
    Willa RADFORD and One 1995 Nissan Maxima automobile, VIN JN1CA21D1ST64076 v. STATE of Alabama.
    2980124.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1999.
    Rehearing Denied Nov. 5, 1999.
    
      John A. Lentine of Wooten & Lentine, P.C., Birmingham, for appellant.
    Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   YATES, Judge.

This is an appeal from a forfeiture action brought by the State against Willa Rad-ford pursuant to § 20-2-93(a)(5), Ala.Code 1975. Following an ore tenus proceeding, the court, on September 14, 1998, entered an order finding that the “vehicle in issue was used, or intended for use, in a transaction which would be a violation of the Alabama Controlled Substances Act, and that the vehicle should be declared contraband, condemned and forfeited to the State of Alabama.” Radford appeals.

The evidence indicates that on January 6, 1998, Officer Samuel Jackson III and his partner, Officer Chris Blevins, were working undercover patrol for the Birmingham Police Department South Task Force when they received a radio dispatch concerning an anonymous tip. The dispatcher stated that a white Nissan Maxima automobile would be coming to the 300 block of Beech Street, occupied by two black females and a black male carrying controlled substances. In response to the dispatch, Jackson and Blevins proceeded to the 300 block of Beech Street. The officers observed a white Nissan Maxima occupied by two black females and a black male approach the 300 block of Beech Street and stop. Once the vehicle came to a stop, the officers approached it. As the officers were approaching the vehicle, the female passenger jumped out. Officer Jackson directed the passenger to walk back toward him; while Jackson was doing that, Radford, the driver, opened the door. Jackson ordered her to close it. Jackson saw Radford open the door a second time and place a package under the vehicle; Jackson retrieved the package.

Jackson described the package as being a “balled-up” cigarette package containing 23 “baggies,” which contained a white crystalline substance he believed to be crack cocaine. Upon searching Radford, he found in her purse two additional “baggies” containing a similar substance, along with a five-inch knife. She was arrested and charged with possession of a controlled substance, possession of drug paraphernalia, and carrying a concealed weapon. Subsequent tests on the substance contained in the “baggies” indicated that it was crack cocaine.

Radford raises several issues on appeal; however, we find one to be dispositive. Radford argues that the court erred in failing to dismiss the State’s petition on the basis that the State had failed to prove an unbroken chain of custody of the drug evidence. In Ex parte Holton, 590 So.2d 918, 920 (Ala.1991), our supreme court set forth the test for establishing a chain of custody:

“The chain of custody is composed of ‘links.’ A ‘link’ is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link’s possession of the item: ‘(1) [the] receipt of the item; (2)[the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3)[the] safeguarding and handling of the item between receipt and disposition.’ Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L.Rev. 145, 159 (1973).
“If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a ‘missing’ link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the ‘link,’ as to one or more criteria or as to one or more links, the result is a ‘weak’ link. When the link is ‘weak,’ a question of credibility and weight is presented, not one of admissibility.”

See also Warren v. State, 659 So.2d 1026, 1027 (Ala.Crim.App.1995).

“[T]he State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Proof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. In order to establish a proper chain, the State must show to a ‘reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain.’ ”

Ex parte Holton, 590 So.2d at 919-20 (citations omitted).

Jackson testified that after he had recovered the “baggies” he turned them over to a person he identified as the “property owner” at the Birmingham Police Department. Jackson stated that an “Officer Bussey” had custody of the substances. Danny Kirkpatrick, an employee with the Alabama Department of Forensic Sciences, testified that he received the substances in case no. 98-013237 from Officer Bussey. Kirkpatrick stated that he received a “plastic bag” containing 23 small zip-lock packets containing a white, hard substance, which Kirkpatrick designated as item “1A,” and two small packets containing a similar substance, which Kirkpatrick designated as item “IB.” Kirkpatrick testified that he placed these items in the evidence locker until he tested the substance.

We conclude that the State failed to establish a sufficient chain of custody because it failed to prove the safeguarding and handling of the “baggies” containing the white crystalline substance while they were in the possession of Jackson and Bussey. The evidence indicates that Jackson took possession of the “baggies” containing the white crystalline substance on January 6, 1998, and at some time later gave them to Bussey. The State presented no evidence as to how Jackson safeguarded or handled the “baggies” while they were in his possession. No evidence was presented to indicate when Jackson transferred the “baggies” to Bussey after taking possession of them, or to indicate how he secured or stored the “baggies” during the time between when he took possession and when he transferred them to Bussey. For example, no evidence indicated that he had sealed the “baggies” in an envelope or other container. Likewise, no evidence was presented indicating that he had marked the “baggies” for identification purposes by using his name, initials, case number, or some other form of identification. A sealed envelope or other container is adequate circumstantial evidence to establish the safeguarding and handling of the item and to assure its authenticity. Ex parte Holton, supra; Warren, supra; and Kennedy v. State, 690 So.2d 1225 (Ala.Crim.App.1997). Simply put, the State offered no evidence to satisfy the third element of the chain-of-custody test set forth in Ex parte Holton; see also Warren, supra (judgment of trial court reversed because that court admitted evidence although the State had failed to prove the safeguarding or handling of the evidence by officer while it was in the officer’s possession).

