MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary, Division B
By: Senator(s) Robertson
AN ACT TO AMEND SECTION 41-29-107, MISSISSIPPI CODE OF 1972, TO REMOVE THE MAXIMUM AGE RESTRICTION ON FIRST-TIME HIRES AS NARCOTICS AGENTS; TO AMEND SECTION 41-29-153, MISSISSIPPI CODE OF 1972, TO ALLOW EXISTING FORFEITURE STATUTES TO APPLY TO VIOLATIONS OF THE PRECURSOR LAW; TO AMEND SECTION 41-29-313, MISSISSIPPI CODE OF 1972, TO EXPAND THE LIST OF PRECURSOR DRUG AND CHEMICALS AND TO INCLUDE MANUFACTURING OF PRECURSORS WITH INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE AS A VIOLATION; TO AMEND SECTION 41-29-501, MISSISSIPPI CODE OF 1972, TO REVISE THE WIRETAP LAW TO ALLOW THE USE OF ADDITIONAL MANPOWER FROM OTHER AGENCIES IN ONGOING INVESTIGATIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-29-107, Mississippi Code of 1972, is amended as follows:
41-29-107. There is hereby created the Bureau of Narcotics within, and under the supervision of, the Mississippi Department of Public Safety. The said bureau shall have as chief administrative officer a director who shall be appointed by the Governor with the advice and consent of the Senate. To be eligible for appointment as director, a person must possess at least ten (10) years of experience either in the practice of law or as a certified law enforcement officer, with at least four (4) years of experience at an administrative level. The director is empowered to employ or appoint necessary agents. The said director may also employ such secretarial, clerical and administrative personnel, including a duly licensed attorney, as necessary for the operation of the bureau, and shall have such quarters, equipment and facilities as needed. The salary and qualifications of the attorney authorized by this section shall be fixed by the director, but the salary shall not exceed the salary authorized for an assistant attorney general who performs similar duties.
The director and agents so appointed shall be citizens of the United States and of the State of Mississippi, and of good moral character. The agents shall be not less than twenty-one (21) * * * years of age at the time of such appointment. In addition thereto, those appointed shall have satisfactorily completed at least two (2) years of college studies. However, two (2) years of satisfactory service as a law enforcement officer and the completion of the prescribed course of study at a school operated by the Bureau of Narcotics and Dangerous Drugs, United States Justice Department, shall satisfy one (1) year of such college studies, and four (4) years of satisfactory service as a law enforcement officer and the completion of the prescribed course of study at such federal bureau school as stated heretofore shall fully satisfy the two (2) years of college requirement. The director shall also be required to complete a prescribed course of study at a school operated by the Bureau of Narcotics and Dangerous Drugs, United States Justice Department.
During the period of the first twelve (12) months after appointment, any employee of the bureau shall be subject to dismissal at the will of the director. After twelve (12) months' service, no employee of the bureau shall be subject to dismissal unless charges have been filed with the director showing cause for dismissal * * *. A date shall be set for hearing before the director and the employee notified in writing of the date of such hearing and of the charges filed. The hearing shall be held not less than ten (10) days after notification to the employee. After the hearing, at which the employee shall be entitled to legal counsel, a written order of the director shall be necessary for dismissal and the decision shall be final. Any such order of the director shall be a public record and subject to inspection as such.
The Commissioner of Public Safety may assign members of the Mississippi Highway Safety Patrol, regardless of age, to the bureau at the request of the director of the bureau; however, when any highway patrolman or other employee, agent or official of the Mississippi Department of Public Safety is assigned to duty with, or is employed by, the bureau, he shall not be subject to assignment or transfer to any other bureau or department within the Mississippi Department of Public Safety except by the director. Any highway patrolman assigned to duty with the bureau shall retain his status as a highway patrolman, but shall be under the supervision of the director. For purposes of seniority within the Highway Safety Patrol and for purposes of retirement under the Mississippi Highway Safety Patrol Retirement System, highway patrolmen assigned to the bureau will be credited as if performing duty with the Highway Safety Patrol.
The director may enter into contracts or agreements with the State Board of Health for purposes of recruitment and screening of applicants through the merit system.
The director may enter into agreements with bureaus or departments of other states or of the United States for the exchange or temporary assignment of agents for special undercover assignments and for performance of specific duties.
The director is hereby authorized to assign agents of the bureau to such duty and to request and accept agents from such other bureaus or departments for such duty.
SECTION 2. 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 3 or in violation of Article 5 of this chapter;
(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 3 or in violation of Article 5 of this chapter;
(3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2) of this section;
(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 section, 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), (B) or (C);
(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;
(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, 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 paragraph (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 paragraph (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, or the State Board of Pharmacy 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, or the State Board of Pharmacy have probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) The bureau, local law enforcement officers, enforcement officers of the Mississippi Department of Transportation, highway patrolmen, the board, or the State Board of Pharmacy have probable cause to believe that the property was used or is intended to be used in violation of this article.
(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, or the State Board of Pharmacy, 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.
