April 23, 1993
Mike Grimes Drug Enforcement Administration 2 Princess Street Room 322 Wilmington, North Carolina 28401
Re: Advisory Opinion — Federal Adoption of Property Seized Pursuant to "StateWarrants"; State Court Jurisdiction Over the Property
Dear Mr. Grimes:
I am informed and believe it is Drug Enforcement Administration (DEA) policy to consider a state or local law enforcement agency’s request to adopt for federal forfeiture a seizure of property initially made under a "state warrant" only if it is provided "either a state court turnover order or a written conclusion by an appropriate state attorney that there is no [exclusive] jurisdiction in a state court over the asset." (DEA Chief Counsel Memorandum to All Special Agents in Charge, February 15, 1993) I also am informed and believe the requirement to provide individual state attorney’s written conclusions for each seizure may be waived if the state’s attorney general provides a single statement that "there is no jurisdictional impediment to federal forfeiture of property seized under a state warrant." (DEA Staff Attorney Memorandum to DEA Group Supervisor, Atlanta District Office, March 24, 1993) This advisory opinion provides the state attorney general’s statement required by DEA policy.
As used in the DEA policy, the term "state warrant" necessarily includes both "search warrants" issued to seize evidence of a crime and "seizure warrants" issued to seize property subject to forfeiture. The federal courts have concluded G.S. 15A-11.1, which generally governs the pretrial disposition of any property lawfully seized by state law enforcement officers, including property seized pursuant to a search warrant, does not prohibit transfer of property to federal authorities for forfeiture under federal law. United States v. Alston, 717 F.Supp. 378, (M.D.N.C. 1989). In State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990), the North Carolina Court of Appeals held G.S. 15A-258, which specifically governs the disposition of property seized under search warrants, does not require that a state court order be obtained prior to any release of seized property, and it expressly authorizes property to be held by any law enforcement agency. Therefore, the release of [property seized under a search warrant] to the Federal Drug Enforcement Administration [does] not violate G.S. 15A-258. 97 N.C. App. at 199.
A state court has exclusive jurisdiction over property seized pursuant to a seizure warrant issued pursuant to state forfeiture law only if "the state forfeiture proceeding [is] initiated prior to the federal forfeiture and both the state and federal forfeiture proceedings [are] in rem". United States v. Winston-Salem / Forsyth County Board of Education, 902 F.2d 267, 271 (4th Cir. 1990). [Also see Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed 850 (1935).] Forfeiture proceedings initiated under G.S. 90-112 of the State Controlled Substances Act are criminal in nature and in personam procedures. State ex rel. Thornburg v. Currency in the amount of $52,029.00, 324 N.C. 276, 378 S.E.2d 1 (1989). Forfeiture
proceedings initiated under 21 U.S.C. 881 of the Federal Controlled Substances Act are civil in nature and in rem proceedings. United States v. One 1985 Cadillac Seville, 866 F.2d 1142 (9th Cir. 1989). Therefore, use of a state seizure warrant issued pursuant to the State Controlled Substances Act does not vest jurisdiction over disposition of the property exclusively in the state courts.
In conclusion, under North Carolina law, there is no jurisdictional impediment to transferring to a federal investigative agency property initially seized by a state or local law enforcement agency under either a search warrant issued pursuant to Chapter 15A of the General Statutes or under a seizure warrant issued pursuant to the forfeiture provisions of the State Controlled Substances Act. Further, there is no jurisdictional impediment to using federal law to forfeit property initially seized pursuant to state warrants.
Edwin M. Speas, Jr. Senior Deputy Attorney General
W. Dale Talbert Special Deputy Attorney General