Seven Thousand, One Hundred and Seventy Dollars ($7,170.00) in United States Currency Seized from Gardner Carlisle v. State of Alabama ex rel. Tim Morgan, District Attorney of Madison County

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REL: 7/27/12 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2012 2110332 Seven Thousand, One Hundred and S e v e n t y D o l l a r s ($7,170.00) i n U n i t e d S t a t e s Currency S e i z e d from Gardner C a r l i s l e v. S t a t e o f Alabama ex r e l . Tim Morgan, D i s t r i c t M a d i s o n County Appeal from Madison C i r c u i t (CV-08-900193) Attorney of Court BRYAN, J u d g e . On Tim February Morgan, complaint 29, 2008, District seeking theState Attorney the f o r f e i t u r e o f Alabama, o f Madison o f $7,170 on b e h a l f o f County, filed a i n cash s e i z e d from 2110332 Gardner C a r l i s l e . Ala. Code The c o m p l a i n t , 1975, sought the f o r f e i t u r e b a s e d on t h e a l l e g a t i o n t h a t be furnished violation in exchange of Alabama not the for a Carlisle r e l a t e d t o any i l l e g a l State i t "was f u r n i s h e d of the complaint On J u n e drug died, party and p r o c e e d e d e.g., Pickron (Ala. 1983) ( i n which death sought On t o be tenus hearing. the State. in of a c o n t r o l l e d The e s t a t e a notice on behalf. forfeiture of the personal See, 443 S o . 2 d 9 0 5 , 906 t h e a d m i n i s t r a t r i x o f an in a of C a r l i s l e of s u b s t i t u t i o n of Carlisle's ex r e l . J o h n s t o n , 20, 2009, case property estate was following the a n d t h e money forfeited). September a judgment to defend a party o f t h e owner substance a n d on A u g u s t of death. estate") subsequently f i l e d as controlled to transaction. ("the substituted or intended a n d a s s e r t i n g t h a t t h e money was a suggestion v. State currency answered, denying the m a t e r i a l 12, 2009, C a r l i s l e filed of the seized l a w a n d / o r was p r o c e e d s substance exchange." allegations f i l e d p u r s u a n t t o § 20-2-93, 19, 2 0 1 1 , t h e t r i a l court conducted On S e p t e m b e r 2 2 , 2 0 1 1 , t h e t r i a l ordering the f o r f e i t u r e I n i t s judgment, of the seized the t r i a l 2 court court an o r e entered currency stated to that i t 2110332 was "reasonably satisfied [ p r e s c r i p t i o n ] p i l l s " and a controlled On substance October 22, that that "the State had action and 2011, the facie case. failed to the State that Following postjudgment motion. had was currency been selling proceeds from exchange." motion pursuant to Rule 59(e), the [Carlisle] estate A l a . R. promptly had estate a C i v . P., institute failed a hearing, The filed postjudgment asserting the forfeiture to establish trial the that court a prima the a t i m e l y appeal to filed denied this court. We first forfeiture by § this has address a c t i o n was not estate's "instituted 20-2-93(c), Ala. argument i t s postjudgment the in discretion court] will i s not reverse discretion." 1366, Code only considered The a new required i f case, there the merits argument the that p r o m p t l y , " as estate motion. Green Tree Acceptance, 1369-70 ( A l a . In t h i s 1975. to c o n s i d e r judgment motion, but 2d the legal Inc. presented trial court argument i n a t o do trial required first "[A] so. [An court v. the post- appellate abuses Blalock, 525 that So. 1988). i s no of indication the argument 3 t h a t the that the trial court forfeiture 2110332 a c t i o n was n o t p r o m p t l y i n i t i a t e d . that argument trial court merits has at the hearing of t h e argument. back the argue [for failure trial. The t r i a l a case and then dismissed on t h e p o s t j u d g m e n t seemed t o i n d i c a t e t h a t actually tried come When t h e e s t a t e p r e s e n t e d That's i t would court and t h e case that and be stated oral that, arguments, denied." 2007), "[a]fter i t i s hereby (Capitalization ordered omitted.) o u r supreme c o u r t merits indicated of postjudgment the t r i a l an that motion. court's ... t h a t made court submissions the motion In Special Assets, 991 S o . 