REL: 10/31/2014

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2014-2015

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1131440

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Ex parte Michael Dale Bennett

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS

(In re: H.A. Cox and Lashun Hutson

v.

Michael Dale Bennett)

(Lowndes Circuit Court, CV-12-900024;

Court of Civil Appeals, 2121053)

WISE, Justice.

WRIT DENIED. NO OPINION.
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Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,

JJ., concur. 

Moore, C.J., dissents.

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MOORE, Chief Justice (dissenting).

On June 5, 2012, Michael Dale Bennett filed a complaint

against Officer H.A. Cox and Officer Lashun Hutson of the

Lowndes County Sheriff's Department ("the sheriff's

department"), in their official capacities, seeking the

release and return of $19,855 in cash he claimed belonged to

him. Bennett alleged that on September 2, 2011, officers of

the sheriff's department had seized the cash during a search

of a vehicle in which he was a passenger. Both Bennett and the

driver were arrested and brought to the sheriff's department;

the driver was held pursuant to an outstanding warrant, and

Bennett was released. Bennett argued in his complaint that no

forfeiture or condemnation action had been promptly filed

against the cash as required by § 20-2-93(c), Ala. Code 1975,

and that, therefore, he was entitled to have the cash returned

to him. 

In response to a motion for a summary judgment filed by

Bennett, Cox and Hutson claimed that the federal government

was then in possession of the cash and that a federal

forfeiture proceeding was pending. The trial court granted

Bennett's motion for a summary judgment. Cox and Hutson

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appealed to the Court of Civil Appeals, which reversed the

judgment of the trial court. Cox v. Bennett, [Ms. 2121053, May

16, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). The Court of

Civil Appeals held that "the doctrine of adoptive forfeiture

applied in the present case such that jurisdiction had vested

in the federal district court and, therefore, the trial court

never acquired in rem jurisdiction over the property." ___ So.

3d at ___. Bennett now petitions for a writ of certiorari to

review the Court of Civil Appeals' decision.

In his petition, Bennett argues, among other things, that

§ 20-2-93 does not permit state or local law-enforcement

officials to transfer seized property to the federal

government to initiate a federal forfeiture proceeding in

order to avoid the stricter forfeiture laws in state court.

Bennett also argues that this issue is one of first impression

for this Court. Section 20-2-93(d) provides:

"(d) Property taken or detained under this

section shall not be subject to replevin but is

deemed to be in the custody of the state, county or

municipal law enforcement agency subject only to the

orders and judgment of the court having jurisdiction

over the forfeiture proceedings. When property is

seized under this chapter, the state, county or

municipal law enforcement agency may:

"(1) Place the property under seal;

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"(2) Remove the property to a place

designated by it;

"(3) Require the state, county or

municipal law enforcement agency to take

custody of the property and remove it to an

appropriate location for disposition in

accordance with law; and

"(4) In the case of real property or

fixtures, post notice of the seizure on the

property, and file and record notice of the

seizure in the probate office."

(Emphasis added.) 

It appears that the sheriff's department transferred

Bennett's cash to the federal government in order that the

federal government could institute a federal forfeiture

proceeding. The Court of Civil Appeals previously has

described this process, known as "adoptive seizure," as

follows:

"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 9.7.2.7.3 (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

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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."

Green v. City of Montgomery, 55 So. 3d 256, 258 (Ala. Civ.

App. 2009). 

On its face, § 20-2-93(d) does not explicitly authorize

state or local law-enforcement officials to transfer, or

forbid them from transferring, seized property to federal lawenforcement officials. The only portion of the statute that

arguably could authorize such a transfer is § 20-2-93(d)(3),

which allows state or local law-enforcement officials "to take

custody of the property and remove it to an appropriate

location for disposition in accordance with law." One could

reason, as the Court of Civil Appeals did in Green, that the

phrase "in accordance with law" does not necessarily mean in

accordance with Alabama law and therefore that the transfer is

valid if it is in accordance with federal law. See Green, 55

So. 3d at 261. However, this Court has held that, in

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construing a statute, "[i]f a literal construction would

produce an absurd and unjust result that is clearly

inconsistent with the purpose and policy of the statute, such

a construction is to be avoided." City of Bessemer v. McClain,

957 So. 2d 1061, 1075 (Ala. 2006). See also 1 William

Blackstone, Commentaries *60-62; Ex parte Baker, 143 So. 3d

754, 757-59 (Ala. 2013) (Moore, C.J., dissenting and

explaining Blackstone's view of equity in interpreting

statutes).

As the Court of Civil Appeals noted in Green, the

adoptive-seizure process is used when "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." Green, 55 So.

3d at 258 (emphasis added). If forfeiture is not possible

under state law, then would it not be absurd to construe § 20-

2-93(d)(3) to allow state or local law-enforcement officials

to circumvent state law by transferring the seized property to

federal law-enforcement officials for a proceeding not allowed

under state law? Moreover, if state or local law-enforcement

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officials could not obtain a person's seized property under

state law, would it not be unjust for the state or local

government entity to transfer that property to the federal

government for forfeiture and then be given 80 percent of the

property back? These concerns compel me to find a probability

of merit to Bennett's first-impression argument, although I

1

would also like to hear arguments from the State regarding the

construction of § 20-2-93. Therefore, I would grant the

petition for a writ of certiorari in order to fully examine

what I believe to be an issue of first impression.

Although this Court repeatedly has addressed the issue 1

of adoptive forfeitures, it never has considered the specific

question whether § 20-2-93 authorizes state or local lawenforcement officials to transfer seized property to federal

authorities to commence a federal forfeiture proceeding.

Although this Court denied certiorari review in Green, in

which the Court of Civil Appeals addressed this issue, this

Court conducts only a "preliminary examination" when it is

determining whether to grant a petition for a writ of

certiorari. Rule 39(f), Ala. R. App. P. Because this Court has

never conducted a full examination of the issue, it remains an

issue of first impression.

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