GREEN v. CITY OF MONTGOMERY
Michael Joe Green, Johnny
James Brown, and Aletha Johnson,v.City of Montgomery, J.J. Allen, and
Court of Civil Appeals of Alabama.
Decided September 16, 2011.
Michael Joe Green, Johnny James Brown, and Aletha Johnson
(hereinafter referred collectively to as "the claimants") appeal from a
judgment of the Montgomery Circuit Court in favor of the City of
Montgomery and J.J. Allen and Henry Davis, officers employed by the
Montgomery Police Department (hereinafter referred to collectively as
"the defendants"). We reverse and remand.
This is the second time this matter has been before this
court. We recited the underlying facts and procedural history of this
case in Green v.
City of Montgomery, 55 So.3d 256 (Ala. Civ. App. 2009),1 thusly:
"On December 6, 2006, Montgomery police officers stopped
the claimants as they were traveling through Montgomery on Interstate
65. While issuing the claimants a speeding ticket, the officers smelled
a strong marijuana odor and noticed a large amount of cash in a bag on
the floorboard behind the passenger seat. When asked how much money was
in the bag, the claimants responded, `about $20,000.' The officers
asked for permission to search the vehicle, and the claimants did not
respond. The officers ordered a K-9 unit to the scene to conduct an
open-air search. The search resulted in a positive identification of
marijuana in the passenger door. The officers then conducted a full
search of the vehicle that produced a small amount of marijuana and
additional cash. The officers seized the marijuana and all the cash,
totaling $32,353. Johnny James Brown, the claimant closest to the
marijuana, was charged with unlawful possession of marijuana in the
second degree, a misdemeanor. See § 13A-12-214, Ala.
"The difference between first-degree and second-degree
unlawful possession is whether the marijuana is for personal use. Id. Despite having charged
Brown with the lesser, personal-use offense, the City [of Montgomery]
transferred the seized currency to the federal Drug Enforcement
Administration (`DEA') pursuant to an arrangement whereby the City
would receive 80% of the money and the DEA would retain 20% of the
money as a fee. This process is known as `adoptive seizure.' See 21 U.S.C § 881 (2002).
"The adoptive-seizure process begins when state or local
authorities seize property as part of a criminal investigation or
arrest. Generally, the state or local officials either make a
determination that forfeiture is not possible under state law or
conclude that it is advantageous to them to transfer the matter to
federal authorities for a federal administrative forfeiture proceeding. See I.R.S. Manual 126.96.36.199.3 (July 25, 2007); Asset Forfeiture Law,
Practice, and Policy, Asset Forfeiture Office, Criminal Division,
United States Department of Justice, Vol. I (1988) at 38 (cited in Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993)).
Once state or local officials have determined that an adoptive seizure
is advantageous, they file a request with federal authorities. The
appropriate federal agency then decides whether to accept or reject the
request. If the adoptive-seizure request is accepted, the property is
taken into the custody of federal agents and federal administrative
forfeiture proceedings begin. At the successful conclusion of those
proceedings, usually 80% of the forfeited property is given back to the
state or local agency.
"In the present case, the seizure occurred on December 6,
2006. The City filled out the requisite forms to begin the
adoptive-seizure process on December 27, 2006. During the time that the
United States Department of the Treasury was reviewing the City's
adoptive-seizure request, the claimants filed a `Complaint and Motion
for Release and Return of Seized Money' in the Montgomery Circuit Court
on December 29, 2006. The DEA formally adopted the seizure on January
11, 2007, and United States Marshals took custody of the money on
January 23, 2007.
"One week later, the City removed the claimants' circuit
court action to federal court to address the claimants' Fourteenth
Amendment claim. The claimants subsequently amended their complaint,
deleting the Fourteenth Amendment claim and asking that the case be
remanded to the Montgomery Circuit Court. The case was remanded on
April 17, 2007. However on February 7, 2007, while the case was still
in federal court, the claimants were notified of the DEA forfeiture
proceeding and made no response.
"With the case back in the Montgomery Circuit Court, the
claimants filed on April 26, 2007, a motion to dismiss their case; the
circuit court granted the motion the same day. Arguing that they had
made a clerical error in the caption and that the motion should have
been styled as a motion for a summary judgment consistent with the
substance of the motion, the claimants convinced the circuit court to
reinstate the case on August 3, 2007. In the period between the
dismissal and the reinstatement of the claimants' action, the DEA
deposited the seized currency in the Asset Forfeiture Fund.
"On April 24, 2008, the City filed a motion for a summary
judgment, arguing that the circuit court no longer had jurisdiction
over the seized currency. The circuit court granted the City's motion
on May 13, 2008. The claimants filed a timely postjudgment motion,
which the circuit court denied on September 3, 2008. The claimants
filed a timely notice of appeal with this court on October 15, 2008."
