If a Mississippi juvenile is caught with cash and drugs, can the sheriff seize the cash for civil forfeiture or does juvenile status protect it?
Plain-English summary
The Forrest County Sheriff asked the AG a focused question: when a juvenile is detained for felony possession of narcotics with intent to distribute, can the sheriff's department seize the money the juvenile had on him at the time of detention for civil-forfeiture purposes? Or does juvenile status protect the cash?
The AG said yes, the cash is seizable. Section 41-29-153 of Mississippi's Uniform Controlled Substances Act controls. It identifies "[e]verything of value . . . furnished, or intended to be furnished, in exchange for a controlled substance" as subject to forfeiture, and creates a presumption of forfeitability for "[a]ll monies, coin and currency found in close proximity to forfeitable controlled substances."
Section 41-29-153(b) permits local law enforcement to seize property subject to forfeiture, with a few procedural details. Section 41-29-153(b)(1) allows seizure without process when "[t]he seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant."
The statute does not carve out juveniles. The AG looked for any statutory exclusion that would protect a juvenile's cash from seizure and found none. So a juvenile in possession of money in close proximity to forfeitable drugs is in the same position as an adult.
The AG also reminded Sheriff Sims of the procedural rules in § 41-29-153(f), which apply regardless of juvenile vs. adult status:
- Within 72 hours of seizure (excluding weekends and holidays), the agency must obtain a seizure warrant from a county or circuit court.
- The application must show probable cause that the property was used (or intended to be used) in violation of the Uniform Controlled Substances Act, the name of the person from whom the property was seized, and a detailed description of the property and its value.
- If the agency fails to get the warrant in 72 hours, the agency must notify the person that the property will not be forfeited and provide written instructions on how to retrieve it.
The 72-hour rule has teeth. An agency that misses it loses the forfeiture and must return the property.
What this means for you
If you're a Mississippi sheriff or police chief
Cash on a juvenile arrested for felony drug distribution can be seized for forfeiture under § 41-29-153. There is no juvenile exception. To preserve the forfeiture:
- Document the proximity of cash to drugs at the time of arrest. The presumption of forfeitability under § 41-29-153(a)(7) attaches to currency found in close proximity to forfeitable controlled substances.
- Inventory the cash carefully and securely.
- Apply for a seizure warrant within 72 hours (excluding weekends and holidays). Coordinate with your prosecutor's office.
- If you cannot meet the 72-hour window, return the cash and notify the person from whom it was seized in writing about how to retrieve it. Do not stall.
If you're a juvenile court judge or youth court attorney
The civil forfeiture proceeding is separate from the juvenile delinquency proceeding. Forfeiture goes to circuit or county court via the seizure warrant under § 41-29-153(f). Delinquency goes to youth court. The two run on parallel tracks. Make sure the youth court attorneys representing the juvenile are aware of the forfeiture track and can pursue it (or refer the family to civil counsel) so that the juvenile's interest in the cash is protected.
A practical concern: the burden of proof in forfeiture cases is generally on the property owner once the presumption attaches. A juvenile and their family may not have the resources to mount a defense. Public-interest legal aid may be needed.
If you're a juvenile defense attorney or family of a juvenile
If your child or client was arrested with cash and drugs, the cash is subject to civil forfeiture. The forfeiture process is independent of the delinquency case. To recover the cash:
- Watch for the seizure warrant and the agency's compliance with the 72-hour rule. If the agency missed the window, you can demand return.
- Once the warrant issues, an in rem civil action will follow. Respond to it. The presumption of forfeitability under § 41-29-153(a)(7) requires you to come forward and rebut.
- Build a rebuttal: show the source of funds (paycheck, gift, savings) and the absence of connection to drug activity.
- Recognize that being a juvenile does not protect the property; the forfeiture follows the property, not the person.
If you're a state legislator concerned about juvenile civil forfeiture
Mississippi's UCSA does not distinguish between juveniles and adults for forfeiture purposes. If the policy concern is that juveniles (and their families) are at risk of losing assets without a meaningful chance to defend, the legislative path is amending § 41-29-153 to require enhanced procedural protections (mandatory court-appointed counsel for juvenile asset forfeiture, etc.) or a higher burden of proof when the property holder is a juvenile.
If you're a state auditor reviewing forfeiture proceeds
The 72-hour seizure-warrant deadline is a hard procedural rule. Forfeitures that bypassed it should not have produced revenue to the agency. Audit forfeiture proceeds for compliance with § 41-29-153(f).
Common questions
Q: Can the sheriff seize the cash without a warrant?
A: Yes, if the seizure is incident to an arrest or pursuant to a search warrant or administrative inspection warrant. § 41-29-153(b)(1). After the warrantless seizure, the agency has 72 hours to obtain a seizure warrant.
