Appeal
from Greene Circuit Court (CV-17-900029)
EDWARDS, JUDGE.
Juan
Manuel Martinez-Camacho ("Camacho") appeals from a
judgment entered by the Greene Circuit Court ("the trial
court") ordering the forfeiture of $52, 560 ("the
$52, 560") to the State of Alabama pursuant to Ala. Code
1975, § 20-2-93.
Facts
and Procedural History
On
March 13, 2017, at approximately 4:00 a.m., Agent Robbie
Autery, who is a member of the 17th Judicial Circuit Drug
Task Force, stopped a four-door 2015 Toyota Tundra pickup
truck ("the truck") for speeding on Interstate 59
South in Greene County. The truck had California license
plates and was owned by Camacho, who is a United States
citizen and a resident of Ukiah, California. Camacho was
sitting in the front-passenger seat of the truck. The driver
of the truck was Christian Aguilar-Hernandez
("Hernandez"), who is a Mexican citizen and speaks
limited English. The record includes a recording made by
Agent Autery's patrol-vehicle video camera, which also
incorporates an audio recording through a device apparently
worn by Agent Autery. Deputy Donald Gant was also in Agent
Autery's patrol vehicle when he made the traffic stop, as
was Agent Autery's drug-detection dog, Suza.
Agent
Autery approached Camacho's truck on the passenger side.
Agent Autery spoke to Camacho and to Hernandez, requested
Hernandez's driver's license, and inquired about his
driving history. Hernandez and Camacho indicated to Agent
Autery that Hernandez had a previous ticket. Agent Autery
informed Hernandez that, "as long as it had been
awhile" since the previous ticket, Agent Autery would
"just give [Hernandez] a warning." Agent Autery
then requested that Hernandez accompany him to his patrol
vehicle, where Agent Autery interviewed Hernandez after
patting him down. Agent Autery knows limited Spanish, and
Hernandez and Agent Autery communicated sometimes in English
and sometimes in Spanish. Hernandez told Agent Autery that he
and Camacho had been in Atlanta for approximately "four
days" and that they were driving to Dallas.
After a
few minutes of discussion with Hernandez, Agent Autery left
his patrol vehicle and spoke to Camacho, who had remained in
the truck. Agent Autery obtained Camacho's driver's
license and interviewed him as to his and Hernandez's
travel itinerary. Camacho told Agent Autery that he and
Hernandez had been in Atlanta for a "few days" and
were driving to Dallas. Agent Autery asked Camacho a series
of questions regarding the presence of any weapons, drugs,
money, or anything illegal in the truck. (A portion of each
question was in Spanish.) Camacho replied "no" to
each inquiry, and, when asked if there was anything illegal
in the truck, he stated: "[N]othing illegal."
Agent
Autery returned to his patrol vehicle and radioed for
background checks on Hernandez, Camacho, and the truck. While
Agent Autery was waiting for the response to the
background-check request, he asked a few additional questions
to Hernandez. After approximately 17 minutes, the person who
conducted the background checks informed Autery that, among
other things, Camacho had been arrested in 2010 in Nebraska
for possession of a controlled substance with intent to
deliver but that the prosecution of the case based on that
arrest had been "declined."
Upon
completion of the background-check discussion, Agent Autery
returned Hernandez's license, issued him a written
warning for speeding, and told him that Agent Autery was
"through with the traffic stop." The traffic stop
had taken approximately 30 minutes. Agent Autery then asked
Hernandez about whether any weapons, drugs, or money were in
the truck. Hernandez responded no to those inquiries. Agent
Autery then stated that he was going to ask Camacho if he
could search the truck, and he directed Hernandez to remain
in the patrol vehicle.
Agent
Autery again left his patrol vehicle, stating, presumably to
Deputy Gant, "[Camacho's] been popped before,"
and proceeded to the truck to speak to Camacho. Agent Autery
returned Camacho's license and then asked him for
permission to search the truck. After a brief discussion with
Agent Autery, during which Camacho stated he had had problems
from the delays and officers' actions during previous
searches of his vehicle, Camacho refused to consent to a
search. Agent Autery then instructed Camacho to exit the
truck, informed him he was going to "run his [dog]"
around the truck, and patted Camacho down. During the pat
down, Camacho disclosed that he had approximately $1, 500 in
his pocket, and he showed the "wad" of money to
Agent Autery.
