Okafor v. State

• Court: Alabama Court of Civil Appeals
• Writing for the Court: PER CURIAM.
• Citation: Okafor v. State, 225 So.3d 72 (Ala. Civ. App. 2016)
• Decision Date: 12 February 2016
• Docket Number: 2140649.
• Parties: Christopher OKAFOR v. STATE of Alabama

225 So.3d 72

Christopher OKAFOR

v.STATE of Alabama

2140649.

Court of Civil Appeals of Alabama.

Feb. 12, 2016.

Hycall Brooks III, Hueytown, for appellant.

Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

PER CURIAM.

Christopher Okafor appeals from a summary judgment the Madison Circuit Court ("the trial court") entered condemning money that had been seized by law-enforcement officers during the search of a residence. For the reasons discussed below, we reverse the trial court's judgment.

On February 8, 2013, the State of Alabama ("the State"), pursuant to § 20–2–93, Ala.Code 1975, filed a complaint in the trial court seeking to condemn $16,500 in currency ("the currency"). According to materials submitted in support of and in opposition to a motion for a summary judgment filed by the State, investigators of the Madison–Morgan County Strategic Counter Drug Team ("SCDT") and the Madison County District Attorney's Office seized the currency from a residence on February 7, 2013. Okafor was present at the residence when the currency was seized. On July 2, 2013, Okafor filed an answer in which he asserted that he was the lawful owner of the currency, that the currency was not subject to condemnation, and that SCDT investigators had obtained the currency during an unlawful search and seizure.

In support of its summary-judgment motion, the State attached the affidavit of Matt Thornbury, an investigator assigned to the SCDT. Thornbury testified as follows:

"2. On February 7, 2013, I, along with two other investigators with the District Attorney's Office, went to [a residence] in Huntsville, Alabama, in an attempt to serve a subpoena for trial on Christopher Okafor who was witness in a double homicide. Upon arriving at the residence, Investigator Nettles and this investigator approached the front door of the residence and made contact with the home owner, [Shanna] Hereford. Upon Hereford opening the front door to the residence, investigators detected a strong odor of marijuana coming from the residence. Upon contact with Hereford, Investigator Nettles advised Hereford that investigators were with the Madison County District Attorney's Office and needed to speak with Christopher Okafor. Hereford advised that Okafor was not at the residence and began to act nervous.

"3. At this same time, Investigator Turner, who was standing in the yard of the residence, observed Okafor look out the den window of the residence. At this time, investigators stepped into the residence to speak with Hereford and Okafor. Upon entrance to the residence, investigators continued to detect a very strong odor of marijuana in the residence. Investigators verbally announced for Okafor who came out of the downstairs den area of the residence. Okafor was patted down for officer safety and Investigator Turner explained to Okafor the reason for our visit. Investigator Turner and Investigator Nettles served the subpoena on Okafor at that time. While speaking with Okafor, Investigator Turner asked Okafor if there was marijuana in the residence and Okafor advised that there was in fact marijuana in the residence. Investigator Turner spoke with Hereford who also advised that there was marijuana in the residence.

"4. While at the residence, ... Hereford was presented with a voluntary consent to search form which she read and indicated she understood. Hereford subsequently signed permission to search the residence.

"5. At this time this investigator spoke with Okafor who advised that he did not live at the residence and therefore could not sign consent for the residence. Okafor did advise this investigator and Turner that the marijuana was located in the downstairs bedroom closet in a white plastic bag. Okafor advised investigators of this not after questioning but while explaining the consent to search form. Okafor got up while explaining the form and went to the downstairs bedroom closet and pointed out the marijuana to investigators.

"6. At this time, Investigator Turner recovered a white plastic bag containing two clear plastic bags of marijuana, approximately 92.5 grams gross weight and a set of digital scales. Upon searching the downstairs bedroom closet, investigators took note of the all male clothing that was in the closet along with the 18 pairs of mens tennis shoes in the closet. Agents also located a hidden compartment in a can which contained packaging materials for controlled substances. Upon a further search of the downstairs bedroom, this investigator located $15,000 in U.S. Currency bundled in $5,000 stacks located in the top dresser drawer. Investigator Turner located $1,500 in U.S. Currency in the top nightstand drawer.