SECTION 3. Section 41-29-313, Mississippi Code of 1972, is amended as follows:
41-29-313. (1) (a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:
(i) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount with the intent to unlawfully manufacture a controlled substance;
(ii) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance;
(iii) Manufacture or attempt to manufacture any listed precursor drug or chemical with intent to unlawfully manufacture a controlled substance.
(b) Any person who violates this subsection (1), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both fine and imprisonment.
(2) (a) It is unlawful for any person to knowingly or intentionally steal or unlawfully take or carry away any amount of anhydrous ammonia.
(b) It is unlawful for any person to purchase, possess, transfer or distribute any amount of anhydrous ammonia, knowing, or under circumstances where one reasonably should know, that the anhydrous ammonia will be used to unlawfully manufacture a controlled substance.
(c) It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.
(d) Any person who violates this subsection (2), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed five (5) years and shall be fined not more than Five Thousand Dollars ($5,000.00), or both fine and imprisonment.
(3) The term "listed precursor drug or chemical" means a precursor drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance in violation of this chapter. Such term includes any salt, optical isomer or salt of an optical isomer, whenever the existence of such salt, optical isomer or salt of optical isomer is possible within the specific chemical designation. The chemicals or drugs listed in this section are included by whatever official, common, usual, chemical or trade name designated. The following are "listed precursor drugs or chemicals":
(a) Ether;
(b) Anhydrous ammonia;
(c) Pseudoephedrine;
(d) Ephedrine;
(e) Denatured alcohol (Ethanol);
(f) Lithium;
(g) Freon;
(h) Hydrochloric acid;
(i) Hydriodic acid;
(j) Red phosphorous;
(k) Iodine;
(l) Sodium metal;
(m) Muriatic acid;
(n) Sulfuric acid;
(o) Hydrogen chloride gas;
(p) Potassium;
(q) Methanol;
(r) Isopropyl alcohol;
(s) Hexanes;
(t) Heptanes;
(u) Acetone;
(v) Toluene;
(w) Xylenes;
(x) Sodium hydroxide;
(y) Hypophosphorous acid.
(4) Nothing in this section shall preclude any farmer from storing or using any of the listed precursor drugs or chemicals listed in this section in the normal pursuit of farming operations.
(5) Nothing in this section shall preclude any wholesaler, retailer or pharmacist from possessing or selling the listed precursor drugs or chemicals in the normal pursuit of business.
(6) Nothing in this section shall preclude any farmer, wholesaler, retailer, manufacturer or pharmacist from manufacturing any of the listed precursor drugs or chemicals in the normal pursuit of business.
(7) Any person who violates the provisions of this section with children under the age of eighteen (18) years present may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section.
(8) Any person who violates the provisions of this section when the offense occurs in any hotel or apartment building or complex may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section. For the purposes of this subsection (8), the following terms shall have the meanings ascribed to them:
(a) "Hotel" means a hotel, inn, motel, tourist court, apartment house, rooming house, or any other place where sleeping accommodations are furnished or offered for pay if four (4) or more rooms are available for transient guests.
(b) "Apartment building" means any building, including, without limitation, a condominium building, having four (4) or more dwelling units.
SECTION 4. Section 41-29-501, Mississippi Code of 1972, is amended as follows:
41-29-501. As used in this article, the following terms shall have the meaning ascribed to them herein unless the context requires otherwise:
(a) "Aggrieved person" means a person who was a party to an intercepted wire, oral or other communication or a person against whom the interception was directed.
(b) "Communication common carrier" has the meaning given the term "common carrier" by 47 USCS 153(h) and shall also mean a provider of communication services.
(c) "Contents," when used with respect to a wire, oral or other communication, includes any information concerning the identity of the parties to the communication or the existence, substance, purport or meaning of that communication.
(d) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this article would be a violation of criminal law.
(e) "Director" means the Director of the Bureau of Narcotics or, if the director is absent or unable to serve, the Assistant Director of the Bureau of Narcotics.
(f) "Electronic, mechanical or other device" means a device or apparatus primarily designed or used for the nonconsensual interception of wire, oral or other communications.
(g) "Intercept" means the aural or other acquisition of the contents of a wire, oral or other communication through the use of an electronic, mechanical or other device.
(h) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in Section 41-29-505, or an attorney authorized by law to prosecute or participate in the prosecution of such offenses, or any other person designated by the director.
(i) "Judge of competent jurisdiction" means a justice of the Supreme Court or a circuit court judge.
(j) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.
(k) "Other communication" means any transfer of an electronic or other signal, including fax signals, computer generated signals, other similar signals, or any scrambled or encrypted signal transferred via wire, radio, electromagnetic, photoelectric or photooptical system from one party to another in which the involved parties may reasonably expect the communication to be private.
(l) "Prosecutor" means a district attorney with jurisdiction in the county in which the facility or place where the communication to be intercepted is located or a legal assistant to the district attorney if designated in writing by the district attorney on a case-by-case basis.
(m) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence.
(n) "Wire communication" means a communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception furnished or operated by a person engaged as a common carrier in providing or operating the facilities for the transmission of communications and includes cordless telephones, voice pagers, cellular telephones, any mobile telephone, or any communication conducted through the facilities of a provider of communication services.
SECTION 5. This act shall take effect and be in force from and after July 1, 2004.