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NO. COA97-964
NORTH CAROLINA COURT OF APPEALS
Filed:                                                                6 October  1998
In Re  1990 RED CHEROKEE JEEP,
VIN  1J4FJ38L4LL146261
Appeal by petitioner, the Town of Waynesville, from order
entered  2 May  1997 by Judge J. Marlene Hyatt in Haywood County
Superior Court.    Heard in the Court of Appeals  18 May  1998.
Brown, Queen & Patten, PA, by Frank G. Queen, and Brown,
Ward & Haynes, PA, by Michael Bonfoey, for petitioner-
appellant the Town of Waynesville.
No counsel contra.
LEWIS, Judge.
This case involves an effort by the Town of Waynesville
("the Town") to have a Jeep seized and forfeited to the Town for
use by the Waynesville Police Department.    The superior court
judge denied the "Motion for Seizure Order and Forfeiture" filed
by the Town on the ground that petitioner lacked standing to
bring the motion.    We affirm the ruling in part, reverse it in
part, and remand the case to the superior court.
The Jeep at issue was allegedly used by Aimee Nicole Morgan
to transport a stolen safe from a restaurant to another location
in order to force it open and steal its contents.    On  24 January
1996, Morgan pled guilty to aiding and abetting a felonious
larceny.
On  2 February  1996, the Town of Waynesville filed a "Motion




for Seizure Order and Forfeiture" pursuant to N.C. Gen. Stat.  §
14-86.1  (1993).    The motion was filed under the docket number of
the criminal case in which judgment was rendered against Ms.
Morgan.    It states that Ms. Morgan owned the Jeep on the date of
the offense  (12 June  1995), that she currently owns the Jeep, and
that she "keeps and maintains the property at or near  101 Eagle
Gap Road, Waynesville."    The motion goes on to say that because
the Jeep was used to convey stolen property worth more than
$2,000, it is subject to seizure and forfeiture under G.S.  14-
86.1.
The superior court denied petitioner's motion in full.    The
court held that petitioner had no standing to request an order of
forfeiture under G.S.  14-86.1.    The trial judge's view was that
only the district attorney could petition for an order of
forfeiture.    The trial judge made no written conclusions about
the request for an order authorizing seizure.
This appeal presents us with two distinct questions:                  (1)
Who may petition for an order for seizure under G.S.  14-86.1?;
and  (2) Who may petition for an order of forfeiture under G.S.
14-86.1?    We address the forfeiture question first.
The controlling statute in this case, G.S.  14-86.1, is found
in Chapter  14 of the General Statutes, "Criminal Law," Article
16, "Larceny."    The statute provides in relevant part,
All conveyances, including vehicles,
watercraft or aircraft, used to unlawfully
conceal, convey or transport property in
violation of G.S.  14-71,  14-71.1, or  20-106,
or used by any person in the commission of
armed or common-law robbery, or used by any
person in the commission of any larceny when
the value of the property taken is more than




two thousand dollars  ($2,000) shall be
subject to forfeiture as provided herein,
except that:
(6) The trial judge in the criminal
proceeding which may subject the conveyance
to forfeiture may order the seized conveyance
returned to the owner if he finds forfeiture
inappropriate.  .  .
N.C. Gen. Stat.  §  14-86.1(a)  (1993)  (emphasis added).    Subsection
(b) provides,
Any conveyance subject to forfeiture
under this section may be seized by any law-
enforcement officer upon process issued by
any district or superior court having
original jurisdiction over the offense except
that seizure without such process may be made
when:
(1) The seizure is incident to an arrest or
subject to a search under a search warrant;
or
(2) The property subject to seizure has been
the subject of a prior judgment in favor of
the State in a criminal injunction or
forfeiture proceeding under this section.
N.C. Gen. Stat.  §  14-86.1(b)  (emphasis added).    By the statute's
own terms, then, a forfeiture proceeding under G.S.  14-86.1 is a
criminal proceeding.
The authority to prosecute criminal actions in the courts of
North Carolina rests exclusively with the district attorneys of
the State.    N.C. Const. art. IV,  §  18; N.C. Gen. Stat.  §  7A-61
(1995); State v. Camacho,  329 N.C.  589,  593,  406 S.E.2d  868,  871
(1991); State v. Sturgill,  121 N.C. App.  629,  637-38,  469 S.E.2d
557,  562  (1996).    The Town had no authority, therefore, to
petition the Criminal Division of the Haywood County Superior
Court for an order of forfeiture under G.S.  14-86.1.




