Four Thousand Eight Hundred One Dollars v. Lafayette County Metro Narcotics Unit
| Docket Number: | 2008-CA-02126-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-01-2009 Opinion Author: IRVING, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Forfeiture - Proximity presumption - Section 41-29-153(a)(7) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 12-10-2008 Appealed from: Lafayette County Circuit Court Judge: Andrew K. Howorth Disposition: FORFEITURE OF $4,801 ORDERED Case Number: L08-781 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | FOUR THOUSAND EIGHT HUNDRED ONE DOLLARS |
KEVIN W. FRYE,
ALAN T. ALEXANDER,
JAMES B. JUSTICE |
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| Appellee: | LAFAYETTE COUNTY METRO NARCOTICS UNIT | OFFICE OF THE DISTRICT ATTORNEY BY: LEILANI L. HILL | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Forfeiture - Proximity presumption - Section 41-29-153(a)(7) |
| Summary of the Facts: | The Lafayette County Circuit Court entered an order of forfeiture of $4,801 from Derek Nations. Nations appeals. |
| Summary of Opinion Analysis: | Nations argues that the presumption created by section 41-29-153(a)(7) should not apply to him because the forfeiture statute places the burden on the State to prove the "close proximity” presumption’s applicability and the State’s failure to properly record these facts in the course of the search makes it impossible for a reasonable fact-finder to say with any degree of certainty that any of the money was “in close proximity” to drugs or drug paraphernalia. “In close proximity” simply means “very near.” For that reason it has been said that the meaning of the term in such a statute is to be determined on a case-by-case basis. In this case, the cash, drugs, and paraphernalia here were found in one room. An LCMNU agent testified that the majority of the money, $3,428, was found in two drawers in the same desk in which was also found a bag of marijuana. The agent also testified that multiple items of drug paraphernalia were scattered throughout the bedroom. Given these facts, there was credible evidence establishing the proximity presumption. Nations also argues that the testimonies of two witnesses were sufficient to rebut the proximity presumption. There was testimony questioning the veracity of any of Nations’s assertions as to how much of the money was from illicit sources. The testimony was uncontradicted that the drug sale on December 2 was for $140; however, none of the five locations in Nations’s bedroom contained only $140. Therefore, even though LCMNU agents failed to note where the recorded bills were found, it is clear that the money used in the drug sale was mixed with some of the money that was found in Nations’s room. Thus, Nations failed to rebut the proximity presumption. |
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