House Bill 144

AN ACT TO PROVIDE A PROCEDURE FOR THE CRIMINAL FORFEITURE OF PROPERTY USED IN CRIMINAL OFFENSES THAT HAVE NO SPECIFIC FORFEITURE PROCEDURE; TO PROVIDE LEGISLATIVE FINDINGS; TO PROVIDE DUTIES AND POWERS OF SEIZING AGENCIES; TO SPECIFY PROPERTY THAT IS SUBJECT TO FORFEITURE; TO PROVIDE CERTAIN IMMUNITY FOR PERSONS INVOLVED IN THE SEIZURE OF PROPERTY; TO PROVIDE FOR FORFEITURE PROCEEDINGS; TO PROTECT THE INTEREST OF PARTIES WITH AN INTEREST IN SUCH PROPERTY WHO ARE NOT INVOLVED IN THE CRIMINAL OFFENSE; TO ALLOW THE RETENTION OF FORFEITED PROPERTY FOR USE IN JUDICIAL PROCEEDINGS; TO PROVIDE FOR THE DISPOSITION OF FORFEITED PROPERTY; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) The Legislature finds that:

(a) Prohibited conduct, other than that already subject to civil seizure and forfeiture, is often undertaken in the course of activities that result in, and are facilitated by, the acquisition, possession or transfer of personal property subject to criminal forfeiture in this legislation;

(b) Perpetrators of crimes should not be allowed to keep the fruits, proceeds and instrumentalities of their crimes, however, no existing statute provides for forfeiture of such personal property except in a limited set of circumstances for particular crimes, primarily drug related offenses;

(c) Governments attempting to respond to prohibited conduct require additional resources to meet their legitimate law enforcement needs; and

(d) There is a need for procedures for the forfeiture of such personal property so as to provide for the protection of the rights and interests of affected persons and to provide for uniformity throughout this state with respect to the criminal forfeiture of personal property based upon prohibited conduct.

(2) This legislation does not impair the right of any city or county to enact ordinances providing for the criminal forfeiture of property based upon prohibited conduct if:

(a) The property was used to commit the conduct described in the ordinances, or constitutes fruits or proceeds of the conduct; and

(b) The criminal forfeiture is subject to procedures and limitations set forth in this act.

(3) Nothing in this act may be construed to limit or impair any right or remedy that any person or entity may have under existing laws. Criminal forfeiture is a remedy separate and apart from any other criminal penalty and from civil forfeiture or any other civil penalty.

(4) Unless otherwise provided by law, this act applies to all crimes codified in the Mississippi penal statutes not already covered by civil forfeiture statutes.

SECTION 2. (1) Subject to this act, all right, title and interest in property forfeited under this act vests in the seizing agency upon commission of the prohibited conduct. Once forfeitable property is seized, no right to the property may be transferred by anyone other than the seizing agency unless the seizure and forfeiture is declared by the court to be a nullity or as otherwise ordered by the court.

(2) When property is forfeited under this act, the seizing agency may:

(a) Retain the property for official use or transfer the custody or ownership of any forfeited property to any federal, state, or local agency;

(b) Sell the forfeited property that is not required to be destroyed by law and which is not harmful to the public. The proceeds from the sale, together with any monetary funds ordered to be forfeited, must be used first for the payment of all proper costs and expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs with any remaining proceeds to be deposited in the appropriate state, county, or city general or special fund; and

(c) Dispose of the property in accordance with the order of the court if the property cannot be retained, used, or sold by the seizing agency.

SECTION 3. The following are subject to criminal forfeiture:

(a) All books, records, computers and research, including formulae, microfilm, tapes and data that are used or intended for use to facilitate prohibited conduct;

(b) All monies, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished or intended to be furnished by any person in the course of prohibited conduct, all proceeds of or from prohibited conduct, and all monies, negotiable instruments, balances in deposit and other accounts and securities used or intended to be used to facilitate any prohibited conduct;

(d) All property described in this section that is intended for use in committing or facilitating an attempt to commit a crime, a solicitation, or a conspiracy;

(e) All personal property that is used or intended to be used to commit or facilitate prohibited conduct or is the fruits or proceeds of such prohibited conduct.

SECTION 4. (1) A person who delivers property in obedience to an order or direction to deliver the property under this section is not liable:

(a) To any person on account of obedience to the order or direction; or

(b) For any costs incurred on account of any contamination of the delivered property. This includes, but is not limited to, any disposal costs for any property forfeited, any hazardous waste or material, any contraband or any other contamination contained in property seized under this section.

(2) In addition to seizures authorized by law, a police officer may seize property without a court order if the police officer has probable cause to believe that the property is subject to criminal forfeiture.

(3) Except with regard to cash or other assets that at the time of seizure are held in any form of account in a financial institution, if the property is, in whole or in part, intangible or fungible, the person having control or custody of the property shall deliver the same over to the police officer.

