as a result of the search.

In order to focus clearly upon what we believe to be justification for the search, and thus dispositive of the appellate issue, we note that the search was not incident to a lawful arrest, nor based upon Appellant’s express consent. Furthermore, while under the facts of this case there is arguably an implied consent, we need not ground our decision on implied consent. Rather, we find and so hold that the search was not unreasonable (and thus, not constitutionally invalid), because the governmental interest to be protected (preventing the introduction of contraband into a prison or correction facility) substantially outweighs the governmental intrusion of privacy suffered by Appellant at a time when and place where she had only minimal expectation of privacy-

A Department of Correction rule relating to visiting procedures provided that “... [visitors] may be required to submit to a search of their person and possessions before being admitted.” There was no evidence that Appellant had actual knowledge of this rule. Nonetheless, in this day and age we think it highly improbable, if not inconceivable, that any person of normal or average intelligence would be unaware of the likelihood, if not the requirement, that they be subjected to a search of their person and possessions before being allowed to visit an inmate in a correctional facility or prison. Thus, as a visitor at the correctional facility, Appellant did not have a reasonable expectation of privacy to be free from some type of search of her person and possessions.

It takes little imagination nor much elaboration to envision the substantial extent of the governmental interest in preventing weapons, drugs, or other contraband from falling into the hands of inmates of correctional facilities through means of being brought into the facility by visitors carrying such weapons, drugs, or other contraband on their persons or among their possessions. The Legislature felt strongly enough about the matter to enact the statute under which Appellant stands convicted, and this Court, in Delatte v. State, 384 So.2d 245 (Fla. 1st DCA 1980), quoted with approval a statement from State v. Kaluna, 55 Haw. 361, 520 P.2d 51, 61 (1974), that “. .. police have full authority to prohibit the entry of weapons, drugs or other potentially harmful items into jail.” The limited intrusion upon Appellant’s reasonable expectation of privacy as balanced against the substantial governmental interest in preventing the introduction of weapons, drugs, and other contraband into the confines of the correctional facility, makes the search reasonable when conducted solely for the purpose of discovering whether a prospective visitor poses a threat to the security of the prison or correctional facility, and the safety of its personnel and the public. Accord, State v. Manghan, 126 N.J.Super. 162, 313 A.2d 225 (1973).

The type of search which we here find and hold to be reasonable is analogous to the air passenger search, the validity of which was upheld in Shapiro v. State, 390 So.2d 344 (Fla.1980), on reasoning substantially similar to that herein expressed.

Several federal courts have held that when a search is made to prevent the entry of forbidden articles into a designated area, a warrantless search may be reasonable even though probable cause is negligible or absent. See U. S. v. Grisby, 335 F.2d 652 (4th Cir. 1964); U. S. v. Kroll, 351 F.Supp. 148 (W.D.Mo.1973); Davis v. Reynolds, 319 F.Supp. 20, 22 (N.D.Fla.1970).

Essential to the validity of a search of this type is that it not only be reasonable at its inception, but also that the scope of the search be reasonably related to the purpose which justified it in the first instance. U. S. v. Kroll, supra. By and large the question of whether the scope of the search in a particular case extended beyond that which was reasonably related to the purpose which justified the search in the first instance will necessarily turn upon the facts of each case. We find nothing in this case indicating that the scope of the search exceeded that reasonably related to the purpose of the search.

AFFIRMED.

McCORD, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: DANIEL S. PEARSON, Judge.

text:
    Sheldon GOLDING, Petitioner, v. DIRECTOR OF the PUBLIC SAFETY DEPARTMENT, METROPOLITAN DADE COUNTY, Respondent.
    No. 79-2088.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Golding & Wagenheim, Richard L. Wag-enheim and Mark Pearlman, Fort Lauder-dale, for petitioner.
    Robert A. Ginsburg, County Atty., and Ralph C. Rocheteau, Asst. County Atty., for respondent.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In October 1979, a search warrant describing the property to be seized as narcotics was issued by a judge of the Circuit Court in and for Dade County, Florida. Officers of the Dade County Public Safety Department searched the described premises, a locker at Miami International Airport, and seized an attache case containing $201,-500 in United States currency and a raincoat. Shortly thereafter, Golding filed a motion in the Criminal Division of the Circuit Court seeking the return of the property under Section 933.14, Florida Statutes (1979). The trial court denied the motion, stating that Golding’s exclusive remedy was an action in replevin, since there was no criminal action pending before the court arising out of the seizure. Golding appealed. Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat Golding’s appeal as a petition seeking a writ of mandamus.

In Harvey v. Drake, 40 So.2d 214 (Fla.1949), a circuit court judge issued a search warrant returnable to the circuit court describing certain premises in Walton County as containing illegal alcoholic beverages. A seizure was made, but no criminal charges were brought. The owners of the premises moved for return of the property seized before a county judge who would have had jurisdiction over the misdemeanor offense of possession of the beverages, the highest criminal charge which could have been brought. The Florida Supreme Court, on an appeal by the Department of Beverages from a denial of a writ prohibiting the county judge from exercising jurisdiction, held that motions for the return of property are controlled by Section 933.14, Florida Statutes (1941), which gives jurisdiction to “the magistrate or judge before whom the warrant is returned,” which in Harvey, by the terms of the warrant, was the circuit court.

Three propositions pertinent to the present case emerge from Harvey v. Drake, supra: first, movants seeking return of property seized under a warrant have as an available remedy a motion under Section 933.14, quite apart from an action for re-plevin; second, the court before which the warrant is returned has jurisdiction to entertain this motion; third, the filing of criminal charges is not a prerequisite to relief under Section 933.14. We conclude, therefore, that the Criminal Division Judge of the Circuit Court to whom Golding’s motion was assigned had jurisdiction to grant the relief sought in the motion.

The County has brought to our attention that subsequent to Golding’s appeal, he instituted a replevin action in the Circuit Court seeking the return of this same property. The County suggests that this moots the issues before us. We disagree. To be sure, the relief Golding seeks here is our mandate requiring the Circuit Court to exercise jurisdiction which, in respect to Golding’s replevin action, the Circuit Court has done. But in our view, Golding is entitled to have the Circuit Court exercise jurisdiction, which it has refused to do, over his distinct and separate motion for return of property. Thus, the issue before us is not moot. Golding was entitled to seek the expeditious remedy afforded by Section 933.14. He attempted to avail himself of this remedy. The less expeditious procedures involved in an original civil action of replevin are hardly an adequate substitute for one seeking the immediate return of seized property. See generally Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981). Merely because Golding, as a result of the trial court’s refusal to accept jurisdiction, was left with the Hobson’s choices of replevin and appeal and chose both, does not disentitle him to review. Our refusal to decide the case before us on mootness grounds would sanction the trial court’s wrongful refusal to exercise jurisdiction and penalize Golding for his impatience, when in fact the remedy which he was entitled to utilize under Section 933.14, and which he was deprived from utilizing, was precisely designed to accelerate the return of seized property to justifiably impatient movants.

Accordingly, having treated this appeal as a petition seeking a writ of mandamus, we grant the petition. We deem it unnecessary to issue the writ. We direct the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, to exercise its jurisdiction over Golding’s motion for return of property.

      . Golding apparently perceived the trial court’s order as determining that he did not have a right to immediate possession of the property, making the order appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). But the trial court obviously did not rule on the merits of his claim. Instead, it held that in the absence of a pending criminal case, it was without jurisdiction to hear the motion. Accordingly, we hold that appeal does not lie. However, since Florida Rule of Appellate Procedure 9.040(c) authorizes us to treat the cause as if proper remedy had been sought, we treat this appeal as a petition for writ of mandamus. See Estevez v. Gordon, 386 So.2d 43 (Fla.3d DCA 1980).

