text:
    Estelle SANDERS v. STATE of Mississippi.
    No. 52676.
    Supreme Court of Mississippi.
    Sept. 30, 1981.

      Hermel Johnson, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   PATTERSON, Chief Justice,

for the Court:

Estelle Sanders was tried and convicted of robbery and sentenced to life imprisonment by the Circuit Court of the First Judicial District of Hinds County. Sanders appeals, assigning several errors.

On August 14, 1979, at approximately 1:25 p. m., Estelle Sanders and Otis Lawyer entered Strauss-Stallings Jewelers on Old Canton Road in the City of Jackson. Sanders walked toward the rear entrance of the store. Lawyer pulled a gun on the store manager, led him to the back storage room, made him lie down, and then tied him up. Lawyer next forced the store clerk at gunpoint to the storage room, where he tied her up with the store manager. A third employee returned from lunch about a minute after the clerk had been tied up. Lawyer took this employee by the arm and led her, at gunpoint, to the storage area where she was tied up with the others. All three employees testified that as the third employee came into the store, Sanders said “there she is.” The third employee testified that Sanders was in the back of the store facing her as Lawyer led her to the storage room. After all three were tied up, Lawyer took the store manager’s wallet, the third employee’s rings, and went through that employee’s purse and departed. After the store employees freed themselves, they found that two diamond cases in the store had been emptied.

Sanders testified that she and Lawyer had been to Strauss-Stallings a few days before the robbery, when they looked at jewelry and Lawyer shoplifted a ring. Sanders bought the gun used in the robbery the day before the robbery. She stated it was purchased for her own protection, yet she gave it to Lawyer the day of its purchase. Sanders testified she went with Lawyer to the jewelry store to shoplift, but that she left because all the jewelry cases were locked.

Sanders stated that she left Lawyer in the store and drove the car home and that Lawyer came over that afternoon and gave her 15 rings which she was to deliver to a certain man. Sanders claimed that Lawyer told her he had shoplifted the rings. The man was to give Sanders $1,000 which she could keep as payment for delivering the rings. Sanders testified that she did not know Otis pulled a gun, that she did not say anything as the third employee came into the store, and that she did not know that it was an armed robbery until she was arrested.

Sanders and Lawyer were arrested as they drove up to a lounge three days after the robbery. Three gold necklaces, a bracelet and some earrings, identified as property of Strauss-Stallings, were found on Sanders. The gun used in the robbery was found in a purse on the front seat of the car next to Sanders.

Sanders contends in her first assignment of error that the state failed to make a prima facie case and that the proof failed to conform with the charge in the indictment. We have held that when a conviction is challenged because the proof is insufficient to make out a prima facie case, the court must assume that all the evidence for the state is true and that all the reasonable inferences that may be drawn therefrom are true. Warn v. State, 349 So.2d 1055 (Miss.1977). In the present case, the evidence and all reasonable inferences drawn from the full testimony of the Strauss-Stallings’ employees amply establish Sanders’ participation in the robbery.

Sanders contends the testimony of the employees that she did not exhibit a pistol, make any threats, or participate in tying up the employees, refutes any inference of participation. The evidence, however, shows her participation as a full fledged accessory. Section 97 — 1—3 of the Mississippi Code, Annotated (1972) states that accessories before the fact shall be “considered a principal, and shall be indicted and punished as such.” It is, therefore, immaterial in our opinion that Sanders did not hold the gun or make any threats. Although Sanders did testify in her own behalf, offering an explanation, the jury simply did not find such testimony credible. Thus we find this assignment without merit.

Sanders next assigns as error the admission into evidence of the pistol used in the robbery. Sanders contends it was inadmissible because it was seized without a search warrant in violation of the 4th and 14th Amendments to the U.S. Constitution.

On a tip from the operator of the Page Four Lounge, the police were waiting for Sanders at the lounge. When Lawyer and Sanders drove up, they were immediately placed under arrest. Sanders remained in the car with the two purses on the seat beside her. As Sanders was getting out of the car, a police officer seized both purses. The officer unzipped the purse and noticed a revolver.

We think the recent U.S. Supreme Court case of New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) is dispositive of Sanders’ argument. In Belton, a policeman stopped a car for speeding. The policeman discovered that none of the four men in the car owned the vehicle or were related to its owner. Meanwhile, the policeman smelled burnt marijuana and saw an envelope on the floor of the car marked “super gold,” that he associated with marijuana. He directed the men to get out of the car, placed them under arrest for unlawful possession, and patted them down. The police officer picked up the envelope and found that it contained marijuana. The policeman then searched each man and the passenger compartment of the car. On the back seat he found a leather jacket belonging to one of the men. He unzipped one of the pockets in the jacket and found cocaine.

The U.S. Supreme Court found the search of the jacket a search incident to a lawful custodial arrest and not in violation of the 4th and 14th Amendments to the U.S. Constitution. The Court dealt directly with the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) established that a lawful custodial arrest justifies the contemporaneous search without a warrant of the arrestee and the area within the arres-tee’s immediate control. The Belton Court recognized the difficulty of the “area within the immediate control” language when that area possibly included the interior of a car and the arrestee was its recent occupant. The Court in resolving this difficulty stated:

Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach. United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427] supra; Draper v. United States, 358 U.S. 307 [97 S.Ct. 329, 3 L.Ed.2d 327]. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. - U.S. at -, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. (footnotes omitted)

The court in a footnote further explained the meaning of containers, stating:

“Container” here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk. Id. at - n.4, 101 S.Ct. at 2864 n.4, 69 L.Ed.2d at 775 n.4.

In the present case, the search and seizure of the two purses in the passenger compartment of the car was lawful because incident to a lawful arrest. Sanders made no challenge to the validity of her arrest and did not develop any of the circumstances of the arrest in the record. From the evidence adduced at trial, the police made a lawful custodial arrest of Sapders and properly seized the purses and pistol.

In her final assignment of error it is contended the trial court erred in overruling an objection to the testimony of a police detective. The detective testified that the jewelry recovered from Sanders was identified by the store manager as being the property of Strauss-Stallings and released to him. Sanders objected, claiming that she would not be able to conduct an effective cross-examination on the identification of the jewelry because the jewelry had been returned to the store. However, the store manager testified that he identified the jewelry within a week of the robbery. Further, the store manager was available for cross-examination on the identification of the jewelry. We find this assignment of error without merit.

In our opinion the facts amply support the jury’s verdict and there being no reversible error revealed by the record the verdict and sentence are affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    TRAILER EXPRESS, INC. and Jack M. Clements v. Nellie M. GAMMILL.
    No. 52168.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Cary E. Bufkin, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellants.
    William H. Liston, Liston, Crull & Gibson, Winona, for appellee.
   ON PETITION FOR REHEARING

EN BANC:

Petition of Appellee, Nellie M. Gammill, for rehearing of the cause is sustained. The original opinion of the Court is hereby withdrawn and substituted therefor is the following opinion:

This ease originated in the Circuit Court of Montgomery County. Appellee, Nellie M. Gammill, filed her suit against appellant, Trailer Express, Inc., requesting damages for personal injuries growing out of a motor vehicle collision that occurred on August 18, 1978. The declaration was filed on September 14,1979, and summons was issued under Section 13-3-63, Mississippi Code Annotated (1972). This section is commonly known as “Non-Resident Motorist Statute” and summons was properly served on the Secretary of State of Mississippi, as the statutory resident agent for non-resident motorists using the highways of this state. The summons was served on the Secretary of State on September 20, 1979, and was returnable to the next term of Circuit Court of Montgomery County that convened on the second Monday (the 8th) of October, 1979. The duly authorized agent of the appellant received the summons on September 25, 1979. No appearance was made in the cause by appellant and on October 19, 1979, toward the end of the twelve day term of court, appellee filed her motion for default judgment and for a writ of inquiry. This matter was heard on October 19, 1979, resulting in the circuit judge entering a final judgment in favor of appellee against appellant in the sum of $126,034.41.

On November 19, 1979, appellant, through its then attorney, filed a Motion to Quash Process and Set Aside the Default Judgment, with required affidavit. On the same date appellant filed a motion for an emergency hearing in vacation on its motion so that it would have sufficient time to appeal in the event of an adverse ruling before expiration of the appeal date from the original default judgment.

A hearing was had before the lower court on November 23, 1979, on appellant’s motion. During the lower court hearing the attorneys for appellee and appellant made certain stipulations, some of which shall be hereinafter discussed in the decision of this cause. Appellant’s attorney had witnesses present to testify on behalf of its motion and also expressed a desire to call appellee as an adverse witness for the purpose of eliciting from her the matters that occurred at the time of the writ of inquiry and default judgment. The lower court was of the opinion that the objection to such testimony should be sustained; however, he allowed appellant to question appellee for the purpose of its appellate record. After the hearing on appellant’s motion, the court entered its order denying the motion in its entirety.