55 So. 3d at 258-59.
court held that "[t]he claimants' action in state court was an in rem or quasi in rem action, and it invoked state in rem jurisdiction before the
federal government attempted to acquire jurisdiction." Id. at 265. Accordingly,
because we held that the Drug Enforcement Agency ("the DEA") had never
acquired jurisdiction over the currency, we reversed the summary
judgment entered by the trial court in favor of the defendants and
remanded the cause to the trial court "so that the claimants may assert
any and all defenses to the seizure and forfeiture under state law." Id.
On remand, the claimants moved the trial court for a
summary judgment, arguing (1) that the defendants had lacked probable
cause to seize the currency and (2) that the State had failed to
promptly file a forfeiture action regarding the currency,2 thereby, the claimants
said, requiring the defendants to return the currency to the claimants.
The defendants opposed the claimants' motion for a summary judgment,
arguing that the currency had been validly seized pursuant to §
20-2-93, Ala. Code 1975, and that the action filed by the claimants met
the requirement under that statute that the State file a forfeiture
proceeding because, the defendants argued, the action sought
disposition of the currency. The trial court denied the claimants'
The trial court later held a hearing on the claimants'
complaint, at which it heard ore tenus evidence. Following the hearing,
on January 26, 2011, the trial court entered a judgment in favor of the
defendants. In its judgment, the trial court determined that the
defendants had had probable cause to seize the currency. The trial
court also determined that the seized currency had been transferred
from the City to the DEA, that the currency had then been taken into
custody by the United States Marshals Service, and that the DEA had
conducted an administrative-forfeiture proceeding, resulting in the
forfeiture of the currency.
The claimants filed a postjudgment motion, arguing that
the trial court had not addressed the issue whether the State had
promptly filed a forfeiture action. The claimants' postjudgment motion
was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.
The claimants subsequently appealed to this court.
The trial court entered its judgment after hearing ore
"`"`[W]hen a trial court hears ore tenus testimony, its
findings on disputed facts are presumed correct and its judgment based
on those findings will not be reversed unless the judgment is palpably
erroneous or manifestly unjust.'"` Water
& Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala. 2007)
(quoting Fadalla v.
Fadalla, 929 So.2d 429, 433 (Ala. 2005),
quoting in turnPhilpot v. State, 843 So.2d 122, 125 (Ala. 2002)).
`"The presumption of correctness, however, is rebuttable and may be
overcome where there is insufficient evidence presented to the trial
court to sustain its judgment."' Waltman
Rowell, 913 So.2d 1083, 1086 (Ala. 2005)
(quoting Dennis v.
Dobbs, 474 So.2d 77, 79 (Ala. 1985)).
`Additionally, the ore tenus rule does not extend to cloak with a
presumption of correctness a trial judge's conclusions of law or the
incorrect application of law to the facts.' Waltman v. Rowell,
913 So. 2d at 1086."
Retail Developers of Alabama, LLC v. East Gadsden Golf
Club, Inc., 985 So.2d 924, 929 (Ala. 2007).
Additionally, this court reviews questions of law de novo. See Wright v. Childree,972 So.2d 771, 778 (Ala.
2006)("This Court accords the trial court's ruling no presumption of
correctness as to a question of law.").
On appeal, the claimants argue that the trial court erred
by not ordering the return of the currency because, the claimants say,
the State failed to promptly institute forfeiture proceedings pursuant
to § 20-2-93.3 We agree.
The trial court did not specifically state in its
judgment whether the State had promptly filed a forfeiture action or
whether the currency had been forfeited under state law; however, the
trial court did state that the currency had been forfeited through the
DEA's administrative-forfeiture proceedings.
determined that, when the claimants filed their complaint in the
trial court, the trial court had acquired jurisdiction over the
currency, thereby excluding the DEA from exercising jurisdiction. Green, 55 So. 3d at
265. Because the trial court had jurisdiction over the currency, and
because concurrent jurisdiction over the currency is prohibited, id. at 259, any attempted
forfeiture proceeding conducted by the DEA was ineffectual. Id. at 265. Therefore, the
trial court could not have relied on the administrative-forfeiture
proceeding conducted by the DEA to determine that the currency had been
Although the trial court erred in relying on the
administrative-forfeiture proceeding conducted by the DEA to determine
that the currency had been forfeited, this court may affirm the trial
court's judgment on any valid legal ground. See Unum Life Ins. Co.
of America v. Wright, 897 So.2d 1059, 1082 (Ala. 2004)
Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala. 2003),
quoting in turn Liberty
Life Ins. Co. v. University of Alabama Health Servs. Found.,
P.C., 881 So.2d 1013, 1020 (Ala. 2003))
("`This [c]ourt may affirm a trial court's judgment on "any valid legal
ground presented by the record, regardless of whether that ground was
considered, or even if it was rejected, by the trial court."`").
