When a sheriff's drug raid seizes cash that nobody at the scene will claim, and the cash never gets used as evidence at trial, who eventually gets the money — the county school board, or the state escheat fund?
Plain-English summary
In October 1981, a small plane landed at New Hanover County Airport carrying, according to a tip, controlled substances. The sheriff's department searched it. No drugs. But a bag with $66,000 cash sat in the cabin, and every passenger denied owning it or knowing where it came from. The sheriff seized the money, handed it to the DEA (calling it "evidence"), and the cash bounced around the federal system without ever being used at any trial. It eventually came back to the New Hanover County Clerk of Superior Court.
Now what? Nobody claimed the money. State Treasurer Harlan Boyles asked the AG: did the cash flow to the State Treasurer as escheated abandoned property under G.S. § 116B-19, or to the county school board under Article 2 of Chapter 15 (the standard route for seized property that goes unclaimed after a law-enforcement seizure)?
Deputy AG Charles Murray, for AG Edmisten, said the county school board. Both statutes addressed unclaimed property held by a government actor. The escheat statute (§ 116B-19) was the general one, sweeping up everything not covered elsewhere. Article 2 of Chapter 15 was the specific one, targeted at property in the custody of NC law enforcement officers from seizures done in the discharge of duty. Under the long-standing canon specialia generalibus derogant (the specific governs over the general), the more targeted statute won. The cash went to the New Hanover County Board of Education, like other unclaimed seized property.
The AG had to clear one possible wrinkle. Article 2 of Chapter 15 by implication contemplated that seized property would be offered into evidence at a trial; here, that never happened. Was the failure to introduce the cash at trial enough to push the question into the general escheat statute? The AG said no. The statutes spoke to property seized "in the discharge of duty" and "pursuant to lawful authority." There was no doubt that the drug raid was a lawful exercise of authority. Nothing in the statutory text said the property had to actually be offered into evidence. A literal reading did not support such an extra requirement, so the AG would not impose one.
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's forfeiture framework has been substantially revised since 1983. The general controlled-substances forfeiture statute (G.S. § 90-112), federal asset-forfeiture sharing rules, and constitutional limits on forfeitures (notably Timbs v. Indiana, 139 S. Ct. 682 (2019)) all post-date this opinion and now govern much of the disposition framework. Anyone with a current forfeiture or unclaimed-seized-property question should consult the current statutes and recent case law before relying on a 1983 AG opinion.
Background and statutory framework
The disposition of property seized in NC criminal investigations historically split among several pots. The NC Constitution sends the "clear proceeds" of certain forfeitures (and historically of escheats) to the county school fund, reflecting an old idea that property without an owner should benefit public education. Article 2 of Chapter 15 was the procedural mechanism for that flow when the property had passed through a sheriff or police department's hands.
The escheat statute, by contrast, was the residual catch. Property in the custody of any government entity, anywhere, that went unclaimed for five years was presumed abandoned and went to the State Treasurer as custodian of the Escheat Fund (which itself ultimately benefits the UNC system through scholarship funding). That structure created an obvious overlap: a sheriff is part of the government, holding property that nobody claimed, after five years. Both statutes pointed at the same fact pattern but pointed it at different destinations.
The AG resolved the overlap with the specialia canon. The specific statute spoke directly to NC law enforcement officers holding seized property. The general one swept up everything else. The legislature was presumed to know what it was doing when it carved out a specific channel; the targeted statute had to be read as an exception to the residual one. The AG also noted the practical wrinkle: the cash had been "evidence" in name only, since it was never offered at any trial. But the statutes spoke of seizures, not of trial use, and the AG declined to read a trial-use requirement into the statutory text.
Common questions
What happened to the $66,000?
Under the AG's conclusion, it went to the New Hanover County Board of Education through the Article 2 of Chapter 15 disposition mechanism. The actual mechanics involved the clerk of superior court turning the cash over after the statutory holding period and notice requirements were satisfied.
Could the original owner ever claim the money?
In principle, anyone with a legitimate ownership claim could have come forward and asserted it before the disposition. After the disposition to the school board, recovery became harder, but the underlying constitutional protections against permanent deprivation without due process did not vanish.
Did this opinion still apply when federal authorities seized the cash?
No, this opinion only addressed the state-law question. Once the DEA took custody under federal authority, the cash was subject to federal forfeiture rules (and to the federal "equitable sharing" program, when applicable). The AG was answering a question about what happened to the money on the state side.
Why does the county school board get this money instead of the state?
It is a constitutional choice from a different era. Article IX, Section 7 of the NC Constitution directs certain forfeiture and penalty proceeds to the county school fund. Article 2 of Chapter 15 implements that mandate for property in law-enforcement custody. The drafters wanted unclaimed property linked to local crime to fund local schools.
