PER CURIAM.
Before us are two appeals (case no. 1101384 and case no. 1110310) and two petitions for writs of mandamus (case no. 1101313 and case no. 1110158) filed by the State of Alabama, all challenging orders entered by a circuit judge in Greene County purporting to require State officials to return to private parties property seized by the State as contraband pursuant to search warrants previously issued by the Greene Circuit Court. Also before us is a petition for a writ of mandamus (case no. 1130598) filed by the State seeking relief from the refusal of a district judge in Greene County to issue warrants similar to the warrants involved in the first four cases based on evidentiary submissions similar to those provided by the State in those same four cases. The latter case appears to involve the same potential defendants and gaming establishments as the
The first four cases referenced above (hereinafter sometimes referred to as "the Rule 3.13 cases") are cases in which a specially appointed circuit judge for Greene County, Judge Houston L. Brown, initially issued warrants to the State for search and seizure operations at certain gaming establishments in Greene County, including, but not limited to, establishments owned or operated by Greenetrack, Inc. ("Greenetrack"), and Frontier Bingo, Inc. ("Frontier"). Several weeks later, however, in response to motions filed pursuant to Rule 3.13, Ala. R.Crim. P., Judge Brown decided that the warrants had been issued based on an incorrect understanding of applicable criminal law, specifically what was and was not prohibited under certain statutory and constitutional provisions pertaining to "gambling devices," "slot machines," and "bingo." Largely on the basis of his reconsideration of this legal question, Judge Brown ordered the State to return to the gaming establishments all the gaming machines, currency, and other property it had seized pursuant to the warrants.
In case no. 1130598, Greene County District Judge Lillian Jones-Osborne was presented by State officials with applications for search warrants relating to gambling devices similar to those at issue in the Rule 3.13 cases and alleged by the State to be located at facilities owned or operated by Greenetrack and Frontier, and two additional facilities known as River's Edge Casino and Green Charity Casino. Judge Jones-Osborne refused to grant the State's applications for these warrants. Specifically, she referred to the order of Judge Brown in the Rule 3.13 cases and adopted Judge Brown's reasoning as the basis for her decision to deny the State's applications.
Amendment No. 743, Ala. Const.1901 (now Local Amendments, Greene County, § 1, Ala. Const. 1901 (Off. Recomp.)), provides in part that "[b]ingo games for prizes or money may be operated by a nonprofit organization in Greene County." It defines "bingo" as "[t]hat specific kind of game commonly known as bingo in which prizes are awarded on the basis of designated numbers or symbols on a card or electronic marking machine conforming to numbers or symbols selected at random." Charity "bingo," as permitted by Amendment No. 743, stands as an exception to the general prohibition of gambling in the Alabama Constitution and specific statutes. See Ala. Const.1901, Art. IV, § 65, and Ala.Code 1975, §§ 13A-12-20 and -27, making it a criminal offense to possess "gambling devices," including but not limited to "slot machines." See generally Barber v. Jefferson Cnty. Racing Ass'n, Inc., 960 So.2d 599, 603 (Ala.2006).
In April 2011, a team of undercover officers supervised by Lt. Mike Reese of the Alabama Alcoholic Beverage Control Board investigated operations at Greenetrack's gaming facility in Greene County. Specifically, the officers examined the gaming machines at the facility to determine whether they were authorized under the charity-bingo exception of Amendment No. 743. The investigation included making a video disc of officers playing the machines that was entered as evidence in
In May 2011, a team of undercover officers supervised by Lt. William Carson of the Alabama Alcoholic Beverage Control Board investigated operations at the Frontier gaming facility in Greene County. As with the Greenetrack investigation, the officers examined gaming machines at the facility, at least some of which were owned by Nova Gaming, LLC ("Nova"), to determine whether they were authorized under the charity-bingo exception of Amendment No. 743. This investigation also included making a video disc of officers playing the machines that was entered as evidence in the hearing below pertaining to Frontier and Nova's property. As in the Greenetrack investigation, the officers concluded that the games played on the machines did not qualify as "bingo" under the definition provided in Amendment No. 743.