Therefore, we will now turn to the question whether the currency has
been forfeited pursuant to the provisions of § 20-2-93.
The currency was subject to forfeiture pursuant to §
20-2-93(a)(9), which allows seizure of "[a]ll property of any type
whatsoever constituting, or derived from, any proceeds obtained
directly, or indirectly, from any violation of any law of this state
concerning controlled substances." The defendants seized the currency
pursuant to § 20-2-93(b)(4), which provides, in pertinent part,
that property subject to forfeiture may be seized without process if
the "municipal law enforcement agency has probable cause to believe
that the property was used or is intended to be used in violation of"
the controlled-substances laws. Section 20-2-93(c) provides that, "[i]n
the event of seizure pursuant to subsection (b) of this section,
proceedings under subsection (d) of this section [— i.e., forfeiture
proceedings —] shall be instituted promptly."
As this court explained in State v. Chesson, 948 So.2d 566 (Ala. Civ. App. 2006):
"`"The mandate in [§ 20-2-93(c), Ala. Code 1975,]
that forfeiture proceedings be instituted promptlyis necessary
to the statute's constitutionality."` Adams
State ex rel. Whetstone, 598 So.2d 967, 969 (Ala. Civ. App.
1992) (quoting Reach
v. State, 530 So.2d 40, 41 (Ala. 1988)).
Furthermore, a forfeiture proceeding that is not instituted promptly is
So. 2d at 969. `The term "promptly" has been construed to mean
within a reasonable time in light of all the circumstances.' State v. $17,636.00 in
United States Currency, 650 So.2d 900, 901 (Ala. Civ. App.
"This Court has addressed the issue of promptness under
this statute. In Winstead
State, 375 So.2d 1207 (Ala. Civ. App. 1979), and Eleven Automobiles v.
State, 384 So.2d 1129 (Ala. Civ. App. 1980), this
Court ruled that instituting forfeiture proceedings three and one-half
weeks and four weeks, respectively, after a seizure is permissibly
prompt. This Court has also held that a 14-week delay between the
seizure and the initiation of forfeiture proceeding was not excessive.Moynes
State, 555 So.2d 1086, 1088-1089 (Ala.
Civ. App. 1989). However, in Adams,
So. 2d at 969, this Court found that a delay of 10 weeks between
the seizure of the property and the institution of the forfeiture
proceedings did not meet the promptness requirement of §
20-2-93(c), Ala. Code 1975, when the record reflected no reason for the
delay. This Court has stated that, without legislative guidance, `the
facts and circumstances of each case may cause [the] issue [of
promptness] to be decided on a case by case basis.' Adams, 598 So. 2d at
948 So. 2d at 568-69. In $3,011 in United States
Currency v. State, 845 So.2d 810, 814 (Ala. Civ. App.
2002), this court stated that, "[a]s the Supreme Court noted in Lightfoot [v. Floyd, 667 So.2d 56 (Ala. 1995),] `[w]hat is
"prompt" is decided on the facts of a given case, but a fairly short
time frame,' i.e., less than 7 to 10 months, `is evident from the cases
addressing the issue.' 667 So. 2d at 66 (collecting cases)."
In this case, the defendants seized the currency from the
claimants on December 6, 2006 — more than four years before the trial
court entered its judgment denying the claimants' complaint seeking the
return of the currency. During this four-year period, the State never
filed a forfeiture action relating to the currency. Presumably, the
State, relying on the administrative-forfeiture proceedings conducted
by the DEA, was under the impression that it did not need to file a
forfeiture action in state court. However, as we held in Green, the DEA
lacked jurisdiction over the currency; therefore, its
administrative-forfeiture proceeding was ineffectual. Green, 55 So. 3d at
264-65. Even if we were to forgive the State's delay in filing a
forfeiture action in state court until after we released our opinion in Green, in which we
held that the DEA's attempted administrative-forfeiture proceeding was
ineffectual, we still could not conclude that the State had promptly
instituted a forfeiture action relating to the currency. Over 18 months
passed between this court's release of our opinion in Green and the entry of the trial
court's judgment. There is no evidence indicating that the State
instituted a forfeiture proceeding during that period. Thus, any
forfeiture proceeding filed by the State at this time would undeniably
fail to meet the requirement in § 20-2-93(c) that the action be
instituted "promptly." See
Chesson, 948 So. 2d at 568-69.
Because the DEA did not have jurisdiction over the
currency when it attempted to conduct administrative-forfeiture
proceedings, and because the State did not promptly file a forfeiture
proceeding in state court related to the currency, the claimants are
entitled to a return of the currency. Therefore, we reverse the
judgment of the trial court and remand the cause to that court with
instructions to enter a judgment in favor of the claimants.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Pittman, Bryan, and Moore, JJ.,