Can a state or local law enforcement agency in North Carolina turn property seized under a state search or seizure warrant over to federal authorities for federal forfeiture, or does a NC court have to release the property first?

Plain-English summary

The federal "adoptive forfeiture" program let state and local law enforcement turn property they had seized over to federal agencies (DEA, ATF, etc.) for forfeiture under federal law, then share back a portion of the proceeds. The DEA's standard policy at the time required either (a) a state court order releasing the property to federal authorities or (b) a written conclusion from a state attorney that the state court did not have exclusive jurisdiction over the property. The DEA also allowed a single state attorney general's statement to cover all in-state adoptive seizures generally.

This opinion is that single AG statement for NC. DEA Special Agent Mike Grimes asked for it. Senior Deputy AG Edwin M. Speas, Jr. and Special Deputy AG W. Dale Talbert wrote that under NC law there is no jurisdictional impediment to transferring state-seized property to federal forfeiture, whether the property was seized under a Chapter 15A search warrant or a NC Controlled Substances Act seizure warrant.

The reasoning had two parts. First, for ordinary search-warrant seizures, the federal court in United States v. Alston, 717 F. Supp. 378 (M.D.N.C. 1989), already held that G.S. § 15A-11.1 (the general pretrial disposition statute) does not prohibit transfer to federal authorities. And the NC Court of Appeals in State v. Jones, 97 N.C. App. 189 (1990), held that G.S. § 15A-258 (the specific search-warrant property disposition statute) does not require a state court order before release, and expressly allows property to be held by any law enforcement agency. So state law puts no obstacle in the way.

Second, for state-seizure-warrant cases under the NC Controlled Substances Act (G.S. § 90-112), the AG analyzed whether the state forfeiture was an in-rem proceeding that gave the state court exclusive jurisdiction over the property. The NC Supreme Court held in State ex rel. Thornburg v. Currency in the amount of $52,029.00, 324 N.C. 276 (1989), that § 90-112 forfeitures are criminal and in personam, not in rem. Federal forfeiture under 21 U.S.C. § 881 is in rem (United States v. One 1985 Cadillac Seville, 866 F.2d 1142 (9th Cir. 1989)). Under Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189 (1935), and the Fourth Circuit's United States v. Winston-Salem/Forsyth County Board of Education, 902 F.2d 267 (4th Cir. 1990), the state court only gets exclusive in-rem jurisdiction when both the state and federal proceedings are in rem and the state proceeding was filed first. Because NC's drug forfeiture is in personam, that exclusivity rule never kicks in.

Currency note

This opinion was issued in 1993. 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. Adoptive forfeiture policy has changed dramatically: the U.S. Department of Justice limited the program in 2015 and again in 2017, and many states (including NC) have tightened the rules around "equitable sharing." NC's controlled substances forfeiture procedure has also evolved. Anyone relying on the practice today should consult current DOJ policy, current NC statutory forfeiture procedure, and any local prosecutor or law-enforcement guidance.

Background and statutory framework

"Adoptive forfeiture" was a mechanism by which a federal agency would "adopt" a property seizure made by state or local police and then process the forfeiture under federal civil-forfeiture statutes (mainly 21 U.S.C. § 881 for drug-related property). The advantages for the state/local agency included a faster, lower-evidence-threshold civil-forfeiture process under federal law and a share of the proceeds returned through the federal Equitable Sharing Program.

The friction point was state-court jurisdiction. If a state court already had in-rem jurisdiction over the property (typically because a state forfeiture proceeding had been filed first), well-settled federal doctrine held that no other court could exercise in-rem jurisdiction over the same property until the state proceedings concluded. Federal forfeitures were generally in rem, so this rule mattered.

NC's distinctive feature is that its Controlled Substances Act forfeiture is in personam, meaning the proceeding runs against the person, not the property. The NC Supreme Court's 1989 Thornburg v. $52,029.00 opinion settled that characterization. The AG opinion piggybacks on Thornburg to deliver a clean answer: NC's drug forfeitures don't create the kind of exclusive in-rem jurisdiction that would block federal adoption.

Common questions

Did this opinion mean police could ignore state forfeiture procedures entirely?

No. The opinion addresses whether NC law puts a jurisdictional obstacle in the way of federal adoption. State agencies still had to comply with NC's own seizure and disposition rules. It also said nothing about how property would be handled if a state forfeiture proceeding had already been filed first.

What if the property was seized under a search warrant for evidence rather than a seizure warrant for forfeiture?

That was actually the easier case. State v. Jones, 97 N.C. App. 189 (1990), already held that releasing search-warrant-seized property to the federal DEA did not violate G.S. § 15A-258. So the AG just incorporated that holding.

Has this opinion been narrowed by later changes in policy?

In practice, yes. The 2015–2017 DOJ policy changes restricted adoptive forfeiture, and NC has had its own legislative debates about asset forfeiture practices. The opinion's legal analysis remains a correct reading of NC law as of 1993, but the policy environment around it has shifted.