Prior to the foregoing events, on July 1, 2010, then Chief Justice Sue Bell Cobb entered an order appointing Jefferson Circuit Judge Houston L. Brown "to preside as circuit judge in all matters concerning" a case styled as State of Alabama v. 825 Electronic Gambling Devices, case no. CV-2010.20, in the circuit court of Greene County. Chief Deputy Attorney General Richard Allen testified in the hearing below pertaining to Greenetrack's property that because of the July 1, 2010, order he was not sure what judge had authority to rule on a search warrant pertaining to gaming devices in Greene County. Allen telephoned the Administrative Office of Courts to inquire about Judge Brown's authority in Greene County. On May 17, 2011, then Chief Justice Cobb entered an order appointing Judge Brown as a "special circuit judge" for the 17th Judicial Circuit "until further orders of this Court."
On May 31, 2011, Lt. Reese and Lt. Carson applied to Judge Brown for warrants to search the Greenetrack and Frontier facilities and to seize gaming machines, records, and proceeds. The affidavits Lt. Reese and Lt. Carson filed in support of their applications for search warrants contained almost identical language and in general concluded that the machines at each facility were
More specifically, the affidavits contrasted what undercover officers observed at the facilities with regard to the machines with the six characteristics of "the game commonly or traditionally known as bingo" provided in Barber v. Cornerstone Community Outreach, Inc., 42 So.3d 65, 86 (Ala.2009). In this regard, Lt. Reese's affidavit repeated each of those six characteristics and then commented on whether the machines in question satisfied that characteristic:
(Emphasis in original.) After considering the State's submissions, Judge Brown issued the search warrants.
On June 1, 2011, the State executed the warrants at the Greenetrack and Frontier gaming facilities. The State seized approximately 376 gaming devices at the Greenetrack facility, business records, and $93,917.50 in proceeds. The State seized approximately 267 gaming devices at the Frontier facility, business records, and an unknown amount of proceeds. The property
On June 7, 2011, Greenetrack, Frontier, and other entities who are not parties to the cases before us filed a joint "Motion for Return of Seized Property" under Rule 3.13, Ala. R.Crim. P..
On June 22, 2011, the State filed in the Greene Circuit Court two civil forfeiture actions as to the gaming machines, records, and proceeds seized through the warrants executed at the Greenetrack and Frontier facilities. The State filed amended complaints on June 24, 2011, and second amended complaints on July 6, 2011. The forfeiture actions were assigned to Judge Eddie Hardaway.
On June 27, 2011, Nova filed a motion for return of property pursuant to Rule 3.13 on the basis of its claimed interest in the property seized under the warrant executed at the Frontier facility. On June 29, 2011, Frontier withdrew its motion for return of property based on the State's filing its forfeiture action. Nova likewise subsequently withdrew its motion for return of property as a result of the State's filing of a forfeiture complaint.
On July 6-7, 2011, Judge Brown held an evidentiary hearing on Greenetrack's motion for return of property. Judge Brown heard testimony from Richard Allen and Judge Hardaway pertaining to the process that led to Judge Brown's appointment. He also heard from Lt. Reese and Desmond Ladner, a gambling expert presented by the State, regarding their observations of the gaming machines at the Greenetrack facility.
On August 3, 2011, Judge Brown entered an order requiring the State to "RETURN all of the property seized during the execution of the subject search warrant to GREENETRACK, Inc. Before the passage of Ten (10) days from the date of this Order." (Capitalization in original.) Among other things, Judge Brown reconsidered the meaning of the term "bingo" and reached the conclusion that there was not probable cause to believe that the machines at issue were not "bingo games" and therefore illegal gambling devices. In this regard, Judge Brown reasoned (a) that Lt. Reese has "misled the Court" as to the meaning of the term "bingo," and (b) that the term "bingo," as used in this Court's opinion in Cornerstone and in Amendment No. 743 should be understood as allowing "electronic bingo games" of the type described in the State's evidence:
On August 5, 2011, Nova filed a renewed motion for return of property based on Judge Brown's order in the Greenetrack proceeding described above; Frontier likewise renewed its motion on August 30, 2011. The State filed motions to dismiss the motions of Nova and Frontier on the ground that the court in the civil forfeiture proceeding had jurisdiction over the subject property. Judge Brown denied the State's motions to dismiss.
On September 13, 2011, Judge Brown held an evidentiary hearing on Frontier's and Nova's motions for return of property in which he heard testimony from an attorney for the State, the Greene County Sheriff, and Lt. Carson.
