          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                         MARIA SERRET TEJADA,
                               Appellant,

                                       v.

          FORFEITURE OF 2015 CADILLAC ESCALADE VIN NO:
                      1GYS4BKJ5FR157228,
                            Appellee.

                                No. 4D18-1474

                                [April 3, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. 16-012401
CACE.

    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

  Gregg Rossman and Alexander Fischer of Rossman Legal, Davie, for
appellee.

MAY, J.

    The defendant appeals a final summary judgment forfeiting an
Escalade. She argues the trial court erred in entering summary judgment
because: (1) there were genuine issues of material fact precluding
summary judgment; (2) forfeiture actions may only be decided by a jury;
(3) the vehicle was not “contraband;” and (4) the forfeiture violates the
Eighth Amendment. We find no merit in the first three issues, but reverse
on the fourth issue based on a recent U.S. Supreme Court decision. 1

   The Town of Davie (“Town”) petitioned for forfeiture of the defendant’s
Escalade after she pleaded to two misdemeanors involving the registration
of the vehicle in a false name. The defendant’s family had contacted
Massachusetts law enforcement and reported her missing. A national
bulletin listed the defendant and her son as missing. Information through
homeland security indicated that the defendant might be in Davie, Florida.

1 The trial court did not have the benefit of the Court’s recent decision when it
ruled on the motion for summary judgment.
   Law enforcement conducted surveillance to find the defendant. They
found her at her son’s school. They observed her park and exit a 2015
Escalade.

   When law enforcement confronted her, they asked her to identify
herself, at which point she gave the false name of “Amarilys.” She then
gave them her real name. Law enforcement verified she was not missing
or endangered and notified Massachusetts law enforcement.

   They ran a teletype check of the Escalade, which listed Amarilys Ambert
as the registered owner. They asked the defendant for the registered
owner’s contact information; she refused to provide it. Being unable to
locate or contact the registered owner, and because the defendant refused
to provide her driver’s license, law enforcement arrested the defendant and
had the Escalade towed.

   During the tow inventory of the Escalade, law enforcement found a
Florida driver’s license on the front seat with the name Amarilys Ambert
and the defendant’s photo. They also found two debit cards in the name
of Amarilys Ambert.

   The Town filed an action to forfeit the defendant’s Escalade as
contraband obtained and used in violation of the Florida Contraband
Forfeiture Act. The defendant moved to dismiss the action, alleging the
Escalade was not contraband under section 932.701, Florida Statutes
(2016). The trial court denied the defendant’s motion.

   In her deposition, however, the defendant explained that she was given
money to purchase the Escalade in New Jersey. When the defendant
signed the sales contract, she placed it under the name of Amarilys Ambert
Cancel. She also titled the vehicle and applied for a tag under that name.
She used the name because she was running away from her family. She
had no knowledge of whether a person by that name existed.

   The Town moved for summary judgment. During the hearing, the Town
argued the defendant used a fictitious name to purchase and title the
Escalade. Titling the vehicle under a false name made the vehicle per se
contraband.

   The defendant opposed the motion and claimed the Town failed to prove
any fraud. She argued a jury should determine whether fraud occurred.
She demanded a jury trial. The court granted the Town’s motion and
entered a final judgment of forfeiture, relying on City of Sweetwater v.
Zaldivar, 559 So. 2d 660 (Fla. 3d DCA 1990).

                                    2
   From this judgment, the defendant now appeals.

    The defendant argues that based on the totality of the evidence, the
trial court erred in granting the motion for summary judgment because:
(1) there were genuine issues of material fact concerning her intent to
defraud and whether the inventory search was valid; (2) forfeiture actions
may only be decided by a jury; (3) the Escalade was not contraband; and
(4) forfeiture of the Escalade was an excessive punishment under the
Florida Constitution. The Town responded that summary judgment was
properly entered because it established the elements of section 319.33,
Florida Statutes (2016); there were no material issues of fact; summary
judgments are appropriate in forfeiture actions; and the Escalade’s
forfeiture was not excessive punishment under Article I, § 17 of the Florida
Constitution.