What's the difference between in rem and in personam forfeiture?

In-rem forfeiture proceeds against the property itself; the property is the defendant. In-personam forfeiture proceeds against the person who owned or controlled the property, as a kind of criminal penalty. The distinction matters because in-rem jurisdiction in one court generally excludes in-rem jurisdiction in another court over the same res. In-personam forfeiture creates no such exclusive jurisdiction over the property.

Source

• Landing page: https://ncdoj.gov/opinions/federal-adoption-of-property-seized-pursuant-to-statewarrants/

Citations

• N.C. Gen. Stat. § 15A-11.1
• N.C. Gen. Stat. § 15A-258
• N.C. Gen. Stat. § 90-112
• 21 U.S.C. § 881
• United States v. Alston, 717 F. Supp. 378 (M.D.N.C. 1989)
• State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990)
• United States v. Winston-Salem/Forsyth County Board of Education, 902 F.2d 267 (4th Cir. 1990)
• Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850 (1935)
• State ex rel. Thornburg v. Currency in the amount of $52,029.00, 324 N.C. 276, 378 S.E.2d 1 (1989)
• United States v. One 1985 Cadillac Seville, 866 F.2d 1142 (9th Cir. 1989)

Original opinion text

April 23, 1993

Mike Grimes
Drug Enforcement Administration
2 Princess Street Room 322
Wilmington, North Carolina 28401

Re: Advisory Opinion — Federal Adoption of Property Seized Pursuant to "State Warrants"; State Court Jurisdiction Over the Property

Dear Mr. Grimes:

I am informed and believe it is Drug Enforcement Administration (DEA) policy to consider a state or local law enforcement agency's request to adopt for federal forfeiture a seizure of property initially made under a "state warrant" only if it is provided "either a state court turnover order or a written conclusion by an appropriate state attorney that there is no [exclusive] jurisdiction in a state court over the asset." (DEA Chief Counsel Memorandum to All Special Agents in Charge, February 15, 1993) I also am informed and believe the requirement to provide individual state attorney's written conclusions for each seizure may be waived if the state's attorney general provides a single statement that "there is no jurisdictional impediment to federal forfeiture of property seized under a state warrant." (DEA Staff Attorney Memorandum to DEA Group Supervisor, Atlanta District Office, March 24, 1993) This advisory opinion provides the state attorney general's statement required by DEA policy.

As used in the DEA policy, the term "state warrant" necessarily includes both "search warrants" issued to seize evidence of a crime and "seizure warrants" issued to seize property subject to forfeiture. The federal courts have concluded G.S. 15A-11.1, which generally governs the pretrial disposition of any property lawfully seized by state law enforcement officers, including property seized pursuant to a search warrant, does not prohibit transfer of property to federal authorities for forfeiture under federal law. United States v. Alston, 717 F. Supp. 378, (M.D.N.C. 1989). In State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990), the North Carolina Court of Appeals held G.S. 15A-258, which specifically governs the disposition of property seized under search warrants, does not require that a state court order be obtained prior to any release of seized property, and it expressly authorizes property to be held by any law enforcement agency. Therefore, the release of [property seized under a search warrant] to the Federal Drug Enforcement Administration [does] not violate G.S. 15A-258. 97 N.C. App. at 199.

A state court has exclusive jurisdiction over property seized pursuant to a seizure warrant issued pursuant to state forfeiture law only if "the state forfeiture proceeding [is] initiated prior to the federal forfeiture and both the state and federal forfeiture proceedings [are] in rem". United States v. Winston-Salem / Forsyth County Board of Education, 902 F.2d 267, 271 (4th Cir. 1990). [Also see Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed 850 (1935).] Forfeiture proceedings initiated under G.S. 90-112 of the State Controlled Substances Act are criminal in nature and in personam procedures. State ex rel. Thornburg v. Currency in the amount of $52,029.00, 324 N.C. 276, 378 S.E.2d 1 (1989). Forfeiture proceedings initiated under 21 U.S.C. 881 of the Federal Controlled Substances Act are civil in nature and in rem proceedings. United States v. One 1985 Cadillac Seville, 866 F.2d 1142 (9th Cir. 1989). Therefore, use of a state seizure warrant issued pursuant to the State Controlled Substances Act does not vest jurisdiction over disposition of the property exclusively in the state courts.

In conclusion, under North Carolina law, there is no jurisdictional impediment to transferring to a federal investigative agency property initially seized by a state or local law enforcement agency under either a search warrant issued pursuant to Chapter 15A of the General Statutes or under a seizure warrant issued pursuant to the forfeiture provisions of the State Controlled Substances Act. Further, there is no jurisdictional impediment to using federal law to forfeit property initially seized pursuant to state warrants.

Edwin M. Speas, Jr.
Senior Deputy Attorney General

W. Dale Talbert
Special Deputy Attorney General