2 d 6 6 8 , 6 7 6 - 7 7 a trial court's motion, s i m i l a r to the d e n i a l court d i d not consider f o r the first time S i m i l a r to t h i s case, i n Special order denying the postjudgment motion s t a t e d : " ' A f t e r c o n s i d e r a t i o n of [ t h e postjudgment [ t h e ] response thereto, t o be the t r i a l written concluded that the t r i a l argument supposed the action] after motion, considering summary d e n i a l o f a p o s t j u d g m e n t here, was ... y o u c a n ' t you have t o r a i s e a t t h e t r i a l . " L . L . C . v . C h a s e Home F i n a n c e , L . L . C . , (Ala. i s over, the case In i t s o r d e r d e n y i n g t h e postjudgment simply not consider the s t a t e d : "Once a C o u r t to promptly i n i t i a t e something motion, the the i n the Assets, merely m o t i o n ] and the Court concludes that the motion i s 4 2110332 due t o be denied.'" In t h i s to case, consider the postjudgment The estate's address of there shown any its this establish intended substance estate that the be the in at the c o u r t had new i s no legal indication basis the failing promptness. discretion argument in the i t did that for holding in so. that to the trial consider Therefore, we the do not 1 that seized violation Section 676-77. trial argues $7,170 used laws. that the argument f u r t h e r . the to 2d discretion argument r e g a r d i n g Next, provides merits not exceeded So. although motion, e s t a t e has court 991 the evidence from Carlisle of Alabama's 20-2-93(a)(4), f o l l o w i n g are subject to Ala. does was not used or controlledCode 1975, forfeiture: " A l l moneys, n e g o t i a b l e i n s t r u m e n t s , s e c u r i t i e s , or o t h e r t h i n g s o f v a l u e f u r n i s h e d o r i n t e n d e d t o be f u r n i s h e d by any p e r s o n i n e x c h a n g e f o r a c o n t r o l l e d s u b s t a n c e i n v i o l a t i o n o f any l a w o f t h i s s t a t e ; a l l p r o c e e d s t r a c e a b l e t o s u c h an e x c h a n g e ; a n d a l l moneys, n e g o t i a b l e i n s t r u m e n t s , and s e c u r i t i e s u s e d o r i n t e n d e d t o be u s e d t o f a c i l i t a t e a n y violation of any law of this state concerning controlled substances." The issue whether a forfeiture a c t i o n was promptly i n i t i a t e d does not i m p l i c a t e the t r i a l c o u r t ' s subject-matter jurisdiction. T u c k e r v . S t a t e , 445 So. 2 d 3 1 1 , 314 ( A l a . C i v . App. 1984). T h u s , t h a t i s s u e m u s t be p r e s e n t e d i n t h e trial c o u r t f o r t h i s c o u r t t o r e v e r s e on t h a t i s s u e . Id. 1 5 2110332 "'"Under § 20-2-93 t h e S t a t e must e s t a b l i s h a p r i m a f a c i e for the s e i z u r e , condemnation, The s t a n d a r d of p r o o f i s r e a s o n a b l e s a t i s f a c t i o n . is penal in nature construed."'" (Ala. So. v. 2005) 2d 475, Smith, appellate which the Civ. parte and f o r f e i t u r e o f t h e p r o p e r t y . as such, McConathy, should 911 So. 2d The be statute strictly 677, 681-82 ( q u o t i n g H o l l o w a y v. S t a t e ex r e l . W h e t s t o n e , 476 2000), 578 ( A l a . C i v . App. So. 2d 1374, 1376 r e v i e w of a r u l i n g t h e e v i d e n c e was findings will Ex and, case of f a c t quoting i n turn ( A l a . C i v . App. from a forfeiture t o be correct State 1991)). "On proceeding at p r e s e n t e d ore tenus, the t r i a l are presumed and the court's judgment be r e v e r s e d o n l y i f i t i s c o n t r a r y t o t h e g r e a t w e i g h t evidence." App. Atkins v. State, 16 So. 3d 7 92 , 795 of (Ala. 2009). "Our forfeiture cases have found the following c i r c u m s t a n c e s t o be i n d i c a t i v e o f c o n t e m p l a t e d o r completed drug t r a n s a c t i o n s : a l a r g e q u a n t i t y of d r u g s , s e e , e . g . , S h e p h e r d v . S t a t e , 664 So. 2 d 238 (Ala. C i v . App. 1995) (21 p o u n d s o f marihuana); drugs packaged for sale, see, e.g., Pointer v. S t a t e , 668 So. 2 d 41 ( A l a . C i v . App. 1995); drug p a r a p h e r n a l i a or accouterments i n d i c a t i n g s a l e , such as ' b a g g i e s ' o r s c a l e s , s e e , e.g., J o h n s o n v. S t a t e , 667 So. 2 d 1 0 5 , 108 ( A l a . C i v . A p p . 1 9 9 5 ) . ... "Our f o r f e i t u r e c a s e s h a v e a l s o r e m a r k e d on t h e i n h e r e n t i n c r e d i b i l i t y of a defendant's e x p l a n a t i o n for having i n h i s or her p o s s e s s i o n a l a r g e q u a n t i t y 6 772 2110332 of cash. S e e , e . g . , H a r r i s v . S t a t e , 821 So. 2 d 177 (Ala. 2001) (finding inherently incredible a defendant's s t o r y t h a t the s o u r c e of $120,000 i n c a s h was a $90,000 payment t h e d e f e n d a n t received u p o n h e r h u s b a n d ' s d e a t h 17 y e a r s e a r l i e r , an a m o u n t that the defendant s a i d had i n c r e a s e d t o $120,000 d e s p i t e the f a c t that the defendant admitted that s h e k e p t t h e money a t home i n s h o e b o x e s a n d l e n t some t o f r i e n d s , b u t c h a r g e d no i n t e r e s t ) . See a l s o V a u g h n v . S t a t e , 655 So. 2 d 1 0 3 9 , 1041 (Ala. Civ. A p p . 