On its appeal, appellant assigns a number of alleged errors. In our opinion two appeal points dispose of the case. These are:

I. Does Section 221(c) of the Interstate Commerce Act [49 USCA § 10330 (1980)] preempt the method of service of process of the nonresident corporation in this case and is thereby the exclusive method of service of process?
II. Does this Court have the authority to reverse and remand for a hearing on damages only? If so, should that be done here?

Appellant contends that as it had appointed a resident agent in the records of the Mississippi Public Service Commission pursuant to the above federal requirement, service on this agent was the exclusive method of service of summons on the nonresident appellant corporation and service of summons on the Secretary of State under Section 13-3-63 was void. The Federal Motor Carrier Act § 221(c) provides as follows:

(c) Every motor carrier (including any motor carrier operating within the United States in the course of engaging in transportation between places in a foreign country and a place in another foreign country) shall also file with the board of each State in which it operates and with the Interstate Commerce Commission a designation in writing of the name and post office address of a person in such State upon whom process issued by or under the authority of any court having jurisdiction on the subject matter may be served in any proceeding at law or equity brought against such carrier. Such designation may from time to time be changed by like writing similarly filed. In the event such carrier fails to file such designation, service may be made upon any agent of such motor carrier within such state.

It is our opinion that appellee had her choice as to the manner of serving appellant. Section 13-3-63 was enacted by the Legislature under the police power of this state, providing that by accepting the rights and privileges of using the highways of this state, a non-resident appoints the Secretary of State of Mississippi as his “true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him. ... ” (Emphasis added). The primary question is whether or not the Federal Motor Carrier Act and particularly the above section 221(c) void the police power application of Section 13 — 3-63. We do not find where an appellate court of last resort has passed on this precise question, but we do find identical questions in state lower courts and pronouncements of law in other appellate courts, including the Supreme Court of the United States, which indicate that the federal statute does not preempt a statute passed under Mississippi’s police power regarding the use of its highways. Also federal and state courts have held that a federal statute does not preempt and void a state statute and prevent the state from exercising its police power unless the Congress in passing its act clearly manifested a mandate to do so. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1942); Allen-Bradley Local v. Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1926); Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1939); Southwestern Greyhound Lines v. Railroad Comm ’n of Texas, 128 Tex. 560, 99 S.W.2d 263 (1936); Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443, on remand 8th Cir., 599 F.2d 283, aff’d 444 U.S. 911, 100 S.Ct. 223, 62 L.Ed.2d 166 (1978); Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Katharine Gibbs School (Inc.) v. F. T. C., 612 F.2d 658 (2d Cir.1979); Pharmaceutical Soc. of State of New York, Inc. v. Lefkowitz, 586 F.2d 953 (2d Cir.1978); Conference of Federal Sav. & Loan Ass’ns v. Stein, 604 F.2d 1256 (9th Cir.1979); Amalgamated Transit Union Div. 819 v. Byrne, 568 F.2d 1025 (3rd Cir.1977); Northern States Power Co. v. State of Minnesota, 447 F.2d 1143 (8th Cir.1971); and Gerut v. Poe, 11 F.R.D. 281 (N.D.Ill., 1951).

In Gerut v. Poe, 11 F.R.D. 281 (N.D.I11., 1951), the Court in discussing the preemption of a state process statute by federal statutes said the following:

It is elementary that every state within its own sphere of action has exclusive rights to provide the method by which its court may obtain jurisdiction over the person or res. The only jurisdiction which Congress has attempted to exercise over this defendant is in regard to matters arising out of and in connection with its interstate transportation as a motor carrier. It is an entirely reasonable and necessary presumption, therefore, that, when Congress enacted the process statute, it only intended to provide means whereby the defendant could be made amenable to process in matters concerning which Congress had assumed jurisdiction under the Federal Constitution.

In a well-reasoned opinion, a New York lower court in Kuris v. Pepper Poultry Co., Inc., 174 Miss 801, 21 N.Y.S.2d 791 (Sup.Ct.1940), stated the following:

Plaintiffs urge that by virtue of the commerce clause of the Constitution (Article 1 § 8, cl. 3) Congress is vested with exclusive authority over matters of and pertaining to interstate commerce; that the enactment by Congress of the federal Motor Carrier Act is well within its constitutional power and that the enactment of the service of process provision, section 221, subdivision (c), [§ 321(c), 49 U.S.C.A.] thereof, is fully within the proper sphere of its action and therefore supersedes the state law on that subject (§ 229 Civil Practice Act); that it is hence controlling and exclusive and that the service made pursuant to section 221, subdivision (c) is valid; that jurisdiction has thus been acquired over the person of the defendant as a foreign corporation.
I am unable to accept this view. Firstly, it is held that so far as the federal Constitution is concerned, it is within the acknowledged power of every legislature to prescribe rules of procedure in courts of its own government. The establishment of courts of justice, within each state, according to its laws, and of the procedure in conjunction therewith, is the peculiar and exclusive province and duty of the state legislatures. 12 C.J. §§ 288, 291, p. 826; 15 C.J. § 178, p. 854; 16 C.J.S. Constitutional Law § 128, pp. 312, 313, 328; 11 Amer. Juris. § 192, p. 892, Const. Law; Adams v New York, 192 U.S. 585, 599, 24 S.Ct. 372 [375] 48 L.Ed. 575; State v. LaPointe, 81 N.H. 227, 123 A. 692, 31 A.L.R. 1212; Cooley’s Const. Lim., 8th Ed., vol. 1, p. 68. Secondly, a study of the provisions of the Motor Carrier Act reveals the intent and purpose of Congress under this Chapter 8, to confer upon the Interstate Commerce Commission jurisdiction as respects the commercial, financial and business aspects of interstate highway transportation and to leave untouched in the hands of the states control over their internal affairs, especially in view of the provisions in said Chapter 8 declaring the policy of Congress in enacting the Act in question. This intent of Congress to restrict the Act to the regulation of commercial practices involved in motor transportation, rather than to make it applicable to other considerations, clearly appears from section 202 of the Act, Part II. 49 U.S.C. § 302, 49 U.S.C.A. § 302, which reads as follows: “Sec. 302. Declaration of policy and delegation of jurisdiction to Interstate Commerce Commission, (a) It is hereby declared to be the policy of the Congress to regulate transportation by motor carriers in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest; promote adequate, economical, and efficient service by motor carrier, and reasonable charges therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; improve the relations between, and coordinate transportation by and regulation of, motor carriers and other carriers; develop and preserve a highway transportation system properly adapted to the needs of the commerce of the United States and of the national defense; and cooperate with the several States and the duly authorized officials thereof and with any organization of motor carriers in the administration and enforcement of this chapter.”
When the question is whether a federal Act overrides a state law, the entire scheme of the statute must be considered. 11 Amer. Juris., § 176. p. 873, Const.Law. Nowhere in the Act does it appear to be the intent and purpose of Congress, in the enactment of this law, to interfere with or usurp the power of the states relating to matters of state internal policy, concerning the jurisdiction of their courts or with the procedure prescribed by their legislatures for the acquisition of jurisdiction by their judicial tribunals over foreign corporations. The clear intent and purpose of Congress was to limit the Act solely to the regulation of commercial practices. (21 N.Y.S.2d 795-796).

