Court Opinions

Davis v. Georgia
Georgia Court of Appeals, Criminal Case (11/15/2012, 11/21/2012) A12A1132

CRIMINAL PRACTICE: Forfeiture, Cocaine Possession

Alert: In a forfeiture proceeding, the State failed to demonstrate that drugs police found on the defendant consisted of more than one gram of actual cocaine, pursuant to OCGA § 16-13-49, as the State presented no evidence of the cocaine's purity.

Subject Matter Index: Forfeiture order, reversed, giving title to Sherriff's Office to $3,415 in currency police found on defendant's person during drug investigation in appeal from civil in rem forfeiture proceeding, as evidence did not support it; in Bell v. State, 249 Ga. App. 296 (2001), Court ruled that state must demonstrate that seized sample of cocaine consists of more than one gram of actual cocaine in order to sustain forfeiture under OCGA § 16-13-49; here, Court found that only evidence as to amount of cocaine police found was officer's testimony that it was "approximately 1.0 grams" and that sample field-tested positive for presence of cocaine; Court held that such evidence was inadequate because State failed to demonstrate that drug sample consisted of more than one gram of actual cocaine as there was no evidence as to purity of cocaine police found.

Headnote: In this appeal from a civil in rem forfeiture proceeding, the Court of Appeals reversed the order forfeiting $3,415 in currency police found on Kedrick Davis' person during a drug investigation, holding that the evidence failed to support it. In Bell v. State, 249 Ga. App. 296 (2001), the Court ruled that "the State must demonstrate that a seized sample of cocaine must consist of more than 'one gram of cocaine' in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample is 'positive' for some undetermined amount of cocaine." But here, the Court found that the only evidence as to the amount of cocaine on Davis' person was an officer's testimony that it was "approximately 1.0 grams" and that the sample field-tested positive for the presence of cocaine. The Court held that such evidence was inadequate because the State failed to demonstrate that the cocaine consisted of more than one gram of actual cocaine as there was no evidence as to the purity of the cocaine police found on Davis' person.

Text: Doyle, Sara L., Presiding Judge

Following a bench trial in a civil in rem forfeiture proceeding, Kedrick Davis appeals from an order forfeiting $3,415 in currency found on his person by police during a drug investigation. Davis contends that the evidence was insufficient to support a finding that the property was subject to forfeiture under OCGA § 16-13-49. Based on a review of the record, we conclude that the evidence failed to support the order of forfeiture, so we reverse.

The record shows that in February 2010, police were investigating drug activity at a house known to be the location of drug transactions. They followed a vehicle that had been parked in front of the residence to another residence that had been the site of numerous drug arrests. Once the car stopped, officers engaged the driver, Davis, who was cooperative with their questions. Davis agreed to the officers' request to search the vehicle, and the officers found "approximately 1.0 grams of cocaine on the passenger floorboard of the vehicle." Davis was arrested, and a subsequent search of his person revealed $3,415 in currency in his pants pockets.

The Sheriff's Office filed a complaint for forfeiture in rem, seeking title to the currency found on Davis at his arrest. Davis filed a notice of claim and an answer to the complaint, objecting to the forfeiture. The trial court held an evidentiary hearing and awarded the currency to the Sheriff's Office, giving rise to this appeal by Davis.

Davis argues that the currency was not subject to forfeiture because of the following provision of the forfeiture statute: "A property interest shall not be subject to forfeiture under this Code section for a violation involving only one gram or less of a mixture containing cocaine . . . unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana."1 The State does not contend that the currency was used to facilitate a drug transaction, and there is no evidence to that effect, so the State was required to prove that the money was associated with a drug violation involving more than one gram of cocaine.

This case is controlled by Bell v. State,2 which states as follows:

OCGA § 16-13-49 (e) permits the forfeiture of property in drug cases involving more than "one gram of cocaine." In State of Ga. v. Foote,3 the State argued that OCGA § 16-13-49 (e) does not require more than one gram of "pure" cocaine to support forfeiture. We disagreed and ruled that the State must demonstrate that a seized sample of cocaine must consist of more than "one gram of cocaine" in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample, more than a gram, is "positive" for some undetermined amount of cocaine.4

Here, the only evidence as to the amount of the cocaine found was the testimony from an officer that it was "approximately 1.0 grams" and that the cocaine field tested positive for the presence of cocaine. There was no evidence as to the purity of the "approximately 1.0 grams" of cocaine found. Absent other evidence, this is inadequate in a forfeiture proceeding such as this one: "The State must demonstrate that the sample consists of more than 'one gram of cocaine' in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample, here approximately a gram, is 'positive' for some undetermined amount of cocaine."5 In light of the holdings in Bell and Foote, we conclude that the evidence presented by the State was insufficient to support the forfeiture. Accordingly, the trial court erred by entering the forfeiture order giving title to the Sheriff's Office.

Judgment reversed. Andrews and Boggs, JJ., concur.

 

1OCGA § 16-13-49 (e) (2).

2249 Ga. App. 296 (548 SE2d 35) (2001).

3225 Ga. App. 222-223 (1) (483 SE2d 628) (1997).

4(Punctuation and emphasis omitted.) Bell, 249 Ga. App. at 296.

5(Emphasis in original.) Foote, 225 Ga. App. at 223 (1).

Trial Judge: J. Carlisle Overstreet, Richmond Superior Court.,

Attorneys: Peter Johnson, Augusta, for appellant. Rebecca Wright, District Attorney, and Charles Sheppard, Assistant District Attorney, Augusta, for appellee.,