MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Chaney

House Bill 592

AN ACT TO PROVIDE A PROCEDURE OF CRIMINAL FORFEITURE OF CERTAIN PROPERTY FOR VIOLATIONS OF THE UNIFORM CONTROLLED SUBSTANCES ACT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

 

SECTION 1. (1) Any person convicted of a violation of the Uniform Controlled Substances Law punishable by imprisonment for more than one (1) year shall forfeit to the county in which prosecution shall be begun:

(a) Any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(b) Any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

The court, in imposing sentence on such person, shall order in addition to any other sentence imposed pursuant to the Uniform Controlled Substances Law, that the person forfeit to the county in which prosecution shall be begun all property described in this subsection. In lieu of a fine otherwise authorized by the Uniform Controlled Substances Law, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds of the illegal activity.

(2) Property subject to criminal forfeiture under this act includes:

(a) Real property, including things growing on, affixed to, and found in land; and

(b) Tangible and intangible personal property, including rights, privileges, interests, claims and securities.

(3) All right, title and interest in property described in subsection (1) vests in the county in which prosecution shall be begun upon the commission of the act giving rise to forfeiture under this act. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the county in which prosecution shall be begun, unless the transferee establishes by sufficient evidence that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this act.

(4) There is a rebuttable presumption at trial that any property of a person convicted of a felony under the Uniform Controlled Substances Law is subject to forfeiture under this act if the county in which prosecution shall be begun establishes by a preponderance of the evidence that:

(a) Such property was acquired by such person during the period of the violation of the Uniform Controlled Substances Law or within a reasonable time after such period; and

(b) There was no likely source for such property other than the violation of the Uniform Controlled Substances Law.

(5) (a) Upon application of the county in which prosecution shall be begun, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of the property described in subsection (1) for forfeiture under this act:

(i) Upon the filing of an indictment or information charging a violation of the Uniform Controlled Substances Law for which criminal forfeiture may be ordered under this act and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this act; or

(ii) Prior to the filing of such an indictment or information, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that:

A. There is a substantial probability that the county in which prosecution shall be begun will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and

B. The need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.

Provided, however, that an order entered pursuant to subparagraph (ii) shall be effective for not more than ninety (90) days, unless extended by the court for good cause shown or unless an indictment or information described in subparagraph (i) has been filed.

(b) A temporary restraining order under this subsection may be entered upon application of the county in which prosecution shall be begun without notice or opportunity for a hearing when information or indictment has not yet been filed with respect to the property, if the county in which prosecution shall be begun demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this act and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than ten (10) days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order.

(c) The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Mississippi Rules of Court.

(6) The county in which prosecution shall be begun may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this act in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (3) may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property. Seizure without warrant may be made pursuant to the provisions found at Section 41-29-153(b).

(7) Upon entry of an order of forfeiture under this act, unless the property has previously been seized by warrant or pursuant to Section 41-29-153(b), the court shall authorize the county in which prosecution shall be begun to seize all property ordered forfeited upon such terms and conditions as the court shall deem proper. Following entry of an order declaring the property forfeited, the court may, upon application of the county in which prosecution shall be begun, enter such appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the county in which prosecution shall be begun in the property ordered forfeited. Any income accruing to or derived from property ordered forfeited under this act may be used to offset ordinary and necessary expenses to the property which are required by law, or which are necessary to protect the interest of the county in which prosecution shall be begun or third parties.

(8) Except as provided in this act, no party claiming an interest in property subject to forfeiture under this section may:

(a) Intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this act; or

(b) Commence an action at law or equity against the county in which prosecution shall be begun concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this act.

SECTION 2. (1) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this act unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of the Uniform Controlled Substances Act.

(2) No conveyance is subject to forfeiture under this act by reason of any act or omission proved by the owner thereof to have been committed or omitted without his knowledge or consent; if the confiscating authority has reason to believe that the conveyance is a leased or rented conveyance, then the confiscating authority shall notify the owner of the conveyance within five (5) days of the confiscation.

(3) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission.

(4) A conveyance is not subject to forfeiture for a violation of Section 41-29-139(c)(2)(A), (B) or (C).

(5) No property shall be forfeited under the provisions of this act to the extent of the interest of an owner by reason of any act or omission established by him to have been committed or omitted without his knowledge or consent.

(6) Neither personal property encumbered by a bona fide security interest nor real estate encumbered by a bona fide mortgage, deed of trust, lien or encumbrance shall be forfeited under the provisions of this act, to the extent of the interest of the secured party or the interest of the mortgagee, holder of a deed of trust, lien or encumbrance by reason of any act or omission established by him to have been committed or omitted without his knowledge or consent.