On October 31, 2011, Judge Brown entered an order that relied upon the findings — and except for changing dates and names tracked the language — of his order in the Greenetrack action. The order required the State to return "all of the property seized during the execution of the subject Search Warrant to Frontier Bingo before the passage of ten (10) days from the date of this Order."
The State appealed Judge Brown's order in the Greenetrack action on August 4, 2011 (case no. 1101384). The State also moved in the trial court for a motion to stay the order pending appeal, but the trial court denied the motion. The State then sought from this Court an emergency motion to stay the order. This Court granted a stay of the trial court's order. It ordered that the State's emergency motion would be treated as a petition for a writ of mandamus (case no. 1101313), and it consolidated the petition with the State's appeal of Judge Brown's order in the Greenetrack action.
The State appealed the trial court's order in the Frontier and Nova action on November 7, 2011 (case no. 1110310). As in the Greenetrack case, the State moved in the trial court for a stay of its order in the Frontier and Nova action, but the trial court denied the motion. The State sought from this Court an emergency motion to stay the order. This Court granted the stay on November 10, 2011. It ordered that the State's emergency motion would be treated as a petition for a writ of mandamus (case no. 1110158), and it consolidated the petition with the State's appeal of the trial court's order in the Frontier and Nova action.
In its petition in case no. 1130598, the State takes note of our holding in Cornerstone and our reliance upon Cornerstone last year in Ex parte State, 121 So.3d 337, 359 (Ala.2013). The State also notes that, consistent with these holdings, judges have in recent months issued warrants to the State to seize so-called "electronic bingo machines" in Greene, Houston, Jefferson, and Lowndes Counties and judges in Jefferson and Houston Counties have issued various final rulings finding this sort of gambling illegal. Citing the sworn affidavits of two of its agents, the State posits
According to an affidavit supplied by one of the State's agents, Judge Jones-Osborne declined to grant the State's request for the search warrants in this case because she "concluded that she had to rely on what Judge Brown ruled." In her "answer" to the petition for a writ of mandamus pending before this Court, Judge Jones-Osborne confirms that "she denied the State's search warrant based on a 17th Judicial Circuit order issued by Judge Houston Brown," referring to the order of Judge Brown discussed above.
On January 21, 2014, the State filed its petition for a writ of mandamus with the Court of Criminal Appeals seeking an order requiring Judge Jones-Osborne to issue the warrants requested. Judge Jones-Osborne filed her answer to the petition on February 5, 2014. Pursuant to § 12-3-14, Ala.Code 1975, the case was transferred to this Court on March 7, 2014.
As a preliminary matter, we are confronted with two related, threshold questions of appellate jurisdiction in relation to the Rule 3.13 cases: (1) whether the proper vehicles for appellate review are the two pending petitions for a writ of mandamus or the two pending appeals, and (2) whether these proceedings are civil or criminal in nature and, in turn, whether they fall within the appellate jurisdiction of this Court or of the Court of Criminal Appeals. At least under the circumstances presented in these cases, we conclude that appellate review is by way of appeal and that these appeals are within the appellate jurisdiction of this Court.
Rule 3.13, Ala. R.Crim. P., was patterned after then Rule 41(e), now Rule 41(g), Fed.R.Crim.P. See Committee Comment
Judge Brown entered orders requiring the State to return the subject property in both the Greenetrack matter and the Frontier/Nova matter; of necessity, therefore, he purported to adjudicate all issues in those matters to final determination. Judge Brown's orders thus amount to final judgments subject to appeal, not interlocutory orders subject to review by a petition for a writ of mandamus.