1995) ( n o t i n g t h a t t h e d e f e n d a n t , who was found w i t h a l a r g e a m o u n t o f c a s h , was u n e m p l o y e d a n d h a d 'no v i s i b l e means o f support')." Gatlin v. At State, trial, 846 the R e a v e s , an o f f i c e r testified as confidential amount" Carlisle, Carlisle the officers to with Carlisle Carlisle's 25 total of the and 2002). of Stephen the pills $1,500 Oxycontin. him en The for x a q u e s t i o n e d him. = local from $1,500). lounge 7, residence to 2008 , in an lounge. As officers According large each $60 a informant $60 route to the the "a February his lounge, 7 at from selling (25 On leaving Reaves information was informant followed approached vehicle testimony received Carlisle Carlisle they the Oxycontin the observed and that meet informant ( A l a . C i v . App. a c o n t r o l l e d substance. purchase to 1093 elicited Reaves informant agreed 1090, the Madison P o l i c e Department. follows. i.e., for a automobile, 2d State of Oxycontin, arranged sell So. to stopped Reaves, 2110332 Carlisle [the admitted the Oxycontin pills searched pills: pills previous to was going 25 he Oxycontin varying bills Carlisle drug Lortab in the pills Lorcet. Carlisle's never s a i d that the had that he previous a and lounge had Reaves prescription bottle, 5 loose p i l l s 40 Xanax that found Reaves $7,170 pockets. Reaves $ 7 , 1 7 0 was the his three When of also at lent week. variety Reaves "because "sold p i l l s " in a prescription bottle, and to he and recovered in a prescription as that month, someone Carlisle, described testified r e l a t e d t o any in that illegal transactions. Carlisle Xanax p i l l s , seized produce the a Reaves a l s o not police the he i n f o r m a n t ] needed p i l l s , " residence was that produced prescription for the and those pills where returned Lortab and Lorcet pills because prescription seized arrested i n another L o r c e t and prescriptions. possession a of the at Lortab. those $7,170. that drug for A c c o r d i n g to and to a controlled was Reaves did not substances. Reaves, agreed to Carlisle the produce p r e s c r i p t i o n s for never produced subsequently substance 8 Carlisle and assist However, C a r l i s l e Carlisle him. controlled t i m e b e c a u s e he case to Oxycontin and charged criminal those with conspiracy 2110332 to commit issued a controlled-substance for his arrest. Carlisle had died, crime, However, the when charges and and a Reaves warrant was that warrant arrest learned were dismissed. At trial, Carlisle the estate before testified, p r e s e n t e d an a f f i d a v i t h i s death. i n pertinent In the p r e p a r e d by affidavit, Carlisle part: "I'm t h e o w n e r o f t h e [ s e i z e d ] $ 7 , 1 7 0 a n d s a i d money i s not proceeds of a drug sale nor d i d I intend to p u r c h a s e d r u g s w i t h s a i d money. I g o t t h e sum f r o m the s a l e o f a t r u c k f o r $2,800.00, and t h e b a l a n c e from s a l e s of f l e a market items I s o l d i n N a s h v i l l e . I was o n my way t o b u y i t e m s a t v a r i o u s f l e a m a r k e t s f o r r e s a l e when t h e money was c o n f i s c a t e d . " The estate attorney, buying also elicited who t e s t i f i e d t h a t and s e l l i n g The trial determination that from determine whether satisfaction, activity. 2d 967 cars court "proceeds So. the testimony of C a r l i s l e ' s a that the i t s forfeiture $7,170 controlled State seized substance judgment from about established, a similar ( A l a . C i v . App. 2006). 9 issue on i t s Carlisle exchange." t h e money was p r o c e e d s We c o n s i d e r e d talk and " o t h e r t h i n g s , t o o . " based the he h a d h e a r d C a r l i s l e former to from a We must reasonable illegal i n K i n g v. S t a t e , In King, was drug 938 two i n f o r m a n t s 2110332 t o l d n a r c o t i c s agents "in the sent past." one of the Shortly after police Id. had of found no indicia lived in to wallet due illegal of the the 968. $9,000 The agents house dispute drug drug with in a i n King forfeited illegal i n marked $8,500 t o buy warrant on narcotics. King's currency the house. that jacket pocket, concerned i n the testified The house. that the found for whether the or other Goode, she s a v i n g t h e s e i z e d $8,500 f r o m h e r work p a y c h e c k s . a officers paraphernalia, scales, King, King, officers under § 