Q: What's "close proximity"?
A: Not defined by statute, but applied practically: cash in the same backpack, pocket, or vehicle as forfeitable drugs would qualify. Cash in a separate location with no drug connection probably would not.
Q: Does the juvenile have to be convicted before the cash is forfeited?
A: No. Mississippi forfeiture is in rem and proceeds independently of the criminal/delinquency case. The cash can be forfeited even if the underlying delinquency case is dismissed.
Q: Can the family of the juvenile claim the cash as theirs?
A: They can try. The presumption of forfeitability under § 41-29-153(a)(7) shifts the burden to the property holder to rebut. A family member who can show the cash belonged to them (not the juvenile) and was not used in drug activity has a path to reclaim it. The cost of pursuing it may exceed the recovery for small amounts.
Q: What happens if the agency misses the 72-hour deadline?
A: The agency must notify the person from whom the property was seized that it will not be forfeited and provide written instructions on how to retrieve it. The property goes back.
Q: Are there limits on how the seizing agency can use the proceeds?
A: Mississippi has rules on how forfeiture proceeds can be used, generally requiring use for law enforcement purposes. Specific allocation rules apply to revenue distribution among various government entities.
Background and statutory framework
Mississippi's Uniform Controlled Substances Act civil forfeiture provisions are at § 41-29-153. The structure has three parts:
-
What's subject to forfeiture (subsection (a)): Various categories of property connected to controlled substance violations. The relevant category for cash is paragraph (7): "[e]verything of value . . . furnished, or intended to be furnished, in exchange for a controlled substance," with a presumption of forfeitability for cash, coin, and currency in close proximity to forfeitable drugs.
-
Who can seize and how (subsection (b)): Various law enforcement agencies, with or without process. The seizure-without-process scenarios include incident to arrest, pursuant to search warrant, or pursuant to administrative inspection warrant.
-
Procedural requirements (subsection (f)): 72-hour seizure warrant requirement; specific application contents; consequences of failure.
The statute does not distinguish between adult and juvenile property holders. Some states have specific juvenile carve-outs in their forfeiture laws; Mississippi does not.
The constitutional layer: civil asset forfeiture has been controversial under the Eighth Amendment's excessive fines clause (Timbs v. Indiana, 586 U.S. 146 (2019), held the clause is incorporated against states). Excessive forfeiture from a juvenile's small drug transaction could raise Timbs concerns. The AG opinion does not address that constitutional layer; it addresses only the statutory question of authority to seize.
Citations and references
Statutes:
- Miss. Code Ann. § 41-29-153 (Property subject to forfeiture under Uniform Controlled Substances Act)
- Miss. Code Ann. § 41-29-153(a) (categories of forfeitable property)
- Miss. Code Ann. § 41-29-153(b) (who can seize)
- Miss. Code Ann. § 41-29-153(b)(1) (seizure without process)
- Miss. Code Ann. § 41-29-153(f) (72-hour seizure warrant)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/C.Sims-April-6-2023-Agencys-Ability-to-Seize-Money-Possessed-by-Juvenile-Detained-for-Felony.pdf
Original opinion text
April 6, 2023
Sheriff Charlie Sims
Forrest County Sheriff's Department
Post Office Box 747
Hattiesburg, Mississippi 39403
Re: Agency's Ability to Seize Money Possessed by Juvenile Detained for Felony
Dear Sheriff Sims:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
For forfeiture purposes, may the Forrest County Sheriff's Department seize money possessed by a juvenile at the time of the juvenile's detention for felony possession of narcotics with intent to distribute?
Brief Response
Regarding forfeiture, Mississippi Code Annotated Section 41-29-153 generally allows local law enforcement officers to seize money possessed by an individual at the time of the individual's arrest for felony possession of narcotics with intent to distribute. There is no statutory exclusion from this allowance for juveniles.
Applicable Law and Discussion
Section 41-29-153 of the Uniform Controlled Substances Act regards "property subject to forfeiture." Section 41-29-153(a) provides:
The following are subject to forfeiture:
...
(7) Everything of value . . . 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.
Section 41-29-153(b) goes on to state:
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[.]
In sum, Section 41-29-153 generally allows local law enforcement officers to seize money possessed by an individual at the time of the individual's arrest for felony possession of narcotics with intent to distribute. We find no statutory exclusion from this allowance for juveniles.
Accordingly, it is the opinion of this office that, for forfeiture purposes, the Forrest County Sheriff's Department may seize money possessed by a juvenile at the time of the juvenile's detention for felony possession of narcotics with intent to distribute. For forfeiture procedure, please see Section 41-29-153(f), which provides:
(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.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General