MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary, Division B
By: Senator(s) Hill, Tate, Fillingane, Rhodes, Berry, Polk, Seymour, Barrett, Boyd, Chassaniol, Williams
AN ACT TO ENACT THE MISSISSIPPI ORGANIZED RETAIL THEFT CRIME PREVENTION ACT; TO DEFINE TERMS; TO CREATE THE CRIME OF ORGANIZED RETAIL THEFT; TO PROVIDE PENALTIES FOR THE CRIME OF ORGANIZED RETAIL THEFT BASED ON THE RETAIL VALUE OF THE MERCHANDISE STOLEN; TO PROVIDE THAT ANY PROCEEDS, PROPERTY OBTAINED BY PROCEEDS, OR INSTRUMENTS OF THE CRIMES OF ORGANIZED RETAIL THEFT MAY BE SUBJECT TO FORFEITURE; TO REQUIRE THE COURT TO ORDER RESTITUTION AND PAYMENT OF INVESTIGATIVE COSTS; TO SET FORTH THE VENUE FOR THE CRIMINAL PROCEEDING; TO STATE CERTAIN EVIDENCE THAT SHALL BE PRIMA FACIE EVIDENCE OF CERTAIN ELEMENTS OF THE CRIME; TO DIRECT THE ATTORNEY GENERAL, THE DEPARTMENT OF PUBLIC SAFETY AND THE MISSISSIPPI JUDICIAL COLLEGE TO COORDINATE EFFORTS TO TRAIN PROSECUTORS AND LAW ENFORCEMENT AGENCIES THROUGHOUT THE STATE TO COMBAT ORGANIZED RETAIL CRIME; TO AMEND SECTION 41-29-153, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Organized Retail Theft Crime Prevention Act."
SECTION 2. As used in this act, the following terms have the meaning herein ascribed:
(a) "Conceal" means to place merchandise in a manner that is not visible through ordinary observation.
(b) "Organized retail theft" means obtaining or exerting unauthorized control over retail merchandise from a retail merchant, retail establishment, or premises of a retail establishment with the intent to deprive the owner or retail merchant of his or her property, or converting the retail merchandise of the owner or retail merchant, or reselling, distributing, or otherwise reentering the retail merchandise in commerce, including the transfer of the stolen retail merchandise to another retail merchant or to any other person, whether in person, through the mail, or through any electronic medium, including the internet, in exchange for anything of value.
(c) "Premises of a retail establishment" means retail establishment, common use areas in shopping centers, and parking areas designated by a merchant or on behalf of a merchant for the parking of motor vehicles for the convenience of the patrons of the retail establishment or where stored for delivery or transport to a retail establishment.
(d) "Retail establishment" means any place where merchandise is displayed, held, stored, or offered for sale to the public.
(e) "Retail merchandise" means any article, product, commodity, component, or item of tangible personal property displayed, held, stored, or offered for sale within a retail establishment.
(f) "Retail merchant" means an owner or operator of a retail establishment or an agent, employee, lessee, officer, or director of the owner or operator.
(g) "Retail value" means the actual retail price of merchandise prior to the commission of the subject criminal offense.
SECTION 3. (1) A person commits the crime of organized retail theft when the person, in association with one or more other persons, knowingly does any of the following:
(a) Organizes, supervises, finances, participates, directs, solicits, or otherwise manages or assists another person in committing a violation of Section 97-23-93;
(b) Organizes, supervises, finances, participates, directs, solicits, or otherwise manages or assists another person in committing organized retail theft;
(c) Removes, destroys, deactivates, or knowingly evades any component of an antishoplifting or inventory control device to prevent the activation of that device or to facilitate another person in committing organized retail theft;
(d) Attempts, solicits, or conspires with another person to commit organized retail theft;
(e) Receives, purchases, or possesses retail merchandise for sale or resale knowing or believing the retail merchandise to be stolen is from a retail merchant;
(f) Uses any fraud, artifice, instrument, container, device, or other article to facilitate the commission of organized retail theft;
(g) Remains unlawfully inside a retail establishment after business hours, with the intent to commit a retail theft therein;
(h) Uses a wireless telecommunication device or other digital or electronic device to facilitate the theft of retail merchandise;
(i) Uses a rental or stolen motor vehicle or vehicle of another in the course of committing retail theft for the purposes of the concealment of his or her identity; or
(j) Receives, retains, or disposes of retail merchandise knowing that it has been stolen or having reasonable grounds to believe it has been stolen.
(2) (a) Theft of one or more items of retail merchandise, the aggregate value of which exceeds Two Thousand Five Hundred Dollars ($2,500.00) in retail value, during a one-year or longer period, constitutes organized retail theft.
(b) Theft of retail merchandise consisting of one or more items of retail merchandise during a 180-day period, the aggregate value of which is One Thousand Dollars ($1,000.00) or more, constitutes organized retail theft.
(c) Theft of retail merchandise consisting of one or more items of retail merchandise during a 30-day period, the aggregate value of which is Five Hundred Dollars ($500.00) or more, constitutes organized retail theft.
(3) A person convicted of organized retail theft shall be guilty of a felony and shall be fined up to Seven Thousand Five Hundred Dollars ($7,500.00), imprisoned in the custody of the Department of Corrections for a term not less than two (2) years nor more than seven (7) years or both fined and imprisoned.
(4) It shall be prima facie evidence that a person who violates this section acts knowingly when any of the following apply:
(a) On two (2) or more separate occasions within a year prior of the commission of the instant offense of organized retail theft, the person is found in possession or control of stolen retail merchandise;
(b) The person possesses retail merchandise that has been recently stolen; or
(c) The person regularly buys, sells, uses, or handles in the course of business retail merchandise of the sort received, and acquired the retail merchandise without making reasonable inquiry whether the individual selling or delivering the retail merchandise to him or her had a legal right to do so.
