What is the statute in Mississippi that authorizes forfeiture?
Miss. Code Ann. §§ 41-29-153, 41-29-176 thru 179.
What property is subject to forfeiture in Mississippi?
Under the Uniform Controlled Substances Law, all aircraft, vehicles and vessels that are used, or intended to be used, to transport illegally possessed or illegally manufactured controlled substances that are in violation of Article 5 of Chapter 29 (drugs and controlled substances).
What are the notice requirements in Mississippi?
Any property with a value less than ten thousand dollars ($10,000) requires that the seizing agency:
- Provide notice of the intent to forfeit the seized property. This notice must be sent via certified mail, return receipt requested or by personal delivery.
- If notice cannot be given because of refusal, failure to claim, insufficient address or for any other reason, the agency must publish the notice in a newspaper of general circulation in the county that the property was seized. Notice must last for three consecutive weeks, at least once per week.
- Either way, the notice is required to provide the following:
- A description of the seized property;
- The approximate value of the property;
- The date of the seizure and the place of the seizure;
- The connection between the property and the violation;
- Instructions providing how one should file for judicial review (protesting the seizure); and,
- A statement that the property will be forfeited if judicial review is not filed on time.
- The seizing agency has thirty (30) days, from the date of seizure, to institute these proceeding or the property must be immediately returned to the party from whom seized.
- The owner of the property, if address is known;
- Any secured party with a registered lien or filed financing statement;
- Any bona fide lienholder or secured party;
- Any holder of a mortgage, deed of trust, lien or encumbrance if the property is real estate; and,
- Any person in possession of the seized property that is subject to the petition at the time that it was seized.
What is involved in once a petition is filed?
Forfeiture petition hearings are not to proceed unless the judge conducting the hearing is satisfied that the notice requirements have been complied with. A copy of the petition must be served upon the following persons and in the same manner as in civil cases:
If an inquiry to determine the owner of property reveals that a person other than the person in possession at time of seizure is the owner or holds any lien or interest, the seizing agency must name that person in the petition of forfeiture and serve that person in the same manner as in civil cases. If the owner of the property cannot be found and served with a copy of the petition to forfeit or if no person was in possession of the property that is being forfeited, the seizing agency must file an affidavit to that effect with the clerk of the court.
If any person or entity claiming a right or interest in the property proves that their interest (security interest, mortgage, deed, etc.) is greater than or equal to the present value of the property, the court must order the property released to that party. If the 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 forfeit the property to the seizing agency.
What are the requirements of the property owner?
The owner of seized property must file an answer within thirty (30) days after the completion of service of process. If the property owner does not file an answer, the court will hear evidence that the property is subject to forfeiture and forfeit the property to the seizing agency.
If, however, an answer is filed, a time will be set within thirty (30) days of filing the answer for a hearing on the forfeiture. The court may alternatively set the hearing at the succeeding court term if the court would not be in progress within the thirty (30) days after filing the answer. And, the court may postpone the hearing to date beyond the time any criminal action is pending against the property owner. Where the property owner files an answer that denies the property is subject to forfeiture, the burden is on the petitioner to prove that the property is subject to forfeiture. However, if the property owner does not file an answer, the petition for forfeiture will be allowed into evidence and will be prima facie evidence that the property is in fact subject to forfeiture.
Any insufficiency of process must be pled by the challenging property owner in his answer.
What is the burden of proof for forfeiture in Mississippi?
The standard of proof is by a preponderance of the evidence.
Who may contest a forfeiture proceeding in Mississippi?
Any person or entity claiming right, title or interest in the property may prove such right or interest to be bona fide and created without knowledge or consent that the property was to be used in a manner to cause the property to be subject to the forfeiture.
What is the innocent owner exception?
Where an owner of property can prove by a preponderance of the evidence that he did not know of, or did not consent to, the use of such property in a manner that made it subject to forfeiture, forfeiture will be found unwarranted. 1994 Mercury Cougar v. Tishomingo County, 970 So.2d 744 (Miss.2007).
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