MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary B
By: Representatives Hale, Hopkins
AN ACT TO AMEND SECTIONS 41-29-157, 99-15-11, 99-27-15, 99-27-19 AND 9-9-23, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT SEARCH WARRANTS AND CERTAIN AFFIDAVITS MAY BE IN ELECTRONIC FORMAT AND ELECTRONICALLY EXECUTED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-29-157, Mississippi Code of 1972, is amended as follows:
41-29-157. (a) Except as otherwise provided in Section 41-29-107.1, issuance and execution of administrative inspection warrants and search warrants, which may be in electronic format and electronically executed, shall be as follows, except as provided in subsection (c) of this section:
(1) A judge of any state court of record, or any justice court judge within his jurisdiction, and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections authorized by this article or rules thereunder, and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this article or rules thereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant. All such warrants shall be served during normal business hours;
(2) A search warrant shall issue only upon an affidavit, which may be in electronic format and electronically executed, of a person having knowledge or information of the facts alleged, sworn to before the judge or justice court judge and establishing the grounds for issuing the warrant. If the judge or justice court judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist, he shall issue a warrant identifying the area, premises, building or conveyance to be searched, the purpose of the search, and, if appropriate, the type of property to be searched, if any. The warrant shall:
(A) State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
(B) Be directed to a person authorized by Section 41-29-159 to execute it;
(C) Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified, and if appropriate, direct the seizure of the property specified;
(D) Identify the item or types of property to be seized, if any;
(E) Direct that it be served and designate the judge or magistrate to whom it shall be returned;
(3) A warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant;
(4) The judge or justice court judge who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of the appropriate state court for the judicial district in which the inspection was made.
(b) The Mississippi Bureau of Narcotics, the State Board of Pharmacy, the State Board of Medical Licensure, the State Board of Dental Examiners, the Mississippi Board of Nursing or the State Board of Optometry may make administrative inspections of controlled premises in accordance with the following provisions:
(1) For purposes of this section only, "controlled premises" means:
(A) Places where persons registered or exempted from registration requirements under this article are required to keep records; and
(B) Places including factories, warehouses, establishments and conveyances in which persons registered or exempted from registration requirements under this article are permitted to hold, manufacture, compound, process, sell, deliver, or otherwise dispose of any controlled substance.
(2) When authorized by an administrative inspection warrant issued in accordance with the conditions imposed in this section, an officer or employee designated by the Mississippi Bureau of Narcotics, the State Board of Pharmacy, the State Board of Medical Licensure, the State Board of Dental Examiners, the Mississippi Board of Nursing or the State Board of Optometry, upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
(3) When authorized by an administrative inspection warrant, an officer or employee designated by the Mississippi Bureau of Narcotics, the State Board of Pharmacy, the State Board of Medical Licensure, the State Board of Dental Examiners, the Mississippi Board of Nursing or the State Board of Optometry may:
(A) Inspect and copy records required by this article to be kept;
(B) Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in paragraph (5) of this subsection, all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this article; and
(C) Inventory any stock of any controlled substance therein and obtain samples thereof.
(4) This section does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena, nor does it prevent entries and administrative inspections, including seizures of property, without a warrant:
(A) If the owner, operator or agent in charge of the controlled premises consents;
(B) In situations presenting imminent danger to health or safety;
(C) In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;
(D) In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or
(E) In all other situations in which a warrant is not constitutionally required.
(5) An inspection authorized by this section shall not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator or agent in charge of the controlled premises consents in writing.
(c) Any agent of the bureau authorized to execute a search warrant involving controlled substances, the penalty for which is imprisonment for more than one (1) year, may, without notice of his authority and purpose, break open an outer door or inner door, or window of a building, or any part of the building, if the judge issuing the warrant:
(1) Is satisfied that there is probable cause to believe that:
(A) The property sought may, and, if such notice is given, will be easily and quickly destroyed or disposed of; or
(B) The giving of such notice will immediately endanger the life or safety of the executing officer or another person; and
(2) Has included in the warrant a direction that the officer executing the warrant shall not be required to give such notice.
Any officer acting under such warrant shall, as soon as practical, after entering the premises, identify himself and give the reasons and authority for his entrance upon the premises.
Search warrants which include the instruction that the executing officer shall not be required to give notice of authority and purpose as authorized by this subsection shall be issued only by the county court or county judge in vacation, chancery court or by the chancellor in vacation, by the circuit court or circuit judge in vacation, or by a justice of the Mississippi Supreme Court.
This subsection shall expire and stand repealed from and after July 1, 1974, except that the repeal shall not affect the validity or legality of any search authorized under this subsection and conducted prior to July 1, 1974.
SECTION 2. Section 99-15-11, Mississippi Code of 1972, is amended as follows:
99-15-11. Any conservator of the peace, on the affidavit, which may be in electronic format and electronically executed, of a credible person, may issue a search warrant, which may be in electronic format and electronically executed, and cause stolen or embezzled goods to be seized; but the affidavit and warrant must specify the goods to be seized and the person or place to be searched.