Jackson testified that he transferred possession of the “baggies” to Bussey. Although Bussey did not testify at trial, he was not required to do so, because Jackson identified him as a link in the chain of custody. However, the State is required to prove each element of the chain-of-custody test set forth in Ex parte Holton with regard to each link’s possession of the evidence. Again, the State offered no evidence as to how Bussey safeguarded or handled the “baggies” while they were in his possession. No evidence was presented as to how Bussey stored or secured the “baggies” while they were in his possession. The evidence indicated only that Bussey, at some point in time after receiving the “baggies” from Jackson, transferred them to Kirkpatrick. Kirkpatrick testified that he received a “plastic bag” from Bussey for case no. 98-013237, which he said contained two items that he designated “1A” and “IB.” No evidence in the record indicates who placed the “baggies” in the “plastic bag” and assigned the case number. With no evidence as to how, or if, the baggies were sealed and identified by Jackson and Bussey, there is no way to determine by whom or at what time the “baggies” were placed in the “plastic bag” and assigned the case number. Thus, it is impossible to determine, to a reasonable probability, the authenticity of the substance received and tested by Kirkpatrick. Ex parte Holton, supra.

Because the State failed to prove Jackson and Bussey’s safeguarding and handling of the evidence, it failed to establish the chain of custody. Therefore, the evidence regarding the substance that was recovered by Jackson and later determined to be crack cocaine was inadmissible. We have no choice but to reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

ROBERTSON, P.J., concurs.

CRAWLEY and THOMPSON, JJ„ concur specially.

MONROE, J., dissents.

CRAWLEY, Judge,

concurring specially.

In 1995, the Alabama legislature enacted the following statute:

“§ 12-21-13. Physical evidence not precluded from jury or court because of break in chain of custody.
“Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence.”

(Emphasis added.) A civil forfeiture proceeding is not “a criminal trial.” See Ex parte Kelley, 766 So.2d 837 (Ala.1999); Malholtra v. State, 717 So.2d 425 (Ala.Civ.App.1998). However, even if I could conclude that the legislature intended § 12-21-13 to apply in a forfeiture proceeding, I could not conclude that the statute rendered the evidence admissible. Officer Jackson was never asked to identify, and he did not identify, the physical evidence in this case.

THOMPSON, J., concurs.

MONROE, Judge,

dissenting.

Because I would affirm the judgment of the trial court, I must respectfully dissent. I agree with Judge Crawley that § 12-21-13, Ala.Code 1975, which deals with identifying the chain of custody for physical evidence, does not apply in civil forfeiture cases. I could find no other authority requiring that the chain of custody for physical evidence be shown in a civil forfeiture case. Furthermore, I do not believe we should impose such a requirement.

The forfeiture statute, § 20-2-93, Ala. Code 1975, allows the State to condemn property, money, aircraft, vehicles, and other items used or intended to be used to facilitate violation of any of the State’s drag laws. Often, the forfeiture comes about based on law enforcement’s knowledge of a drug purchase or sale, but the actual drugs are no longer present. For example, if an automobile is shown to have been purchased with proceeds from the sale of drugs, the automobile is subject to forfeiture even though the drags used in the transaction are no longer present.

The State must establish a prima facie case for the forfeiture of property under Ala.Code 1975, § 20-2-93. State ex rel. Valeska v. Keener, 606 So.2d 150 (Ala.Civ. App.1992) (cert. denied, 606 So.2d 150 (Ala.Civ.App.1992)). The State’s standard of proof in a condemnation action is reasonable satisfaction. State v. Smith, 578 So.2d 1374 (Ala.Civ.App.1991). I believe the State can establish a prima facie case without showing the chain of custody involved for physical evidence.

Property cannot properly be forfeited if evidence is obtained in violation of fundamental constitutional rights. Nicaud v. State, 401 So.2d 43 (Ala.1981). However, failure to show a chain of custody does not rise to the level of infringing upon those rights.

However, even if the State must show the chain of custody of the controlled substances serving as the basis of a forfeiture, I believe that in this case there is a weak link in the chain; I do not agree with the majority that there is a break in the chain of custody.

The State is required to identify each link in the chain and then show three criteria with regard to each link: (1) receipt of the item; (2) the ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) the safeguarding and handling of the item between receipt and disposition. Ex parte Holton, 590 So.2d 918 (Ala.1991) (emphasis added). Furthermore, even a break in the chain does not render the evidence inadmissible, it merely serves to lessen the weight of the evidence. § 12-21-13, Ala.Code 1975. Because the State’s burden of proof in a forfeiture case is to a reasonable satisfaction, I believe that the State can certainly meet its burden of proof even if there is a weak link or break in the chain of custody.

My only concern in this case is that forfeiture of Radford’s Maxima automobile upon a finding of a total of 3.46 grams of cocaine may constitute an excessive fine. See, Ex parte Kelley, 766 So.2d 837 (Ala.1999). However, the issue whether the forfeiture constitutes an excessive fine is not before this court. Issues not argued in a party’s brief are waived. Pardue v. Potter, 632 So.2d 470 (Ala.1994); Deutcsh v. Birmingham Post Co., 603 So.2d 910 (Ala.1992); Reed v. Tucker, 598 So.2d 840 (Ala.1992); Bogle v. Scheer, 512 So.2d 1336 (Ala.1987); Boshell v. Keith, 418 So.2d 89 (Ala.1982). 
      
      . We assume that Bussey was the officer in charge of the evidence room and the person Jackson identified as the “property owner.”
     
      
      . Although each link in the chain of custody must be identified, it is not necessary that each link testify, to prove a complete chain of custody. Ex parte Slaton, 680 So.2d 909 (Ala.1996).
     
      
      . Kirkpatrick did not testify as to the date on which he received the evidence from Bussey; however, he did state that he tested the evidence on March 10, 1998.
     