Four Thousand Eight Hundred One Dollars v. Lafayette County Metro Narcotics Unit
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-02126-COA
FOUR THOUSAND EIGHT HUNDRED ONE
DOLLARS
APPELLANT
v.
LAFAYETTE COUNTY METRO NARCOTICS
UNIT
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/10/2008
HON. ANDREW K. HOWORTH
LAFAYETTE COUNTY CIRCUIT COURT
KEVIN W. FRYE
ALAN T. ALEXANDER
JAMES B. JUSTICE
OFFICE OF THE DISTRICT ATTORNEY
BY: LEILANI L. HILL
CIVIL – OTHER
FORFEITURE OF $4,801 ORDERED
AFFIRMED – 12/01/2009
BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
This appeal arises from the Lafayette County Circuit Court’s order of forfeiture of
$4,801 from Derek Nations. Aggrieved by the judgment, Nations appeals and asserts: (1)
that a “close proximity” presumption does not apply in this case; (2) that if such a
presumption exists, it was rebutted; and (3) that the State did not prove that the seized money
was possessed “for the purposes of facilitating an illegal narcotics scheme.”
¶2.
Finding no reversible error, we affirm.
FACTS
¶3.
Nations was under indictment for selling marijuana on December 2, 2008, when he
sold marijuana to a confidential informant working with the Lafayette County Metro
Narcotics Unit (LCMNU). Two days later, on December 4, 2008, LCMNU agents went to
Nations’s apartment to serve an arrest warrant on him. In the process of arresting Nations,
the officers requested and obtained his permission to search his room. The search of the
room revealed scales, marijuana, pipes, bongs, pieces of bongs, sandwich bags, and $4,801
in cash. The money was found in five separate locations throughout Nations’s room,
including two desk drawers, two jars, and a folder found under Nations’s mattress. The
marijuana and paraphernalia were found scattered throughout the bedroom. After locating
all of the cash, the LCMNU agents consolidated it into one pile, the total value of which they
then ascertained. No effort was made to keep the money in separate piles based on its origin,
but the money from each area was counted separately before adding it to the pile. One
hundred and forty dollars in recorded bills that had been used by the confidential informant
was found, although the LCMNU agents did not ascertain where those bills were found in
the room.1
¶4.
Thereafter, on December 8, 2008, Nations filed a petition contesting the forfeiture of
the $4,801. Two days later, the State of Mississippi filed a forfeiture action against Nations.
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These bills were not marked, but their serial numbers were recorded prior to their
use in the drug sale on December 2. Testimony at trial indicated that the LCMNU agents
did not have the serial numbers with them on December 4, so they were unable to record
where the bills used in the buy were in the bedroom.
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After a December 10, 2008, hearing at which multiple witnesses testified, the circuit court
ruled in favor of the State. The court found that the money had been “commingled,” such
that its origin could not be discerned. It is from that decision that Nations appeals.
¶5.
Additional facts will be related, as necessary, during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶6.
“The appropriate standard of review in forfeiture cases is the familiar substantial
evidence/clearly erroneous test.” Galloway v. City of New Albany, 735 So. 2d 407, 410 (¶15)
(Miss. 1999) (citing Hickman v. State ex rel. Miss. Dep’t of Pub. Safety, 592 So. 2d 44, 46
(Miss. 1991); McClendon v. State, 539 So. 2d 1375, 1377 (Miss. 1989); Leatherwood v.
State, 539 So. 2d 1378, 1387 (Miss. 1989)). Essentially, we “will not disturb a circuit court’s
findings unless it has applied an erroneous legal standard to decide the question of fact.” Id.
(citing Hickman, 592 So. 2d at 46). We remain mindful of the fact that “[f]orfeiture statutes
are penal in nature and must be strictly construed.” Evans v. City of Aberdeen, 926 So. 2d
181, 183 (¶5) (Miss. 2006) (quoting Evans v. City of Aberdeen, 925 So. 2d 850, 853 (¶11)
(Miss. Ct. App. 2005)).
1. Application of Presumption
¶7.
Mississippi Code Annotated section 41-29-153(a)(7) (Rev. 2009) states, in pertinent
part: “All monies, coin and currency found in close proximity to forfeitable controlled
substances, [or] to forfeitable drug manufacturing or distributing paraphernalia . . . are
presumed to be forfeitable under this paragraph; the burden of proof is upon claimants of the
property to rebut this presumption.” Nations argues that this presumption should not apply
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in his case because:
the forfeiture statute places the burden on the State to prove the “close
proximity” presumption’s applicability . . . [and] the State’s failure to properly
record these facts in the course of the search makes it impossible for a
reasonable fact-finder to say with any degree of certainty that any of the
money . . . was “in close proximity” to drugs or drug paraphernalia.
¶8.
There are very few Mississippi cases examining what constitutes “close proximity”
in the context of section 41-29-153. However, we find our supreme court’s holding in City
of Meridian v. Hodge, 632 So. 2d 1309, 1312-13 (Miss. 1994) to be instructive:
Although this Court has never interpreted “close proximity” in a forfeiture
context, courts in other jurisdictions have done so. In Limon v. State, 285 Ark.