Another lower New York Court in Olson v. Midstates Freight Lines, Inc., 12 Misc.2d 897, 173 N.Y.S.2d 711 (Sup.Ct.1958), in holding that the New York state non-resident motorist statute, similar to that of Mississippi, was not preempted by the federal Motor Carrier Act under section 221(c) said:

The defendant maintains that since it is a registered interstate motor carrier under the Motor Carrier Act of 1935, as amended, and had designated a person in this State as required by 49 U.S.C.A. § 321(c) upon whom service of process could have been made, service upon such person was the exclusive method of serving the summons and complaint upon the defendant in this action. Section 321(c) in part reads:
“(c) Every motor carrier * * * shall also file with the board of each State in which it operates and with the Interstate Commerce Commission a designation in writing of the name and post-office address of a person in such State upon whom process issued by or under the authority of any court having jurisdiction of the subject matter may be served in any proceeding at law or equity brought against such carrier. * * In the event such carrier fails to file such designation, service may be made upon any agent of such motor carrier within such State.”
The defendant cites no decisive authority in support of its contention and none has been found in which the precise question presented here has been decided.
It is needful in answering the question presented to consider the authority of the legislature of the State of New York to enact § 52 of the Vehicle and Traffic Law and the purposes of the Congress in enacting § 321(c) of Title 49 of the United States Code Annotated, as part of the Motor Carrier Act. Section 52 as hereinafter shown was enacted under the police power of the State.
Section 52 of the Vehicle and Traffic Law provides that the operation by a non-resident of a motor vehicle in this State, or the operation of a motor vehicle, trailer, or semi-trailer owned by a nonresident if operated in this State with his consent “shall be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved * * The enactment of this section “is a valid exercise of police power, and is not in conflict with the requirements of due process.” Leighton v. Roper, 300 N.Y. 434, 444, 91 N.E.2d 876, 882, 18 A.L.R.2d 537. In Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, the court, in upholding the constitutionality of a Massachusetts statute similar in fundamentals to § 52 of the New York Vehicle and Traffic Law, said:
“The state’s power to regulate the use of its highways extends to their use by non-residents as well as by residents. Hendrick v. State of Maryland, 235 U.S. 610, 622, 35 S.Ct. 140, 59 L.Ed. 385. And, in advance of the operation of a motor vehicle on its highway by a nonresident, the state may require him to appoint one of its officials as his agent on whom process may be served in proceeding growing out of such use. Kane v. State of New Jersey, 242 U.S. 160, 167, 37 S.Ct. 30 [31], 61 L.Ed. 222. That case recognizes power of the state to exclude a nonresident until the formal appointment is made. And, having the power to exclude, the state may declare that the use of the highway by the nonresident is the equivalent of the appointment of the registrar as agent on whom process may be served.” 274 U.S. at page 356, 47 S.Ct. at page 633.
There could be no question of the application of § 52 of the Vehicle and Traffic Law to the instant case but for § 321(c) of Title 49 of the United States Code Annotated (Sweet v. Miller, Sup.Ct. Erie Co., 1933, 147 Misc. 806, 264 N.Y.S. 565).
The law is well settled that the intention of Congress to exclude states from exerting their police power must be clearly manifested. In Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154, the Court said:
“Furthermore, this Court has long insisted that an ‘intention of Congress to exclude states from exerting their police power must be clearly manifested.’ Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432, and cases cited; * * In People v. County Transp. Co., 303 N.Y. 391, 103 N.E.2d 421, the action was brought to recover a penalty from the defendant, an interstate motor carrier. The Court said at page 399 of 303 N.Y., at page 426 of 103 N.E.2d:
“It was early said that State legislation is invalidated only if the Federal and State regulations] cannot either practically or logically exist together. Sinnot v. Davenport, 22 How. [U.S.] 227, 243, 16 L.Ed. 243. Even more important is the doctrine enunciated in a long line of cases, that ‘The intention of Congress to exclude states from exerting their police power must be clearly manifested.’ Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432, and cases there cited; Allen-Bradley Local B. Board, 315 U.S. 740, 749, 62 S.Ct. 820, 86 L.Ed. 1154, and cases cited. Here we have in section 62 of the Public Service Law an exercise of police power affecting a bus line, a public utility, rendering a public service in the community. The basic applicable canon of statutory construction governing all the variations of exercisable police power was well stated as follows in Maurer v. Hamilton (309 U.S. 598, 614, 60 S.Ct. 726, 735, 84 L.Ed. 969): ‘As a matter of statutory construction Congressional intention to displace local laws in the exercise of its commerce power is not, in general, to be inferred unless clearly indicated by those considerations which are persuasive of the statutory purpose.’ ”
There clearly was no intent on the part of Congress in requiring an. interstate motor carrier to designate a person upon whom service of process may be made in a State to supersede a statute, such as § 52 of the Vehicle and Traffic Law, which applies to all non-resident owners of motor vehicles operated by them or with their consent in this State. The purpose of § 321(c) [49 U.S.C.A. § 321(c)] was not to bestow a benefit or privilege upon motor carriers by curtailing the statutory rights of the residents of a state, but for the protection of shippers and persons injured by the carriers’ motor vehicles while operated on State highways. In Madden v. Truckaway Corporation, D.C.Minn.1942, 46 F.Supp. 702, at page 704, the Court said: “Apparently, Congress had in mind that the public should be protected by reason of accidents growing out of the negligent use of motor vehicles engaged in interstate transportation, and also that shippers should be protected in the event of loss of property shipped in such commerce.”
In Huber v. Wilson, 1938, 23 Tenn.App. 109, 126 S.W.2d 893, the Court in a personal injury action upheld the service of process under 49 U.S.C.A. § 321(c) and stated that it was unnecessary to decide whether that method of service was exclusive. The Court, however, stated (126 S.W.2d at page 895): “Under the law of the state there are other statutory provisions providing for the service of process upon the nonresident corporation doing business in this state, and in construing these acts the courts have held that the method provided for the service of process is not an inclusive method but a cumulative method and since this is true the plaintiff may bring the defendant before the court by complying and conforming to the provision of either act.”
There is a further consideration in construing § 321(c) [Title 49 U.S.C.A.]. This section does not authorize service of process upon an interstate motor carrier involved in a highway accident in a State in which it has designated a person upon whom service may be made when it is carrying only intrastate commerce at the time the accident occurs. Davies v. Mahanes, 4 Cir., 1950, 183 F.2d 671. It is not reasonable to assume that Congress intended that a person injured in a highway accident in which an interstate motor carrier is involved would have to determine at his peril the character of the freight being hauled, that is its loading and destination points, nor is it reasonable to assume that the State method of service of process upon an interstate carrier (Vehicle and Traffic Law, § 52), is superseded when the motor carrier is hauling one type of shipment and not superseded when carrying another type of shipment.
It appears to have been assumed in the following cases that service of process upon an interstate motor carrier in a State pursuant to § 321(c) is not an exclusive method of service. Esperti v. Cardinal Trucking Corp., 263 App.Div. 46, 31 N.Y.S.2d 253; Bullock v. Tamiami Trail Tours, 7 Misc.2d 109, 162 N.Y.S.2d 69; Schneir v. Tishman, 176 Misc. 427, 27 N.Y.S.2d 728; Kuris v. Pepper Poultry Co., Inc., 174 Misc. 801, 21 N.Y.S.2d 791.

The majority of this Court agrees that the reasoning in the above set out cases is accurate and should be followed. As stated, the intent and purpose of the Federal Motor Carrier Act was to regulate the commercial, financial and business aspects of interstate commerce as it relates to highway transportation. Congress properly saw fit to require that a resident agent be appointed in the records of the duly authorized regulatory agency of each state in which the carrier conducted business. Had Congress intended for the registered agent requirement to have preempted the police power of the state and voided the process statute on non-residents, they clearly would have set this intention out. We have seen that Section 221(c) in requiring registered agents to be designated with each state regulatory agency, clearly stated that process may be served on that agent in any proceeding at law or equity brought against such carrier. It does not mandate exclusive process on that agent. Had Congress intended that to be the case, it could and would have said so. Furthermore, the section ended by saying, “in the event such carrier fails to file such designation, service may be made upon any agent of such motor carrier within such state.” In our opinion, this clearly refers to a real “agent” in the nature of an employee that may be found in the state. It also refers, to the statutory designated agent, that is, the Secretary of State, under Section 13-3-63. The Legislature of this state made the Secretary of State an agent for all process in any case involving the operation of a motor vehicle in this state. This designated agent easily would be the agent referred to in the above quote from Section 221. We are, therefore, forced to recognize first the clear principle of law that where Congress enacts statutes on a particular subject, it does not preempt and void the police power of the individual states, unless that is clearly mandated and required within the federal act. We do not have such a mandate in the present section. The federal act only stated that process “may” be served on the agent designated with the Public Service Commission. The operation of a vehicle on the highways of the states is a very small part of the Federal Motor Carrier Act, and as hereinabove stated in the above quoted cases, the purpose of Congress in enacting the Motor Carrier Act was to regulate the commercial aspect of vehicles operating in interstate commerce.

We, therefore, hold that the service of process under section 13-3-63 was valid.