  We have de novo review. Dennis v. Kline, 120 So. 3d 11, 20 (Fla. 4th
DCA 2013).

    The Third District has held that a pleader must allege facts showing the
motor vehicle was used in violation of section 319.33 to be subject to
forfeiture. Zaldivar, 559 So. 2d at 661. Intentionally submitting an
application with a false name is “‘inherently misleading and injurious, both
to the agency responsible for the motor vehicle records, and those who
depend on them.’” Id. (citation omitted). “Thus, no allegation or proof of
intent to defraud is necessary . . . in a civil action seeking forfeiture of the
vehicle.” Id. The Third District allowed the forfeiture of a vehicle under
section 319.33 because the City alleged ultimate facts showing the
defendant used a false name when he applied for title to the car. Id. at
662.

   Here, the defendant violated section 319.33(1)(e), which provides it is
unlawful “[t]o use a false or fictitious name, give a false or fictitious
address, or make any false statement in any application or affidavit
required under the provisions of this chapter or in a bill of sale or sworn
statement of ownership or otherwise commit a fraud in any application.”
§ 319.33(1)(e), Fla. Stat. (2016). “Any motor vehicle used in violation of
this section shall constitute contraband which may be seized by a law
enforcement agency and shall be subject to forfeiture proceedings.”
§ 319.33(6), Fla. Stat. (2016).

   The defendant admitted signing the sales contract under the name of
Amarilys Ambert Cancel, which is not her real name. She had the
dealership title the vehicle, applied for a tag, and applied for and received

                                       3
a Florida license under the same false name. In short, the Town proved
sufficient facts to warrant the forfeiture.

    The defendant next argues her answer and memorandum in opposition
to the summary judgment motion created genuine issues of material fact
for a jury to decide. However, she fails to explain what issues of fact
remained. A review of the defendant’s answer and affirmative defenses
suggests there were issues concerning the Town’s alleged violation of the
4th, 5th, 6th, and 14th Amendments of the United States Constitution by
searching the Escalade without a warrant.

   The Fourth Amendment of the U.S. Constitution generally prohibits
warrantless searches. See Amend. IV, U.S. Const. An inventory search is
an exception to the general rule. State v. Waller, 918 So. 2d 363, 366 (Fla.
4th DCA 2005).

    “‘An inventory search is the search of property lawfully seized and
detained, in order to ensure that it is harmless, to secure valuable items
(such as might be kept in a towed car), and to protect against false claims
of loss or damage.’” Id. at 367 (citing Whren v. United States, 517 U.S.
806, 811 n.1 (1996)). “Contraband or evidence seized in a valid inventory
search is admissible because the procedure is a recognized exception to
the warrant requirement.” Rolling v. State, 695 So. 2d 278, 294 (Fla.
1997).

   The defendant argues the Town failed to factually refute the
constitutional violations raised and failed to establish the defenses are
legally insufficient. However, the record shows the Town did refute these
claims.

    At the hearing, the defendant claimed she was not under arrest; law
enforcement did not have a warrant; and they did not have probable cause
when the search occurred. The Town responded that the inventory search
occurred after law enforcement took the defendant into custody. The Town
lawfully took the Escalade because its registered owner could not be found.
It conducted an inventory search in good faith. There was no material fact
in dispute about the search.

   Next, the defendant argues that issues of forfeiture must be decided by
a jury. The defendant is simply wrong. Summary judgment is proper
where pleadings, depositions, affidavits and other evidence disclose no
issue of material fact. See Swift v. Century Ins. Co. of New York, 264 So.
2d 88, 90 (Fla. 3d DCA 1972).


                                     4
    The trial court reviewed the pleadings, the defendant’s deposition, the
affidavits, and the arguments. There were no genuine issues of material
fact. The trial court correctly granted the Town’s motion for summary
judgment.