      . Section 933.14, under consideration in Harvey v. Drake, was substantially the same in 1941 as the 1979 version involved in the present case.

      . The search warrant in the present case was, unlike that in Harvey, returnable before “a court having competent jurisdiction of the offense.” The offense, as described in the warrant, was a felony which, at least presumptively, made the warrant returnable in the Circuit Court. The use of the language “a court having competent jurisdiction of the offense” would undoubtedly create jurisdictional confusion where the offense described in the warrant is a felony, but the offense ultimately and actually charged is a misdemeanor over which the county court has jurisdiction. We need not here resolve that issue.

      . See, however, Section 943.43, Florida Statutes (1980), effective July 1, 1980, providing, in the case of forfeitable property, that “[njeither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act.” The currency involved in the present case was not at the time of its seizure forfeitable, see n. 8, infra, and the act would not, in any event, retroactively apply to this case. See Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981).

      . The fact that Golding’s motion was filed in the Criminal Division of the Circuit Court is not a jurisdictional defect. As we recently held, every judge of the Circuit Court possesses the full jurisdiction of that court; the various divisions operate for the convenience of the litigants and administrative efficiency of the courts. Maugeri v. Plourde, 396 So.2d 1215 (Fla.3d DCA 1981). If the Criminal Division Judge considered this matter to be one cognizable in the General Jurisdiction Division, he could have effected its transfer.

      . We permitted the County, representing the Dade County Public Safety Department, the apparent custodian of the money, to intervene in this court and be substituted for the State as appellee.

      . We further note that Golding’s replevin action has apparently been held in abeyance awaiting the outcome of this appeal, and he has not, as of this time, been afforded relief. While generally we do not consider events occurring after the trial court enters the order under review, we may do so when mootness is suggested and to best subserve the ends of justice. Aurora Enterprises, Inc. v. State of Florida, Department of Business Regulation, 395 So.2d 604, 606 n. 7 (1981).

      . The merits of Golding’s claim under Section 933.14, Florida Statutes (1979), are not before us. We note that the property was seized and Golding’s claim arose and was filed before the amendment effective July 1, 1980, to the Florida Contraband Forfeiture Statute, Sections 943.41--44, Florida Statutes (1980). While the State has not suggested that it has any intention to bring forfeiture proceedings, compare Sawyer v. Gable, supra, prior to July 1, 1980, money was not forfeitable. See Baker v. State, 343 So.2d 622 (Fla.4th DCA 1977).

      . We leave it to the Circuit Court to administratively resolve any problem posed by the fact that there is pending a replevin action involving the same property.


text:
    Warren Thomas SAWYER, Petitioner, v. Honorable Ellen Morphonios GABLE, Judge of the Circuit Court for Dade County, Florida, Respondent.
    No. 80-1990.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.

      Donald L. Ferguson, Coconut Grove, for petitioner.
    Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

As a result of the execution of a search warrant, a Beechcraft airplane and more than one hundred pounds of marijuana secreted therein were seized, and Sawyer was charged with trafficking in this contraband in violation of Section 893.135, Florida Statutes (1979). The criminal case against Sawyer was assigned to the respondent judge. Sawyer moved to suppress the seized evidence. Before the hearing on Sawyer’s motion reached its end and could result in a ruling, the State dismissed the criminal charges against Sawyer. Seven days later, Sawyer moved in the dismissed criminal case for the return of the Beechcraft airplane. The respondent judge refused to entertain Sawyer’s motion on the grounds that she was without jurisdiction. Sawyer petitioned this court to issue a writ of mandamus directing the respondent to exercise jurisdiction.

I.

The search warrant issued by a Dade County Circuit Court Judge commanded that the persons charged with its execution “return this warrant and bring the property . . . before a court having competent jurisdiction of the offense.” Pursuant to this directive, the offense being a felony, return was required to be made to the Circuit Court. Under Section 933.-14(1), Florida Statutes (1979), jurisdiction to order the return of the seized property became vested in the Circuit Court. That section provides:

“(1) If it appears to the magistrate or judge before whom the warrant is returned that the property or papers taken are not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds upon which the warrant was issued, or if it appears to the magistrate before whom any property is returned that the property was secured by an ‘unreasonable’ search, the judge or magistrate may order a return of the property taken; ...” (emphasis supplied).

It is not clear from the record whether the trial judge doubted her jurisdiction, ab initio, or whether that doubt arose because the criminal case against Sawyer was terminated with the State’s nolle prosequi. Therefore, we first address the respondent’s jurisdiction ab initio.

Section 933.14(1) provides a mechanism for the expeditious return of property seized pursuant to a search warrant. Chapter 933 provides no statutory procedure for an application or motion seeking return of the property. Implicit, however, in the authority given to the court to order the property’s return is the right of the person from whom it was seized to move for its return. Harvey v. Drake, 40 So.2d 214 (Fla.1949).

It is not, of course, a prerequisite to a motion for return of property that a criminal prosecution be brought following the seizure of the property. Harvey v. Drake, supra; Golding v. Director, Public Safety Department, Metropolitan Dade County, 400 So.2d 990 (Fla. 3d DCA 1981). However, once a criminal prosecution is instituted, the court in which that prosecution is pending acquires jurisdiction over that property to hear and determine all questions concerning its ownership if the property seized has an evidentiary purpose. Garmire v. Lake, 265 So.2d 2 (Fla.1972). If, on the other hand, the property seized is not held as evidence or no criminal prosecution ensues, then the court to which the warrant and property are returned obtains jurisdiction to order its return. Harvey v. Drake, supra; Golding v. Director, supra.

In the present case, a criminal prosecution has ensued, but the property seized— the airplane—is not being held for use as evidence. Thus, while neither Garmire nor Harvey is precisely on target, the target is bracketed by them. It is clear under Harvey v. Drake, supra, that any circuit judge would have jurisdiction under Section 933.-14 to entertain a motion to return the property. We are of the view that the pendency of the criminal case, with which the seizure of the property is inextricably related, and which required the respondent judge to hear and determine matters related to the warrant and the property seized under the warrant, gave to the respondent judge, as in Garmire v. Lake, supra, a priority in jurisdiction. The matter of the respondent’s priority jurisdiction does not turn on whether the property seized under the search warrant is being held as evidence in the pending criminal case. Rather, it turns on the fact that the warrant and property, by virtue of the filing of criminal charges, have initially come within the jurisdiction of the respondent judge, which jurisdiction is not to be intruded upon by any court, though of concurrent jurisdiction. Garmire v. Lake, supra; Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936). This rule of law is designed to prevent not only the unseemly result of a court of concurrent jurisdiction ordering the return of property held as evidence, Garmire v. Lake, supra, or held under a writ issued by another court, Adams v. Burns, supra, but, in our view, is designed to prevent inconsistent results which could obtain were one court to rule on a motion to return property and another to rule on a motion to suppress in the criminal case.

Additionally, important considerations of judicial economy compel the same result. In United States v. Wilson, 540 F.2d 1100 (D.C.Cir.1976), the defendant, arrested for possession of narcotics, moved under Federal Rule of Criminal Procedure 41(e) (the Federal analogue to Section 933.14) for return of money seized from his house pursuant to a search warrant. The Government contested the return of the property on the ground, inter alia, that the defendant had available a civil remedy. The District Court rejected the Government’s contention, stating:

“Property which is seized in a criminal proceeding either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action. It makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case.” United States v. Wilson, supra, at 1104.