The next question to be considered is whether or not this Court may and should reverse and remand the cause for another hearing on the question of damages only. The motion filed by appellant and considered by the court from which the appeal was taken, did not contend that the default judgment was a result of fraud, undue influence, or any other reason that would render the default judgment void as to liability. We have held in many cases that the power of a court to set aside a default judgment ends with the term of court within which it is rendered, unless the facts and references thereto prove that the lower court did not have jurisdiction to hear the writ of inquiry and enter the default judgment. There is no contention that appellant did not receive the summons through Mississippi’s Secretary of State in due course and did not make any appearance in the cause, although summons was issued, served and returned properly. We hold, therefore, that as to the rendering of the default judgment by the lower court on October 19, 1979, the judgment became final on the issue of liability when the term ended. See Martin v. Armstrong, 350 So.2d 1353 (Miss.1977); Alexander v. Killebrew, 321 So.2d 488 (Miss.1975); Western Chain Co. v. Brownlee, 317 So.2d 418 (Miss.1975); Overstreet v. Liberty Mutual Ins. Co., 263 So.2d 528 (Miss.1972); Walker George, Jr., etc. v. Standard Oil Co. of Ky., 239 Miss. 712, 124 So.2d 858 (1960); and Hayes Produce Co. v. Taylor, 213 Miss. 217, 56 So.2d 503 (1952).

Appellant contends that the amount of the default judgment was against the evidence and that the lower court did not have sufficient evidence on which to base the amount of its verdict. Although we cannot take jurisdiction of the basic part of the case, that is, the liability question, because of the reasons stated above, we find that both precedent and the inherent power of the Court require that we review the amount of the award, even though under a default judgment. There was no record made of the evidence presented to the Court on the writ of inquiry.

During the hearing on appellant’s Motion to Quash Process and Set Aside Default Judgment, it offered evidence as to what evidence was presented to the lower court on the question of damages. In its motion appellant requested a review of the amount. In its proffer of evidence, appellant, as heretofore stated, questioned appellee under oath. She was a bit hazy as to everything that occurred during the presentation of evidence on the writ of inquiry. Only she and her husband testified. She stated that after the collision she was “shook up.” She was taken from the scene by automobile. Although she was transported to a hospital where x-rays were taken, she was not confined to the hospital. She did not know the amount of her medical bills, stating that she had “no idea at this point.” At the time of the collision, appellee was on sick leave from her position with the telephone company. She testified that she consulted a physician for injuries received in the collision some four to eight times. No medical bills or medical reports were introduced and no medical testimony of any kind received except that from appellee and her husband. It was stipulated that the entire amount of the award constituted compensatory damages, and that there were no punitive damages allowed. As stated, the proceedings at the writ of inquiry were not transcribed by the court reporter, and we therefore do not have the benefit of that helpful recorded information. The evidence presented at the hearing on appellant’s motion is all that is before us, and it is undisputed.

In the case of Ishee v. Dukes Ford Co., 380 So.2d 760 (Miss.1980), we had the same issue before us. Although the opinion did not state that the action of the appellant (defendant below) was subsequent to the term of court during which the default judgment was entered, a study of the record reveals that all action taken by the defaulting defendant was after the term ended. We reversed and remanded for a new trial on damages only stating that the court did not use the proper method for determining the damages sustained by the plaintiff.

Under the undisputed evidence in the record before us, we are forced to hold that we do not find sufficient evidence to sustain the amount of the lower court’s award on damages. On the contrary, the record before us reveals that the award was excessive. We, therefore, reverse the cause and remand to the lower court for another hearing on the question of damages only.

REVERSED AND REMANDED.

PATTERSON, C. J., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

SMITH and ROBERTSON, P. JJ., and SUGG and WALKER, JJ., dissent.

SMITH, Presiding Justice,

dissenting:

With deference, I respectfully dissent from the conclusion of the majority that the trial court acquired personal jurisdiction of appellant by service of process on the Mississippi Secretary of State under the long arm nonresident motorist statute.

The suit which resulted in the default judgment in this case was brought by Nellie M. Gammill against Trailer Express and its driver, Jack Clements. However, no process was ever had upon Jack Clements.

Trailer Express is an Indiana corporation, duly licensed by Mississippi Public Service Commission under the Mississippi Motor Carrier Regulatory Act of 1938, as amended, and is engaged as a common carrier in interstate commerce. It had duly qualified under the Federal Motor Carrier Act of 1935, 49 U.S.C.A. section 321(c) (1963), now 49 U.S.C.A. section 10330 (1981), and in compliance with that Act, had appointed and was maintaining a resident agent for the service of process in Mississippi.

No effort was made by plaintiff to obtain personal jurisdiction of Trailer Express by service on its resident agent. Instead, plaintiff proceeded under Mississippi Code Annotated section 13-3-63 (Supp.1980), sometimes referred to as the long arm nonresident motorist statute, and process was attempted to be served upon Trailer Express under that statute through service upon the secretary of state under the legal fiction that he was an agent of Trailer Express. Service on the secretary of state was had on September 20, 1979. On the 29th day after service, the last day of the term, Trailer Express not having appeared, judgment by default was taken against it by plaintiff. A hearing was then conducted by the court, without a jury, upon a writ of inquiry on October 19, 1979 and judgment was entered in favor of appellee against appellant for $126,034.00.

Following adjournment of the term, appellant having learned of this, filed its motion to quash the process and set aside the default judgment, supported by affidavit that it had a meritorious defense. Also made a part of its record was its permit issued by the Mississippi Public Service Commission and designation of an agent for service of process in Mississippi. On November 23, 1979 the trial judge heard the motion.

No transcript had been made or record kept of the evidence adduced at the hearing upon the writ of inquiry which resulted in the default judgment against appellant for $126,034.00.

The trial court proceeded to hear evidence on appellant’s motion, over objection of appellee. Appellee stipulated, however, that the affidavit filed by appellant in support of its motion was sufficient to establish necessary proof of a meritorious defense. Appellant called as an adverse witness the plaintiff, Nellie M. Gammill. This witness testified that no doctor had testified at the hearing on the writ of inquiry as to any injuries that she had received in the incident which gave rise to the suit, that no medical bills had been offered, that she was not hospitalized as the result and that she had stated that she was “okay” and had only been “shook up.” She said she had no medical records with her and had no recollection of any hospital bills although she said she had seen a physician between four and eight times. At the conclusion of the hearing, the motion to quash process was denied and the motion to set aside the default judgment was overruled.

The issue in this case concerning the effectiveness of service of process under the Mississippi nonresident motorist statute [Mississippi Code Annotated section 13-3-63 (Supp.1980)] rather than through personal service on appellant’s lawfully designated resident agent is clearly defined. Trailer Express, an interstate common carrier engaged in interstate commerce, asserts that in qualifying in Mississippi as mandated by the Motor Carrier Regulatory Act of 1938 [Mississippi Code Annotated section 77 — 7—1 et seq. (1972)], and the Federal Motor Carrier Act of 1935, 49 U.S.C.A. section 321(c) (1963), now 49 U.S.C.A. section 10330 (1981) and by appointing a resident agent for process as required by the Federal statute, it assumed quasi-resident status for purposes of service of process, was not absent from the State, and was not amenable to service under the general nonresident motorist statute.

The Federal Motor Carrier Act of 1935, 49 U.S.C.A. section 321 (1963), mandated:

(c) Every motor carrier . . . shall also file with the board of each State in which it operates and with the Interstate Commerce Commission a designation in writing of the name and post office address of a person in such State upon whom process issued by or under the authority of any court having jurisdiction of the subject matter may be served in any proceeding at law or equity brought against such carrier. Such designation may from time to time be changed by like writing similarly filed. In the event such carrier fails to file such designation, service may be made upon any agent of such motor carrier within such State. (Emphasis added).

“In the event” the carrier “fails to make such designation” the Act provides that process may be served otherwise. There is no provision in the statute for service of process other than in cases where the carrier has failed to appoint such an agent.

In the above quoted version of the Federal Act, the words “in the event” (of the failure to designate a resident agent) express the single condition or contingency in which process may be served otherwise than upon the designated resident agent. The words “in the event of” are equivalent to “in the case of”, or “in case of” and imply a condition and express a contingency. Tramell v. Tramell, 162 Tenn. 1, 32 S.W.2d 1025 (1930); Barmore v. Darragh, 231 S.W. 472 (Tex.Civ.App.1921); Fischer v. Fischer, 75 N.J.Eq. 74, 71 A. 488 (1908); Roberts’s App., 59 Pa. 70, 98 Am.D. 312 (1868); Hill v. Hill, 5 G. & J. 87 (Md.1833).

The amended Act, 49 U.S.C.A. section 10330 (1981), provides:

(b) A motor carrier or broker providing transportation subject to the jurisdiction of the Commission under subehapter II of chapter 105 of this title . . . shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier or broker. The designation shall be in writing and filed with the Commission and with the authority of each State in which the motor carrier or broker operates having jurisdiction to regulate transportation by motor vehicle in intrastate commerce on the highways of that State. If a designation under this subsection is not made, service may be made on any agent of the carrier or broker within that State. (Emphasis added).

