Bill Text: MS HB1634 | 2024 | Regular Session | Introduced
Bill Title: Asset forefeiture; require hearing to challenge.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2024-03-05 - Died In Committee [HB1634 Detail]
Download: Mississippi-2024-HB1634-Introduced.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary A
By: Representative Calvert
House Bill 1634
AN ACT TO AMEND SECTION 41-29-179, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE THAT ALLOWS ANY PERSON WHOSE ASSETS ARE SUBJECT TO FORFEITURE TO CHALLENGE THE FORFEITURE FOR CERTAIN REASONS; TO AMEND SECTIONS 41-29-153, 41-29-176.1 AND 41-29-177, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-29-179, Mississippi Code of 1972, is amended as follows:
41-29-179. (1) (a) A defendant may petition the court at any time to determine whether his or her seized property should be subject to forfeiture, and whether such forfeiture is excessive under state and/or federal law.
(b) The defendant has the burden of establishing that the forfeiture is disproportional to the seriousness of the offense by a preponderance of the evidence at a hearing conducted by the court without a jury.
(c) In determining whether the forfeiture is unconstitutionally excessive, the court may consider all relevant factors, including:
(i) The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the defendant;
(ii) The extent to which the defendant participated in the offense;
(iii) The extent to which the property was used in committing the offense;
(iv) The sentence imposed for committing the crime authorizing forfeiture;
(v) Whether the offense was completed or attempted;
(vi) The hardship to the defendant if the forfeiture is realized and if the forfeiture would deprive the property owner of the owner's livelihood; and
(vii) The hardship from the loss of a primary residence, motor vehicle or other property to the defendant's family members or others if the property is forfeited.
(d) In determining the value of the instrumentality subject to forfeiture, the court may consider all relevant factors relating to the fair market value of the property.
(e) The court may not consider the value of the instrumentality to the state in determining whether the forfeiture of an instrumentality is constitutionally excessive.
(f) If the court determines that the forfeiture is disproportionate, the agency in possession of such property shall return the property to the defendant no more than fifteen (15) days from the date of the hearing.
( * * *2) Except as otherwise provided in
Section 41-29-176 and Section 41-29-107.1, an owner of property, other than a
controlled substance, raw material or paraphernalia, that has been seized shall
file an answer within thirty (30) days after the completion of service of
process. If an answer is not filed, the court shall hear evidence that the
property is subject to forfeiture and forfeit the property to the Mississippi
Bureau of Narcotics or the local law enforcement agency. If an answer is filed,
a time for hearing on forfeiture shall be set within thirty (30) days of filing
the answer or at the succeeding term of court if court would not be in progress
within thirty (30) days after filing the answer. Provided, however, that upon
request by the Bureau of Narcotics, the local law enforcement agency or the
owner of the property, the court may postpone * * * the forfeiture hearing to a date
past the time any criminal action is pending against * * * the owner.
( * * *3) If the owner of the property has
filed an answer denying that the property is subject to forfeiture, then the
burden is on the petitioner to prove that the property is subject to
forfeiture. However, if an answer has not been filed by the owner of the
property, the petition for forfeiture may be introduced into evidence and is
prima facie evidence that the property is subject to forfeiture. The standard
of proof placed upon the petitioner in regard to property forfeited under the
provisions of this article shall be by a preponderance of the evidence.
( * * *4) At the hearing 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.
( * * *5) If it is found that the property is
subject to forfeiture, then the judge shall forfeit the property to the
Mississippi Bureau of Narcotics or the local law enforcement agency. However,
if proof at the hearing 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
to the Mississippi Bureau of Narcotics or the local law enforcement agency.
( * * *6) Upon a petition filed in the name
of the State of Mississippi, the county or the municipality with the clerk of
the circuit court of the county in which the seizure of any controlled
substance or raw material is made, the circuit court having jurisdiction may
order the controlled substance or raw material summarily forfeited except when
lawful possession and title can be ascertained. If a person is found to have
had lawful possession and title prior to seizure, the court shall order the controlled
substance or raw material returned to the owner, if the owner so desires. Upon
a petition filed in the name of the State of Mississippi, the county or the
municipality with the clerk of the circuit court of the county in which the
seizure of any purported paraphernalia is made, the circuit court having
jurisdiction may order such seized property summarily forfeited when the court
has determined the seized property to be paraphernalia as defined in Section 41-29-105(v).