Accord, United States v. Wright, 610 F.2d 930 (D.C.Cir. 1979); United States v. Rangel, 608 F.2d 120 (5th Cir. 1979); United States v. One Residence and Attached Garage of Anthony J. Accardo, 603 F.2d 1231 (7th Cir. 1979); United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir. 1978); United States v. Palmer, 565 F.2d 1063 (9th Cir. 1977); United States v. LaFatch, 565 F.2d 81 (6th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978). Wilson was decided after the 1972 amendment to Rule 41, which, according to the Advisory Committee Note, was intended to require that a motion under the rule be made in the trial court where the criminal action was pending, rather than in the district in which the evidence was seized, a procedure allowed before the amendment. The avowed purpose of the amendment was to further the administration of justice. But even before the amendment, there was little doubt that the district court in which the criminal action was pending had jurisdiction, albeit non-exclusive, to return property as an adjunct to suppression. See DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (“only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent .... ”). In our view, the same considerations of judicial economy and consistency that brought about the amendment to Rule 41 compel a holding that the court which has jurisdiction of the criminal offense in which the search warrant will be considered should determine a motion to return the property seized.

II.

We hold further that the termination of the criminal case, here by the entry of a nolle prosequi, did not divest the trial court of jurisdiction to entertain Sawyer’s motion for return of property. While concededly neither Section 933.14, Florida Statutes (1979), nor any other statute, confers jurisdiction on the court before which the criminal proceedings are held to return property seized after the termination of the criminal case, that power inheres in the court’s jurisdiction over the criminal case. Garmire v. Lake, supra; Estevez v. Gordon, 386 So.2d 43 (Fla.3d DCA 1980). If criminal courts have the inherent power in the absence of a statute to provide for the recovery of evi-dentiary items held by them, as the Supreme Court said in Garmire, then it is implicit that that power, to be effective, must exist after the termination of the criminal case when the items are no longer needed as evidence. See Jenkins v. State, 41 So.2d 554 (Fla.1949). See also State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); Carlisle v. State ex rel. Smith, 319 So.2d 624 (Fla. 4th DCA 1975). Cf. United States v. Wright, supra; United States v. Palmer, supra; United States v. LaFateh, supra; United States v. Wilson, supra (all holding that under Federal Rule of Criminal Procedure 41(e), the Federal District Court does not lose jurisdiction to return seized property after termination of the criminal case).

III.

Our holding that the respondent judge had jurisdiction over Sawyer’s motion for return of property, which was not divested by the termination of the criminal case, is unaffected by the argument advanced on behalf of the respondent that since the State intended to file proceedings to forfeit the aircraft, the respondent lacked jurisdiction to order its return to Sawyer.

The statutory right of the State to bring forfeiture proceedings is clear. See § 943.-41, et seq., Fla.Stat. (1979). That inchoate right, however, did not, under the forfeiture statute applicable at the time of the seizure, affect the jurisdiction of the respondent judge to determine Sawyer’s entitlement to the return of the property. Had the State instituted forfeiture proceedings, the defendant’s right to the return of his property could be asserted therein and adjudicated. In re 1969 Chevrolet Camaro Bearing ’75 Massachusetts License Tag No. 372-766, VIN No. 124379N511693, 334 So.2d 82 (Fla.3d DCA 1976). By the same reasoning, we see no impediment to the State asserting its right, if any, to forfeiture in response to Sawyer’s motion for return of property.

If, in fact, Sawyer is entitled to the return of his property, to deprive him of its prompt return awaiting the State’s unilateral decision to file forfeiture proceedings would be intolerable. It should be obvious that a person who asserts that the State is unlawfully holding his property would be deprived of due process if the law did not afford him a prompt hearing on his assertion.

Section 943.44, Florida Statutes (1979), provides no time limits for the commencement of forfeiture proceedings. We are cognizant that in Mosley v. State ex rel. Broward County, 363 So.2d 172 (Fla. 4th DCA 1978), our sister court held that the limitations period dealing with forfeitures, Section 95.11(3)(n), Florida Statutes (1979),-was applicable to proceedings under Section 943.44. That holding may serve to save Section 943.44 from an attack on the ground that no time limit at all is provided, but it is doubtful that a four-year limitation would pass constitutional muster under any decided case. We need not, however, decide this question, since we are of the view that if the movant is provided with a forum within which his right to the property may be immediately determined without regard to the State’s action or inaction in instituting forfeiture proceedings, he cannot be heard to object to undue delay on the part of the State.

Accordingly, we grant the petition for writ of mandamus. We deem it unnecessary to issue the writ. We direct the judge now presiding in the respondent’s stead in the Criminal Division of the Circuit Court, in and for Dade County, Florida, to exercise jurisdiction over Sawyer’s motion for return of property.

      . The record before us reflects that the apparent and commendable reason for the dismissal was the prosecutor’s considered opinion that a critical witness, the affiant of the search warrant, was not credible.

      . The sufficiency of Sawyer’s motion is not before us.

      . The relief sought is proper. Estevez v. Gordon, 386 So.2d 43 (Fla. 3d DCA 1980).

      . See Golding v. Director, Public Safety Department, Metropolitan Dade County, 400 So. 2d 990 n. 3 (Fla. 3d DCA 1981).

      . The filing of the warrant with the clerk of the Circuit Court is tantamount to making the return to a judge of that court. Harvey v. Drake, 40 So.2d 214 (Fla.1949). Presumably, if criminal charges are not brought or no motion for return of the seized property is made, the return and the seized property remain in limbo.

      . The identical issues of the existence vel non of probable cause and unreasonable search are involved in a motion under Section 933.14 and a motion to suppress.

      . Rule 41(e) provides:
      “Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.”

      .Pertinent here, see discussion, infra, is that the Government in Wilson also claimed that the termination of the criminal proceeding through the defendant’s guilty plea divested the District Court of jurisdiction and that the property was subject to forfeiture proceedings. The District Court also rejected these claims.

      . In Estevez v. Gordon, supra, we issued a writ of mandamus to the trial court directing it to exercise jurisdiction over Estevez’s petition for return of property seized from him at the time of his arrest. Since, as the opinion reflects, the State conceded before us that the trial court had subject matter jurisdiction to rule upon Estevez’s motion and challenged only the method employed by Estevez to invoke that jurisdiction, the opinion does not reflect that Estevez’s motion for return of property was, in fact, made after the criminal case against him had concluded.

      . Jenkins was tried and acquitted of breaking and entering and larceny. He petitioned for return of $1,000 which had been seized from him and introduced as evidence at his trial. The trial court denied the petition. He appealed to the Supreme Court. The Supreme Court dismissed the appeal, ex mero motu, for lack of jurisdiction. Three justices dissented, pointing out that although the majority was correct that the denial of the petition seeking return of money used in evidence was not technically appealable, the court should have treated the appeal- as a petition for certiorari. Important for our purposes is that the dissenters said, “when property is received in evidence by a trial court and the accused is acquitted, the trial court has inherent power to make proper disposition of the property. The question involved is one of proper exercise of jurisdiction.”

      .Durant and Carlisle were decided under Section 812.061, Florida Statutes (1975) (authorizing the return of stolen property to the rightful owner), and Section 847.011, Florida Statutes (1973) (authorizing the return of seized non-obscene materials), respectively. Neither statute explicitly confers jurisdiction on the trial court to enter such an order after the termination of the criminal case, but that power is implicit in both.

      . The seizure in the present case occurred in January 1980; the abortive hearing on Sawyer’s motion to return, in May 1980. Effective July 1, 1980, Section 943.43, Florida Statutes (1980), was amended to provide that in the case of property subject to forfeiture, “[n]either replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act.” Assuming, without deciding, that under the current statute a motion to return forfeitable property no longer lies, and that return of such property can only be accomplished in an unsuccessful forfeiture action, we hold that the amended statute does not apply to seizures antedating July 1, 1980.