Like its predecessor, 49 U.S.C.A. section 321 (1963), supra, the present Act defines the only circumstance or condition when process may be served otherwise than upon the resident agent. It provides that: “If” (a designation is not made) “service may be made on any agent of the carrier or broker within that State.”

In 42 C.J.S. If (1944), at 377, the meaning of the word “if” (used in the Act as presently written) is discussed:

In its more frequent use as a conjunction introducing a conditional sentence or clause, it means granting, allowing, or supposing that, or on condition that, in case that, or in the case of; and sometimes it is construed to mean provided, though, or when. The term imports a condition or contingency; it is an expressive word, quite commonly used to express a condition or dependence on the happening of some event, and is said to imply a condition precedent unless it be controlled by other words.

Other jurisdictions have similarly defined the word “if”. In Bagnall v. Bagnall, 148 Tex. 423, 225 S.W.2d 401 (1949) the Supreme Court of Texas noted:

In this case the writer of the instrument begins the conditional clause with the conjunction “if,” which clearly expresses a condition. The use of this word in itself implies a condition; it means “provided,” or “in case that.” (225 S.W.2d at 402).

The Court of Appeals of Kentucky in Points v. Points, 312 Ky. 348, 227 S.W.2d 913 (1950), enunciated the following:

Counsel agrees that the word “if” is a typical conditional particle used to introduce another part of a sentence. Here it means “in the event,” or as we held in Ellison v. Smoot’s Adm’r., 286 Ky. 768, 151 S.W.2d 1017, 1019, the word is synonymous with the expression “in case that.” We have no difficulty in concluding what testator intended by the use of the quoted words. (227 S.W.2d at 915).

It is clear that 49 U.S.C.A. section 10330 (1981) does not change the meaning of 49 U.S.C.A. section 321 (1963), in that it requires service under the Federal Act unless no agent is designated.

The general nonresident motorist statute, Mississippi Code Annotated section 13-3-63 (Supp.1980), states broadly that any nonresident or its agent, operating a motor vehicle on Mississippi highways and streets, impliedly appoints the Mississippi Secretary of State as its agent for service of process. The obvious objective of the Mississippi long arm nonresident motorist statute is to provide a means for obtaining service upon nonresidents not otherwise reachable by the process of Mississippi courts. It provides the means of reaching the nonresident motorist who enters the State, incurs a justiciable liability, and departs the jurisdiction. At the time of the incident out of which ap-pellee’s claim arose, appellant was present in this state, and has been present continuously since, by duly appointed resident agent. Notwithstanding the general wording of the Mississippi nonresident motorist statute, the designation of a resident agent by an interstate common carrier under the Federal Motor Carrier Act, supra, in Mississippi, upon whom personal service may be obtained, must be considered as removing it from the purview of the Mississippi statute.

Federal law providing for service on interstate common carriers via registered resident agent must be considered preemptive.

Article I, Section 8 of the United States Constitution grants to the sovereign the right to regulate commerce among the several states. The exclusiveness of Federal law in the field of interstate commerce is reflected by Article 7, Section 186 of the Mississippi Constitution of 1890, which vests in the state the power to regulate intrastate commerce.

Appellant is qualified to do business as an interstate common carrier by virtue of the Interstate Commerce Act, the Federal Motor Carrier Act of 1935, and the Mississippi Motor Carrier Regulatory Act of 1938. Under the Federal Act, the appellant must designate a resident agent for service of process in each state through which it operates. The Mississippi Motor Carrier Regulatory Act of 1938 [Mississippi Code Annotated section 77-7-1 et seq. (1972)], while silent concerning appointment of an agent for service of process, is modeled after the Federal Motor Carrier Act and must, therefore, be construed as complementary and in consistency therewith. See Dixie Greyhound Lines v. Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489 (1941). Strict compliance with the Mississippi Act is mandatory on motor carriers [Mississippi Code Annotated section 77-7-11 (1972)]. The appellant, in complying with these statutes, has designated a resident agent for service of process in Mississippi.

Although there is a dearth of case law from state courts of last resort concerning service of process on an interstate carrier under a state nonresident motorist statute, in defiance of service on the agent designated under the Federal Act, the Supreme Court of our sister State of Georgia seems to have made a cogent approach to a closely analogous problem. In Georgia, motor carriers are subject to the following code provision:

68-618 Agents for service on nonresident motor common carriers; service of process upon motor common carriers; venue; enforcement by commission
(a) Each nonresident motor common carrier shall, before any certificate or other authority is issued to it under this Chapter or at the time of registering as required by section 68-633, designate and maintain in this State an agent or agents upon whom may be served all summonses or other lawful processes in any action or proceeding against such motor common carrier growing out of its carrier operations, and service of process upon or acceptance or acknowledgment of such service by any such agent shall have the same legal force and validity as if duly served upon such nonresident carrier personally, and such designation shall be in writing, shall give the name and address of such agent or agents, and shall be filed in the office of the commission. Upon failure of any nonresident motor common carrier to file such designation with the commission or to maintain such an agent in. this State at the address given, such nonresident carrier shall be conclusively deemed to have designated the Secretary of State and his successors in office as such agent; and service of process upon or acceptance or acknowledgment of such service by the Secretary of State shall have the same legal force and validity as if duly served upon such nonresident carrier personally, provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the Secretary of State, or his successor in office, to such nonresident carrier, if its address be known. Service of such process upon the Secretary of State shall be made by delivering to his office two copies of such process with a fee of $4. [Emphasis added]. [Ga.Code Ann. § 68-618 (1980)].

The Georgia Supreme Court has interpreted this section as exclusive for purposes of service of process, where an appointment has been made, as appears in the following excerpt from Southeastern Truck Lines, Inc. v. Rann, 214 Ga. 813, 815, 108 S.E.2d 561, 563 (1959):

The plaintiffs in their brief, however, contend that jurisdiction was properly acquired over the defendant Southeastern Truck Lines, Inc., in the Paulding Superi- or Court by virtue of the act of 1937, commonly known as the Non-Resident Motorist Act (Ga.L.1937, p. 732), Code Ann. § 68-801 et seq., as amended by the act of 1955 (Ga.L.1955, p. 650), and the act of 1959 (G.L.1959, p. 120). This contention is without merit, for the reason that service and jurisdiction of foreign motor common carriers are prescribed and controlled by the provisions of Code § 68-618, and the provisions of the Constitution, and they are not suable under the Non-Resident Motorist Act (supra). United Motor Freight Terminal Co. v. Driver, 74 Ga.App. 244, 39 S.E.2d 496.

See also 61 C.J.S. Motor Vehicles § 502(2), p. 274 (1970).

The Georgia Supreme Court solution of a problem closely similar to that under consideration here was reasonable and sound and gave meaning to the provision in the Georgia statute requiring service on the resident agent, if one has been appointed. The theory of appellee here, appears to be that the provision in the Federal Act that process may be served on an agent other than the designated resident agent “in the event” or “if” no resident agent has been appointed, is utterly meaningless.

The plain intendment of the Federal Act, expressed as clearly as the English language can disclose it, is that process from courts having subject matter jurisdiction must be served upon the resident agent (if there is one) in order to give the court having “subject matter” jurisdiction, “personal” jurisdiction of a defendant. The failure of the carrier to appoint a resident agent is the single exception, as is clearly stated in the statute. Therefore, the trial court did not acquire personal jurisdiction of the defendant-appellant and was without jurisdiction to render judgment against it. The motion to quash the attempted service and set aside the default judgment should have been sustained. After all, it would appear that compliance with the Act imposes no hardship — in fact it would be cheaper, quicker and more certain.

It is noteworthy that, although a very great many citations are listed in the majority opinion as supporting principles about which there is no controversy, no case whatever is cited from a state court of last resort, and certainly none from a Federal Court of Appeals or from the Supreme Court of the United States, touching the point at issue. Apparently no United States District Court Judge has rendered a decision in keeping with the view of the majority as to the proper construction of the Federal Act. However, two cases are cited as supporting the majority opinion. Both are trial court judges’ decisions from counties in the State of New York. In one of these the trial judge’s opinion is quoted almost in its entirety and comprises a major portion of the majority opinion. The views expressed are those of the trial judge in each of the cited cases and have not been adopted by the Court of Appeals of the State of New York and, so far as we have been able to discover, by the trial judges in other counties of the State of New York. What the New York Court of Appeals, the court of last resort in that state, would hold if confronted with the question is, of course, unknowable. An examination of the quoted trial judge’s opinion shows that, while of noteworthy length, in some measure he proceeded on a philosophical basis and does not appear to have attempted a precise construction of the plain language of the Federal Act. I have read these opinions, on which the majority depends for support of its conclusion, with considerable interest but I find myself unpersuaded, since they are in the face of the expression in the Act itself of a legislative intent, in clear and unambiguous language, to the contrary.

