April 14, 1983
Subject:
Escheats; Abandoned Property; Unclaimed Money
Requested By:
Honorable Harlan E. Boyles State Treasurer
Question:
Should money seized by a sheriff’s department in a drug raid when all persons at the scene deny ownership and which is never subsequently used as evidence in a criminal trial be governed by the provisions of Article 2 of Chapter 15 and delivered to the county school board, or should it be presumed abandoned property under the provisions of G.S. 116B-19 and delivered to the State Treasurer?
Conclusion:
The money should be delivered to the county school board as seized property under the provisions of Article 2 of Chapter 15.
On or about October 2, 1981, a private airplane landed at New Hanover County Airport. The sheriff’s department had been given information that this plane contained controlled substances and the aircraft was searched. No contraband was found, but a bag containing $66,000 in cash was taken by the sheriff’s department after everyone on the plane denied ownership or knowledge about the money.
This money was later turned over to representatives of the United States Drug Enforcement Agency by the sheriff’s department upon the claim that it was "evidence." This money was never used as evidence in any trial and has been returned to the custody of the New Hanover County Clerk of Superior Court.
G.S. 116B-19 reads as follows.
§ 116B-19. Property held by governmental agents.
All property not otherwise covered by this Chapter, and held for the owner by a court, public corporation or authority, or agent or instrumentality of the United States, this State or any other state, or by a public officer or political subdivision thereof, shall be presumed abandoned if it is not claimed within five years of becoming payable or distributable.
Other provisions of Chapter 116B provide that property presumed abandoned is to be delivered to the State Treasurer as custodian of the Escheat Fund.
G.S. 15-11 reads in part.
§ 15-11. Sheriffs and police departments to maintain register of personal property confiscated, seized or found. — Each sheriff . . . is hereby required . . . to keep a record . . . of all articles . . . which may be seized . . . by him . . . or of which he . . . may have become possessed in any way in the discharge of his duty. . . .
G.S. 15-11.1 reads in part.
§ 15-11.1. Seizure, custody and disposition of articles; exceptions.
(a) If a law enforcement officer seizes property pursuant to lawful authority, he shall safely keep the property under the direction of the court or magistrate as long as necessary to assure that the property will be produced at and may be used as evidence in any trial. . . .
Other sections of Article 2 of Chapter 15 set out the procedures for the administration of the property and provide for the delivery of the seized property of its proceeds to the County Board of Education.
The specific language of G.S. 15-11 refers to property seized by a law enforcement officer "in the discharge of his duty," and the specific language of G.S. 15-11.1 refers to property seized "pursuant to lawful authority." There is no doubt that the sheriff’s department was discharging its duty under lawful authority in carrying out the drug raid and seizing the money. The question thus becomes whether the fact that the property was never actually offered as evidence of criminal trial removes the property from the provisions of Article 2, Chapter 15.
Although by implication the provisions of Article 2 of Chapter 15 contemplate that the seized property be actually offered into evidence, there is no express requirement to that effect and a literal reading does not support imposing such a requirement. Therefore, it appears that both G.S. 116B-9 and Article 2 of Chapter 15 address unclaimed property held by law enforcement officers. Those statutes direct conflicting dispositions of such property and therefore it is necessary to determine which statute controls. The principle of statutory construction specialia generalibus derogant is applicable in this State.
"Where there are two provisions in a statute, one of which is special or particular and the other general, which, if standing alone, would conflict with the particular provision, the special will be taken as intended to constitute an exception to the general provisions. . . ." Davis v. Granite Corp., 259 N.C. 672, 676, 131 S.E.2d 335 (1963); Utilities Commission v. Electric Membership Company, 3 N.C. App. 309, 314, 164 S.E. 2d 889 (1968); 12 Strong’s N.C. Index, Statutes § 5.8.
Although both statutes relate to unclaimed property, Article 2 of Chapter 15 addresses property in the hands of North Carolina law enforcement officers while G.S. 116B-19 addresses property held by any governmental official of any jurisdiction within the United States. Therefore, G.S. 116B-9 can be said to be the general provision and Article 2 of Chapter 15 to be the specific provision. Under the principle stated above the specific provision controls.
RUFUS L. EDMISTEN Attorney General
Charles J. Murray Special Deputy Attorney General