      . As we have held, supra, the Circuit Court has jurisdiction over Sawyer’s motion for return of property and, by Section 943.44, jurisdiction over forfeiture proceedings. We note also that the legality of the search and seizure of the aircraft, an issue under Section 933.-14(1), is an issue as well in forfeiture proceedings in which the exclusionary rule applies. In re 1972 Porsche 2-door, ’74 Florida License Tag 1D91780, VIN No. 9111200334, 307 So.2d 451 (Fla.3d DCA 1975); One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 65 S.Ct. 1246, 14 L.Ed.2d 170 (1970).

      . The 1980 version, although requiring that the State Attorney “promptly proceed” with forfeiture, provides no time limits. See § 943.-44, Fla.Stat. (1980). The failure of a state forfeiture statute to provide such time limits has been held to be an unconstitutional denial of due process. Teitel Film Corporation v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). In United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), constitutional objections to a Federal Statute [19 U.S.C. § 1305(a)], which provided for no forfeiture time limits, were obviated only when the court engrafted on the statute time limits of fourteen days to institute the proceedings and sixty days to complete the proceedings, limits regularly observed by the Government. While what constitutes an unreasonable delay in instituting forfeiture proceedings so as to violate due process varies, see Commonwealth v. One 1976 Cadillac DeVille Automobile, - Mass. -, 403 N.E.2d 935 (1980), and cases collected at nn. 15 and 16, delays of twenty-two months, United States v. A Quantity of Gold Jewelry, 379 F.Supp. 283 (C.D.Cal. 1974); thirteen and one-half months, United States v. One 1971 Opel G.T., 360 F.Supp. 638 (C.D.Cal. 1973); twelve and one-half months, United States v. One Motor Yacht Named Mercury, 527 F.2d 1112 (1st Cir. 1975); and eight and one-half months, United States v. One Douglas A-26B Aircraft, 436 F.Supp. 1292 (S.D.Ga. 1977), have been condemned.


author: FERGUSON, Judge. HENDRY, Judge,

text:
    The STATE of Florida, Appellant, v. Suzanne DeCONINGH, Appellee.
    No. 80-1061.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied July 23, 1981.

      Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., David H. Bludworth, State’s Atty., West Palm Beach, for appellant.
    Kurt Marmar, Miami, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

The State appeals from a ruling of the trial court which granted the motion of Suzanne DeConingh to suppress statements made by her when she was hospitalized shortly after the shooting death of her husband. DeConingh was subsequently charged with second-degree murder.

We cite verbatim the findings made by the trial court in granting DeConingh’s motion to suppress:

1. The death of the victim occurred on September 30, 1978, and the defendant herein, the victim’s wife, was hospitalized soon thereafter. A deputy sheriff of the Monroe County Sheriff’s Department, hereinafter referred to as deputy, not in uniform and who was personally acquainted with the defendant, went to see the defendant at the hospital on October 2nd, and upon approaching her, addressed the defendant by her first name. The deputy testified that he did not read her her rights from his Miranda card, nor did he verbally advise her of her Miranda rights; but, instead, he gave her a so-called “advice of rights” form; he testified that she read it, signed it, and said she understood it. Admittedly, the deputy made no attempt whatsoever to ascertain if the defendant did in fact understand what she read, what she signed, or whether she understood the consequences of giving a statement. No statement was taken at this time. The said “advice of rights” form was not offered in evidence and this Court is unaware of its contents.
2. On October 4, 1978, the same deputy again went to the hospital to interrogate the defendant, and this time her attorneys were present. Defendant’s attorneys admitted they did not advise her of her rights or the consequences of giving a statement, but merely told her that she did not have to give a statement and that she should not. Again, the deputy testified that he did not advise her of her rights; but, instead, he indicated to her the “advice of rights” form signed by her two days previously, and stated did she know it was still in effect, to which she replied yes. Again the deputy did not advise the defendant of her rights, neither from the Miranda card, nor verbally, nor by reading her the “advice of rights” form; again no effort was made to ascertain whether or not she even remembered what was on the “advice of rights” form and whether or not she understood the consequences of giving the deputy a statement. A statement was taken from the defendant on this occasion.
3. The testimony of the witnesses indicates that on both October 2nd and October 4th, as well as at other times, the defendant’s condition was described as upset, crying, confused, disoriented, at times catatonic, not rational, under medications of thorazine and valium, and hysterical.
4. On October 2, 1978 and on October 4, 1978, the defendant was not properly advised of her constitutional rights; the defendant did not understand her constitutional rights; the defendant did not waive her constitutional rights; and, that the defendant was so emotionally upset or distressed, and of such an irrational state of mind that any statements given or made on either of those two occasions were not made voluntarily or knowledg-ably or with a full understanding of the consequences of making any such statement. Such statements, therefore, must be suppressed.

We must reverse on the grounds that Miranda does not apply to non-custodial situations and that the statements sought to be suppressed were given voluntarily.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that statements arising from the custodial interrogation of a defendant are inadmissible at trial unless the prosecution demonstrates that the person giving the statements was informed that any statement he makes may be used against him and he has a right to the presence of an attorney, either retained or appointed. Custodial interrogation was defined as questioning initiated by a law enforcement officer after a person has been taken into custody or otherwise deprived of his freedom in any significant way. The court in Miranda, supra, also stated that a party may waive his right to remain silent, provided the waiver is knowingly and intelligently made. Miranda, supra, establishes a four part test for determining whether statements of a defendant should be suppressed: (a) was there custody, (b) if so, was there interrogation, (c) if so, were the warnings given, and (d) if so, was there a waiver. See, e. g., Cummings v. State, 27 Md.App. 361, 341 A.2d 294 (1975). A negative finding at any step makes proceeding to the next step unnecessary. See e. g., R.A.B. v. State, 399 So.2d 16 (Fla. 3d DCA 1981) (plaintiff failed to prove custody).

DeConingh had been hospitalized on the advice of her personal physician and the record is devoid of facts establishing that hospitalization or questioning of DeCo-ningh constituted a custodial situation. It is well established that Miranda does not apply outside the context of inherently coercive custodial interrogation (emphasis added), Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). See, e. g., In re Beverly, 342 So.2d 481, 488 (Fla.1977). It is the custodial nature and not the focus of the interrogation that triggers the necessity for adhering to the specific requirements of Miranda, supra. See, e. g., Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); State v. Fields, 294 N.W.2d 404 (N.D.1980); State v. Paschal, 358 So.2d 73 (Fla. 1st DCA 1978); Cummings v. State, supra. The fact that Sheriff Roth gave DeConingh the “advice of rights” form to read does not convert an otherwise non-custodial situation into a custodial one. United States v. Akin, 435 F.2d 1011 (5th Cir. 1970); United States v. Owens, 431 F.2d 349 (5th Cir. 1976).

It is widely held that a general questioning by police officers in a hospital room does not constitute custodial questioning. See, e. g., State v. Fields supra; State v. Alston, 295 N.C. 629, 247 S.E.2d 898 (1978); People v. Clark, 55 Ill.App.3d 496, 13 Ill.Dec. 338, 371 N.E.2d 33 (1977); Bartram v. State, 33 Md.App. 115, 364 A.2d 1119 (1976), aff’d, 280 Md. 616, 374 A.2d 1144 (1977); Cummings v. State, supra; State v. Ryan, 113 R.I. 343, 321 A.2d 92 (1974); State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973); Johnson v. State, supra; State v. Hoskins, 292 Minn. 111, 193 N.W.2d 802 (1972); State v. Sandoval, 92 Idaho 853, 452 P.2d 350 (1969); People v. Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632, 239 N.E.2d 515 (1968); State v. District Court of Thirteenth Judicial District, 150 Mont. 128, 432 P.2d 93 (1967); State v. Zucconi, 50 N.J. 361, 235 A.2d 193 (1967).