Furthermore, at least where, as here, there is no criminal case pending, it is clear that the action generated by the filing of a motion under Rule 3.13 and the trial court's order adjudicating that motion are properly considered civil in nature and, accordingly, that jurisdiction over the appeal of the trial court's order would lie in this Court rather than in the Court of Criminal Appeals. In this regard, we note the case of State v. Cobb, 660 So.2d 1014 (Ala.Civ.App.1995), in which the plaintiff filed a Rule 3.13 motion when "[t]here was no pending criminal action, and the motion was docketed in the trial court as a civil action." 660 So.2d at 1014. The Court of Civil Appeals did not question its jurisdiction over the appeal. More recently, in Jones v. State, 937 So.2d 59 (Ala.2006), this Court held that a "motion" seeking an order to require the State to return currency
Federal authorities on this issue are, if anything, even more clear that a motion for return of property filed under the parallel federal Rule 41(g), at least when no criminal action is pending, gives rise to an independent action that is civil in nature. See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir.2010) (en banc) ("[W]hen the motion [to return property] is made by a party against whom no criminal charges have been brought, such a motion is in fact a petition that the district court invoke its civil equitable jurisdiction."); United States v. Howell, 425 F.3d 971, 974 (11th Cir.2005) ("A motion to return seized property under Fed.R.Crim.P. 41(g), is a motion in equity, in which courts will determine all the equitable considerations in order to make a fair and just decision."); United States v. Search of Music City Mktg., Inc., 212 F.3d 920, 923 (6th Cir. 2000) ("There is no criminal indictment or proceeding pending against Music City. Thus, Music City's Rule 41[(g)] motion for the return of its property was really in the nature of a civil proceeding invoking the court's equitable powers, rather than a criminal proceeding."); Pena v. United States, 122 F.3d 3, 5 (5th Cir.1997) ("[R]ule 41[(g)] proceedings ... have always been considered to be civil actions."); Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992) ("[W]here no criminal proceedings against the movant are pending or have transpired, a motion for the return of property is `treated as [a] civil equitable proceeding[] even if styled as being pursuant to Fed.R.Crim.P. 41[(g)].'" (quoting United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987))); United States v. Martinson, 809 F.2d at 1366-67 ("A district court has jurisdiction to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant.... Such motions are treated as civil equitable proceedings even if styled as being pursuant to Fed. R.Crim.P. 41[(g)]."); and Mr. Lucky Messenger Serv., Inc., 587 F.2d at 16 ("The motion for return of property is not one tied to a criminal prosecution in esse against the movant until the criminal process shifts from the investigatory phase to the accusatory.").
In addition, it should be kept in mind that the Rule 3.13 cases concern property seized as contraband that is the subject of pending forfeiture actions. The Rule 3.13 court, in an adversarial proceeding between the "defendants" and the State, effectively has decided the very legal and factual issues that are presented for adjudication in those forfeiture actions. Specifically, the Rule 3.13 judge necessarily has decided the purely legal question of what standard must be met in order for the property at issue to considered illegal and, in turn, necessarily has measured the evidence and facts of the case against that standard to determine that the property may be "lawfully possessed" (as it must be in order to qualify for relief under Rule 3.13). Such determinations have effectively adjudicated the civil forfeiture actions. Further still, the execution of Judge Brown's orders for the return of the property to those from whom it was seized would implicate the jurisdiction of the trial court in the in rem, civil forfeiture action.
Based on all the foregoing, we are clear to the conclusion that the actions before us
Having determined that the appeals filed by the State are the appropriate mechanism for appellate review and that those appeals are within the appellate jurisdiction of this Court, we now turn our attention to the merit of those appeals. For the reasons set forth below, we conclude that the trial court lacked subject-matter jurisdiction to enter the judgments from which the appeals are taken.
As noted, Rule 3.13 begins as follows:
(Emphasis added.) As the federal courts have explained in applying the analogous federal rule, to succeed in obtaining a return of property under the rule, the movant must prove not only that the seizure of the property was illegal but also that the movant is entitled to "lawful possession" of the property. See, e.g., Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir.1975) ("[A]ppellant made no effort to show that he is entitled to lawful possession of the seized items. Rule 41[(g)] `provides for a return of the property if (1) the person is entitled to lawful possession and (2) the seizure was illegal.' Advisory Comm. Note, 56 F.R.D. 143, 170 (1972). No showing was made or offered that the things seized were appellant's lawful property rather than components of an illegal gambling business." (emphasis added)); Matter of Ninety-One Thousand Dollars in United States Currency, 715 F.Supp. 423, 427 (D.R.I.1989) ("The gravaman of the motion, however, is petitioner's dual assertion that the search and seizure procedures employed by law enforcement officials in a particular situation violated petitioner's Fourth and Fourteenth Amendment rights and deprived the complainant of property to which she was lawfully entitled." (emphasis added)). Thus, if property is held only for its evidentiary value and is not, itself, seized as an illegal thing, Rule 41(g) provides for its return in the event of a determination that its method of seizure was illegal and that ownership of the property is in the claimant rather than some other party. See United States v. Wilson, 540 F.2d 1100, 1103-04 (D.C.Cir.1976); United States v. Palmer, 565 F.2d 1063, 1064 (9th Cir.1977).