20-2-93. trade King subsequently n a r c o t i c s from f o r the n a r c o t i c s , drugs, house search and The t o be a the paid King $9,333. $ 9 , 3 3 3 was at to King's executed i n King's total 2d the i n f o r m a n t had p u r c h a s e d addition informant So. informants officers In $833 938 t h a t t h e y had bought n a r c o t i c s from had who been Id. at 969. A drug-task-force o f f i c e r t e s t i f i e d that King claimed that the $833 The in his State wallet presented illegal drugs, disputing King's the trial no nor and s e i z e d money. was from evidence did a disability linking the State any check. of present G o o d e ' s e x p l a n a t i o n s as Id. at 970-71. c o u r t ' s judgment o r d e r i n g the 10 the This forfeiture $9,333 any to the court Id. to evidence source reversed of the of the $9,333. 2110332 The facts i n King circumstantial, transaction." indicated between "no the link, seized narcotics indicated to that informant. an informant. Carlisle In both planned primarily cases, control relied transaction buy. on the or planned had King, bought Reaves testified prescription planned is drug pills controlled activity i n King. activity i n this $7,170 of of e a r l i e r King specific State stated than a 11 to an indicating particular t o argue illegal that drug agents that before drug the evidence case drug the activity. he h a d s o l d of past they case, some the activity of past drug of previous drug enough There that In t h i s t h e month the evidence activity. evidence i n each " i nthe past." i s not s p e c i f i c such case, Oxycontin narcotics This evidence However, to the h i s residence buy. case sell transaction Carlisle at this r e l a t e d t o a c o n t r o l l e d buy evidence drug from that t e m p o r a l l y more seized a or In King, King t h e r e was no e v i d e n c e two i n f o r m a n t s t o l d narcotics to Rather, money s e i z e d was t h e r e s u l t In and similar. In planned t h a t t h e money s e i z e d was d i r e c t l y or money direct I d . a t 97 3. T h i s case and K i n g a r e m a t e r i a l l y sold either to connect i s no the evidence 2110332 regarding sold how much money at h i s residence. regarding sold. Oxycontin pills 40 p i l l s Lortab. at i . e . , the p r e s c r i p t i o n did not in $8,000 this Ex parte was to a specific s e i z e d $7,170 may l e a d there no have Carlisle had total of o f L o r c e t and that C a r l i s l e had disputing 911 So. 2d at 688 i n which the the State d i d not refute, some o f t h e p i l l s evidence transaction, one t o s u s p e c t t h a t C a r l i s l e tying the and seized past or f u t u r e ) . In evidence connecting the drug a c t i v i t y . 12 money. i n an a c t i o n f o r at least concrete Carlisle's t o support a judgement McConathy, i s insufficient to i l l e g a l could for a pills of the seized judgment drug he F u r t h e r , as i n K i n g , t h e S t a t e suspicion i s insufficient a forfeiture case, to s e l l directly as t o t h e s o u r c e there that of p r e s c r i p t i o n p i l l s he h a d p r e s c r i p t i o n s which Carlisle that by t h e o f f i c e r s , defendant presented testimony, that that pills and 5 t o t a l evidence forfeiture.'" evidence pills planned time i s u n c l e a r . "'[M]ere (reversing he o f Xanax, present explanation of that The q u a n t i t y an e a r l i e r over he i s limited of p r e s c r i p t i o n When he was p u l l e d $1,500, received f o r the p i l l s Further, there the quantity possessed, 25 Carlisle Although the evidence o b t a i n e d t h e money from 2110332 illegal drug forfeiture This judgment. case forfeiture evidence e.g., activity, i s "speculation Ex p a r t e McConathy, distinguishable o f money i n which from H a r r i s v. S t a t e , money in that between the State Based forfeiting on d i d not e s t a b l i s h the Thompson, concur. drug foregoing, t h e $7,170, R E V E R S E D AND v. Rather, this t h e money a n d i l l e g a l a involving presented t o drug the detailed activity, see, or i n which f a c t o r i n determining a drug see, e.g., H i l l e g a s s C i v . App. 2001). support" 911 S o . 2 d a t 6 8 8 . 821 S o . 2 d 177 ( A l a . 2 0 0 1 ) , w i t n e s s c r e d i b i l i t y was a c r u c i a l (Ala. not cases the State connecting the seized connection, will we State, 795 So. case i s analogous the requisite 2d 749 to King connection activity. reverse the judgment a n d we r e m a n d t h e c a s e . REMANDED. P . J . , and Pittman, 13 Thomas, and Moore, J J . ,

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