166, 685 S.W.2d 515 (1985), the court upheld the forfeiture of $3,000 found
in a kitchen drawer with boxes of plastic bags and aluminum foil. Other drug
paraphernalia was on the table and a vial of cocaine was nearby. Seventeen
hundred seventy dollars was also found on a bathroom shelf next to a bag of
marijuana. The Arkansas Supreme Court defined “close proximity” as
follows:
“In close proximity” simply means “very near.” For that reason
it has been said that the meaning of the term in such a statute is
to be determined on a case-by-case basis. Bozman v. Office of
Finance of Baltimore County, 52 Md. App. 1, 445 A.2d 1073
(Md. App. 1982), aff’d 296 Md. 492, 463 A.2d 832 (1983). We
agree with that approach and do not mean by this opinion to
suggest rigid rules for fixing “close proximity” by a particular
number of feet, by reference to particular rooms, or by any rule
of thumb. Here the two plastic bags containing $1,770 were
next to a bag of marihuana. The $3,000 was in two plastic bags
in a kitchen drawer along with boxes of plastic bags and
aluminum foil. Other drug paraphernalia were on the kitchen
table; the cocaine vial was nearby. We think the preponderance
of the evidence places all the money, not merely the $1,770, in
close proximity to controlled substances or drug paraphernalia.
That being true, all the money is presumed under the statute to
be forfeitable. There is no burden on the State to show
separately a specific intent that the money is to be used in
exchange for drugs, because the statute provides that money
found in close proximity to forfeitable articles is “presumed to
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be forfeitable.”
Limon, 685 S.W.2d at 516-17.
The record in the present case is silent as to the exact location of where the jar
was found and its proximity to the marijuana and other drug paraphernalia.
Furthermore, the specific dimensions of the trailer were not stated. What is
known is that marijuana was maintained and sold in the kitchen and living
room. The search warrant authorized a search of the entire trailer, not just the
living room and kitchen. Like the Arkansas court, we are not prepared to
define “close proximity” in terms of a measured distance. Neither are we
prepared to say that controlled substances anywhere in a residence are
considered as a matter of law in “close proximity” to any currency also found
in that residence. Thus, we cannot say that the trial court erred in failing to
find that the drugs in question were in such close proximity to the cash as to
invoke the statutory presumption.
The inference by the trial judge that the overall sum of money comprised of
several small bills and change did not constitute drug sale receipts is also a
permissible inference. That a different fact-finder might give less weight to
this inference because the Hodges were not high-volume drug dealers is of no
moment. We do not sit to substitute our judgment for that of the trial court.
Clearly, the trial court could have, on this evidence, concluded that all of the
cash in question was the product of or used in the trafficking of marijuana.
Unaided by the statutory presumption, however, the only evidence in support
of this conclusion is the fact that the “buy money” was found with the other
cash. Arrayed against this is the Hodges’ denial that the money was derived
from the sale of drug[s], the fact that one of the occupants of the trailer was
otherwise gainfully employed and the denominations in which the money was
found. The weight to be given these evidentiary facts is for the trial court to
determine. Its determination, either way, would be affirmed by this Court.
(Emphasis added). Unlike in Hodge, the cash, drugs, and paraphernalia here were found in
one room. Agent Keith Davis, an LCMNU agent, testified that the majority of the money,
$3,428, was found in two drawers in the same desk in which was also found “a bag of
marijuana.” Agent Davis’s testimony was unclear as to whether any of the money in the desk
was in the same drawer as the marijuana. Furthermore, Agent Davis testified that a small
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amount of the recovered money was found on top of the desk, which also had “real small
pieces of marijuana” on it.
Agent Davis also testified that multiple items of drug
paraphernalia were scattered throughout the bedroom.
¶9.
Given the facts of this case, we find that there was credible evidence establishing the
proximity presumption. This contention of error is without merit.
2. Rebuttal of the Proximity Presumption
¶10.
Nations contends that the testimonies of two witnesses, John Glass and Sara Roberts,
were sufficient to rebut the proximity presumption. Glass, a Honda dealership employee,
testified that on December 1, 2008, Nations traded a 2008 Honda Accord for an older
vehicle, and that Nations received a check from the dealership for just under ten thousand
dollars as a result of the transaction. Roberts, Nations’s ex-girlfriend, testified that Nations
used the money from the sale of the car to buy a large flat-screen television in Jackson,
Mississippi. She did not know how much the television cost, but she believed that there was
some money left over from the sale of the car after the television was purchased. She
admitted that she had no idea how much money was left over or where Nations kept the
leftover money after the television was purchased. As support for his contention that the
testimonies of these two witnesses were sufficient to rebut the proximity presumption,
Nations directs this Court’s attention to Neely v. State ex rel. Tate County, 628 So. 2d 1376,
1381-82 (Miss. 1993).