Nor is the suggestion valid that the Federal Act does not apply to tort actions arising out of negligence in the operation of a carrier’s trucks. There is nothing in the Act to so indicate and several courts have held that the Federal Process Act does apply in such cases. See Sansbury v. Schwartz, 41 F.Supp. 302 (D.C.D.C.1941); Olson v. Midstates Freight Lines, Inc., 173 N.Y.S.2d 711, 12 Misc.2d 897 (1958). Nor is the Act limited by its own terms or otherwise to cases in which the cause of action arose out of commercial transactions. See Esperti v. Cardinale Trucking Corporation, 263 A.D. 46, 31 N.Y.S.2d 253 (1941).

FIAT JUSTITIA RUAT COELUM

Notwithstanding the above, majority has recognized that an injustice has been done and has remanded the case for trial on the “issue of damages alone.” Obviously, this is better than giving no relief to appellant and, although it does not, in my humble opinion, provide complete justice, if the judgment is not to be set aside and the case tried on its merits, (in which event appellee should expect to prevail if the facts warrant it) I concur in the conclusion that the case is one that must be sent back.

In City of Starkville v. Thompson, 260 So.2d 191 (Miss.1972), in holding that bad motive or actual fraud is unnecessary in order to justify the setting aside of a judgment, this Court quoted from one of its earlier decisions, Gardner v. Price, 199 Miss. 809, 25 So.2d 459 (1946), as follows:

It is not a question, it seems to us, of whether such a pronouncement by the court was a judicial determination, or of whether the court had authority to make it; but it is a question of fairness and conscience. (199 Miss. at 816, 25 So.2d at 461).

In my view, this case falls within the rule stated.

Upon retrial as to damages alone appellant will be afforded an opportunity to show the facts of appellee’s alleged injury, and, if it can be shown, to have any award that may result, diminished in the proportion that negligence on her part, if any, may have caused or contributed to the accident. Mississippi Code Annotated section 11-7-15 (1972).

This Court in Mississippi Cent. R. Co. v. Smith, 176 Miss. 306, 168 So. 604 (1936), appeal dismissed, 299 U.S. 518, 57 S.Ct. 313, 81 L.Ed. 382 (1936), said:

Where a case is remanded by this court to the trial court for a new trial on the question of damages only, all of the facts which enter into the fixation of the damages are admissible in evidence. New Orleans & N. E. R. Co. v. Snelgrove, 148 Miss. 890, 115 So. 394; Illinois Cent. R. Co. v. Humphries, [174] Miss. [459], 164 So. 22, 102 A.L.R. 549. One of the appellant’s contentions is that the appellee was guilty of negligence which contributed to her injury. Under section 511, Code of 1930 [Mississippi Code Annotated section 11-7-15 (1972)] contributory negligence is not a bar to an action for damages, “but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured.” (176 Miss. at 321, 168 So. at 605).

CONCLUSION

Let justice be done though the heavens fall.

ROBERTSON, P. J., and SUGG and WALKER, JJ., join in this dissent.


author: PER CURIAM.

text:
    THE FLORIDA BAR.
    In re EFRONSON, Sidney.
    No. 59025.
    Supreme Court of Florida.
    July 10, 1980.
    Lucien Proby, Jr., of Proby & Atkins, Coral Gables, for Sidney Efronson, petitioner.
    Jacquelyn S. Plasner, Asst. Staff Counsel, Miami, for The Florida Bar, respondent.
   PER CURIAM.

Sidney Efronson filed a petition for reinstatement in good standing in The Florida Bar pursuant to article XI, Rule 11.11 of the Florida Bar Integration Rule.

Petitioner was convicted of a felony under the laws of the United States and was sentenced to incarceration for a period of six months followed by probation for a period of five years. He was, of course, automatically suspended from the practice of law. The United States District Court, Southern District of Florida, terminated petitioner’s probation on February 16, 1979. Petitioner’s civil rights were restored on December 12, 1979.

At the hearing before the referee three attorneys, in addition to petitioner, testified in his behalf. They expressed the highest opinion of his honesty, integrity, and reputation as an attorney and in the community. They were “shocked at his conviction,” and recommended that petitioner be reinstated. Petitioner testified that he maintained a large law library and read the advance sheets as well as the session laws. An attorney testified that, from his personal observation, petitioner has kept up on developments in the law and that he would make a most worthy and credible member of the Bar should he be permitted to practice once again.

The record includes well over two hundred letters of recommendation from attorneys, former clients, community leaders, and friends. The attorneys, including former judges and attorneys with highly respected reputations, attested to petitioner’s reputation as a capable and competent attorney and as to his high standard of integrity and morality. Approximately fifty letters were from community leaders, former clients, businessmen, professionals, clergy and a United States Congressman.

The Florida Bar counsel pointed out the seriousness of the crime of which petitioner was convicted, but offered no adverse evidence, nor did The Florida Bar oppose reinstatement.

The referee concluded that petitioner has clearly met the burden of proof in establishing all of the elements applicable for reinstatement. We adopt the recommendations of the referee and grant the petition for reinstatement. Petitioner is hereby reinstated to The Florida Bar and is not required to take any examination.

Cost of these Proceedings in the amount of $324.14 is hereby taxed against petitioner.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Caroline ROBINSON, Petitioner, v. Jack Allen ROBINSON, Respondent.
    No. 56446.
    Supreme Court of Florida.
    Nov. 20, 1980.
    On Rehearing June 4, 1981.
    Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for petitioner.
    J. Riley Davis of Taylor, Brion, Buker & Greene, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks review of the District Court of Appeal, First District, decision reversing the trial court’s award to petitioner of her husband’s interest in their marital home as lump sum alimony, rehabilitative alimony, and attorney’s fees. Robinson v. Robinson, 366 So.2d 1210 (Fla. 1st DCA 1979). Because the decision created conflict with Yandell v. Yandell, 39 So.2d 554 (Fla.1949), we accepted jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Conflict is predicated on the district court’s holding that petitioner is not entitled to her husband’s interest in the marital home as lump sum alimony. Citing to Yandell v. Yandell, the district court stated, “lump sum alimony should be awarded only in those instances where some special equity is required.” 366 So.2d at 1212. The court found that as in Canakaris v. Canakaris, 356 So.2d 858 (Fla. 1st DCA 1978), no special equity was shown.

However, the court’s decision in Canakaris was recently reversed by this Court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). There we provided a detailed explanation of the Court’s use of the term “special equity” in Yandell and concluded that the term as used in that decision concerned only the general equities of the case. We held that awarding lump sum alimony to ensure equitable distribution of property acquired during the marriage is within the trial court’s discretion so long as there is some justification for the award and the paying spouse is financially able to make the payment “without substantially endangering his or her economic status.” Id. at 1201.

Accordingly, the decision of the District Court of Appeal, First District, is quashed and this cause is remanded to that court with directions to affirm the judgment of the trial court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.

ON REHEARING

PER CURIAM.

We grant rehearing and clarify the opinion of November 20, 1980, as follows. The decision of the district court of appeal is quashed in its entirety, and the cause is remanded to that court to reconsider, in light of the decision of this Court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), all of the issues it decided in hearing the appeal.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.


text:
    SIMS CRANE SERVICE, INC., a Florida Corporation, Petitioner, v. AM-CAL CONSTRUCTION COMPANY, a foreign corporation, and Leo T. Cote, Respondents.
    No. 54404.
    Supreme Court of Florida.
    Nov. 26, 1980.
    Carl D. Dawson and David M. Wiesenfeld of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for petitioner.
    Robert L. Cowles and James R. Barfield of Cowles, Coker & Myers, Jacksonville, and Joseph 0. Stroud, Jr. of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for respondents.
   PER CURIAM.

The petition for a writ of certiorari is discharged. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and ENGLAND, JJ., concur.


author: OVERTON, Justice. ALDERMAN, Justice,

text:
    David Allen MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 56831.
    Supreme Court of Florida.
    May 28, 1981.
    Rehearing Denied July 28, 1981.