Agent
Autery returned to his patrol vehicle to retrieve Suza. Agent
Autery walked Suza around Camacho's truck, and, according
to Agent Autery, the dog "alerted" on the
driver's side door area of the truck.[1] Agent Autery
returned Suza to the patrol vehicle and explained to Camacho
that the dog had "alerted" and that, according to
Agent Autery, he had probable cause to search the truck.
Agent
Autery proceeded to search the truck, beginning on the
passenger side. After a few minutes, he proceeded to search
the driver's side of the truck. While searching near the
rear driver's side door, Agent Autery discovered a small,
bound stack of cash that "fell out" from the rear,
driver's side seat. He informed Camacho about the find,
handed the stack of cash to Camacho, and inquired why he had
not disclosed that he had the cash in the truck. Agent Autery
then returned to the truck to continue his search using a
camera he retrieved from his patrol vehicle. Agent Autery
located additional small, bound stacks of cash within the
rear driver's side seat. Agent Autery retrieved those
stacks of cash with the assistance of Agent Ken Delaney, who
had arrived at the scene.
The
$52, 560 is the total cash retrieved from the truck and taken
from Camacho's person. During the search of the truck,
Agent Autery also seized three cellular telephones, two
purportedly owned by Camacho and one purportedly owned by
Hernandez. After completing his search, Agent Autery
instructed Camacho to drive the truck and to follow him to a
nearby highway exit, where they briefly stopped at a
convenience store; Agent Delaney followed Camacho in his
patrol vehicle. Thereafter, they proceeded to a police
station, where Camacho and Hernandez were interrogated. No
drugs, drug paraphernalia, or other contraband were recovered
from the truck or from Hernandez's or Camacho's
person, and no criminal charges were filed against Hernandez
or Camacho. Camacho and Hernandez were released the next day,
along with Camacho's truck.
On
April 4, 2017, the State filed a "Petition for
Condemnation" in the trial court. The State's
petition sought forfeiture of the $52, 560, pursuant to Ala.
Code 1975, § 20-2-93; the petition included no request
for forfeiture of the three seized cellular telephones.
Camacho filed an answer to the State's petition, and, on
September 8, 2017, Camacho filed a motion for a summary
judgment. After conducting a hearing on Camacho's motion
for a summary judgment, the trial court entered an order
denying the motion.
On
October 17, 2018, the trial court held an ore tenus
proceeding on the State's forfeiture petition; Agent
Autery and Camacho testified at the trial. At the conclusion
of the evidence, Camacho made an oral motion for a judgment
as a matter of law; Camacho argued that the $52, 560 had been
seized during an illegal search and that the State had failed
to present sufficient evidence to support a finding that the
$52, 560 was proceeds from an illegal drug transaction. The
trial court did not enter an order directly addressing
Camacho's motion, and, on December 5, 2018, the trial
court entered a judgment declaring that the $52, 560 at issue
was forfeited to the State. Thus, Camacho's motion for a
judgment as a matter of law was denied. The December 2018
judgment states:
"This cause came before the Court for hearing on the
pleadings and evidence presented ore tenus on the 17th day of
October 2018. Upon consideration of same, the Court hereby
finds that the Petition for Condemnation filed by the [State]
in this case is due to be GRANTED because the [State]
established by the evidence a prima facie case for the
forfeiture of the money pursuant to [§] 20-2-93 of the
Code of Alabama 1975. The standard of that prima facie proof
is reasonable satisfaction.
"[Camacho] failed to show that the money was not
'derived from ... proceeds obtained directly, or
indirectly, from violation of any law of this state
concerning controlled substances.' Further, the court
finds that [Camacho] testified falsely and that his testimony
was unbelievable. Therefore, because [Camacho] failed to
testify truthfully to a material fact, the testimony of
[Camacho] is disregarded altogether. Costs are taxed as
paid."
Camacho
appealed to the Alabama Supreme Court, which transferred the
appeal to this court, pursuant to § 12-2-7(6), Ala. Code
1975.
Standard
of Review
"On
appellate review of a ruling from a forfeiture proceeding at
which the evidence was presented ore tenus, the trial
court's judgment is presumed to be correct unless the
record shows it to be contrary to the great weight of the
evidence." Ex parte McConathy, 911 So.2d 677,
681 (Ala. 2005).
"'"Under § 20-2-93 the State must
establish a prima facie case for the seizure, condemnation,
and forfeiture of the property. The standard of proof is
reasonable satisfaction. The statute is penal in nature and,
as such, should be strictly construed."'
Holloway[ v. State ex rel. Whetstone], 772 So.2d
[475, ] 476 [(Ala. Civ. App. 2000)] (quoting State v.