On the other hand, contraband "is illegal to possess and therefore not susceptible of ownership." Farmer v. Florence Cnty. Sheriff's Office, 401 S.C. 606, 613, 738 S.E.2d 473, 477 (2013) (citing Mims Amusement Co. v. SLED, 366 S.C. 141, 621 S.E.2d 344 (2005)). "[A]lthough [Rule 41(g)] is ostensibly broad enough to reach any unlawful seizure, a movant has no right to the return of property that is contraband." Matter of Ninety-One Thousand Dollars in United States Currency, 715 F.Supp. at 427. Indeed, as the Comment to Rule 41(g) itself notes, that rule is of no moment "in cases involving contraband which, even if seized illegally, is not to be returned." Comments to 1972
In light of the foregoing, federal courts have consistently held that, where a forfeiture action has been commenced, it is inappropriate for the trial court to take up the Rule 41(g) motion. The issues raised by such a motion — the legality of the search and, in particular, the legality of the seized items — must be examined and decided in the forfeiture proceeding, and the Rule 41(g) proceeding was intended to yield to it. "When property is retained pursuant to civil forfeiture, instead of for use as evidence, a Rule 41[(g)] motion is not available." United States v. Watkins, 120 F.3d 254, 255 (11th Cir.1997) (emphasis added). See also United States v. Castro, 883 F.2d 1018, 1020 (11th Cir.1989) (holding that federal Rule 41(g) could not be invoked because "Defendant's cars and boat are not being retained to be used as evidence against him"; rather, "these vehicles are being detained strictly pursuant to civil forfeiture provisions").
Caracas Int'l Banking Corp. v. United States, 670 F.Supp.2d 142, 146 (D.P.R. 2009) (emphasis added).
De Almeida v. United States, 459 F.3d 377, 382 (2d Cir.2006) (emphasis added). See also, e.g., United States v. Real Prop. Commonly Known as 16899 S.W. Greenbrier, Lake Oswego, Clackamas Cnty., 774 F.Supp. 1267, 1274-75 (D.Or.1991) (to like effect).
As indicated, some federal decisions suggest that an order granting relief under Rule 41(g) must yield to a separate forfeiture action because, in relation to the forfeiture action, the Rule 41(g) action lacks equity based on the adequacy of other relief made available by the pendency of the forfeiture action; others indicate that the obstacle to consideration of a separate Rule 41(g) motion when a forfeiture action is pending is jurisdictional in nature. As to the latter, see also United States (DEA) v. One 1987 Jeep Wrangler Auto. VIN No. 2BCCL8132HBS12835, 972 F.2d 472, 479 (2d Cir.1992), commenting on an administrative forfeiture process through which a claimant can trigger a judicial forfeiture proceeding and stating:
(Emphasis added.) See also, e.g., Application of Mayo, 810 F.Supp. 121, 122 (D.Vt. 1992) (noting that, "[u]nder Second Circuit precedent, upon proper commencement of the administrative process, a district court `loses subject matter jurisdiction to adjudicate the matter in a peripheral setting such as a Rule 41[(g)] motion'").
The foregoing cases aid in framing the issue presented here. The case before us is not one in which a movant seeks the return of mere "evidence" retained by the State for use in support of the State's case. Instead, the subject property is held by the State on the ground that it is contraband and is subject to forfeiture as such. On this basis alone, we would be sympathetic to the view expressed in those federal cases discussed above that consider the issue in jurisdictional terms, especially when one considers that an adverse result for the State in a Rule 3.13 proceeding would deprive a forfeiture court of possession of the alleged contraband necessary for its jurisdiction.
