If a Mississippi juvenile is caught with cash and drugs, can the sheriff seize the cash for civil forfeiture or does juvenile status protect it?

Plain-English summary

The Forrest County Sheriff asked the AG a focused question: when a juvenile is detained for felony possession of narcotics with intent to distribute, can the sheriff's department seize the money the juvenile had on him at the time of detention for civil-forfeiture purposes? Or does juvenile status protect the cash?

The AG said yes, the cash is seizable. Section 41-29-153 of the Uniform Controlled Substances Act controls. It identifies "[e]verything of value . . . furnished, or intended to be furnished, in exchange for a controlled substance" as subject to forfeiture, and creates a presumption of forfeitability for "[a]ll monies, coin and currency found in close proximity to forfeitable controlled substances."

Section 41-29-153(b) permits local law enforcement to seize property subject to forfeiture, with a few procedural details. Section 41-29-153(b)(1) allows seizure without process when "[t]he seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant."

The statute does not carve out juveniles. The AG looked for any statutory exclusion that would protect a juvenile's cash from seizure and found none. So a juvenile in possession of money in close proximity to forfeitable drugs is in the same position as an adult.

The AG also reminded Sheriff Sims of the procedural rules in § 41-29-153(f), which apply regardless of juvenile vs. adult status:

• Within 72 hours of seizure (excluding weekends and holidays), the agency must obtain a seizure warrant from a county or circuit court.
• The application must show probable cause that the property was used (or intended to be used) in violation of the Uniform Controlled Substances Act, the name of the person from whom the property was seized, and a detailed description of the property and its value.
• If the agency fails to get the warrant in 72 hours, the agency must notify the person that the property will not be forfeited and provide written instructions on how to retrieve it.

The 72-hour rule has teeth. An agency that misses it loses the forfeiture and must return the property.

What this means for you

If you're a Mississippi sheriff or police chief

Under this opinion, cash possessed by a juvenile at the time of detention for felony possession of narcotics with intent to distribute may be seized for forfeiture under § 41-29-153; the AG found no statutory exclusion for juveniles. The opinion points to the procedure in § 41-29-153(f): the agency must obtain a seizure warrant from the county or circuit court within 72 hours of the seizure (excluding weekends and holidays), and an agency that fails to do so must notify the person from whom the property was seized that it will not be forfeited and provide written instructions on how to retrieve it.

If you're a juvenile court judge or youth court attorney

The opinion answers only the statutory question of whether the cash may be seized, and holds that juvenile status does not exempt it. It notes that under § 41-29-153(a), money found in close proximity to forfeitable controlled substances is presumed forfeitable, and "the burden of proof is upon claimants of the property to rebut this presumption." It does not address how the forfeiture relates to a delinquency proceeding.

If you're a juvenile defense attorney or family of a juvenile

Under this opinion, being a juvenile does not protect cash from seizure under § 41-29-153. The statute presumes that money found in close proximity to forfeitable drugs is forfeitable and places the burden on claimants of the property to rebut that presumption. The opinion also describes the 72-hour seizure-warrant requirement: if the agency does not obtain the warrant in time, it must notify the person from whom the property was seized that it will not be forfeited and explain in writing how to retrieve it.

If you're a Mississippi legislator

The opinion reads § 41-29-153 as containing no exclusion for juveniles: it applies to money possessed by an individual at the time of arrest for felony possession with intent to distribute, juvenile or adult. The AG applied the statute as written and did not propose any change to it.

Common questions

Q: Can the sheriff seize the cash without a warrant?
A: Yes, if the seizure is incident to an arrest or pursuant to a search warrant or administrative inspection warrant. § 41-29-153(b)(1). After the warrantless seizure, the agency has 72 hours to obtain a seizure warrant.

Q: What is "close proximity"?
A: The statute uses the phrase but does not define it. Section 41-29-153(a) presumes forfeitable any money found "in close proximity to forfeitable controlled substances," to forfeitable paraphernalia, or to forfeitable distribution records.

Q: Can the family of the juvenile claim the cash as theirs?
A: The statute makes money in close proximity to forfeitable drugs presumptively forfeitable and puts "the burden of proof . . . upon claimants of the property to rebut this presumption." A claimant must come forward and rebut that presumption. The opinion does not address the details of that process.

Q: What happens if the agency misses the 72-hour deadline?
A: Under § 41-29-153(f), an agency that fails to obtain a seizure warrant within 72 hours (excluding weekends and holidays) must notify the person from whom the property was seized that it will not be forfeited and provide written instructions on how to retrieve it.

Background and statutory framework

the Uniform Controlled Substances Act civil forfeiture provisions are at § 41-29-153. The structure has three parts:

1. What's subject to forfeiture (subsection (a)): Various categories of property connected to controlled substance violations. The relevant category for cash is paragraph (7): "[e]verything of value . . . furnished, or intended to be furnished, in exchange for a controlled substance," with a presumption of forfeitability for cash, coin, and currency in close proximity to forfeitable drugs.