Smith, 578 So.2d 1374, 1376 (Ala. Civ. App.
1991))."
McConathy, 911 So.2d at 681-82.
Analysis
We
first note that we will not address three of Camacho's
arguments on appeal -- that forfeiture of the $52, 560 is an
excessive fine in violation of the Eighth Amendment to the
United States Constitution;[2] that the trial court erred by
allowing Agent Autery to testify at trial despite the
State's failure to disclose him as a witness as required
under the trial court's pretrial order; and that the
trial court erred by failing to dismiss the State's
petition as a sanction for the State's failure to return
Camacho's cellular telephones as required by an order
entered by the trial court -- because he fails to make an
adequate argument in his appellate brief.[3]See Rule
28(a)(10), Ala. R. Civ. P; Dykes v. Lane Trucking,
Inc., 652 So.2d 248, 251 (Ala. 1994) ("[I]t is not
the function of [an appellate court] to do a party's
legal research or to make and address legal arguments for a
party based on undelineated general propositions not
supported by sufficient authority or argument."). Also,
we do not consider the merits of Camacho's argument that
the trial court erred when it denied his motion for a summary
judgment because an appellate court, as a general rule, will
not review the denial of a motion for a summary judgment
after a judgment is entered on the merits. See
Superskate, Inc. v. Nolen ex rel. Miller, 641 So.2d 231,
234 (Ala. 1994); see also Travelers Indem. Co. of
Connecticut v. Miller, 86 So.3d 338, 341 (Ala. 2011).
Camacho does not invoke any exception to the general rule,
and he makes no attempt to demonstrate why the general rule
would not apply in this case.
Regarding
Camacho's remaining two arguments on appeal, we agree
with his argument that the State failed to present sufficient
evidence to support a conclusion that the $52, 560 was
"money[] ... furnished or intended to be furnished by
any person in exchange for a controlled substance in
violation of any law of this state ...." Ala. Code 1975,
§ 20-2-93(a)(4).[4]Accordingly, we pretermit discussion of
Camacho's argument that the search and seizure at issue
were based on an illegal extension of a traffic stop. See
Rodriguez v. United States, 575 U.S. 348, ____, 135
S.Ct. 1609, 1615 (2015) ("An officer ... may conduct
certain unrelated checks during an otherwise lawful traffic
stop. But ..., he may not do so in a way that prolongs the
stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual."); see also Hebert
v. State, 180 So.3d 919, 923 (Ala.Crim.App.2014).
Before
addressing the merits of Camacho's argument that the
State failed to establish its prima facie case, we note that
the trial court's determination regarding Camacho's
lack of credibility is amply supported by his testimony at
trial and various misleading statements he made to Agent
Autery that are reflected on the patrol-vehicle video,
particularly based on disclosures made or facts discovered
after the traffic stop had ended and Agent Autery had
continued his detention of Camacho. Nevertheless,
Camacho's lack of credibility is not positive evidence
that the $52, 560 was "furnished or intended to be
furnished by any person in exchange for a controlled
substance in violation of any law of this state." §
20-2-93(a)(4). As to that question, this court stated in
Wherry v. State ex rel. Brooks, 637 So.2d 1353 (Ala.
Civ. App. 1994), that, "[i]n the federal case of
United States v. Four Parcels of Real Property, 941
F.2d 1428 (11th Cir. 1991), the Eleventh Circuit Court of
Appeals"
"defined probable cause as a
'"reasonable ground for belief of guilt, supported
by less than prima facie proof but more than mere
suspicion" -- the same standard used to determine
the legality of arrests, searches, and seizures in criminal
law.' Id. at 1440 (emphasis added).
Consequently, the federal government's burden of proof is
greater than mere suspicion, but is less than prima facie
proof. Id."
637 So.2d at 1355. However, this court continued:
"Our state appellate courts, however, have consistently
held that the State must establish by the evidence a
prima facie case for the forfeiture of property
under § 20-2-93 and that the standard of proof to
establish a prima facie case is reasonable
satisfaction. Agee v. State ex rel.
Galanos, 627 So.2d 960 (Ala. Civ. App. 1993); State
ex rel. Valeska v. Keener, 606 So.2d 150 (Ala. Civ. App.
1992), cert. denied, 606 So.2d 150 (Ala. 1992);
State v. Smith, 578 So.2d 1374 (Ala. Civ. App.
1991); Hayden v. State ex rel. Galanos, 513 So.2d
638 (Ala. Civ. App. 1987).
"... This burden [of proof] is greater than required in
federal court."