(4) (a) A police officer may seize property pursuant to an order of the court. Forfeiture counsel or a seizing agency may apply for an ex parte order directing seizure of specified property.

(b) Application for seizure may be made to any judge of a court of record with jurisdiction to issue search warrants. The application must be supported by one (1) or more affidavits setting forth the facts and circumstances tending to show where the objects of the seizure are to be found. The court shall issue the order upon a finding of probable cause to believe that the described property is subject to criminal forfeiture. The order may be set out on the face of a search warrant.

(c) Except with regard to cash or other assets that at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the order shall direct any person having control or custody of the property to deliver the same over to the seizing agency or to the court to abide judgment.

(5) Property may be constructively seized by posting notice of seizure for criminal forfeiture on it or by filing notice of seizure for criminal forfeiture or notice of pending criminal forfeiture in the public records that imparts constructive notice of matters relating to such property. A notice that is filed must include a description of the property that is the subject of the seizure.

(6) Promptly upon seizure, the officer who seized the property shall make an inventory of the property seized and shall deliver a receipt embodying the inventory to the person from whose possession the property is taken or to the person in apparent control of the property at the time it is seized. If there is no one present in apparent control, the officer shall leave the receipt suitably affixed to the property. If the property is physically removed from the location of seizure and it is unoccupied or there is no one present in apparent control, then the officer shall promptly file the receipt in the public records of the seizing agency.

Every receipt prepared under this subsection shall contain, in addition to an inventory of the property seized, the following information:

(a) The identity of the seizing agency; and

(b) The address and telephone number of the office or other place where the person may obtain further information concerning the criminal forfeiture.

(7) In the event that property is seized from the possession of a person who asserts a possessory lien over such property pursuant to applicable law, notwithstanding any other provision of law, any lien of the person from whom the property was seized remains in effect and is enforceable as fully as though the person had retained possession of the property.

SECTION 5. (1) Forfeiture is a part of a criminal proceeding dependent upon a prosecution for, or conviction of, a criminal offense and forfeiture proceedings are part of sentencing phase of any criminal action. This action shall occur during criminal sentencing.

(2) At the presiding judge's discretion this proceeding may be bifurcated into a separate action from sentencing for property valued under Two Thousand Five Hundred Dollars ($2,500.00). The hearing shall be bifurcated from the rest of sentencing for property valued at or over Two Thousand Five Hundred Dollars ($2,500.00). This hearing must be held within ninety (90) days after sentencing, unless continued by the court which issued the seizure order or the court responsible for sentencing.

(3) Should the hearing be bifurcated or property is valued at more than Two Thousand Five Hundred Dollars ($2,500.00), the agency requesting forfeiture must serve and/or publish notice in the same manner as provided by Section 41-29-176 so that parties with a security or property interest may contest forfeiture at said hearing.

(4) Court costs and fees are the responsibility of the criminal defendant whose property is forfeited hereunder.

SECTION 6. (1) Property may not be forfeited under this act to the extent of an interest of an owner who had no part in the commission of the crime and who had no knowledge of the criminal use or intended use of the property. However, if it is established that the owner permitted the use of the property under circumstances in which a reasonable person should have inquired into the intended use of the property and that the owner failed to do so, there is a rebuttable presumption that the owner knew that the property was intended to be used in the commission of a crime or was the fruits or proceeds of such crime.

(2) A person having a valid, recorded lien or property interest in forfeited property, must either be reimbursed to the extent of the nonforfeitable property interest or to the extent of the amount raised by the sale of the item, whichever amount is less. The sale of forfeited property must be conducted in a manner that is commercially reasonable and calculated to provide a sufficient return to cover the cost of the sale and reimburse any nonforfeitable interest. The validity of a lien or property interest is determined as of the date the property is seized. All costs and expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs, must be first deducted from the sale proceeds and paid to the party incurring such costs and expenses.

(3) At the judge's discretion at the forfeiture hearing the property may be returned to a party with a valid security or property interest outright, free of expenses, encumbrances or liens by the seizing agency.

(4) This section does not preclude a civil suit by an owner of an interest in forfeited property against the party who, by criminal use, caused the property to become forfeited to the seizing agency.

SECTION 7. If property forfeitable under this act is needed as evidence in a criminal proceeding, it must be retained under the control of the prosecuting attorney, or the prosecuting attorney's designee, until such time as its use as evidence is no longer required.

SECTION 8. Notwithstanding any other provisions of this act, in the case of forfeitable property seized and held as evidence of the commission of a criminal offense, the court in which a criminal prosecution was commenced may issue its order, upon motion and after hearing unless waived, for disposition of the property in accordance with this chapter.

SECTION 9. This act shall take effect and be in force from and after July 1, 2013.