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 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;
(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, 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;
(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 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, 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 3. Section 41-29-176.1, Mississippi Code of 1972, is amended as follows:
41-29-176.1. The
seizing law enforcement agency shall within thirty (30) days of a seizure,
request either the district attorney of the county in which property is seized
or the Mississippi Bureau of Narcotics to prosecute any cases involving seized
property. No one other than the district attorney of the county in which the
seizure occurred or an attorney from the Mississippi Bureau of Narcotics shall
have authority to prosecute the forfeiture of the seized property. If the
district attorney and the Mississippi Bureau of Narcotics decline to prosecute
the forfeiture of the seized property, the seizing law enforcement agency shall
notify the person from whom the property was seized that the property will not
be forfeited, within * * * fifteen (15) days of receiving the notice not to
prosecute, and shall provide written instructions advising the person how to
retrieve the seized property. If the district attorney and/or the Mississippi
Bureau of Narcotics decide to prosecute, the person shall have the rights provided
in Section 41-29-179.
SECTION 4. Section 41-29-177, Mississippi Code of 1972, is amended as follows:
41-29-177. (1) Except as otherwise provided in Section 41-29-176, Mississippi Code of 1972, and in Section 41-29-107.1, when any property, other than a controlled substance, raw material or paraphernalia, is seized under the Uniform Controlled Substances Law, proceedings under this section shall be instituted within thirty (30) days from the date of seizure or the subject property shall be immediately returned to the party from whom seized.
(2) A petition for forfeiture shall be filed by the district attorney or his or her designee, or an attorney for the bureau, as applicable, in the name of the State of Mississippi, the county or the municipality and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the circuit court or the county court if a county court exists in the county and the value of the seized property is within the jurisdictional limits of the county court as set forth in Section 9-9-21, Mississippi Code of 1972. A copy of such petition shall be served upon the following persons by service of process in the same manner as in civil cases:
(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 the Bureau of Narcotics or the local law enforcement agency by making a good faith effort to ascertain the identity of such secured party as described in subsections (3), (4), (5), (6) and (7) of 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 Mississippi Bureau of Narcotics or the local law enforcement agency 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 (8) of this section; and
(e) Any person in possession of property subject to forfeiture at the time that it was seized.
(3) 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 Bureau of Narcotics or the local law enforcement agency shall make inquiry of the Department of Revenue as to what the records of the Department of Revenue 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.
(4) If the property is a motor vehicle and is not titled in the State of Mississippi, then the Bureau of Narcotics or the local law enforcement agency 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 bureau or the local law enforcement agency 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.
(5) 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 Bureau of Narcotics or the local law enforcement agency shall make inquiry of the appropriate office designated in Section 75-9-501, 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.
(6) 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 Bureau of Narcotics or the local law enforcement agency 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.
(7) 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 Bureau of Narcotics or the local law enforcement agency shall make a good faith inquiry to identify the holder of any such instrument.
(8) If the property is real estate, the Bureau of Narcotics or the local law enforcement agency 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.
(9) In the event the answer to an 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 Bureau of Narcotics or the local law enforcement agency 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 named in the petition of forfeiture and to be served with process in the same manner as in civil cases.
(10) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, the Bureau of Narcotics or the local law enforcement agency shall file with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, and shall be served as provided in Section 11-33-37, Mississippi Code of 1972, for publication of notice for attachments at law.
(11) No proceedings instituted pursuant to the provisions of this article shall proceed to hearing unless the judge conducting the hearing is satisfied that this section and Section 41-29-107.1 has been complied with. Any answer received from an inquiry required by subsections (3) through (8) of this section shall be introduced into evidence at the hearing.
(12) The owner of any property that is subject to forfeiture shall have the right to a hearing as provided in Section 41-29-179.
SECTION 5. This act shall take effect and be in force from and after July 1, 2024.