Although the discussion of the foregoing federal cases is therefore instructive, our holding today ultimately is grounded in our precedents. More specifically, our holding is informed by the principle that
We explained in Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587, 589-90 (Ala.2010), that the collateral civil action attempted in that case was not permissible because it would "interfere with the orderly functioning of the executive branch within its zone of discretion in violation of the separation-of-powers doctrine set forth at § 43 of the Alabama Constitution of 1901." See also Citizenship Trust v. Keddie-Hill 68 So.3d 99, 106 (Ala.2011) (to like effect and discussing Macon County Greyhound Park). Similarly, in Ex parte Rich, 80 So.3d 219, 225 (Ala.2011), we held that the Montgomery Circuit Court lacked subject-matter jurisdiction over a collateral proceeding that would interfere with "law enforcement's effort to enforce the criminal laws of the State of Alabama" through the filing of a forfeiture action pursuant to § 13A-12-30, Ala.Code 1975.
Like the above-cited cases, these are not cases in which the property seized was seized merely as evidence of a crime (i.e., that otherwise is subject to being lawfully owned) and in which the gravamen of the motion is merely some faulty procedure followed by the State in seizing it. We may presume for present purposes that Rule 3.13 would have ample field for operation in such circumstances.
Instead, these are cases in which the State takes the position that the property seized is itself the illegal thing. In response, the accused has initiated an independent proceeding that, if allowed to proceed, would require the State, in advance of any criminal prosecution or civil forfeiture proceeding, to prove the same "case" it would prove in such proceedings. In this key respect, these cases are like the aforementioned seminal case of Macon County Greyhound Park, in which "[t]he gravamen of [VictoryLand's separate] complaint [was] VictoryLand's assertion that its activities are lawful and that it will suffer irreparable injury if the machines are seized." 43 So.3d at 589. It is on this same gravamen — the assertion that the property seized or to be seized is legal — that the movants seek relief in these present cases.
Indeed, the Rule 3.13 movants seek to rest upon the gravamen of the alleged lawfulness of the seized property as the basis for not just one, but both, of the elements necessary for relief under Rule 3.13. First, because of their interpretation of Amendment No. 743, the movants take the position that the machines at issue are games of "bingo" and that the property seized therefore meets the lawfully-possessed element of Rule 3.13. Moreover, it
Macon County Greyhound Park and its progeny are grounded in the separation-of-powers doctrine found in § 43 of the Alabama Constitution of 1901 and, specifically, the restriction this doctrine places on the ability of the judicial branch to invade the discretion and power vested in our executive branch with respect to the enforcement of Alabama's criminal laws. See Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 910-11 (Ala.1992); Fitts v. McGhee, 172 U.S. 516, 531-32, 19 S.Ct. 269, 43 L.Ed. 535 (1899).
We further made clear in Macon County Greyhound Park that the principle recognized in that case "`applies ... to prosecutions which are merely threatened or anticipated as well as to those which have already been commenced. The rule extends to ... searches and seizures in the course of investigation of crime....'" 43 So.3d at 589 (quoting 43A C.J.S. Injunctions § 280 (2004)). Of particular relevance for both that case and the present case, Macon County Greyhound Park also stands for the proposition that it is not a ground for relief in a separate proceeding
43 So.3d at 589 (quoting 43A C.J.S. Injunctions § 280 (footnote omitted)).
In Tyson v. Jones, 60 So.3d 831 (Ala. 2010), this Court distinguished the circumstances presented there from those presented in Macon County Greyhound Park and its progeny by noting that "[n]o attempt is made ..., as it was in Macon County Greyhound Park, to determine the legality of certain conduct or devices by means of some action other than a criminal prosecution or a forfeiture under Ala.Code 1975, § 13A-12-30." 60 So.3d at 842 n. 5. The same cannot be said here.
The judgments entered by Judge Brown in the Rule 3.13 proceedings, if allowed to stand, will foreclose the ability of the State to prosecute either a criminal action or a civil forfeiture action. They will effectively adjudicate the very legal issue that would be the gravaman of such actions. Further, they will deprive the State of the very property it seeks to condemn in an in rem forfeiture action, returning to private hands property the State contends constitutes illegal gambling devices while simultaneously thwarting the efforts of executive-branch officials to adjudicate the question of that illegality in a civil forfeiture proceeding. Judge Brown was without jurisdiction to enter such judgments in response to the Rule 3.13 motions.