"7. Although ... Hereford signed a receipt for the U.S.... Currency, both she and Okafor denied any knowledge or ownership of the U.S. Currency.

"8. A further search of the residence revealed a Beretta Model 21A handgun in the top of the closet in the downstairs bedroom. The firearm had 4 live rounds in the magazine. Also located beside the firearm was a box of 46 live .32 cal handgun rounds. At this time Investigator Turner spoke with Hereford about the weapon. Hereford advised that the weapon did not belong to her. Hereford advised that the only weapon that she owned was a 9mm Ruger handgun located in the upstairs bedroom."

In his response to the State's summary-judgment motion, Okafor contended that the SCDT investigators lacked probable cause or consent to enter Shanna Hereford's residence, that the SCDT investigators failed to advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that consent for the search of the residence was not given knowingly, intelligently, and/or freely. Okafor attached to his response a document titled "Intake Sheet" that Thornbury purportedly completed.¹ The intake sheet provided a summary of the search of the residence:

"[Investigators] went to [the] address to talk to [Okafor] about a murder case as a witness. The woman who answered the door said he wasn't present but [the investigators] saw [him] look out a window. [They] entered and smelled [marijuana] and they called out for him. He was asked about [marijuana] after the smell was apparent and he told them it was in the closet. [The investigators] found [two] large bags of [marijuana], a set of scales and a lot of men's clothing. They also found $16,500.... Both occupants denied ownership of the money."

Okafor also submitted Shanna Hereford's affidavit, which contained the following testimony:

"On or about February 7, 2013, four officers of the law arrived at the home where Chris Okafor and I were residing with our children. On that day when they knocked at the door and I went and stood in the doorway there was no aroma of marijuana or any illegal substance at or around the door. The wind was blowing outside at the time the police stood on my front steps, which is not an enclosed area.

"The police officers never possessed, or said they possessed a lawful search warrant for my home when they arrived. I never consented for the police officers to enter my home. I am a person of suitable age and discretion. I resided at the home, but the police officers never suggested or stated they wanted to leave a witness subpoena for Chris Okafor. Upon information and belief I now know under Rule 17.4(d)(2)[, Ala. R.Crim. P.,] the police officers could have lawfully served the witness subpoena for Chris Okafor by simply handing it to me, since by their own admission, in the affidavit of Officer Matthew Thornbury, someone allegedly saw Chris Okafor in the home and they believed him to reside there.

"Four officers of the law forced entry into my home. With loud voices, yelling, carrying weapons and using physical force they intimidated me and assaulted me by pushing me back into my home as they unlawfully entered, the police officers were aggressive and induced fear in me.

"Only after they entered the home did they say they smelled marijuana. Chris Okafor showed them where unburnt marijuana was kept approximately fifty feet away, packaged in a box in the back of a closet. There was no smell of marijuana in the home. No Miranda warnings were given [to] us before questioning. The questions assumed we were guilty of a crime and their questions would likely induce a self-incriminating statement, as it actually did. I was told the police were not going to leave my home until they searched it. My written consent was not freely given to them inasmuch as I was threatened they would not leave my home unless it was searched. In fact I was told they could search my home regardless, only it would take longer. In fact before they submitted a document to me for my signature, they had already searched my home. Our freedom was constrained at the time of the unlawful search, and at the time they asked us questions.

"The form given to me was never explained to me as a consent to search.

The document was shown to me after Chris Okafor showed the police officers where the unburnt marijuana was located. The Police informed me I had to sign the document so they could remove the marijuana from my home. No one told me I had a right not to sign the document. I believe I was under duress from the time the police officers unlawfully entered my home until the time they left the premises."

Okafor filed a supplement to his response to the motion for a summary judgment on April 1, 2015, in which he argued that "the Alabama Forfeiture Laws require an evidentiary link between the property seized and unlawful conduct. No such link was provided by the [the State]."

After a hearing on the summary-judgment motion, the trial court entered a judgment on April 1, 2015, granting the State's motion, declaring that the currency was contraband, and ordering the currency forfeited to the State. See § 20–2–93(a)(4). On May 11, 2015, Okafor filed a completed docketing statement in the trial court. On May 14, 2015, Okafor filed a...