(5) The fact that the person or persons who acted in association with the person charged under this act have not been charged, convicted, apprehended, or identified is not a defense to a charge of organized retail theft.
SECTION 4. (1) Any proceeds, property obtained by proceeds, or instruments of the crimes of organized retail theft may be subject to forfeiture pursuant to the procedures set forth in Section 41-29-153.
(2) When a person is convicted of organized retail theft, upon request of the district attorney, the court shall order the defendant to make restitution as following:
(a) To the retail merchant victim, pursuant to the procedures set forth in Section 99-37-3; and
(b) To the primary investigative law enforcement and prosecutorial entities for any legitimate cost incurred in the course of the investigation or prosecution or an amount agreed upon by the district attorney.
SECTION 5. It is not a defense to a charge under this act that the property was not stolen, embezzled, or converted property at the time of the violation if the property was explicitly represented to the accused person as being stolen, embezzled, or converted property.
SECTION 6. Nothing in this act prohibits a person from being charged with, convicted of, or sentenced for any violation of law arising out of the same criminal transaction that violates this act.
SECTION 7. (1) In any criminal proceeding brought pursuant to this act, the crime shall be considered to be committed in any county in which any part of the crime took place, regardless of whether the defendant was ever actually present in that county, or in the county of residence of the person who is the subject of the theft by organized retail theft.
(2) Any arrest or detention by a retail merchant shall be subject to the requirements and protections as provided in Section 97-23-95.
SECTION 8. (1) The fact that a person conceals merchandise for which he or she has not paid the full value, and the retail merchandise has been taken beyond the area within the retail establishment or premises of a retail establishment where payment for it is to be made, shall be prima facie evidence that the person possessed, carried away, or transferred the retail merchandise with the intention of depriving the retail merchant of all or part of the full value of the retail merchandise without paying the full value of the retail merchandise in violation of this act.
(2) (a) A violation of this act shall be deemed prima facie evidence that the person intended to deprive the retail merchant of all or part of the full retail value of the retail merchandise without paying the full value of the retail merchandise.
(b) The unaltered price tag or other marking on the merchandise, or duly identified photographs of the merchandise, shall be prima facie evidence of the merchandise's actual retail value and ownership.
(3) Nothing in this subsection shall be construed to provide that the mere possession of goods or the production by shoppers of improperly priced merchandise for checkout shall constitute prima facie evidence of guilt.
SECTION 9. The Attorney General, the Department of Public Safety and the Mississippi Judicial College shall make reasonable coordinated efforts to develop training for prosecutors and law enforcement agencies throughout the state to combat organized retail crime and other crimes negatively impacting small and large businesses in Mississippi and make recommendations to the Legislature and Governor regarding public safety and the prevention of organized retail crime as well as the impact of organized retail thefts on Mississippi businesses and the public.
SECTION 10. Section 41-29-153, Mississippi Code of 1972, is amended as follows:
41-29-153. (a) The following are subject to forfeiture:
(1) All controlled substances which have been manufactured, distributed, dispensed or acquired in violation of this article or in violation of Article 5 of this chapter or Chapter 137 of this title;
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this article or in violation of Article 5 of this chapter or Chapter 137 of this title;
(3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2) of this subsection or for stolen retail merchandise in violation of Sections 1 through 9 of this act;
(4) All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in paragraph (1) or (2) of this subsection or for stolen retail merchandise in violation of Sections 1 through 9 of this act, however:
A. 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 section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this article;
B. No conveyance is subject to forfeiture under this section 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;
C. 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;
D. A conveyance is not subject to forfeiture for a violation of Section 41-29-139(c)(2)(A) 1, 2 or (B)1 or (C)1, 2, 3;
(5) All money, deadly weapons, books, records, and research products and materials, including formulas, microfilm, tapes and data which are used, or intended for use, in violation of this article or in violation of Article 5 of this chapter or Chapter 137 of this title or in violation of Sections 1 through 9 of this act;
(6) All drug paraphernalia as defined in Section 41-29-105(v); and
(7) Everything of value, including real estate, furnished, or intended to be furnished, in exchange for a controlled substance in violation of this article or for stolen retail merchandise in violation of Sections 1 through 9 of this act, 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.
A. No property shall be forfeited under the provisions of subsection (a)(7) of this section, 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.
B. 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 subsection (a)(7) of this section, 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.
(b) 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;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this article;
(3) The bureau, the board, local law enforcement officers, enforcement officers of the Mississippi Department of Transportation, or highway patrolmen, 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, have probable cause to believe that the property is directly or indirectly dangerous to health or safety;
(4) 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, have probable cause to believe that the property was used or is intended to be used in violation of this article; or
(5) The seizing law enforcement agency obtained a seizure warrant as described in subsection (f) of this section.
(c) Controlled substances listed in Schedule I of Section 41-29-113 that are possessed, transferred, sold, or offered for sale in violation of this article are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in the said Schedule I, which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.
(d) Species of plants from which controlled substances in Schedules I and II of Sections 41-29-113 and 41-29-115 may be derived which have been planted or cultivated in violation of this article, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.
(e) The failure, upon demand by the bureau and/or local law enforcement officers, or their authorized agents, or highway patrolmen designated by the bureau, 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, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
(f) (1) When any property is seized under the Uniform Controlled Substances Law or Sections 1 through 9 of this act, 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.
(3) This subsection does not apply to seizures performed pursuant to Section 41-29-157 when property is specifically set forth in a search and seizure warrant.
SECTION 11. This act shall take effect and be in force from and after July 1, 2024.