Marijuana in trash can led to search warrant, arrest, and pending asset forfeiture

Apr. 6—A Morgan County sheriff's corporal who, along with her boyfriend, was charged with trafficking fentanyl after deputies justified a search of her home by finding marijuana detritus in her outside trash can will likely have to forfeit property before the criminal proceedings against her conclude.

Deborah Terrell, 42, and Lester Bufkin, 44, were found with fentanyl, meth and marijuana during a search of Terrell's home in the 1800 block of College Street Southeast by the Morgan County Sheriff's Office Drug Enforcement Unit on March 20, according to a Sheriff's Office statement. They have since been released from jail on $11,300 bonds each.

A search warrant affidavit signed by MCSO Drug Enforcement Unit Agent Jonathon Wynne and filed in court on Tuesday revealed more information on the investigation into Terrell, who worked at the Morgan County Jail for 16 months.

Agents said they received information that she brought illegal narcotics into the jail between November 2023 and March 2024. They also received information that Terrell's boyfriend, Bufkin, was allegedly selling drugs from their home on College Street.

"Agents arrived (at the home) and observed a Decatur City trash receptacle located in the alley behind the residence," the affidavit reads. "Agents also observed Terrell's vehicle in the driveway. Agents conducted a trash pull.

"Agents located several smoked marijuana cigarettes, a small amount of loose marijuana, a corner-cut baggie containing marijuana residue, an empty THC gummy pack and rolling papers."

Circuit Judge Jennifer Howell found probable cause to issue a search warrant for the home and signed the warrant on March 19. A list of items seized in the search was filed in court on April 1: 35.6 grams of "presumed" fentanyl pills, 3.8 ounces of marijuana, 5.3 grams of amphetamine pills, a JA Industries LLC .380 pistol and a digital scale.

Assistant District Attorney Joe Lewis filed a civil complaint on April 2 seeking to claim the pistol seized in the search and award it to the MCSO Drug Enforcement Unit.

Alabama Code 20-2-93 provides law enforcement with broad discretion in seizing property that is implicated in a "chargeable criminal offense," whether felony or misdemeanor, regardless of and/or ahead of a criminal conviction.

"All property of any type whatsoever constituting, or derived from, any proceeds obtained directly, or indirectly, from any violation of any law of this state concerning controlled substances" is subject to seizure and forfeiture, according to the statute.

Changes to Alabama's civil asset forfeiture code in 2021, sponsored by State Sen. Arthur Orr, R-Decatur, aimed at protecting the rights of property owners and increasing transparency included: Agencies must report data on all property seized; currency totaling $250 or less and motor vehicles worth $5,000 or less are exempt from seizure; agencies must obtain a seizure order from a judge within seven business days of taking property without a warrant; and agencies cannot transfer property to a federal agency unless the property includes more than $10,000 in U.S. currency.

In ruling whether property should be subject to forfeiture, the district attorney must prove "by a preponderance of the evidence" that said property is an instrument or proceed of a criminal offense. By comparison, criminal convictions have a higher standard and must be proved "beyond a reasonable doubt."

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No lawyer provided

Unlike criminal defendants, civil defendants are not guaranteed court-appointed counsel if they can't afford a lawyer, according to the Southern Poverty Law Center.

"For lots of individuals, it's just cheaper for them to go ahead and cede whatever property has been seized to the government as opposed to retain counsel," said SPLC's Alabama Policy Director Jerome Dees. "Low level drug cases, where either no charge is actually followed through or no conviction results — from the pieced together data that we have, we're able to see that in a lot of those instances, there's no ultimate conviction but there is an attendant forfeiture and ultimate disposition in favor of the State of, say, five or six thousand dollars.

"While that may seem like a small sum or total ... to each of those individual families that's a significant amount. That's multiple months of rent."

While the DA is only seeking forfeiture of a firearm in Terrell's case, other accused drug criminals have had to surrender more innocuous property like land, vehicles and cash.

Cleveland Blair, 52, for example, remained in Morgan County Jail on Friday in lieu of a $350,600 bond after deputies said they recovered around a pound of cocaine while executing a search warrant on his residence on March 19.

In addition to drugs, MCSO agents also seized two firearms, a 2018 Ford F-150, a money counter and $14,676 in U.S. currency, according to a civil complaint filed by Lewis on March 25. The complaint alleges that the currency and vehicle were used in dealing cocaine.

A bench trial to determine the forfeiture of Blair's property is scheduled for Nov. 4. If the State wins, the firearms, money counter, Ford F-150 and 74% of the money will go to the MCSO Drug Enforcement Unit, while 26% of the money will go to the DA's office.

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Numbers

Despite the reporting requirements instituted in 2021, Dees said the SPLC has still faced challenges collecting data. There are gaps in the information compiled by the Alabama Law Enforcement Agency, he said.

