Civil forfeitures of real property in Alabama: lack of knowledge is power to an innocent owner.

• Author: Pool, Mary Ellen Conner

INTRODUCTION

Imagine a home that you have owned for years taken by the State just because you allowed a family member to live there who had a history of drug use. (1) That is exactly what happened to Sue Smitherman until the Supreme Court of Alabama corrected the injustice and gave Smitherman her house back. (2) Smitherman, knowing her son had prior drug use problems, allowed her son to live in a house on her property while he was going through marital difficulties. (3) To her horror and disbelief, Smitherman arrived at the home one day to find law enforcement officials searching the house. (4) The State began forfeiture proceedings on the house, and Smitherman faced one of the greatest legal challenges faced by a property owner. (5)

For years, federal and state governments have battled the war on drugs. However, for every drug dealer caught, another seems to appear. In an effort to prevent the activities of drug dealers and suppliers, the federal government and most state governments grant law enforcement officials the power to seize property used to facilitate drug distribution and manufacturing activities. (6) A seizure is considered to be an action against the property rather than the property owner. (7) In some cases, the property seized is not titled, in the drug dealer's legal name but in the name of an innocent owner. An innocent owner is one who has no knowledge of or has not consented to the illegal drug activities on his or her property. (8) In Alabama, illegal drug activities include "the manufacture, cultivation, growth, receipt, storage, handling, distribution, or sale of any controlled substance in violation of any law" of Alabama. (9) Under federal law, if property is being used to facilitate illegal drug activity, law enforcement officials may seize that property regardless of whether the owner is the person who committed the illegal drug activities. (10)

Typically, a successful seizure requires the property owner to have knowledge of the illegal drug activity. (11) Alternatively, once a property owner discovers illegal drug activity on his or her property, the property owner must show that he or she took all reasonable steps to prevent the property from being used for the illegal drug activity, based on the surrounding facts and circumstances. (12) Most state governments do not allow a property owner to turn a blind eye to illegal drug activity on his or her property. (13) In Alabama, the State may seize real property used for illegal drug activities. (14) To seize real property, the State must establish a prima facie case including: (1) the property was used to facilitate illegal drug activities, (15) and (2) the property owner had knowledge of the illegal drug activities that resulted in the violation. (16) The illegal drug activity must constitute more than just mere possession of an illegal substance. (17)

In Ex parte Smitherman, the Supreme Court of Alabama held that the State must prove a homeowner knew of or consented to the illegal drug activity on his or her property in order to establish a prima facie case in a forfeiture proceeding. (18) The court further held that the homeowner's mere knowledge of the occupant's prior drug use is not enough to establish that the homeowner should have reasonably known about the occupant's illegal drug activity within the home. (19) Thus, when seizing property, the State must present more evidence than an owner's mere knowledge of prior drug use to prove an owner knew or should have known about the illegal drug activity on the property. (20)

The holding in Smitherman is significant, because it establishes the extent to which the State must prove a homeowner's knowledge in order to establish a prima facie case for forfeiture under Alabama Code section 20-2-93(h). (21) The State's burden of proof is "to the trial court's reasonable satisfaction." (22) In Smitherman, the court continued to use the "reasonable satisfaction" standard; however, the court required the State to show evidence that was closer to actual knowledge than circumstantial knowledge that would have met the reasonable satisfaction burden. (23) The court outlined that "[Smitherman] did not state that she thought her house was being used for the 'manufacture, cultivation, growth, receipt, storage, handling, distribution, or sale of any controlled substance....' It is the knowledge of or consent to such use on the part of the property owner that the State must prove in a forfeiture proceeding." (24) The court implied that the State had to prove knowledge by showing Smitherman admitted she knew the house was being used to facilitate illegal drug activity. (25) Some states, and the federal government, require that the burden of disproving knowledge rests upon the homeowner because he or she is in the best position to present facts and would have the requisite knowledge to do so. (26)

The question examined by this Note is whether a homeowner who allows another person to live on his or her property, with knowledge of that person's past drug use, should be considered an innocent homeowner under the forfeiture statute in Alabama. (27) This Note discusses the elements required to present a prima facie case for forfeiture of real property, particularly in cases where the homeowner is not the person arrested for the drug activity. The burden of proving a homeowner's knowledge in Alabama is compared to the laws of the federal government and the surrounding states of Georgia, Florida, and Mississippi to consider whether innocent property owners are afforded sufficient protection in the State of Alabama.