Further there was no interrogation. DeConingh’s statements were not made in response to police interrogation, see, e. g., Reddish v. State, 167 So.2d 858 (Fla.1964), but were blurted out in the form of a narrative. See, e. g., Cummings, supra, Bartram, supra. Miranda, supra, does not apply where there is no custody or a person has not been deprived of his freedom in a significant way, and there is no interrogation. When Miranda does not apply, the issue of whether there was a knowing and intelligent waiver of Miranda rights never arises, see Cummings, supra.

We turn next to the question of voluntariness which on the facts of this case must be considered on general due process grounds as distinct from the issue of waiver. U.S.Const. Arts. Y, XIV; Art. I, § 9, Fla.Const. (1968). See, e. g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); DeCastro v. State, 359 So.2d 551 (Fla. 3d DCA 1978). The record establishes that De-Coningh gave the statements in the presence and against the advice of her attorney and in a narrative form absent any threats, promises or other physical or mental coercion caused by police procedure. Although the question of whether the statement itself was voluntary does not usually arise as an issue separate from that of whether the waiver of Miranda rights was voluntary, the test of “voluntariness” in either situation is the same, i. e., whether under the totality of the circumstances the confession was the product of mental or physical coercion, brutality or some other improper police procedure which caused the confession to be involuntary. See, e. g., Palmes v. State, 397 So.2d 648 (Fla.1981); Wilson v. State, 304 So.2d 119 (Fla.1974); McDole v. State, 283 So.2d 553 (Fla.1973); State v. Beck, 390 So.2d 748 (Fla. 3d DCA 1980); State v. Williams, 386 So.2d 27 (Fla. 2d DCA 1980); Barnason v. State, 371 So.2d 680 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 764 (Fla.1980); DeCastro v. State, supra; Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977); Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975); Paulk v. State, 211 So.2d 591 (Fla. 2d DCA 1968). This court has held that where there is no evidence of coercion or other improper police procedure, a finding of whether a confession was knowingly or voluntarily made as a result of a medical condition is not mandatory, Melero, supra.

Generally a confession which is the product of a mind confused by intoxication, excitement or mental disturbance not induced by extraneous pressure, raises a question of credibility to be determined by the jury and not a question of admissibility as a matter of law. Absent evidence of threats or promises or other improper police procedures, testimony about state of mind is irrelevant at pretrial hearing. See, e. g., Palmes, supra; Reddish v. State, supra; State v. Caballero, 396 So.2d 1210 (Fla. 3d DCA 1981); Melero, supra. In Reddish, supra, the court made an express and singular exception to this general rule in finding that Reddish’s statements were inadmissible because his confused mental state prevented his answers to police interrogation from being voluntary. We find Reddish of limited significance and inapplicable to DeCo-ningh’s situation. Not only had Reddish been served with an arrest warrant prior to hospital admittance, he was interrogated by the police. Under Miranda, Reddish would have been considered as in custody, but he was without the benefit of the subsequently decided Miranda case. Moreover, none of the five factors carefully established by the court in Reddish, supra, as justifying the exception are present in DeConingh’s case.

We hold that because DeConingh’s statements are not the product of a coercive custodial interrogation, and the record establishes that the statements were voluntary, the trial court erred in granting the motion to suppress those statements.

Reversed and remanded to the circuit court for proceedings consistent with this opinion.

HENDRY, Judge,

dissenting.

I respectfully dissent from the majority opinion. The circumstances surrounding the making of the inculpatory statements by the appellee present an interesting variation on the case law relating to the standards to be applied in determining whether a confession may constitutionally be admitted in evidence against its maker. Let us consider first whether an application of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is warranted and if not, whether the trial court’s exclusion of the confession may be sustained on the basis of safeguarding appellee’s Fifth Amendment privilege against self-incrimination which the Miranda procedure also serves to protect.

It is my view based upon my review of the record that the trial court’s ruling is supported by competent, substantial evidence and was a proper exercise of the court’s function of hearing the evidence, resolving evidentiary conflicts and ruling on the admissibility of a confession which is sought to be suppressed on the ground that its taking was in violation of the defendant’s privilege against compelled self-incrimination. I further find the trial court to have specifically delineated its factual findings that based on appellee’s mental condition and the circumstances under which the confession was taken, the volun-tariness constitutionally required to allow admission of the self-condemning statements into evidence could not reasonably be said to have existed at the time the statements were made.

Moreover, my conclusion as to the correctness of the ruling on a constitutional basis appears to be at odds with the majority’s view that the question of voluntariness presented here did not raise a constitutional violation which would prevent its admissibility, and thus the confession should have been allowed to go to the jury.

I find inapplicable the line of cases typified by State v. Williams, 386 So.2d 27 (Fla. 2d DCA 1980), holding that a defendant’s anxious or distressed mental state arising from his own apprehension of the situation in which he finds himself, as opposed to being the result of external, improper police influences, presents a question not of admissibility, but of evidentiary weight to be given the confession, and so is properly to be considered by the jury. As is noted in the discussion of the facts, the trial court properly considered other factors bearing on appellee’s mental state which serve to distinguish this case from those cited by the majority, (for example, the severity of ap-pellee’s mental condition, the psychologist’s testimony that the mental disorder arose just prior to the shooting, and the probability of influence on appellee’s mind arising from her friendship with the deputy). I therefore would affirm the correctness of the suppression ruling.

The uncontroverted facts establish that appellee was hospitalized by her personal physician, due to hysteria, soon after the shooting death of her husband which occurred on September 30,1978. While in the hospital and on the dates in question herein, appellee was diagnosed by a psychologist as having a “dissociative reaction,” a severe mental disturbance characterized by depersonalization and loss of touch with self and the external environment, and was regularly and continuously receiving medical administration of the drugs Thorazine and Valium.

On October 2, 1978, appellee was visited in her hospital room by Deputy Sheriff Rick Roth of the Monroe County Sheriff’s Department and another officer. Deputy Roth was a friend of appellee. He used her first name in addressing her, said something like ‘things will work out,’ and then told her he wanted to know what had happened. He showed her an “advice of rights” form, which he gave her to read and asked her if she understood, which she said she did, and signed. The deputy did not read appellee’s rights to her, nor did he attempt to determine if she had in fact understood what she had been given to read and had signed. Appellee began to make a statement, but was stopped when a friend who was also present in the room suggested she wait for her attorneys to be present. Her attorneys arrived and after speaking to her privately, suggested to Roth that the taking of the statement be delayed until the following day as she was in no condition to testify, at which point both officers left.

On October 4, 1978, Roth and another officer returned to appellee’s hospital room. Her two attorneys were also present. Again Roth did not advise appellee of her rights, but indicated to her the “advice of rights” form she had signed two days before and asked if she knew it was still in effect, to which she responded yes. Although her attorneys advised her against doing so, appellee insisted on making a statement. She said repeatedly that Rick Roth was a friend and she wanted and had to tell him what happened; she could not let him think bad of her. The statement, given in the form of a narrative at her attorneys’ suggestion, was recorded and later transcribed and is the chief subject of appellee’s motion to suppress which is the basis of this appeal.

Deputy Roth testified that appellee was visibly upset during the meetings, but could carry on an intelligent conversation and understood what was happening; however, this testimony is controverted by that of her two attorneys, the state’s own witnesses, that she was not able to understand what was said to her, nor was she aware of the consequences of making a statement, nor was she in any condition to testify while in the hospital, being “hysterical” and “uncontrollable” and breaking down on many occasions while giving her statement to the deputy. The latter testimony, taken together with that of the psychologist who testified on behalf of appellee to the effect that she was suffering from a severe mental disturbance which probably arose just prior to the alleged shooting, and was “definitely not rational” during the time frame in which the statements were made, is, I believe, sufficient to outweigh the testimony of the deputy and provide competent and substantial evidence to support the trial court’s ruling.