"Specifically, the criminal charge that's the basis for the forfeiture, the names of the defendants, the criminal and civil case numbers — what we are seeing is that often times those records are incomplete," he said.

In fiscal 2023, the Decatur Police Department opened 31 forfeiture cases and closed four, according to ALEA. Four of those cases resulted in defaults, meaning the defendants ceded the property in question, and 27 are still pending. Since then, $12,936.57 out of $261,501.67 seized has been forfeited, all through default. No money was awarded to a defendant and no money was forfeited as a result of a settlement. Of six vehicles seized, two have been forfeited and none have been returned.

In the same year, the MCSO opened 17 forfeiture cases and closed six, according to ALEA. Four of those cases resulted in defaults and 11 are still pending. Since then, $9,290 out of $53,841 seized has been forfeited, all through default. No money was awarded to a defendant and no money was forfeited as a result of a settlement. Three vehicles were seized, and one was returned. Of 21 firearms seized, six have been forfeited and none were returned.

Statewide in fiscal 2023, $4.7 million in currency was forfeited, most by default, along with 54 automobiles and 297 firearms, according to ALEA.

"For several months up to a year now, we've made repeated requests to try and get that information to no avail," said Dees of missing ALEA data.

"In the absence of that transparency, it really kind of calls into question exactly what those policing and enforcement practices are. It causes us to call into question whether civil asset forfeiture is a practice that we need to continue to uphold in Alabama and potentially look at, instead, a criminal asset forfeiture where there has to be a conclusion of criminal proceedings before the forfeiture proceedings begin."

Dees said placing forfeiture in the criminal sphere, rather than a "quasi civil/criminal" one, would guarantee defendants the right to counsel.

Alabama Appleseed Center for Law and Justice Research Director Leah Nelson was a key researcher ahead of the 2021 legislative changes.

"What we found generally is that a lot of assets are seized and taken administratively with very little pushback from people who are not necessarily even charged with crimes or convicted, and when there's not necessarily a real meaningful connection between the asset that is seized and later forfeited and the underlying crime," she said.

Asset forfeiture tied to small drug offenses like possession is nonsensical, according to Nelson.

"When you buy drugs, you give someone your assets. You pay for the drugs. So, it's really strange when you see assets being seized in connection with drug possession."

Based on research conducted in 2017, Appleseed recommended the Legislature severely narrow and nearly eliminate civil asset forfeiture entirely. There are still some instances where the process can be a useful tool for law enforcement, according to Nelson, such as when a defendant flees the country ahead of prosecution.

"It should be reserved for situations where criminal forfeiture can't work. Criminal forfeiture is the alternative proceeding that we proposed."

Nelson recalled the story of a Chilton County man named Royce Williams who took his own life in 2009 in an attempt to keep law enforcement from seizing several acres of land. Williams was charged with a crime for growing marijuana on a school bus-sized portion of the land.

"The State seized and attempted to have him forfeit acres and acres of property that had been in his family for generations. They took his motorcycles and other stuff, too, that wasn't materially connected in any way to his preference to smoking pot that he grew."

After Williams killed himself, authorities continued to seek the forfeiture but were ultimately unsuccessful, according to Nelson.

"This is a very easily abused system, and the fix that we suggested for it was to mostly eliminate the system except for in extreme cases."

Substantial limits to civil asset forfeiture did not make it into the 2021 legislation amid pushback from law enforcement groups. The main difference in the post-2021 process is the additional reporting requirements.

"Having made enormous effort to get that bill passed, I think there was just a loss of momentum in terms of what comes next," Nelson said. "Sometimes transparency is all you need to end a bad practice. But I don't think that that's necessarily the case here, because, really, there's just not a place for civil asset forfeiture, as practiced, in Alabama."

Nelson said the practice can also disproportionately affect populations along socioeconomic and racial lines. For example, people with low income might be more likely to keep cash on their person rather than deposit money into a bank.

A 2018 SPLC study found that 64% of defendants in surveyed forfeiture cases were Black, despite Black people only making up 27% of the population.

"There are some agencies that have been relatively fair and judicious in how they utilize the forfeiture statute, and then there are others that seem to be preying upon poor and Black and brown communities at a much greater rate than other communities in their jurisdiction," Dees said.

The Institute for Justice, a nonprofit, public interest law firm, gave Alabama a grade of D- for its civil forfeiture laws. According to the firm, 100% of forfeiture proceeds in the state go to law enforcement, thereby providing a financial incentive for the practice to continue. The Institute recommends ending civil forfeiture entirely, strengthening transparency, and directing all forfeiture proceeds to a non-law enforcement fund.

Dees said he's spent the last three years or so trying to gather as much data as he can after the reporting requirements went into effect.

"I wanted to try and get as much as I could before I went back to individuals like Sen. Orr," he said. "It is still something that we are looking for — opportunities to reengage legislation around forfeiture practices in the state."

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— david.gambino@decaturdaily.com or 256-340-2438.