Evans v. City of Aberdeen

926 So. 2d 181, 2006 WL 802428
CourtMississippi Supreme Court
DecidedMarch 30, 2006
Docket2003-CT-01638-SCT
StatusPublished
Cited by17 cases

This text of 926 So. 2d 181 (Evans v. City of Aberdeen) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. City of Aberdeen, 926 So. 2d 181, 2006 WL 802428 (Mich. 2006).

Opinion

926 So.2d 181 (2006)

James EVANS, Jr.
v.
CITY OF ABERDEEN, Mississippi.

No. 2003-CT-01638-SCT.

Supreme Court of Mississippi.

March 30, 2006.

*182 J. Dudley Williams, Aberdeen, attorney for appellant.

Robert H. Faulks, attorney for appellee.

EN BANC.

*183 ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. This case involves a civil forfeiture action by Appellee, the City of Aberdeen ("City"), in the Monroe County Circuit Court. The judgment ordered that $7,600 in cash be forfeited, holding the City met its burden of proof that the cash was furnished in exchange for a controlled substance and/or used or intended to be used in violation of the Uniform Controlled Substances Law.

¶ 2. James Evans, Jr. ("Evans") filed a Notice of Appeal to this Court. On April 26, 2005, the Mississippi Court of Appeals reversed and rendered decision against the City. Evans v. City of Aberdeen, 925 So.2d 850, 855 (Miss.App.2005). As a result, the City filed a motion for rehearing. The Court of Appeals denied the motion.

¶ 3. The City submits this Petition for Writ of Certiorari contending that the Court of Appeals rendered a decision in conflict with the prior decisions of this Court and the Court of Appeals. We reject the "currency contamination theory" as adopted by the Court of Appeals. Instead, we adopt the 7th Circuit Court decision in United States of America v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670), 403 F.3d 448 (7th Cir.2005). However, we find the "dog sniff test" conducted here was contaminated, thus improper. We agree with the Court of Appeals' holding that the City failed to meet its burden of proof that the $7,600 was subject to forfeiture.

FACTUAL BACKGROUND

¶ 4. The Mississippi Court of Appeals stated the facts of this case in detail. Finding no need to restate them, we direct the reader to Evans, 925 So.2d at 851-53. On appeal, the Court of Appeals reversed the trial court's judgment holding that the trial court improperly identified the objects seized from Evans' room as drug distributing and/or manufacturing paraphernalia. Id. at 853. As such, the Court of Appeals found the evidentiary presumption that cash seized in close proximity to drug distributing and/or manufacturing paraphernalia can be subject to forfeiture did not apply. Id.

ISSUE

I. WHETHER UNDER MISS. CODE ANN. SECTION 41-29-179(2), THE CITY PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT THE $7,600 FOUND IN THE EVANS' HOME IS SUBJECT TO FORFEITURE

STANDARD OF REVIEW

¶ 5. The Court of Appeals cited the following standard of review:

Forfeiture statutes are penal in nature and must be strictly construed. Parcel Real Property Located at 335 West Ash Street, Jackson, Miss. v. City of Jackson, 664 So.2d 194, 199 (Miss. 1995); Jackson v. State ex rel. Miss. Bureau of Narcotics, 591 So.2d 820, 822 (Miss.1991). In a civil forfeiture case, the question is whether, given all of the evidence taken together, a rational trier of fact could have found that the funds were the product of or the instrumentalities of violations of the State's Uniform Controlled Substances Laws. Hickman v. State ex. rel. Miss. Dep't of Public Safety, 592 So.2d 44, 48 (Miss.1991). The trier of fact may act on circumstantial evidence and inferences as well as direct evidence. Id. at 46.

Evans, 925 So.2d at 853.

ANALYSIS

¶ 6. The Court of Appeals found the presumption that currency found in close *184 proximity to manufacturing or distributing paraphernalia under Miss.Code Ann. section 41-29-153(a)(7) does not apply. The City does not contest this finding on appeal; as such, this Court will not address that issue. However, the City argues the Court of Appeals improperly utilized a divide-and-conquer approach to specific items of probative evidence; specifically, that the Court of Appeals incorrectly adopted a "currency contamination theory," improperly dismissed expert testimony because the City failed to qualify the expert, improperly dismissed evidence that the $7,600 was a large amount of money for Evans to have legally accumulated, and improperly applied a Fifth Circuit case to support its decision. Under the controlling statute, section 41-29-179(2), the petitioner must prove by a preponderance of the evidence that the property is subject to forfeiture.

A. Currency Contamination Theory

¶ 7. The trial court found evidence that a drug dog alert to a presence of drugs on the $7,600 was probative in its finding that the cash was subject to forfeiture. However, the Court of Appeals applied a currency contamination theory to discredit this evidence. This theory holds: "there is some indication that residue from narcotics contaminates as much as 96% of the currency currently in circulation." Evans, 925 So.2d at 855 (quoting United States. v. $5,000.00 in U.S. Currency, 40 F.3d 846, 849 (6th Cir.1994)).

¶ 8. The City argues the Court of Appeals' finding is improper and cites to the First, Third, Seventh, Eighth, Ninth, and Eleventh federal circuits which reject such a currency contamination theory. See Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670), 403 F.3d at 460 ("We therefore conclude that the empirical information provided in this case indicates that dog alerts to currency should be entitled to probative weight."); United States. v. $84,615 in U.S. Currency, 379 F.3d 496, 502 (8th Cir. 2004)(dog's alert to currency provides some-albeit slight-indication that the money was connected to drug trafficking)(citing United States v. $141,770.00 in U.S. Currency, 157 F.3d 600, 604 (8th Cir.1998)(concluding that the dog's alert to the seized money supported the government's contention that the currency was substantially connected to illegal drugs)); United States v. $242,484.00, 389 F.3d 1149, 1165-66 (11th Cir.2004)(declining to accept the currency contamination theory and disagreeing with the district court's conclusion that the probative value of a dog alert to currency was weak, because "no one with any expertise testified in support of [the claimant's] ever-lasting scent, global contamination theory."); United States v. Saccoccia, 58 F.3d 754, 777 (1st Cir.1995)("Even though widespread contamination of currency plainly lessens the impact of dog-sniff evidence, a trained dog's alert still retains some probative value."); United States v. Golb, 69 F.3d 1417, 1428 (9th Cir.1995)(holding that the trial court did not abuse its discretion in admitting evidence of currency dog sniffs); United States v. Carr, 25 F.3d 1194

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Bluebook (online)
926 So. 2d 181, 2006 WL 802428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-city-of-aberdeen-miss-2006.