      Jerry Hill, Public Defender, Bartow, and Karal B. Rushing, Asst. Public Defender, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review the decision of the Second District Court of Appeal, reported at 369 So.2d 619 (Fla.2d DCA 1979), and concerns the im-poundment and inventory search of a motor vehicle owned by the petitioner. The police failed to advise the petitioner, who was present, of alternatives other than im-poundment. There is conflict that needs resolution. The Second District Court of Appeal, in the decision sought to be reviewed, in State v. Sanders, 387 So.2d 391 (Fla.2d DCA 1980), and in State v. Dearden, 347 So.2d 462 (Fla.2d DCA 1977), has held that a law enforcement officer has no duty to advise a silent arrestee that his car is being impounded or to tell a defendant of the options to impoundment. On the other hand, the Fourth District Court of Appeal has clearly held that an officer has an obligation to advise an arrestee of the alternatives available to him instead of impoundment. Session v. State, 353 So.2d 854 (Fla. 4th DCA 1977); Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

We resolve the conflict and approve the doctrine of an inventory search as authorized by the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In summary, in accordance with that decision, we hold: (1) the purpose of an inventory search is a caretaking function exclusively for (a) protection of the owner’s property, (b) protection of the police from claims and disputes over lost or stolen property which has been impounded, and (c) protection of the police from danger; (2) an inventory search is not conducted in order to discover evidence of a crime, and any suggestion that standard police procedure for an inventory search is actually a pretext for an investigative search will require the search to meet traditional probable cause standards or be invalidated; (3) there must be a threshold inquiry by the trial court to determine that the impoundment was for the above purposes and was reasonable and necessary under the circumstances; and (4) when the owner or possessor of the vehicle is present, the arresting officers must advise him or her that the motor vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to im-poundment; however, consultation with the owner or possessor is not required in circumstances where the vehicle is unattended, its owner is not reasonably available, or its owner or possessor is mentally incapacitated.

The relevant facts in the instant case are as follows. The arresting officers initially saw petitioner drive through a red light. They motioned him to stop, and petitioner drove into a parking lot of a private business. When asked for his driver’s license, the petitioner gave the officers a license receipt, which the officers discovered was not petitioner’s. The officers arrested petitioner for obstruction of justice, and he was placed in the police cruiser. The arresting officers then inventoried the contents of petitioner’s truck, during which they discovered the controlled substance phencyclidine. In the trial court, petitioner filed a motion to suppress on the grounds that it was an improper search without a warrant and that the officers had failed to tell the petitioner that they were going to impound his vehicle. The trial court granted the motion to suppress. On appeal the district court reversed, holding the search valid and stating: “[W]e do not think that a law enforcement officer has a duty to tell a silent arrestee that his car is being impounded.” 369 So.2d at 619. The district court qualified this holding by stating that its ruling in this cause “should not be interpreted to mean that the police may in any way mislead a defendant as to their intention to impound or that a defendant may otherwise be denied the right to request a reasonable alternative to impoundment.” 369 So.2d at 620, n.1.

The fourth amendment to the United States Constitution and section 12 of Article I of the Florida Constitution prohibit unreasonable searches and require warrants issued by a detached magistrate upon a showing of probable cause. There are, however, a number of “exceptions” to this warrant requirement. In the words of Justice Black:

[T]he fourth amendment does not require that every search be made pursuant to a warrant. It prohibits only “unreasonable searches and seizures.” The relevant test is not the reasonableness of the opportunity to procure a warrant but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.

Coolidge v. New Hampshire, 403 U.S. 443, 509-10, 91 S.Ct. 2022, 2059-60, 29 L.Ed.2d 564 (1971) (Black, J., concurring and dissenting).

Exceptions to the warrant requirement include: (1) items or communications within the officer’s sight, under certain circumstances such as the “plain view” doctrine, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), or the “open fields” doctrine, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); (2) abandoned premises or property involving no invasion of privacy, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); (3) a search by consent or waiver of one’s fourth amendment right against an unreasonable search, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); (4) a “stop-and-frisk” upon restricted circumstances and limited to a pat-down search to protect the officer from possible danger, Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); (5) a search by officers who are in “hot pursuit,” which is allowed by the exigency of the circumstances, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); (6) the search incident to a lawful arrest of a suspect, conducted to protect the officer’s safety and prevent the possible loss or destruction of evidence, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); and (7) a “motor vehicle search” based upon probable cause that it contains evidence of a crime, justified by the inherent mobility and the diminished expectation of privacy connected with a vehicle. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The automobile inventory search is different. It is not an investigative search but is allowed because it is a necessary part of the caretaking function of the police when an impoundment occurs. It is a relatively new exception to the warrant requirement and is still in a sensitive, developing stage. An inventory of an automobile lawfully impounded has as its purpose the protection of the owner’s property, whereas the other warrantless searches, with the exception of inadvertent “searches” such as those coming under the “plain view” doctrine, have as their intent the discovery of weapons or evidence of a crime. Because an inventory’s purpose is basically for the protection of the owner, the use of discovered criminal evidence used to his detriment in criminal proceedings has been the subject of several critical commentaries. It is apparent from the case law that there is still some confusion among law enforcement officers, prosecutors, and judges about the nature and purpose of this unique type of warrantless search. The doctrine has, under certain conditions, been approved by the United States Supreme Court. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In Opperman the Supreme Court expressly identified the automobile inventory procedure as a caretaking, noncriminal one having three purposes: (1) the protection of the owner’s property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger from the contents in their custody. 428 U.S. at 369, 96 S.Ct. at 3097. The first and primary purpose is for the benefit of the vehicle owner, and the other two purposes are incidental to and supportive of the first. These latter two justifications do not arise at all unless there is sufficient reason for the police to impound and take responsibility for the vehicle in the first instance.

Impoundment in Opperman was held necessary and proper, since the vehicle was unattended, illegally parked in a restricted zone, and had received two parking tickets over a seven-hour period. The second ticketing officer reported the vehicle to police headquarters, which resulted in the vehicle’s impoundment in accordance with standard procedure. While at the city’s im-poundment lot, an officer using a standard inventory form itemized the contents of the vehicle. In so doing, he found marijuana contained in a plastic bag in the unlocked glove compartment. The owner of the vehicle was subsequently arrested on charges of possession of marijuana. Its discovery by inventory search was the critical issue on the motion to suppress. The Supreme Court upheld the search and conviction, holding that the inventory procedure was a search under the fourth amendment, but characterized the process in this manner:

The . . . police were indisputably engaged in a caretaking search of a lawfully impounded automobile. . . . The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.

428 U.S. at 375, 96 S.Ct. at 3100 (emphasis supplied). The court concluded that this inventory search was not unreasonable under the fourth amendment.

Opperman is a tenuous five-four decision, with Justice Powell writing a special concurring opinion in which he expressed the view that:

the unrestrained search of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances. But such a search is not at issue in this case. As the Court’s opinion emphasizes, the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the . . . Police Department. Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.

428 U.S. at 379-80, 96 S.Ct. at 3102-03 (emphasis supplied) (footnotes omitted).

Opperman concluded that limited vehicle inventory searches, conducted in good faith according to routine police procedures for the purpose of protecting the property, do not violate the fourth amendment to the United States Constitution.

This Court has not had occasion prior to this case to expressly rule on the constitutionality of vehicle inventory searches. We now hold, as Opperman did on federal grounds, that inventory searches, conducted in good faith according to routine police procedures in order to protect property, do not violate section 12 of Article I of the Florida Constitution. We emphasize that in considering the admissibility in a criminal trial of evidence discovered in an inventory search after impoundment, the trial court must first determine whether the impoundment was lawful, reasonable, and necessary.

Our district courts of appeal have spoken on this issue in their application of the inventory search doctrine. In Miller v. State, 137 So.2d 21 (Fla.2d DCA 1962), the Second District Court of Appeal found the scope of a search beneath the floor mat of an impounded car beyond that required to safeguard any valuables in the car. Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969), recognized that the purpose of impounding the car and inventorying its contents was to preserve them and protect the police from possible responsibility in the event of theft or damage. These interests in that case justified even forcing open the impounded car. The Second District Court of Appeal in Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976), reviewed the inventory search cases following Miller and Godbee and found in them a common pattern that the police must act in good faith and not use the inventory search as a subterfuge to conduct a warrantless search for incriminating evidence.

Related to this requirement of good faith is the actual need to impound the vehicle. Several district court of appeal cases have found no need for impoundment where the defendant offers reasonable alternatives. Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); Altman; Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976); Weed v. Wainwright, 325 So.2d 44 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 605 (Fla.1976); State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975). In Altman, Judge Scheb, speaking for the Second District Court of Appeal, held that an underlying necessity for police impoundment did not exist where the defendant expressed the desire and had the ability to have a third person remove his automobile without police intervention. The opinion stated:

When the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed; or where the arrestee expresses a preference as to towing service and designates an appropriate carrier and destination for the vehicle, it is unnecessary for the police to impound it. In either of these instances the rationale for an inventory search does not exist.