Before turning to the merits of Judge Jones-Osborne's refusal to issue a search warrant in case no. 1130598 and her adoption of Judge Brown's legal rationale in the Rule 3.13 proceedings as the basis for this refusal, we find it instructive to compare other aspects of the procedural posture of and issues raised in the State's request for that warrant with the procedural posture of and issues raised in the Rule 3.13 proceedings. Such a comparison is helpful because it is corroborative of the foregoing discussion of the lack of jurisdiction of our courts to adjudicate in the Rule 3.13 proceedings the issues raised there while simultaneously being explanatory of why we do have jurisdiction to assess, and possibly deny, the State's request for a search warrant.
As in the case of a Rule 3.13 motion, in considering an application for a search warrant, the trial judge must decide the proper legal standard against which to measure the evidence presented. Ex parte State, 121 So.3d 337, 355 (Ala. 2013). It does so, however, only for the purpose of deciding whether to issue the requested search warrant. Id. Likewise, it must evaluate the evidence, but, again, it does so only for the purpose of deciding whether it is "probable" that the facts will eventually be proven to meet that legal standard. Id. In other words, decisions as to the issuance of a warrant are not made in a context like independent Rule 3.13 adjudications where a judgment by the trial court that property is lawful and must be returned by the State to the opposing party gives rise to a final judgment that is binding on both parties. Moreover, search-warrant determinations are as a rule made in circumstances where they are mandated by competing constitutional concerns, see U.S. Const. Amend. 4, that constitute a circumscription of the powers otherwise vested in the executive branch to fulfill its law-enforcement function.
That said, a decision to deny an application for a warrant cannot properly be made based on an incorrect legal standard. Id. That is what happened in this case.
As noted, in the Rule 3.13 proceedings, Judge Brown was critical of the
Despite his criticism of a State agent for allegedly misleading him as to what the law was, it appears that Judge Brown ultimately did in fact make his own determination of that law, a determination upon which Judge Jones-Osborne in turn relied. She then concluded that the facts did not rise to the level necessary to meet that legal standard (or, more precisely, that the evidence did not establish a probability that the facts eventually to be proven would meet that standard). It is in the first of these two determinations that there was an error of law that must be corrected in case no. 1130598.
Amendment No. 743, just like the amendment at issue in Cornerstone and bingo amendments applicable to other counties, speaks of and permits the playing of "bingo games" (provided that a number of other restrictions, including charitable purposes, are met). We identified in Cornerstone and we reaffirm today that the game of "bingo" as that term is used in local constitutional amendments throughout the State is that game "commonly or traditionally known as bingo," 42 So.3d at 86, and that this game is characterized by at least the six elements we identified in Cornerstone. Id.
There is, however, at least one notable difference between Amendment No. 743 and the comparable amendments in most other counties — namely the fact that the "card" required for the playing of bingo may be "an electronic marking machine." It is on this difference that Judge Brown and Judge Jones-Osborne based their decisions as to the proper legal standard by which to measure the evidence presented by the State. We therefore must further examine this difference.
In Cornerstone, we explained that, among other things, the game commonly or traditionally known as bingo involved "each player"
The question, however, is whether the ability to employ an "electronic marking
Cornerstone, 42 So.3d at 79-80. Clearly, the fact that an "electronic marking machine" can be substituted for a paper card under the terms of Amendment No. 743 does not eliminate the requirement that, in all other respects, the game of bingo permitted by that amendment be the game traditionally known as "bingo." Judge Jones-Osborne therefore erred in rejecting this traditional definition and in refusing to issue the requested search warrants as a result.
As we explained in Ex parte State:
Ex parte State, 121 So.3d at 352-55 (some original emphasis omitted; some emphasis added; footnotes omitted).
We have reviewed the affidavits and the video evidence submitted by the State, and the circumstances presented allow for no reasonable conclusion other than that probable cause exists for the issuance of the search warrants requested. As we stated in Ex parte State:
121 So.3d at 358-59 (emphasis added).
Based on the foregoing, we agree with the State that Judge Jones-Osborne exceeded her discretion in denying the requested search warrants. The State was entitled to an order directing the judge to grant the warrant application and to issue the requested warrant, and this Court issued such an order on March 25, 2014.