637 So.2d at 1355; see also, e.g.,
Harris v. State, 821 So.2d 177, 185 (Ala. 2001).
Our
precedents are clear regarding the State's burden of
proof under § 20-2-93(a)(4), and the requirement that
the State must establish a relationship between the money at
issue and some "exchange for a controlled substance in
violation of any law of this state." For example, in
Williams v. State, 150 So.3d 774, 779 (Ala. Civ.
App. 2014), we concluded that the forfeiture judgment at
issue in that case was against the great weight of the
evidence, stating: "[A] review of the record indicates
that there is no evidence connecting the $762 seized from
Williams to a specific drug transaction. The law-enforcement
officials who testified in this case could not link the money
to any transaction involving illegal drugs." Likewise,
this court noted in Williams v. State, 46 So.3d 3, 6
(Ala. Civ. App. 2010), that "the burden was not on
Williams to prove where he obtained the money; the burden was
on the State to prove that the money was used, or intended
for use, in a transaction which would be a violation of the
Alabama Controlled Substances Act."
In the
present case, Agent Autery testified that he had worked as a
law-enforcement officer for approximately "15, 16"
years and had been working "full-time criminal
interdiction" since January 2009. Regarding the traffic
stop at issue, Agent Autery described his initial suspicion
about possible criminal activity as follows:
"Your Honor, during the initial approach of the vehicle
when I introduced myself and was explaining the reason for
the stop and asking for the driver's license from the
driver, I noticed the passenger, which is ... Camacho, was
answering the questions for ... [Hernandez]. And during my
experience and training over the years, that's one of the
things that we notice, that sometimes the lead guy in the
load vehicle, whether it's a load of weapons, money, or
narcotics, they try to control the conversation.
"So that's why I asked ... [Hernandez] back to my
vehicle when I was taking enforcement actions. And then while
I was taking enforcement actions with him, I noticed that
back up ahead that ... Camacho was moving around in the
truck, like looking around or whatever.
"So for safety reasons, I exited my vehicle, went up
there and asked him for his identification and also where was
he coming from, where was he going to. ... Camacho told me
they'd been in Atlanta for two days. [On
cross-examination, Agent Autery admitted that this was
incorrect, Camacho said 'a few days,' and Agent
Autery repeated 'a few days' on the patrol-vehicle
video.] ... [Hernandez] said four days. So I got conflicting
stories.
"And also my initial approach when I was asking for the
driver's license, I could see ... Camacho breathing
heavily. So when I see that, then also he's trying to
takes what it seems to me he's answering for [Hernandez].
It's like he's trying to take over and control the
conversation.
"So once I started identifying that, then I started
getting the suspicions that there was criminal activity at
hand, and that's why I pursued it further, and that's
why we're here today."
According
to Camacho, he and Hernandez had driven a second truck (a
Ford F-150 pickup) from Dallas to Atlanta, where Camacho
purportedly sold the truck to another individual. The
following colloquy with Agent Autery occurred regarding
Camacho and Hernandez's purportedly driving two trucks
from Dallas to Atlanta and Agent Autery's speculation
from that purported itinerary and Suza's alert on the
truck:
"Q. Based on your training and experience, is it
uncommon for people who are smuggling drugs from Dallas to
Atlanta to use multiple vehicles?
"A. No, it is not uncommon for that.
"Q. Can you explain that for the Court?
"A. Your Honor, during my years of experience in doing
interdiction, criminal interdiction, through all different
scenarios where more than one vehicle is used to smuggle
contraband.
"One scenario that they have is what we call a decoy
vehicle. That vehicle travels in front of what we call the
load vehicle. The load vehicle is the vehicle that's
containing all the contraband, whether it's narcotics,
whether it's large sums of U.S. currency, whether
it's weapons, whatever.
"But on certain occasions, they'll have a decoy
vehicle where it rides and travels in front. They're
hoping they draw the attention of law enforcement so
they'll get stopped and then, therefore, the load vehicle
goes by.
"Another instance of what happens in the smuggling world
is there's two vehicles. One vehicle is your load
vehicle. The second vehicle is just people riding in it to
make sure the load of narcotics or whatever contraband
they're hauling makes it from point A to point B.
"Q. And this story that Mr. Camacho was giving to you
out there that night, Agent Autery, I'm correct, am I
not, I mean, in his story he told you that they were going
from Dallas -- well, back that up. I'm sorry.
"He told you he'd left California initially, but he
left Dallas and had to go to Atlanta in order to get
settlement ...