335 So.2d at 629 (footnote omitted.) We fully agree with and approve Judge Scheb’s opinion in Altman.

What are reasonable and necessary impoundments? In our view, they include: (1) an unattended car illegally parked or otherwise illegally obstructing traffic, an illustration of which is the factual situation in the Opperman case; (2) an unattended car at the scene of an accident where the driver is physically or mentally incapable of deciding what steps to take to deal with his vehicle such as might occur when the driver is seriously injured, mentally incapacitated, or severely intoxicated; (3) an abandoned vehicle; (4) a mechanically defective vehicle which, if driven, could menace others on the public highway; (5) a vehicle identified as stolen. There may be other circumstances; this list is not all-inclusive.

The state has the burden to show that the impoundment was lawful, reasonable, and necessary under the circumstances of the cause. Clearly, just an arrest of an individual who happens to be in a motor vehicle without anything more does not justify impoundment.

The test of the impoundment reasonableness is the same as other traditional tests for searches and seizures under the fourth amendment: a balancing of the state’s interest being served—i. e., the necessity for impoundment—against the vehicle owner’s right to be secure against unlawful seizures.

In determining the reasonableness and necessity for impoundment, consideration must be given to available alternatives when a competent owner or possessor is present or reasonably available.

In the instant case the question to be resolved is whether the police must advise a present owner or possessor that his vehicle is being impounded. Our district courts are divided on this question. Compare Session v. State, 353 So.2d 854 (Fla. 4th DCA 1977); Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); and State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975); with State v. Sanders, 387 So.2d 391 (Fla.2d DCA 1980); Fields v. State, 369 So.2d 603 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979); and State v. Dearden, 347 So.2d 462 (Fla.2d DCA 1977).

In our opinion, if the primary purpose of impoundment and an inventory search is for security and protection of the vehicle’s contents, it necessarily follows that the owner or possessor who is reasonably available must be consulted concerning the impoundment. Accord, Mozzetti v. Superior Court, 94 Cal.Rptr. 412, 4 Cal.3d 699, 484 P.2d 84 (1971); Arrington v. United States, 382 A.2d 14 (D.C.1978); United States v. Pannell, 256 A.2d 925 (D.C.1969); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); State v. Rome, 354 So.2d 504 (La.1978); State v. Sawyer, 174 Mont. 512, 571 P.2d 1131 (1977); State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979); State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979). We base our conclusion on section 12 of Article I of the Florida Constitution and the fourth amendment to the United States Constitution, as interpreted by the United States Supreme Court in Opperman. Our reading of Opperman leads us to a firm conclusion that a majority of the United States Supreme Court would not have approved that inventory search on federal grounds if the driver or owner of the vehicle had been present or reasonably available. The plurality opinion takes special care to mention that “[t]he owner . . . was not present to make other arrangements for the safekeeping of his belongings.” 428 U.S. at 375, 96 S.Ct. at 3100. In his concurring opinion, Justice Powell comments that “[t]he owner or prior occupant of the automobile is not present, nor, in many cases, is there any real likelihood that he could be located within a reasonable period of time.” 428 U.S. at 384, 96 S.Ct. at 3104.

The state in the instant case not only contends that there should be no obligation on the part of the impounding officer to consult with the owner or possessor of the impounded property but also contends that if the officer acts in good faith, the inventory search must be upheld even though im-poundment was not necessary under the circumstances. We find this contention has no justifiable legal basis.

We are not holding that every failure of an arresting officer to consult with the owner or possessor concerning the alternatives to impoundment will result in the suppression of all evidence obtained as the fruit of a resulting inventory search. We have previously mentioned examples, not all-inclusive, of situations where im-poundment is reasonable and necessary, and consultation would be impossible or inappropriate. What we hold is that an officer, when arresting a present owner or possessor of a motor vehicle, must advise him or her that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. An inventory search of a motor vehicle without such advice or consultation to a present owner or possessor upon arrest results in an unreasonable search under the United States and Florida constitutions and must be excluded under the Florida constitutional exclusionary rule.

Nothing in this opinion affects those situations in which there is probable cause that a vehicle contains or constitutes evidence of a crime which justifies a reasonable search. In the instant case the state readily concedes that there was no probable cause to justify the search.

For the reasons expressed, we quash the decision of the district court of appeal in the instant case and approve the decision of the Fourth District Court of Appeal in Session v. State. The district court in the instant case expressly declined to consider whether there was evidentiary support for the trial court’s finding that the officers had failed to tell the petitioner they were going to impound the vehicle. Such a finding, in the district court’s view, was irrelevant. We have now held to the contrary, and this cause is remanded to consider that issue in accordance with the views expressed in this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion with which BOYD, J., concurs.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree that warrantless inventory searches of motor vehicles are permissible under the United States and the Florida Constitutions. I do not agree with the majority’s conclusion that arresting officers must advise the present owner or possessor of the vehicle that it will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment and that an inventory search without such advice, except under certain circumstances, is unreasonable. This result is not required by any United States Supreme Court decision, particularly South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), on which the majority relies.

The fourth amendment only protects citizens from unreasonable searches and seizures. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Using the reasonableness test, the United States Supreme Court has validated warrantless inventory searches of motor vehicles where the search was to ensure the safety of the police, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), where the search was to safeguard the owner’s property, and where the search was to protect the community’s safety, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The focus in this case then should be on the reasonableness of the search, not on what the defendant might have done if he had been advised that his automobile would be impounded unless he provided a reasonable alternative to impoundment. See also Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

The majority believes that the United States Supreme Court would not have approved the inventory search in Opperman if the owner of the automobile had been present or reasonably available. A close analysis of Opperman and its supporting authorities reveals that this was not a result the Court would have undoubtedly reached. The Opperman Court first reviewed the legal status of motor vehicles, noted that they are protected by the fourth amendment, recognized that search warrant requirements are not as strict for them as they are for the home or office, and held that warrantless inventory searches of such vehicles are permissible under the federal constitution. The Court cited several state eases which permit this type of intrusion, among them Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969), where, the Florida court stated, “[t]he reasonableness of any search without a warrant is measured from the standpoint of the conduct of the searchers. If their conduct is in some way reprehensible; or if they precipitate a search and are motivated therein solely by a desire to ‘hunt’ for incriminating evidence; or if they do so without any plausible explanation or justification; the invasion is an unreasonable one.” Relying on Cooper, Harris, and Cady, the Court decided Opperman on the basis that reasonableness cannot be fixed by per se rules but depends on the facts and circumstances of each case. The Court concluded the police had followed standard police procedures and that their conduct was not “unreasonable” under the fourth amendment. The Court pointed out that the “consent” theory advanced by the dissenters in Opperman rested on the faulty assumption that an inventory is exclusively for the protection of the automobile owner. It is not. The Court said the other two reasons for inventory searches — protection of the police and protection of the public— are also crucial. 428 U.S. at 374, 96 S.Ct. at 3099.

By unduly emphasizing the need to protect the owner’s property, over other valid reasons for inventory searches, the majority has gone beyond the dictates of the United States Supreme Court. Cooper, Harris, Cady and Opperman only require a war-rantless inventory search of a motor vehicle to be tested for its reasonableness. The reasonableness of an inventory search cannot be fixed by per se rules; each case must be decided on its own facts. In the present case, as was the case in Opperman, there is no suggestion that the inventory search of defendant’s automobile was a pretext concealing an investigatory police motive. Under the circumstances of this case, the impoundment of defendant’s automobile was reasonable. That being the case, the inventory search was proper.

I agree with the district court that a law enforcement officer has no duty to warn a silent arrestee before his car is impounded. As stated by Judge Danahy, to hold otherwise “would not in any way be increasing a defendant’s protection against unreasonable searches and seizures,” and “we would be placing an unnecessary burden on the police in the already difficult situation which an arrest usually produces.” State v. Miller, 369 So.2d 619 (Fla.2d DCA 1979). For these reasons, I dissent from this unnecessary establishment of a per se exclusionary rule that invalidates an otherwise reasonable and proper inventory search.

BOYD, J., concurs.

      . AMENDMENT IV.
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . Section 12.
      Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

      . See, e. g., Baker and Khourie, Improbable Cause—The Poisonous Fruits of a Search after Arrest for a Traffic Violation, 25 Okla.L.Rev. 54, 63-73 (1972); Moylan, The Inventory Search of an Automobile: A Willing Suspension of Disbelief, 5 Balt.L.Rev. 203 (1976); 87 Harv.L.Rev. 835, 848-853 (1974); 39 La.L.Rev. 995 (1979). See also 14 Wake Forest L.Rev. 259 (1978).

      . State v. Singleton, 9 Wash.App. 327, 332-33, 511 P.2d 1396, 1399-1400 (Ct.App.1973).

      . The scope of the inventory search is not an issue in this case.