Evans v. City of Aberdeen

925 So. 2d 850, 2005 WL 949448
CourtCourt of Appeals of Mississippi
DecidedApril 26, 2005
Docket2003-CA-01638-COA
StatusPublished
Cited by11 cases

This text of 925 So. 2d 850 (Evans v. City of Aberdeen) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi 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, 925 So. 2d 850, 2005 WL 949448 (Mich. Ct. App. 2005).

Opinion

925 So.2d 850 (2005)

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

No. 2003-CA-01638-COA.

Court of Appeals of Mississippi.

April 26, 2005.
Rehearing Denied August 2, 2005.

*851 J. Dudley Williams, Monroe, attorneys for appellant.

Robert H. Faulks, attorneys for appellee.

EN BANC.

LEE, P.J., for the Court.

¶ 1. The City of Aberdeen Police Department received a tip from a confidential informant that drug trafficking was taking place at the Evans's house in Aberdeen, Mississippi, and a search warrant was subsequently authorized by a city judge. While executing the warrant, the police officers seized a brass container attached to a Brillo pad, a piece of tin foil with holes in it, plastic bags, and a cigarette pack with some residue. The officers also discovered $7,600 in cash which was hidden beneath a large console television. The cash was placed in a brown paper bag, which the officers retrieved from the basement of the police department. At the station, the officers hid the money behind the station and walked a canine unit through the area. The dog alerted on the bag, indicating the presence of drugs.

¶ 2. The circuit court judge found that the items seized from the bedroom qualified as drug distributing paraphernalia, and that the money was found in close proximity to the drug distributing paraphernalia, thereby creating an evidentiary presumption that the cash was forfeitable. The judge further found that Evans's explanation as to the sources of the funds did not rebut the presumption that the funds were forfeitable. Evans now appeals, raising the following issues:

I. WHETHER THE OBJECTS SEIZED FROM EVANS'S ROOM WERE PROPERLY CLASSIFIED AS DRUG PARAPHERNALIA.
II. WHETHER THE COURT CORRECTLY HELD THAT THE SEIZED CASH WAS IN CLOSE PROXIMITY TO PARAPHERNALIA, AS TO APPLY AN EVIDENTIARY PRESUMPTION IN FAVOR OF THE CITY THAT THE CASE WAS SUBJECT TO FORFEITURE

¶ 3. Finding that the City failed to establish the presence of drugs or drug distributing paraphernalia and failed to show that the money was used to facilitate a violation of the Uniform Controlled Substance Laws, we reverse and render.

FACTS

¶ 4. Officer Randy Perkins of the Aberdeen Police Department was approached by a confidential informant who told him that Coreno Blanchard and James Evans, Jr. were storing crack cocaine at Evans's house, and that the drugs were "broke up and sorted out in bags and then delivered out to the dealers on the streets." A city court judge issued a search warrant, enabling the Aberdeen Police Department to search the premises of the Evans house, *852 together with all vehicles parked at the residence.

¶ 5. Officer Perkins testified that their search was limited to Evans's bedroom. The officers found no drugs but they did find a "brass container ... that had ashes with a Brillo pad and residue on it." Officer Perkins testified that such a contraption is typically used to make a crack pipe. The officers also found "a piece of tin foil... with holes on it" on a dresser. Officer Perkins stated that someone "had been using that to smoke crack cocaine." The officers found "plastic bags" for the "transport or storage of drugs" and a cigarette pack with residue.

¶ 6. The officers pulled a big console television away and found rolls of money underneath the television. The money amounted to $7,600 in cash and was rolled in black hair bands in thousand dollar brackets. Officer Perkins testified that such a large sum of money concealed in this manner indicates that the money was used to purchase drugs.

¶ 7. After Officer Perkins and the other officers finished searching the house, the confidential informant called Officer Perkins and told him that the officers had overlooked the drugs, which were believed to be stored in the deep freeze in the kitchen. Evans's mother allowed Officer Perkins to check the deep freeze for drugs, but no drugs were discovered.

¶ 8. The $7,600 cash was placed in a brown paper bag that was found in the basement of the police department. None of the objects seized from Evans's room were tested for drugs. The next day, the Amory Police Department brought their drug detection dog to the Aberdeen Police Department. The dog never walked by the money itself prior to its placement in the bag, and there was no dog "walk by" at the test location before the bag containing the money was placed there. The money was hidden at random behind the police station, and the dog alerted that the money was positive for drugs. However, Officer Perkins admitted that the location in which the bag was placed or the bag itself may have been contaminated. He also admitted that the money in general circulation is tainted with drugs. Officer Perkins testified that he was unsure whether the dog "hit" on the money or the bag that contained it.

¶ 9. Evans testified that the $7,600 cash that was seized was money he saved for the purpose of buying a car. Evans produced copies of the savings bonds he had redeemed in March of 2000. These bonds totaled $3,150. Evans testified that the rest of the money came from earnings, birthday, Christmas, and graduation gifts, and allowance. Evans was living with his parents and claimed that he tricked them into believing he had no money.

¶ 10. At the conclusion of the trial, the circuit court judge found in favor of the City of Aberdeen and ordered that the $7,600 in cash be forfeited to the City of Aberdeen, finding that the cash was used to facilitate a violation of the Uniform Controlled Substance Law. The judge held that the City had met its burden of proof, a preponderance of the evidence, and the cash was forfeitable. City of Meridian v. Hodge, 632 So.2d 1309, 1311 (Miss.1994); Saik v. State ex rel. Miss. Bureau of Narcotics, 473 So.2d 188, 191 (Miss.1985). See also Miss.Code Ann. § 41-29-179(2) (Rev. 2001). It found that the objects seized from Evans's room were drug distributing paraphernalia. Miss.Code Ann. § 41-29-105(v) (Rev.2001). It further found that the $7,600 cash was found in close proximity to the distributing paraphernalia, thereby providing the City with the evidentiary presumption that the cash was forfeitable. Miss.Code Ann. § 41-29-153(a)(7) (Rev. 2001). The court found Evans's explanation *853 as to the source of the funds failed to rebut this presumption.

ANALYSIS

¶ 11. 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.

I. WHETHER THE OBJECTS SEIZED FROM EVANS'S ROOM WERE PROPERLY IDENTIFIED AS DRUG DISTRIBUTING PARAPHERNALIA.

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