Evans v. City of Aberdeen


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Docket Number: 2003-CT-01638-SCT
Linked Case(s): 2003-CT-01638-SCT ; 2003-CT-01638-COA ; 2003-CA-01638-COA ; 2003-CA-01638-COA

Supreme Court: Opinion Link
Opinion Date: 03-30-2006
Opinion Author: Smith, C.J.
Holding: THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED

Additional Case Information: Topic: Civil forfeiture - Currency contamination theory - Dog-sniff test - Exclusion of testimony - Direct evidence
Judge(s) Concurring: Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ.
Non Participating Judge(s): Diaz and Randolph, JJ.
Concur in Part, Dissent in Part 1: Graves, J., Without Separate Written Opinion
Procedural History: Bench Trial
Nature of the Case: CIVIL - OTHER
Writ of Certiorari: Granted
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 06-25-2003
Appealed from: Monroe County Circuit Court
Judge: Thomas J. Gardner
Disposition: Court ordered that $7,600 be forfeited holding that the Appellee met its burden of proof
Case Number: CV02-409-GM

Note: The judgment of the Court of Appeals is affirmed. See the original COA opinion at http://www.mssc.state.ms.us/Images/OPINIONS/CO25900.PDF

  Party Name: Attorney Name:  
Appellant: JAMES EVANS, JR.




J. DUDLEY WILLIAMS



 

Appellee: CITY OF ABERDEEN, MISSISSIPPI ROBERT H. FAULKS  

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Topic: Civil forfeiture - Currency contamination theory - Dog-sniff test - Exclusion of testimony - Direct evidence

Summary of the Facts: This case involves a civil forfeiture action by the City of Aberdeen. 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. James Evans, Jr. appealed. The Court of Appeals reversed and rendered decision against the City. The City filed a petition for writ of certiorari which the Supreme Court granted.

Summary of Opinion Analysis: 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.” 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. This is an issue of first impression in Mississippi. In Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670), 403 F.3d at 455-60, the Seventh Circuit discussed in detail whether dog alerts to currency are entitled to any probative weight and held that narcotic dogs will alert to currency only if it has been exposed to large amounts of illicit cocaine within the very recent past, thus making properly trained narcotic dog alerts to currency entitled to probative weight. Based on the Seventh Circuit’s sound reasoning, the Court of Appeals’ finding that the currency contamination theory precludes evidence of a dog alert unless coupled with other persuasive evidence is reversed. Although dog sniffs are entitled to probative weight, the circumstances surrounding the dog sniff in the case at bar presents the issue of whether the City conducted a proper dog-sniff test on the currency. The officer admitted the testing area may have been contaminated, and that the dog could have alerted to the area where he placed the bag instead of to the money itself. It is essential that a proper test be administered which did not occur in this case. The City argues the Court of Appeals improperly dismissed the officer’s testimony when making its decision, finding that the City failed to qualify him as an expert witness during trial. In order to preserve error for appellate review, a contemporaneous objection must be made, and if no objection is made, the appellant waives the error. Because Evans made no objection at the trial court level to the City’s failure to qualify their witness, Evans waived the issue. The Court of Appeals, therefore, improperly excluded the officer’s testimony. The City argues the Court of Appeals improperly held the $7,600 was not subject to forfeiture because direct evidence of drug activity did not exist. Police officers found $7,600 of currency wrapped in hair bands underneath a console television in Evans’ bedroom. Furthermore, the police found a brass container containing a brillo pad, ashes, and residue; a piece of tin foil with holes in it; a cigarette pack with residue; and some plastic bags. The officers did not find drugs in Evans’ home, nor did the officers send the brass container, tin foil, and cigarette pack residue to a crime lab for drug testing. Therefore, there is no evidence whatsoever of the presence of illegal drugs in any form including residue. The Court of Appeals was correct in determining that the trial court cannot infer that the $7,600 seized in connection with a brass container, a brillo pad, burnt tin foil, and a cigarette pack, without more, was connected with illegal narcotics trafficking. Considering the circumstances (police department’s failure to conduct a proper dog-sniff test, the conflicting evidence as to the use of the brass container and tin foil, the failure to test the residue found in the cigarette pack and the brass container to determine whether such residue was an illegal substance, the conflicting evidence as to the source of the $7,600 cash, that the police never found drugs in the Evans’ home) as a whole, the City did not meet its burden proving by a preponderance of the evidence that the $7,600 is subject to forfeiture.


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