Let us next consider the relevant l°gal authorities, beginning with Miranda v. Arizona, supra, and then take up other decisions which I find applicable to the facts before us. The state has urged and the majority opinion has similarly held that the trial court’s application of the Miranda doctrine was not warranted by the facts in that they do not comprise the type of in-custody interrogation contemplated by Miranda. I agree that this case does not fall squarely within the well defined pattern of circumstances which would require the exclusion of a confession based on noncompliance with Miranda. For example, the essential element of “custody,” or the officers’ intent to hold appellee, is lacking in that she had been privately admitted to the hospital by her own physician and her freedom of movement was not restricted by the officers. I thus find that a review of this case based on the standards set forth in Miranda is not appropriate.

In support of its holding that Miranda is not applicable, the majority has cited numerous cases from other jurisdictions for the rule of law that police interrogation of a hospital patient concerning a criminal episode of which he may have knowledge does not amount to in-custodial interrogation so as to trigger Miranda. A review of these cases discloses that, while their main concern is the question of applicability of Miranda, they do not preclude a finding that under some circumstances, a confession given by a hospital patient to a police officer may be so lacking in voluntariness that it may not be used against its maker. See, e. g, People v. Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632, 239 N.E.2d 515 (N.Y.1968), stating the rule that if the circumstances under which the questioning occurred are likely to substantially affect the individual’s will to resist and compel him to speak where he would otherwise not do so freely it could constitute an in-custodial interrogation so as to invoke Miranda, but finding it inapplicable to the facts of that case.

While I would hold that the instant case is not directly controlled by Miranda, and thus the trial court’s ruling, if it were based solely on that ostensible violation might require reversal, I find, however, that the trial court’s suppression ruling may be sustained upon the basis that its extensive factual findings relative to appellee’s mental condition, the influence of drugs and the surrounding circumstances under which the confessions were made, could be said to have reasonably led it to the conclusion that suppression of the confession was necessary to safeguard the appellee’s constitutional rights.

My view in this regard is, I think, supported by the leading Florida case of Reddish v. State, 167 So.2d 858 (Fla.1964), which was decided before Miranda, and which continues to be applicable in those situations, such as in the case at bar, where in-custodial interrogation sufficient to invoke Miranda is not present. The Florida Supreme Court in Reddish applied a test of the “totality of circumstances” to reach its determination that the defendant’s incriminating responses to the questioning of a state attorney at the hospital were unconstitutionally obtained in violation of Article I, Section 12 [now Section 9] of the Florida Constitution. Factors explored by the court as bases for its decision were the defendant’s serious physical condition caused by a self-inflicted gunshot wound in the chest and heavy loss of blood, combined with the impact of several pain-killing narcotics, the lack of clearcut testimony regarding his mental condition, and the court’s view that the taking of the confession under these circumstances constituted an element of psychological or physical coercion. The court stated the rule that:

If for any reason a suspect is physically or mentally incapacitated to exercise a free will or to fully appreciate the significance of his admissions, his self-condemning statements should not be employed against him.

167 So.2d at 863.

Applying these standards enunciated in Reddish to the facts of the present case, I find in the “totality of the circumstances” which the record presents, an individual who was seriously mentally incapacitated and under the influence of two sedative drugs at the time she made the challenged confessions. The record further supports the conclusion that the appellee, in her impaired state of mind, was influenced by her friendship with deputy Roth and apparently felt some compulsion to make a statement to him because of this. Additionally, I note that defendant disregarded her attorneys’ advice not to give any statement, and persisted in so doing. This clear, record evidence, together with the presence of testimony as to the appellee’s mental state at the time the confessions were given, provides ample support for the trial court’s suppression ruling and, I think, requires its affirmance. I also note, and give due deference to, the fact that a trial court’s ruling against the state on a motion to suppress necessarily implies a finding that the state did not meet its burden of proof. (The state’s burden is that of proving by a preponderance of the evidence that the confession was freely and voluntarily given, McDole v. State, 283 So.2d 553 (Fla.1973).)

I find it appropriate to note at this point a strand of legal authority which lends additional support to the suppression ruling, to-wit: the confession of a person who is mentally or physically incapable at the time is considered inadmissible against him, as involuntarily given, 3 Wharton’s Criminal Evidence § 672 (13th ed. 1973); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Harvey v. State, 207 So.2d 108 (Miss.1968), and the degree of insanity which would render a confession incompetent is that which would be sufficient to render the defendant incompetent to testify. People v. Lambersky, 410 Ill. 451, 102 N.E.2d 326 (1951). While the insanity issue was not directly raised before the trial court, the record facts could conceivably support such a theory, which further demonstrates the correctness of the court’s ruling.

For the foregoing reasons, and based upon the authorities cited, I would affirm the order of the trial court.

      . A second appeal was filed by the state, seeking to overturn a separate judicial ruling as to the admissibility in evidence of certain blood samples taken from the defendant and/or certain physical evidence seized at the home of the victim and defendant where the shooting allegedly occurred. In our opinion in State v. DeConingh, 396 So.2d 858 (Fla. 3d DCA) (Case No. 80-1812, opinion filed April 14, 1981), this court affirmed the trial court’s suppression of the blood sample evidence and dismissed the defendant’s cross-appeal of the suppression of physical evidence seized in the home.

      . But see Johnson v. State, 252 Ark. 1113, 482 5.W.2d 600 (1972).

      . Reddish, supra, was decided before Miranda and the court never addressed the issue of custody. Reddish, however had been served with an arrest warrant prior to hospital admission and his statements were the product of police interrogation.

      . The court in Reddish, supra, established that:
      1. The court had before it a precise record of the drugs administered to Reddish by name, date, and hour.
      2. The record before the court related the time significance of the narcotic dosages to the obtaining of the confessions.
      3. The initial confession was obtained from Reddish the same day he entered the hospital. Reddish was suffering from an almost fatal pistol wound, had bled profusely and had received three transfusions of blood. He was in a condition of great physical shock.
      4. There was testimony of a medical doctor as to the effect of the drugs administered to Reddish.
      5. The suppressed statements were in the form of questions propounded by the state attorney and answered by Reddish.
      There is no evidence in the record of the exact medication that DeConingh received while in the hospital by name, hour or dosage. The most that DeConingh can point to is testimony of Serna McAninch, who has a degree in psychology, that she knew appellee had been prescribed 50 milligrams of thorazine and 10 milligrams of valium because she had discussed DeConingh’s medical plan with DeConingh’s doctor. McAninch did not know how many times a day DeConingh received medication. The record is devoid of any hospital record or testimony by a medical doctor as to whether DeConingh had actually received any medication. There is no testimony by a medically trained expert as to the effects of the drugs allegedly administered to DeConingh and there is no evidence that DeConingh was in a weakened physical condition.

      . Peterson v. State, 372 So.2d 1017 (Fla. 2d DCA 1979); Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977); Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975).

      . The Physicians’ Desk Reference, 35th ed., (1981), provides the following information as to the nature and effects of these drugs:
      Thorazine is the brand name for chlorproma-zine, a strong central nervous system depressant used in treatment of psychotic disorders. It also has sedative effects, may impair mental and/or physical abilities, especially during the first few days of therapy, and may cause adverse reactions such as drowsiness.
      Valium is the brand name for diazepam, a central nervous system depressant used in treatment of anxiety disorders. Its side effects may include drowsiness, fatigue and infrequently, confusion or depression. It is also a controlled substance pursuant to section 893.-03, Florida Statutes (1980).

      .I note that the standard to be applied in appellate review of a trial court’s determination of fact questions in a suppression hearing is a deferential one; such determination will not be reversed unless clearly shown to be without basis in evidence or predicated upon an incorrect application of law. State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979), dismissed, 378 So.2d 348 (Fla. 1979).

      . For a discussion of the relevant Miranda factors, see page 1000 of the majority opinion.