In effect, Judge Brown was asked to adjudicate preemptively, within the confines of a motion filed under Rule 3.13, Ala. R.Crim. P., the lawfulness of property seized as contraband. He had no jurisdiction to do so. We therefore vacate the orders of the trial court in both the Greenetrack appeal (case no. 1101384) and the Frontier/Nova appeal (case no. 1110310) and dismiss those actions. We dismiss the appeals in those cases, and we dismiss the related petitions for writ of mandamus pending before us in case no. 1101313 and case no. 1110158.
As to case no. 1130598, we have by separate order granted the State's petition for a writ of mandamus and have remanded this case to Judge Jones-Osborne for the immediate issuance of the warrants for which the State applied.
1101313 — PETITION DISMISSED.
MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.
1101384 — JUDGMENT VACATED; CASE DISMISSED; APPEAL DISMISSED.
STUART, PARKER, MURDOCK, SHAW, and WISE, JJ., concur.
BOLIN, MAIN, and BRYAN, JJ., concur in the rationale in part and concur in the result.
MOORE, C.J., concurs in the result.
1110158 — PETITION DISMISSED.
MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.
1110310 — JUDGMENT VACATED; CASE DISMISSED; APPEAL DISMISSED.
STUART, PARKER, MURDOCK, SHAW, and WISE, JJ., concur.
BOLIN, MAIN, and BRYAN, JJ., concur in the rationale in part and concur in the result.
MOORE, C.J., concurs in the result.
1130598 — PETITION GRANTED AND WRIT ISSUED BY ORDER DATED MARCH 25, 2014.
MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.
MAIN, Justice (concurring in case no. 1101313, case no. 1110158, and case no. 1130598 and concurring in the rationale in part and concurring in the result in case no. 1101384 and case no. 1110310).
I concur fully in the main opinion with the exception of the discussion concerning this Court's appellate jurisdiction over the two Rule 3.13 cases filed as appeals (case no. 1101384 and case no. 1110310). To determine whether this Court has appellate jurisdiction over the Rule 3.13 appeals, we must look to the applicable constitutional and statutory provisions. The Alabama
The matters underlying the Rule 3.13 appeals are not matters that can be considered "misdemeanors, ... habeas corpus [or] ... felonies." Accordingly, the Court of Criminal Appeals does not have exclusive appellate jurisdiction over the Rule 3.13 appeals, and this Court may properly exercise original appellate jurisdiction over them.
BOLIN, J., concurs.
BRYAN, Justice (concurring in case no. 1101313, case no. 1110158, and case no. 1130598 and concurring in the rationale in part and concurring in the result in case no. 1101384 and case no. 1110310).
I concur in all aspects of the main opinion, except the discussion of this Court's appellate jurisdiction over cases arising under Rule 3.13, Ala. R.Crim. P. As to that discussion, I agree with the ultimate holding — that this Court has appellate jurisdiction.
MOORE, Chief Justice (concurring in case no. 1101313, case no. 1110158, and case no. 1130598 and concurring in the result in case no. 1101384 and case no. 1110310).
In my view the property at issue in this case was lawfully seized under the authority of a valid warrant. Because relief under Rule 3.13, Ala. R.Crim. P. ("Unlawfully Seized Property"), is not available to seek return of lawfully seized property, I concur in the result in case no. 1101384 and case no. 1110310.
I concur fully that probable cause exists to issue the search warrant in case no. 1130598, and I concur to dismiss the petitions for the writ of mandamus in case no. 1101313 and case no. 1110158.
The provision in Rule 41(g) for the return of property was part of Rule 41(e). "In 2002, the motion-to-return provision was re-designated Rule 41(g). Courts recognize that case law interpreting former Rule 41(e) generally applies to current Rule 41(g)." 3A Fed. Prac. & Proc. Crim § 690, Motion to Return Property (4th ed.2013).
Nor does the fact that the machines at issue in both Judge Brown's order and Judge Jones-Osborne's action use "PIN" numbers change anything. The characteristics of inserting a PIN number and ejecting a ticket are similar to the characteristics of the machines described in Barber v. Jefferson County Racing Ass'n, 960 So.2d 599 (Ala.2006), which the Court concluded were characteristics indicative of slot machines. In reaching this conclusion, the Court stated that it looks at "the substance and not the semblance of things, so as to prevent evasions of the law." 960 So.2d at 611. Judge Brown stated in his orders that he was "aware" of this Court's decision in Barber; it appears that he and Judge Jones-Osborne too readily discounted its significance.