Bolden v. State

127 So. 3d 1195, 2012 WL 2477896, 2012 Ala. Civ. App. LEXIS 175
CourtCourt of Civil Appeals of Alabama
DecidedJune 29, 2012
Docket2110103
StatusPublished
Cited by2 cases

This text of 127 So. 3d 1195 (Bolden v. State) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolden v. State, 127 So. 3d 1195, 2012 WL 2477896, 2012 Ala. Civ. App. LEXIS 175 (Ala. Ct. App. 2012).

Opinion

PER CURIAM.

Richard L. Bolden appeals from a judgment ordering the forfeiture of $8,265. We reverse and remand.

On October 17, 2010, Dothan Police Officer Will Kaufman observed Bolden driving an automobile. Because Officer Kaufman knew that Bolden did not have a valid driver’s license and that Bolden had outstanding arrest warrants, Officer Kaufman stopped Bolden’s automobile. Officer Kaufman arrested Bolden for the outstanding arrest warrants and impounded the automobile. When Officer Kaufman conducted an inventory search of the automobile, he discovered $8,265 in cash in the glove compartment. Upon discovering the money, Officer Kaufman contacted Dothan Police Officer Jeremy Kendrick, who handled narcotics cases for the police department. Officer Kendrick questioned Bol-den concerning the money found in the vehicle. According to Officer Kendrick, Bolden stated that he had saved the money while working for his father and that he intended to buy an automobile with the money. Officer Kendrick took possession of Bolden’s cellular telephone, suspecting that the cell phone may contain evidence of drug transactions. No narcotics or fire[1197]*1197arms were found on Bolden or in his automobile.

The next day, on October 18, 2010, a Houston County circuit judge issued a warrant to search Bolden’s cell phone for evidence of illegal drug transactions. The search warrant was issued based on the affidavit of Officer Kendrick; the affidavit stated, in pertinent part:

“On 10-17-10 at approximately 1330 hours, I seized United States Currency in the amount of eight thousand two hundred sixty five dollars (8,265.00) from B/M Richard Bolden, A.K.A. (Gam-bino). The currency was located in the glove compartment of Bolden’s vehicle, separated into one thousand dollar stacks. The currency was held by a yellow bag, consistent with a Dollar General [shopping] bag. I have personal knowledge that Bolden has sold illegal drugs, in the past, to gain a profit. Affi-ant is looking for evidence in Bolden’s cellular telephone that shows drug transactions through text and other means used [b]y cellular telephone, to include pictures.”

Bolden’s cell phone was subsequently searched pursuant to the search warrant. The search revealed several text messages that, according to the testimony of Officer Kendrick, contained language indicating the occurrence of drug transactions on the days shortly before Bolden’s arrest.

On December 27, 2010, the State of Alabama filed a forfeiture complaint against Bolden, seeking the forfeiture of the $8,265 found in Bolden’s automobile. Bolden filed a motion to suppress the information seized from his cell phone in the search. In moving to suppress, Bolden argued that the evidence submitted in support of the search warrant, i.e., Officer Kendrick’s affidavit, did not establish probable cause to search the cell phone. At a hearing on that motion, Officer Kendrick testified that he did not recall if he had told the judge who issued the search warrant any information that was not contained in the affidavit. The trial court denied Bolden’s motion to suppress.

At trial, the State submitted a document detailing the information seized from Bol-den’s cell phone, including text messages. Officer Kendrick testified that several of the text messages contained language indicating the occurrence of illegal drug transactions on days shortly before Bolden’s arrest. On September 20, 2011, the trial court entered a judgment, pursuant to § 20-2-93, Ala.Code 1975, ordering the forfeiture of the $8,265 found in Bolden’s automobile. The forfeiture was based on the trial court’s determination that the money had been obtained through illegal drug sales. Following the trial court’s denial of Bolden’s postjudgment motion, he appealed to this court.

On appeal, Bolden argues that the trial court erred (1) by ruling against Bolden in certain discovery disputes between the parties, (2) by denying Bolden’s motion to suppress, (3) by admitting certain testimony by Officer Kaufman at trial, and (4) by concluding that the evidence was sufficient to support the forfeiture of the money found in Bolden’s vehicle. We first address Bolden’s argument that the trial court erred by denying his motion to suppress the information seized from Bol-den’s cell phone.

“To obtain forfeiture, the state must establish a prima facie case by presenting evidence that creates a reasonable satisfaction that the property at issue is subject to forfeiture. Agee v. State ex. rel Galanos, 627 So.2d 960, 962 (Ala.Civ. App.1993). A forfeiture of property cannot be properly based on evidence obtained in violation of fundamental constitutional rights. Nicaud v. State, 401 [1198]*1198So.2d 43 (Ala.1981). Thus, evidence obtained by an illegal search and seizure must be excluded in a forfeiture proceeding. $U,320.00 U.S. Currency v. State, 567 So.2d 352 (Ala.Civ.App.1990).”

Williams v. State, 674 So.2d 591, 593 (Ala. Civ.App.1995).

“The Fourth Amendment to the United States Constitution provides, in pertinent part, that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.’ Thus, ‘[a] search warrant may only be issued upon a showing of probable cause that evidence or instrumentalities of a crime or contraband will be found in the place to be searched.’ United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir.2007). Moreover, ‘ “[sufficient evidence must be stated in the affidavit to support a finding of probable cause for issuing the search warrant,” and “[t]he affidavit must state specific facts or circumstances which support a finding of probable cause[;] otherwise the affidavit is faulty and the warrant may not issue.” ’ Ex parte Parker, 858 So.2d 941, 945 (Ala.2003) (quoting Alford v. State, 381 So.2d 203, 205 (Ala.Crim.App.1979)).
“ ‘A probable cause determination is made after considering the totality of the circumstances.’ Gettel, 474 F.3d at 1086. To pass constitutional muster, ‘the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued.’ United States v. Greany, 929 F.2d 523, 524-25 (9th Cir. 1991) (emphasis added).”

Ex parte Green, 15 So.3d 489, 492 (Ala. 2008).

Bolden argues that the trial court should have suppressed the information found in his cell phone because, Bolden says, there was no probable cause to issue the search warrant. As noted, the search warrant was supported by Officer Kendrick’s affidavit, which stated that $8,265 in cash was found in the glove compartment of Bol-den’s vehicle; that the money was in one-thousand dollar stacks; that the money was in a yellow bag consistent with a shopping bag; and that Officer Kendrick had “personal knowledge that Bolden has sold illegal drugs, in the past, to gain a profit.” Thus, the search warrant was issued based on (1) the money found in Bolden’s vehicle and (2) Officer Kendrick’s personal knowledge that Bolden had sold illegal drugs in the past.

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127 So. 3d 1195, 2012 WL 2477896, 2012 Ala. Civ. App. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolden-v-state-alacivapp-2012.