REL:   10/31/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015

                          _________________________

                                   1131440
                          _________________________

                        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.
1131440

    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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1131440

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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1131440


                 "(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 law-

enforcement 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,1 although I

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.




    1
     Although this Court repeatedly has addressed the issue
of adoptive forfeitures, it never has considered the specific
question whether § 20-2-93 authorizes state or local law-
enforcement 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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