   The defendant next argues the Escalade is not contraband pursuant to
section 932.701. She contends because she was not convicted of a felony,
the Escalade cannot be contraband under this section. We disagree.

   Section 932.701 defines contraband as:

      Any personal property, including, but not limited to, any
      vessel, aircraft, item, object, tool, substance, device, weapon,
      machine, vehicle of any kind, money, securities, books,
      records, research, negotiable instruments, or currency, which
      was used or was attempted to be used as an instrumentality
      in the commission of, or in aiding or abetting in the
      commission of, any felony, whether or not comprising an
      element of the felony, or which is acquired by proceeds
      obtained as a result of a violation of the Florida Contraband
      Forfeiture Act.

§ 932.701(2)(a)5., Fla. Stat. (2016). The statute does not require the
individual to be convicted of a felony. It merely requires the individual be
using the vehicle in the commission of a felony, which is what occurred
here.

    Here, law enforcement arrested the defendant for “possession of
unlawfully issued, stolen, fictitious, blank, forged, counterfeit driver’s
license.” This is a felony under section 322.212, Fla. Stat. (2016). While
the State amended the information to allege a misdemeanor charge, that
does not eliminate the statute’s application for the forfeiture proceeding.

    The Escalade was also contraband under section 319.33(1)(e). That
section provides it is unlawful “[t]o use a false or fictitious name, give a
false or fictitious address, or make any false statement in any application
or affidavit required under the provisions of this chapter or in a bill of sale
or sworn statement of ownership or otherwise commit a fraud in any
application.” § 319.33(1)(e), Fla. Stat. (2016). The defendant obtained the
Escalade using a false or fictitious name and acquired title of the vehicle
with this false name.

   The statute further provides “[a]ny motor vehicle used in violation of
this section shall constitute contraband which may be seized by a law

                                      5
enforcement agency and shall be subject to forfeiture proceedings
pursuant to ss. 932.701-932.704.” § 319.33(6), Fla. Stat. Even if it could
be said that the vehicle did not automatically fall under section 932.701’s
definition of contraband, it fits within the definition under section 319.33.

    And last, the defendant argues the seizure of the Escalade constitutes
excessive punishment, prohibited by Article I, § 17 of the Florida
Constitution. She explains the forfeiture is excessive punishment because
she was convicted of only two misdemeanor charges, thus the punishment
was disproportional. The State responds the forfeiture is directly related
to the crime and does not constitute excessive punishment. By granting
summary judgment, the trial court rejected the defendant’s argument sub
silencio.

   Very recently, the United States Supreme Court has weighed in on the
issue. Timbs v. Indiana, 139 S. Ct. 682 (2019). There, the Court held the
Fourteenth Amendment’s Due Process Clause incorporates the Eighth
Amendment’s protection against excessive fines. Id. at 687. The Court
did so in a case very similar to this one where an Indiana resident had his
new Land Rover SUV forfeited based on his conviction for dealing in a
controlled substance and conspiracy to commit theft. Id. at 686.

   The Indiana trial court denied the State’s request to forfeit the $42,000
vehicle finding the forfeiture to be grossly disproportionate to the gravity
of the offenses. Id. The intermediate appellate court agreed. Id. The
Indiana Supreme Court disagreed holding the Eighth Amendment’s
excessive fines clause was inapplicable to the state’s forfeiture. Id. The
United States Supreme Court reversed. Id. at 691.

    Similarly, the Escalade’s forfeiture in this case may be grossly
disproportionate to the gravity of the two misdemeanor offenses to which
the defendant pleaded or even the felony charges for which she was
arrested. Because the trial court did not have the benefit of Timbs when
it ruled on the motion for summary judgment, we remand the case to the
trial court to determine if the value of the forfeited property is grossly
disproportionate to the gravity of the offenses.

   Reversed and remanded.

CIKLIN and KLINGENSMITH, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.

                                     6