SECTION 3. Section 99-27-15, Mississippi Code of 1972, is amended as follows:
99-27-15. Upon the affidavit, which may be in electronic format and electronically executed, of any credible person that he has reason to believe and does believe: (1) That intoxicating liquor is being stored, kept, owned, controlled, or possessed, in violation of the laws of the state, at any designated place or within any designated receptacle, which place is to be stated in the affidavit; or (2) that intoxicating liquor is being sold or offered for sale contrary to law at any designated place; or (3) that liquor is being manufactured or distilled, or attempted to be manufactured or distilled at any designated place, in violation of the laws of the state; or (4) that intoxicating liquor is being transported, attempted to be transported within the state at or over or through any designated place, contrary to the laws of the state, it shall be the duty of any justice of the peace of the county or county judge, or the judge of the circuit court of the district or the chancellor of the district in which the place is situated, to issue a search warrant, which may be in electronic format and electronically executed, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff or any constable or marshal or policeman therein, commanding him to proceed in the day or night time, to enter by breaking if necessary, and to diligently search any building, room in a building, outhouses, place, wagon, cart, buggy, automobile, motorcycle, motor truck, water or air craft or other vehicle, as may be designated in the affidavit, and to seize said intoxicating liquor, and any wagon, buggy, cart, automobile, motorcycle, motor truck, water or air craft or other vehicle used or attempted to be used in the transporting of the same, or any still or distillery or integral part of the same including appliances, vessels and equipment pertaining thereto used in making or manufacturing or attempting to make or manufacture said intoxicating liquor, and to hold the same until disposed of by law, and to arrest the person, or persons in possession and control of the same.
The writ shall be returnable instanter or on a day stated and a copy shall be served on the owner or person in possession if such person be present or readily found.
SECTION 4. Section 99-27-19, Mississippi Code of 1972, is amended as follows:
99-27-19. The form of search warrant, which may be in electronic format and electronically executed, may be as follows:
"Search Warrant * * *
State
of Mississippi,
____ County.
To any lawful officer of ____ County:
Whereas, ____ has this day made complaint on oath, before the undersigned officer in and for said county, that he has reason to believe, and does believe, that intoxicating liquor is being (strike out any of the following not sworn to):
(1) Stored, kept, owned, controlled or possessed for purposes of sale in violation of law
(2) Sold or offered for sale in violation of law
(3) Manufactured or distilled in violation of law
(4) Attempted to be manufactured or distilled in violation of law
(5) Attempted to be transported in violation of law in the residence, outhouses, barns, stalls, smokehouses, crib, and in the yard and garden, and in the field and woods near the residence of ____ in the ____ district of said ____ County and on Section ____ Township ____ Range ____ in said county, and more particularly described as follows: ___________________________________________ __________________________________________________________________
violation of the laws of the State of Mississippi;
And that intoxicating liquor is being transported and attempted to be transported in a wagon, cart, automobile or other vehicle along the public road in said county known as the ____ public road, in violation of the laws of the State of Mississippi. And that ____ is suspected of being guilty of said violations in said county and state. And the undersigned having examined and considered said affidavit, and also after having heard and considered evidence in support thereof, doth find that probable cause for the issuance of a search warrant in the premises doth exist;
Wherefore, we command you that with such aid as in your judgment shall be needed, you do proceed in the day, or nighttime, to enter by breaking, if necessary, and to diligently search said above described places, or any of them, or said described vehicles and automobiles, in said county and state, for said intoxicating liquor, stills, and integral parts thereof, vehicles and receptacles and appliances as are used in connection therewith, making known to the person or persons in control thereof, if any, your authority for so doing, and if any intoxicating liquor, stills, or still, or integral part or parts thereof, vehicles, vessels, receptacles, as are used in connection therewith be found, that you seize same, and if practicable, that you bring them before me at my office instanter, and also arrest the said ____ and all other persons as may be in possession or control thereof, and bring them before me, and have then and there this writ, with your proceedings noted thereon. Herein fail not.
Witness my hand, this the ____ day of ____, 2___.
(Official title)"
SECTION 5. Section 9-9-23, Mississippi Code of 1972, is amended as follows:
9-9-23. The county judge shall have power to issue writs, and to try matters, of habeas corpus on application to him therefor, or when made returnable before him by a superior judge. He shall also have the power to order the issuance of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases pending in, or within the jurisdiction of, his court. He shall have the authority to issue search warrants, which may be in electronic format and electronically executed, in his county returnable to his own court or to any court of a justice of the peace within his county in the same manner as is provided by law for the issuance of search warrants by justices of the peace. In all cases pending in, or within the jurisdiction of, his court, he shall have, in term time, and in vacation, the power to order, do or determine to the same extent and in the same manner as a justice of the peace or a circuit judge or a chancellor could do in term time or in vacation in such cases. But he shall not have original power to issue writs of injunction, or other remedial writs in equity or in law except in those cases hereinabove specified as being within his jurisdiction: Provided, however, that when any judge or chancellor authorized to issue such writs of injunction, or any other equitable or legal remedial writs hereinabove reserved, shall so direct in writing the hearing of application therefor may be by him referred to the county judge, in which event the said direction of the superior judge shall vest in the said county judge all authority to take such action on said application as the said superior judge could have taken under the right and the law, had the said application been at all times before the said superior judge. The jurisdiction authorized under the foregoing proviso shall cease upon the denying or granting of the application.
SECTION 6. This act shall take effect and be in force from and after July 1, 2019.