¶11.
In Neely, the Mississippi Supreme Court found that any proximity presumption in that
case was rebutted by Edward Neely’s explanation of the source of the money that was seized
from him and by the lack of evidence that Neely was a drug dealer. Id. at 1381. The Neely
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court noted Neely’s explanation for the money that was found:
Neely testified that he had the large sum of money on his person because he
had just cashed a pay check, he had to retire child support debt, he had to pay
for a blood test ($380) and he had to pay for a motorcycle repair bill ($600).
In partial support of this, Neely provided two exhibits: (1) an unpaid bill of
$601.48 to the motorcycle shop and (2) a cashed paycheck, dated June 10,
1990, for $313.44. Neely also testified on re-direct that he had yet to pay for
the blood test.
Id. at 1378-79.
¶12.
In the present case, Nations has provided no such explanation as the appellant in
Neely. Although evidence was introduced to the effect that Nations had just cashed a check
for $9,990 from the sale of his vehicle, Roberts indicated that Nations used that money to
purchase a large flat-screen television. Roberts could not remember how much the television
cost and had no idea how much money Nations had after the purchase of the television.
Furthermore, unlike in Neely, there was uncontradicted evidence in this case that Nations was
dealing drugs around the time of the seizure. The appellant in Neely provided documentary
support for his explanations, whereas Nations has provided no such support. There was
simply no way for the circuit court or this Court to ascertain how much money Nations had
left over from the sale of his vehicle or what he may have done with any that may have been
left over after the purchase of the television.
¶13.
We also note that, although Nations did not testify, Agent Davis testified that Nations
was less than candid about how much of the money was from the sale of drugs:
On the 8th of December[,] Mr. Nations stopped me while I was in the
Detention Center and asked me if I had a moment[,] and I advised him that I
did. Mr. Nations advised me at that point that only $70 of the funds that was
seized would be official [M]etro funds[,] and I advised Mr. Nations was he
sure about that[,] and he said, yes, he was[,] and I advised Mr. Nations that I
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did not believe him because at that time I already checked the serial numbers
and knew there was $140 in there.
Therefore, there was testimony questioning the veracity of any of Nations’s assertions as to
how much of the money was from illicit sources. The testimony was uncontradicted that the
drug sale on December 2 was for $140; however, none of the five locations in Nations’s
bedroom contained only $140. Therefore, even though LCMNU agents failed to note where
the recorded bills were found, it is clear that the money used in the drug sale was mixed with
some of the money that was found in Nations’s room.
¶14.
During arguments at the forfeiture hearing, Nations’s attorney stated that he could
“personally testify, not on the stand, but he paid me part of that money [from the sale of his
car].” There are two logical conclusions that can be drawn from this statement: (1) that
Nations still had the money from the sale of his car, after the money had been seized from
his apartment; or (2) that he used the money on December 2 or 3 to pay his attorney. If the
former is true, then it appears that the money from the sale of the vehicle was not seized as
part of the $4,801. If the latter is true, then that payment would have further reduced the
amount of money that Nations had left over from the sale.
¶15.
Based on all of the foregoing, we find that Nations failed to rebut the proximity
presumption. This issue is without merit.
3. Further Proof of Validity of Forfeiture
¶16.
Finally, Nations claims that “[i]f the ‘close proximity’ presumption does not apply or
has been rebutted,” then the State did not adequately prove a reason for the forfeiture.
Because we have found that the presumption applies and was not rebutted, we find no merit
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to this issue. However, we note that even if the presumption did not apply, we would still
affirm the circuit court’s judgment.
¶17.
In a forfeiture case involving drugs, the burden is on the State to prove, by a
preponderance of the evidence, “that it is more likely than not that the currency was
possessed by the claimant with the intent to be used in connection with an illegal narcotics
trafficking scheme.” Jones v. State ex rel. Miss. Dep’t of Pub. Safety, 607 So. 2d 23, 29
(Miss. 1991).
¶18.
Several thousands of dollars were found in Nations’s bedroom, along with and in
close proximity to marijuana and multiple items of drug paraphernalia. Nations provided no
explanation for the money other than the money from the sale of the car three days before the
seizure of the money from his apartment. However, Roberts testified that Nations spent the
money from the sale of the car on a large flat-screen television, and no further evidence was
provided to indicate how much of the money from the sale of the car was left over.
Furthermore, Searn Lynch, the commander of the LCMNU, testified that it is not unusual for
drug dealers to store cash in multiple locations; he testified that it was his experience that the
“normal activity of drug dealers [is] to keep their funds in different locations.” Finally, the
$140 that was used by the confidential informant was not found separate from the other
money in Nations’s room. Given these facts, we cannot find that the State failed to prove
that the money was most likely used in connection with illegal drug trafficking, which
Nations irrefutably participated in on multiple occasions.
¶19.
This contention of error is also without merit.
¶20.
THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
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IS AFFIRMED.
APPELLANT.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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