SECTION 3. (1) When any property, other than a controlled substance, raw material or paraphernalia, is sought to be forfeited pursuant to this act, notice of indictment shall be served upon the following persons:

(a) The owner of the property, if address is known;

(b) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by making a good faith effort to ascertain the identity of such secured party as described in this section;

(c) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the prosecutor has actual knowledge;

(d) Any holder of a mortgage, deed of trust, lien or encumbrance of record, if the property is real estate, by making a good faith inquiry as described in subsection (7) of this section; and

(e) Any person in possession of property subject to forfeiture at the time that it was seized.

(2) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, the prosecutor shall make inquiry of the State Tax Commission as to what the records of the State Tax Commission show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.

(3) If the property is a motor vehicle and is not titled in the State of Mississippi, then the prosecutor shall attempt to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, the prosecutor shall make inquiry of the appropriate agency of that state as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest or other instrument in the nature of a security device which affects the vehicle.

(4) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, the prosecutor shall make inquiry of the appropriate office designated in Section 75-9-401, Mississippi Code of 1972, as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.

(5) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the prosecutor shall make inquiry of the Mississippi Department of Transportation as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.

(6) In the case of all other personal property subject to forfeiture, if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the prosecutor shall make a good faith inquiry to identify the holder of any such instrument.

(7) If the property is real estate, the prosecutor shall make inquiry of the chancery clerk of the county wherein the property is located to determine who is the owner of record and who, if anyone, is a holder of a bona fide mortgage, deed of trust, lien or encumbrance.

(8) In the event the answer to any inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the prosecutor shall cause any record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest, or holder of an encumbrance, mortgage or deed of trust which affects the property to be served with notice of the indictment.

(9) Any answer received from an inquiry required by this section shall be introduced into evidence at the hearing and any person with an interest so identified shall be allowed to testify and present evidence on his behalf.

SECTION 4. (1) At trial, any claimant of any right, title or interest in the property may prove his lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.

(2) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property. However, if proof discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest, or any holder of a bona fide encumbrance, mortgage or deed of trust is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited.

(3) If a person is found to have had lawful possession and title to a controlled substance or raw material prior to seizure, the court shall order the controlled substance or raw material returned to the owner, if the owner so desires.

SECTION 5. (1) All real estate which is forfeited under the provisions of this act shall be sold to the highest and best bidder at a public auction for cash, such auction to be conducted by the prosecutor or his designee at such place, on such notice and in accordance with the same procedure, as far as practicable, as is required in the case of sales of land under execution at law. The proceeds of such sale shall first be applied to the cost and expense in administering and conducting such sale, then to the satisfaction of all mortgages, deeds of trust, liens and encumbrances of record on such property.

(2) All other property that has been forfeited shall, except as otherwise provided, be sold at a public auction for cash by the county to the highest and best bidder after advertising the sale for at least once each week for three (3) consecutive weeks, the last notice to appear not more than ten (10) days nor less than five (5) days prior to such sale, in a newspaper having a general circulation in the jurisdiction in which said law enforcement agency is located. Such notices shall contain a description of the property to be sold and a statement of the time and place of sale. It shall not be necessary to the validity of such sale either to have the property present at the place of sale or to have the name of the owner thereof stated in such notice. The proceeds of the sale shall be disposed of as follows:

(a) To any bona fide lienholder, secured party, or other party holding an interest in the property in the nature of a security interest, to the extent of his interest; and

(b) The balance, if any, remaining after deduction of all storage, court costs and expenses of liquidation shall be deposited in the county treasury.

(3) Any county may maintain, repair, use and operate for official purposes all property, other than real property, money or controlled substances, raw materials and paraphernalia, that has been forfeited if it is free from any interest of a bona fide lienholder, secured party or other party who holds an interest in the property in the nature of a security interest. Such county may purchase the interest of a bona fide lienholder, secured party or other party who holds an interest so that the property can be released for its use. If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law, the county shall be deemed to be the purchaser, and the certificate of title shall be issued to it as required by this section.

(4) The State Tax Commission shall issue a certificate of title to any person who purchases property under the provisions of this section when a certificate of title is required under the laws of this state.

SECTION 6. The provisions of this act shall be liberally construed to effectuate its purposes.

SECTION 7. If any of the property described in Section 1(1) of this act, as a result of any act or omission of the defendant:

(a) Cannot be located upon the exercise of due diligence;

(b) Has been transferred or sold to, or deposited with, a third party;

(c) Has been placed beyond the jurisdiction of the court;

(d) Has been substantially diminished in value; or

(e) Has been commingled with other property which cannot be divided without difficulty;

the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraphs (a) through (e) of this subsection.

SECTION 8. The standard of proof in regard to property forfeited under the provisions of this act shall be by a preponderance of the evidence.

SECTION 9. This act shall take effect and be in force from and after July 1, 1997.