      . My review is limited to considering the record evidence on this point in the light most favorable to the successful movant and resolving evidentiary conflicts in her favor. State v. Williams, 371 So.2d 1074 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 771 (Fla. 1980).

      . Although this factor alone would not be determinative, see, e. g., Halliwell v. State, 323 So.2d 557 (Fla.1975), holding that in a situation requiring Miranda warnings, the giving of those warnings by a friend of defendant does not vitiate their effectiveness, I believe it may properly be considered on review as part of the totality of circumstances.


author: PER CURIAM.

text:
    FLORIDA BOATERS ASSOCIATION, INC., a Florida Corporation, not for profit, and James McKillop, individually, Appellants, v. STATE of Florida, DEPARTMENT OF REVENUE; Ronald J. Schultz, as Pinellas County Property Appraiser; and O. Sanford Jasper, as Pinellas County Tax Collector, Appellees.
    No. ZZ-80.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Ben Ervin, Monticello, Guyte P. McCord, III, and Cynthia Tunnicliff, of Spector, Tunnicliff & McCord, P. A., Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellees.
   PER CURIAM.

Appellants challenge the constitutionality of Chapter 79-334, § 23, Laws of Florida (amending § 371.021(1), Fla.Stat. (1977) and adding subsection (18)) which by definition allows imposition of an ad valorem tax on “live-aboard vessels" in lieu of a license fee. Appellants’ first contention is that the portion of the statute imposing an ad valorem tax on “live-aboard vessels” conflicts with Article VII, § 1(b), of the Florida Constitution which provides:

Motor vehicles, boats, airplanes, trailers, trailer coaches and mobile homes, as defined by law, shall be subject to a license tax for their operation in the amounts and for the purposes prescribed by law, but shall not be subject to ad valorem taxes.

We agree and hold that this portion of the statute is unconstitutional.

Although the above provision specifically recognizes the legislature’s authority to define “boats”, we conclude that the legislature has not undertaken this task; rather, it simply classified boats as taxable and nontaxable. The legislative prerogative in defining “boats” must be exercised in a reasonable manner; i. e., the words and terms of a constitution are to be interpreted in their most usual and obvious meaning. The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who have adopted them. State v. Florida State Improvement Commission, 47 So.2d 627, 630 (Fla. 1950); City of Jacksonville v. Glidden Company, 124 Fla. 690, 160 So. 216 (1936). We are also persuaded by the Commentary to Article VII, § 1(b), that it intended a limited flexibility in defining “boats”. The Commentary states:

Section 1(b) substitutes a license tax for the operation of the listed property in place of an ad valorem tax. The legislature may define these terms by law, thus some ñexibility is afforded on the extent of this tax.... Eliminated from the old provision is statutory language which was extraneous to the basic purpose of the section. The old provision defined the term “motor vehicles” in some detail. Now, it is possible for the legislature to define by law what the various items listed will include. Boats and airplanes were included earlier by law in the term “motor vehicle”, and they are now recognized in their own right in the Constitution. ... [Emphasis added]

Before the Constitution was amended in 1968, a boat was defined as a motor vehicle in language substantially identical to § 371.021(1) before it was amended by Chapter 79-334. See Ch. 63-550, Laws of Fla. Noting that the Constitution specifically exempted boats from ad valorem taxation under a definition existing in law, we think the legislature cannot constitutionally stray far from the popular or prior legislative definition of boat in exercising its authority to change the definition.

We find that the legislature has not, as contended by the appellees, reasonably undertaken to define all boats with reference to their use as a means of transportation on water. See, e. g., § 320.01(l)(a), Fla.Stat. (1979), defining “motor vehicle” to include vehicles used as a means of transportation over public streets. Section 371.021(1) defines boats as vehicles used or capable of being used as a means of transportation on water. Live-aboard vessels are then excluded from this all inclusive definition only for tax purposes. Reference to § 371.-021(18) shows that subsections (18)(a) and (b) concern only a boat’s secondary use as a means of transportation. Contrary to ap-pellees’ contention at oral argument, the live-aboard vessels, as defined, have not necessarily lost their character as boats because of their lack of use as transportation over water; rather, the definition simply classifies boats as taxable if the transportation use is secondary.

The apparent purpose of the statute, with which we have no quarrel, is “to apply the ad valorem tax to all dwelling accommodations and commercial property so that no property owner shifts his share of the costs of local government to others by the virtue of the type of home he owns.” Staff Analysis of the Committee on Finance and Taxation, February 2, 1979. However, we are compelled to hold that the challenged portions of the statute do not meet constitutional muster in addressing the problem. This particular legislation exceeds the bounds of providing a reasonable definition of the term “boats” as it appears in Article VII, § 1(b), of the Florida Constitution. The Constitution, although allowing the legislature to define boats, does not permit defining a boat as a boat except for tax purposes.

Accordingly, we hold the exception of live-aboard vessels from the term “boat”, as defined in § 371.021(1) and (18), Florida Statutes (1979), to be unconstitutional. The remaining portions of Chapter 79-334, Laws of Florida, insofar as they do not concern exempting live-aboard vessels from the license tax, are allowed to stand. Presbyterian Homes of Synod of Florida v. Wood, 297 So.2d 556, 559 (Fla. 1974).

REVERSED AND REMANDED for proceedings not inconsistent with this opinion.

LARRY G. SMITH and THOMPSON, JJ., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.

       The pertinent provisions read:
      (I) “Vessel” is synonymous with boat as referenced in s. l(bl. Art. VII of the State Constitution and means a motor or artificially propelled vehicle registered as provided herein as property and includes defined in s.l(b), Art. VII of the State Constitution and every other description of watercraft, barges, and air boats, other than a seaplane on the water, used or capable of being used as a means of transportation on water. However, live-aboard vessels are expressly excluded from the term “boat” for purposes of s.Kbl. Art. VII of the State Constitution and for purposes of license fees imposed bv this part, if assessed as tangible personal property.
      (181 “Live-aboard vessel” means:
      (al Any vessel represented as a place of business. a professional or other commercial enterprise. or legal residence, and providing or serving on a long-term basis the essential services or functions typically associated with a structure or other improvement to real property. and, if used as a means of transportation, said use is clearly a secondary or subsidiary use: or
      (cl Any vessel used bv any club or any other association of whatever nature when clearly demonstrated to serve a purpose other than a means of transportation.
      (dl Commercial fishing boats are expressly excluded from the term “live-aboard vessel”.


author: HENDRY, Judge. BASKIN, Judge

text:
    Jose VERA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1316.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., and Joseph Corey, Legal Intern, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

Appellant Jose Vera challenges the circuit court’s denial of his motion to suppress evidence seized from his person following a body cavity search.

Appellant, an inmate at Dade Correctional Institution, was assigned to a work detail with the Department of Transportation. On the afternoon of December 28, 1978, prison officials received information from a confidential source within the prison that appellant and another unidentified inmate on the work detail would bring marijuana into the prison concealed in their anal cavities. Based on this tip, prison officials obtained permission from the prison superintendent to search appellant and the other inmates on the work detail.

Upon his return to the prison, appellant was subjected to a body cavity search in the prison clinic by a state-certified emergency medical technician employed by the facility. Digital and anoscope examinations performed on appellant revealed the presence of a foreign object. An enema was then administered to appellant and he was ordered to sit on a bucket. A short time later, a packet containing marijuana was recovered.

Appellant was subsequently charged with introduction of contraband into a correctional facility and possession of marijuana with intent to sell or deliver. At a pretrial hearing, appellant moved to suppress the evidence seized. After this motion was denied, appellant pled no contest to the charges, reserving his right to appeal the denial of his motion.