Source
Citations
- N.C. Gen. Stat. § 116B-19
- N.C. Gen. Stat. § 15-11
- N.C. Gen. Stat. § 15-11.1
- N.C. Gen. Stat. Ch. 15, art. 2
- N.C. Gen. Stat. Ch. 116B
- Davis v. Granite Corp., 259 N.C. 672, 131 S.E.2d 335 (1963)
- Utilities Commission v. Electric Membership Company, 3 N.C. App. 309, 164 S.E.2d 889 (1968)
Original opinion text
Requested By:
Honorable Harlan E. Boyles
State Treasurer
Question:
Should money seized by a sheriff's department in a drug raid when all persons at the scene deny ownership and which is never subsequently used as evidence in a criminal trial be governed by the provisions of Article 2 of Chapter 15 and delivered to the county school board, or should it be presumed abandoned property under the provisions of G.S. 116B-19 and delivered to the State Treasurer?
Conclusion:
The money should be delivered to the county school board as seized property under the provisions of Article 2 of Chapter 15.
On or about October 2, 1981, a private airplane landed at New Hanover County Airport. The sheriff's department had been given information that this plane contained controlled substances and the aircraft was searched. No contraband was found, but a bag containing $66,000 in cash was taken by the sheriff's department after everyone on the plane denied ownership or knowledge about the money.
This money was later turned over to representatives of the United States Drug Enforcement Agency by the sheriff's department upon the claim that it was "evidence." This money was never used as evidence in any trial and has been returned to the custody of the New Hanover County Clerk of Superior Court.
G.S. 116B-19 reads as follows.
§ 116B-19. Property held by governmental agents.
All property not otherwise covered by this Chapter, and held for the owner by a court, public corporation or authority, or agent or instrumentality of the United States, this State or any other state, or by a public officer or political subdivision thereof, shall be presumed abandoned if it is not claimed within five years of becoming payable or distributable.
Other provisions of Chapter 116B provide that property presumed abandoned is to be delivered to the State Treasurer as custodian of the Escheat Fund.
G.S. 15-11 reads in part.
§ 15-11. Sheriffs and police departments to maintain register of personal property confiscated, seized or found. — Each sheriff . . . is hereby required . . . to keep a record . . . of all articles . . . which may be seized . . . by him . . . or of which he . . . may have become possessed in any way in the discharge of his duty. . . .
G.S. 15-11.1 reads in part.
§ 15-11.1. Seizure, custody and disposition of articles; exceptions.
(a) If a law enforcement officer seizes property pursuant to lawful authority, he shall safely keep the property under the direction of the court or magistrate as long as necessary to assure that the property will be produced at and may be used as evidence in any trial. . . .
Other sections of Article 2 of Chapter 15 set out the procedures for the administration of the property and provide for the delivery of the seized property of its proceeds to the County Board of Education.
The specific language of G.S. 15-11 refers to property seized by a law enforcement officer "in the discharge of his duty," and the specific language of G.S. 15-11.1 refers to property seized "pursuant to lawful authority." There is no doubt that the sheriff's department was discharging its duty under lawful authority in carrying out the drug raid and seizing the money. The question thus becomes whether the fact that the property was never actually offered as evidence of criminal trial removes the property from the provisions of Article 2, Chapter 15.
Although by implication the provisions of Article 2 of Chapter 15 contemplate that the seized property be actually offered into evidence, there is no express requirement to that effect and a literal reading does not support imposing such a requirement. Therefore, it appears that both G.S. 116B-9 and Article 2 of Chapter 15 address unclaimed property held by law enforcement officers. Those statutes direct conflicting dispositions of such property and therefore it is necessary to determine which statute controls. The principle of statutory construction specialia generalibus derogant is applicable in this State.
"Where there are two provisions in a statute, one of which is special or particular and the other general, which, if standing alone, would conflict with the particular provision, the special will be taken as intended to constitute an exception to the general provisions. . . ." Davis v. Granite Corp., 259 N.C. 672, 676, 131 S.E.2d 335 (1963); Utilities Commission v. Electric Membership Company, 3 N.C. App. 309, 314, 164 S.E. 2d 889 (1968); 12 Strong's N.C. Index, Statutes § 5.8.
Although both statutes relate to unclaimed property, Article 2 of Chapter 15 addresses property in the hands of North Carolina law enforcement officers while G.S. 116B-19 addresses property held by any governmental official of any jurisdiction within the United States. Therefore, G.S. 116B-9 can be said to be the general provision and Article 2 of Chapter 15 to be the specific provision. Under the principle stated above the specific provision controls.
RUFUS L. EDMISTEN
Attorney General
Charles J. Murray
Special Deputy Attorney General