STATEMENT OF THE CASE

In March 2002, Sue Smitherman watched local police officers execute a search warrant on a house that she owned. (28) Smitherman allowed her son and daughter to live in the house while she lived in another house one block away. (29) Smitherman's son, Tracy, was living on the property temporarily while he struggled through some marital difficulties and his mother's concern about his use of illegal drugs led her to want to keep him nearby. (30)

The police obtained a search warrant based on a "controlled buy" (31) of drugs that took place in the house where Smitherman allowed her children to live. (32) The facts are unclear concerning who sold the drugs, but the police arrested seven people including Smitherman's son and daughter. (33) The police seized a variety of drugs and drug paraphernalia found on persons inside the house in addition to one marijuana joint and plastic bags found in the house. (34)

While conducting the search, Officer Jeff Moore spoke with Smitherman and told her "that a drug search warrant was being executed at the residence." (35) Officer Moore testified at trial that Smitherman said "she tried to tell them this was going to happen" and "[s]he had tried to tell them to quit." (36)

On April 30, 2002, the State began a civil forfeiture proceeding against the property by filing a petition for condemnation. (37) In the petition, the State alleged that Smitherman had knowledge of the illegal drug activity, as required by Alabama Code section 20-2-93(a)(8). (38) As evidence, the State offered a marijuana joint and plastic bags that were found inside the house. (39) Also, the State described the variety of drugs and drug paraphernalia that were found on persons in the house. (40) In addition, Officer Moore testified at the heating as follows:

[W]hen ... [Sue Smitherman] came to the residence from the residence next door, she was very hysterical wanting to know what was going on. I explained to her we were executing a narcotics search warrant.... She stated that she tried to tell them this was going to happen. She had tried to tell them to quit. (41) Smitherman testified that she remembered talking with Officer Moore, but claimed she did not recall making statements regarding either her son's drug addiction or that she knew something was going to happen. (42) Although Smitherman never conceded to Officer Moore's testimony, she never denied his statements. (43) Smitherman further testified that she was hysterical because she was afraid that her son, Tracy, would be arrested and taken to jail. (44) Smitherman knew of her son's drug problem and she had offered to get him help. (45) Finally, Smitherman testified that from the location of her residence she could not see her children's home; thus, she never saw or was aware of anyone selling drugs from inside the home. (46)

The trial court ordered the forfeiture of the property, finding that the house was "used in the exchange, manufacture and distribution of illegal controlled substances," under section 20-2-93. (47) The trial court's order did not identify which paragraph of section 20-2-93 its decision was based upon. (48) On appeal, the Alabama Court of Civil Appeals affirmed the trial court's civil forfeiture ruling without opinion. (49) Smitherman then petitioned the Supreme Court of Alabama for a writ of certiorari. (50) The Supreme Court of Alabama, after granting the writ and heating the case, held that the State did not present a prima facie case to support a civil forfeiture of the house under section 20-2-93(a)(8). (51) Therefore, the Court reversed the trial court, holding that the civil forfeiture of Smitherman's house was improper. (52)

1. Smitherman's Argument

   On appeal to the Supreme Court of Alabama, Smitherman argued that the State did not present a prima facie case sufficient for a civil forfeiture under Alabama Code section 20-2-93, because the State's evidence failed to show that Smitherman had knowledge of the illegal drug activity that occurred in the house. (53) Smitherman further argued that she could not see the house from her residence. (54) She admitted to being aware of her son's drug problem, but that was the extent of her knowledge. (55) She argued her property should not be forfeited because she did not possess the knowledge required to establish a prima facie case for...