Appellant contends on appeal that the search violated his reasonable expectation of privacy guaranteed by the Fourth and Fourteenth Amendments. Accordingly, this case addresses the legality vel non of a body cavity search of an inmate based upon information received from a confidential source that the inmate intended to smuggle contraband into the prison. Because this precise issue has not been previously addressed by the courts of this state, federal law and the law of other jurisdictions will be examined.

To determine whether appellant’s reasonable expectation of privacy was violated by the search, we must first ascertain the extent of constitutional rights retained by a prisoner. Internal security within a prison is a compelling governmental interest justifying restrictions on inmate privacy and related rights. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978). Thus, the scope of a prisoner’s Fourth Amendment rights is narrowed to accommodate institutional objectives. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Marra v. State, 341 So.2d 284 (Fla. 1st DCA 1977). See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). As a result of the decreased expectation of privacy by inmates and the exigencies inherent in a prison environment, United States v. Stumes, 549 F.2d 831 (8th Cir. 1977), the government is not required to obtain a warrant or establish probable cause to conduct searches and seizures of inmates. United States v. Lilly, supra; Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973). See generally Taylor v. State, 289 So.2d 421 (Fla.3d DCA 1974). Nonetheless, the Fourth Amendment does require that the searches and seizures conducted upon inmates be reasonable, Bell v. Wolfish, supra, and as with any warrantless search, the government has the burden of showing that the search was reasonable under all the facts and circumstances, even though this burden is lighter in the prison context. United States v. Lilly, supra.

Although body cavity searches present a serious invasion of prisoners’ privacy rights, they are not per se unreasonable. United States v. Lilly, supra. Accord Daughtery v. Harris, supra, (rectal search of inmates at maximum security institution prior to court appearances reasonable in absence of showing of wanton conduct); Hodges v. Klein, 412 F.Supp. 896 (D.N.J. 1976) (rectal search of inmates upon leaving or entering the institution and following contact visits is reasonable). Rather, a determination of the reasonableness of such searches depends on the particular facts and requires a balancing of the need for the search against the invasion of personal rights which the search entails. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

In Bell, the United States Supreme Court upheld the reasonableness of visual body cavity inspections conducted on inmates in a pretrial detention center after every “contact” visit. In making this determination, the Court balanced four factors: (1) the scope of the intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted. Bell, supra, 441 U.S. at 559, 99 S.Ct. at 1884, 60 L.Ed.2d at 481. The controlling factor in the Court’s decision was the unique security danger presented by the smuggling of drugs, money, weapons, and other contraband into detention facilities, despite the fact that on only one previous occasion was contraband discovered during a body cavity search at that particular facility. After balancing the personal privacy interests of the inmates against the significant and legitimate security interest of the institution, the Court held that visual body cavity searches could be conducted on less than probable cause.

Applying the test promulgated in Bell, we conclude that under the particular facts and circumstances presented by this case, the search herein was reasonable. We observe that the factor of prison security considered significant in Bell is also of primary importance in the instant case. Admittedly, the search sub judice was not limited to a visual inspection and was, therefore, a more serious invasion than the search upheld in Bell. However, we find that the intrusiveness of the search is more than offset by the justification for initiating it. Given the important need within a prison facility to preserve internal order and discipline, maintain security, and rehabilitate prisoners, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), we find that the information related to prison officials by a reliable confidential source within the prison that the defendant would smuggle drugs into the facility provided prison officials with compelling justification to search appellant. The record further establishes that the search herein was conducted in a reasonable fashion under proper medical conditions. The search lasted approximately forty-five minutes, and was performed in the emergency clinic of the prison by a licensed technician using acceptable medical procedures, and methods not unduly harsh or oppressive. Additional support for our holding also derives from the fact that courts have traditionally afforded prison administrators wide latitude in their adoption of the proper methods for maintaining order and discipline within the facility. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); United States v. Lilly, supra; Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); Clark v. State, 395 So.2d 525 (Fla.1981).

Upon careful review of the record, we conclude that the search and subsequent seizure in this case were within constitutional limits. ,In reaching this conclusion, we have balanced the dominant need to maintain prison security and prevent the distribution of drugs with the intrusion upon appellant’s privacy. We have also considered the fact that the search was conducted in a non-abusive manner by a qualified paraprofessional in the relative privacy of the prison clinic. Our holding, however, is limited to the particular facts and circumstances of this case; we do not decide whether such a search would be reasonable in the absence of reliable information presenting a genuine threat to prison security.

On this basis, the trial court’s order is affirmed.

Affirmed.

BASKIN, Judge

(dissenting).

Although there is no question that prison security is a matter of the utmost importance, nowhere in American jurisprudence has the need for prison security justified dispensing with those human rights recognized in civilized societies. “[A] prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935, 950 (1974); see Marra v. State, 341 So.2d 284 (Fla.1st DCA 1977).

The majority opinion states its belief that the result sanctioned the “intrusiveness of the search.” While body cavity searches are often mandated by the fact that body cavities are used to hide contraband, the method of conducting such a search is subject to standards which were not met in this case. For forty-five minutes to an hour appellant was subjected to an anoscope examination, a digital examination, an enema, another digital examination, and another enema. These procedures were not performed in the prison hospital but were conducted in a clinic, not by a doctor but by a medical technician, who acted in spite of the doctor’s refusal to authorize the procedure. Appellant was forced to sit on a bucket to await the results of the enemas in the presence of correctional officers, who threatened to continue the “search” all. night, if necessary.

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) authorized a visual search conducted without probable cause; it recognized, however, that a search conducted in an abusive fashion could not be condoned. See United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978).

In my view, the methods used in this case constituted an unlawful intrusion. See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); United States v. Cameron, 538 F.2d 254 (9th Cir. 1976); Huguez v. United States, 406 F.2d 366 (9th Cir. 1968).

For these reasons, I believe the evidence should have been suppressed.

      . The Court attributed this to the deterrent effect of the search rather than a lack of motivation on the part of the inmates to import contraband when given an opportunity.

      . On two prior occasions, the confidential informant had provided prison officials with accurate information. Despite defense requests, the trial judge refused to require the state to reveal the identity of the confidential informant on the basis that his life would be endangered. The denial of this request has not been raised on appeal.

      . See, e. g., United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978) (body cavity search conducted on female inmate upon her return from an unsupervised furlough pursuant to information received from other inmates was reasonable); People v. Valenzuela, 589 P.2d 71 (Colo. App.1978) (body cavity search of prisoner returning from furlough held lawful based on confidential tip from another inmate that the defendant would attempt to smuggle contraband into the reformatory); cf. Frazier v. Ward, 426 F.Supp. 1354 (N.D.N.Y.1977) (anal cavity searches routinely conducted upon inmates returning from prison visits and upon inmates with records of disciplinary problems without reasonable belief or indication of concealment violates the Fourth Amendment). See generally Marra v. State, 341 So.2d 284 (Fla.1st DCA 1977) (search of prisoner’s personal locker for contraband by correctional officers acting on a tip but without a warrant and allegedly without exigent circumstances constitutional).

      . The prison physician testified that the technicians are trained to perform anal examinations, and that a rectal search for contraband is not a medical procedure requiring his presence or permission. Also see Daughtery v. Harris, supra, (rectal examination is not medically dangerous as such and, therefore, professional expertise is not necessary to search for contraband, although such expertise is required when the examination is performed for diagnostic purposes).

      . Compare with United States v. Cameron, 538 F.2d 254 (9th Cir. 1976) (rectal cavity border search enduring the better part of one night violated Fourth Amendment where defendant was subjected to two forced digital probes, two enemas, and forced to drink liquid laxative over his continued protest that he was under medical supervision for stomach and rectal problems); and Huguez v. United States, 406 F.2d 366 (9th Cir. 1968) (anal cavity search unreasonable where defendant subjected to a brutal, painful, and degrading “force process” in unsanitary surroundings).