2. Who can seize and how (subsection (b)): Various law enforcement agencies, with or without process. The seizure-without-process scenarios include incident to arrest, pursuant to search warrant, or pursuant to administrative inspection warrant.

3. Procedural requirements (subsection (f)): 72-hour seizure warrant requirement; specific application contents; consequences of failure.

As the AG read it, the statute does not distinguish between adult and juvenile property holders, and it found no statutory exclusion that would protect a juvenile's cash from seizure. The opinion addresses only the statutory question of authority to seize and the seizure procedure under subsection (f); it does not reach any constitutional question.

Citations and references

Statutes:

• Miss. Code Ann. § 41-29-153 (Property subject to forfeiture under Uniform Controlled Substances Act)
• Miss. Code Ann. § 41-29-153(a) (categories of forfeitable property)
• Miss. Code Ann. § 41-29-153(b) (who can seize)
• Miss. Code Ann. § 41-29-153(b)(1) (seizure without process)
• Miss. Code Ann. § 41-29-153(f) (72-hour seizure warrant)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/C.Sims-April-6-2023-Agencys-Ability-to-Seize-Money-Possessed-by-Juvenile-Detained-for-Felony.pdf

Original opinion text

April 6, 2023

Sheriff Charlie Sims
Forrest County Sheriff's Department
Post Office Box 747
Hattiesburg, Mississippi 39403

Re: Agency's Ability to Seize Money Possessed by Juvenile Detained for Felony

Dear Sheriff Sims:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

For forfeiture purposes, may the Forrest County Sheriff's Department seize money possessed by a juvenile at the time of the juvenile's detention for felony possession of narcotics with intent to distribute?

Brief Response

Regarding forfeiture, Mississippi Code Annotated Section 41-29-153 generally allows local law enforcement officers to seize money possessed by an individual at the time of the individual's arrest for felony possession of narcotics with intent to distribute. There is no statutory exclusion from this allowance for juveniles.

Applicable Law and Discussion

Section 41-29-153 of the Uniform Controlled Substances Act regards "property subject to forfeiture." Section 41-29-153(a) provides:

The following are subject to forfeiture:

...

(7) Everything of value . . . furnished, or intended to be furnished, in exchange for a controlled substance in violation of this article, all proceeds traceable to such an exchange, and all monies, negotiable instruments, businesses or business investments, securities, and other things of value used, or intended to be used, to facilitate any violation of this article. All monies, coin and currency found in close proximity to forfeitable controlled substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of controlled substances are presumed to be forfeitable under this paragraph; the burden of proof is upon claimants of the property to rebut this presumption.

Section 41-29-153(b) goes on to state:

Property subject to forfeiture may be seized by the bureau, local law enforcement officers, enforcement officers of the Mississippi Department of Transportation, highway patrolmen, the board, the State Board of Pharmacy, or law enforcement officers of the Mississippi Department of Revenue or Mississippi Department of Health acting with their duties in accordance with the Mississippi Medical Cannabis Act, upon process issued by any appropriate court having jurisdiction over the property. Seizure without process may be made if:

(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant[.]

In sum, Section 41-29-153 generally allows local law enforcement officers to seize money possessed by an individual at the time of the individual's arrest for felony possession of narcotics with intent to distribute. We find no statutory exclusion from this allowance for juveniles.

Accordingly, it is the opinion of this office that, for forfeiture purposes, the Forrest County Sheriff's Department may seize money possessed by a juvenile at the time of the juvenile's detention for felony possession of narcotics with intent to distribute. For forfeiture procedure, please see Section 41-29-153(f), which provides:

(1) When any property is seized under the Uniform Controlled Substances Law, except as otherwise provided in paragraph (3) of this subsection, by a law enforcement agency with the intent to be forfeited, the law enforcement agency that seized the property shall obtain a seizure warrant from the county or circuit court having jurisdiction of such property within seventy-two (72) hours of any seizure, excluding weekends and holidays. Any law enforcement agency that fails to obtain a seizure warrant within seventy-two (72) hours as required by this section shall notify the person from whom the property was seized that it will not be forfeited and shall provide written instructions advising the person how to retrieve the seized property.

(2) A circuit or county judge having jurisdiction of any property other than a controlled substance, raw material or paraphernalia, may issue a seizure warrant upon proper oath or affirmation from a law enforcement agency. The law enforcement agency that is seeking a seizure warrant shall provide the following information to the judge:

A. Probable cause to believe that the property was used or intended to be used in violation of this article;

B. The name of the person from whom the property was seized; and

C. A detailed description of the property which is seized, including the value of the property.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General