Our conclusion that district attorneys alone may prosecute
forfeiture proceedings under G.S.  14-86.1 is bolstered by other
statutory provisions.    Subsection  (e) of G.S.  14-86.1 states in
part,
All conveyances subject to forfeiture
under the provisions of this section shall be
forfeited pursuant to the procedures for
forfeiture of conveyances used to conceal,
convey, or transport intoxicating beverages
found in G.S.  18B-504.
Section  18B-504 provides for the forfeiture of property,
including vehicles, used to commit violations of the alcoholic
beverage control laws of Chapter  18B  ("ABC laws").    N.C. Gen.
Stat.  §  18B-504  (1995).    When the owner or possessor of a
conveyance subject to forfeiture is found guilty of violating an
ABC law, the presiding judge in the criminal proceeding must
decide whether to order forfeiture of the property.    N.C. Gen.
Stat.  §  18B-504(e)(1)  (1995).    The designation of the judge who
presides at the criminal trial as the person who is to decide the
forfeiture issue clearly indicates that the district attorney is
to represent the State at the forfeiture hearing.    Similarly,
section  18B-504 expressly authorizes the district attorney to
seek the forfeiture of property if the owner is unknown, or if
the owner is known and has been charged with a crime but is
unavailable for trial.    See N.C. Gen. Stat.  §  18B-504(i).    These
provisions, incorporated by reference into G.S.  14-86.1, indicate
a plain legislative intent that only district attorneys are to
prosecute forfeiture proceedings under G.S.  14-86.1.
Having decided that the Town had no standing to petition for
an order for forfeiture under G.S.  14-86.1, we now examine




whether it had standing to seek an order authorizing seizure of
the Jeep.
We make two preliminary observations.    First, contrary to
what is implied in petitioner's brief, the procedures for seizing
a conveyance under G.S.  14-86.1 are not found in General Statutes
section  18B-504; section  18B-504 contains only the procedures for
forfeiture of conveyances under G.S.  14-86.1.    See N.C. Gen.
Stat.  §  14-86.1(e).    Second, we note that only "law-enforcement
officers" are authorized to seize conveyances under G.S.  14-86.1.
N.C. Gen. Stat.  §  14-86.1(b).    The Town of Waynesville is not a
"law-enforcement officer" and thus has no authority to seize Ms.
Morgan's Jeep under G.S.  14-86.1.
The question before us, however, is not whether the Town has
authority to seize Ms. Morgan's Jeep, but whether it has standing
to petition the superior court for an order authorizing seizure
of the Jeep by law-enforcement officers.    Subsection  (b) of G.S.
14-86.1 lists the circumstances under which the seizure of a
conveyance is permitted:
Any conveyance subject to forfeiture
under this section may be seized by any law-
enforcement officer upon process issued by
any district or superior court having
original jurisdiction over the offense except
that seizure without such process may be made
when:
(1) The seizure is incident to an arrest or
subject to a search under a search warrant;
or
(2) The property subject to seizure has been
the subject of a prior judgment in favor of
the State in a criminal injunction or
forfeiture proceeding under this section.
Subsection  (b)(2) is inapplicable to this case because no




such judgment has been rendered.    Similarly, the Town's proposed
seizure of Ms. Morgan's Jeep would not be "incident to arrest";
Ms. Morgan has already been arrested and convicted of the larceny
in which she allegedly used the Jeep.    Furthermore, the provision
authorizing seizure upon the issuance of "process" by a district
or superior court does not seem to apply here.    See N.C. Gen.
Stat.  §§  15A-301 through  15A-305  (discussing the four common
forms of criminal process:    citation, criminal summons, warrant
for arrest, and order for arrest).
Accordingly, in this case, Ms. Morgan's Jeep may be seized
under G.S.  14-86.1 only pursuant to a search under a search
warrant.    See N.C. Gen. Stat.  §  14-86.1(b)(1); see also N.C. Gen.
Stat.  §  15A-242  (1997)  (providing that an item is subject to
seizure pursuant to a search warrant if there is probable cause
to believe that it has been used to commit a crime).    We thus
read the Town's "Motion for Seizure Order" as an application for
an order authorizing a search for the purpose of seizing the
Jeep.    Although the location of the Jeep is already known, in
order to seize it, a search warrant must be obtained.    See N.C.
Gen. Stat.  §  15A-241  (defining search warrant in relevant part as
"a court order and process directing a law-enforcement officer to
search designated premises  .  .  . for the purpose of seizing
designated items").
It bears mentioning that, where G.S.  14-86.1(b) authorizes
the seizure of conveyances "upon process issued by any district
or superior court," we do not believe the word "process" includes
search warrants.    If the legislature intended the word "process"




to include search warrants, there would have been no reason to
provide in subsection  14-86.1(b)(1) that law-enforcement officers
may seize conveyances "without such process" when the seizure is
"subject to a search under a search warrant."
The issue before this Court, then, is whether the Town of
Waynesville has standing to apply for a search warrant
authorizing seizure of the Jeep.    We find nothing in Article  11
of the Criminal Procedure Act, "Search Warrants," that would
prohibit the Town from applying for a search warrant.    The
Criminal Procedure Act provides that only Justices, judges,
clerks, and magistrates may issue search warrants, see N.C. Gen.
Stat.  §  15A-243  (1997), and that only law-enforcement officers
may execute them, see N.C. Gen. Stat.  §  15A-247  (1997), but it
does not limit those persons or entities who may apply for search
warrants.    Any person or entity--including, as here, a town--may
apply for a search warrant.
On the narrow question of whether the Town of Waynesville
has standing to apply for a search warrant, we hold that it does.
We do not decide whether the Town's application for a search
warrant has satisfied the procedural requirements of N.C. Gen.
Stat.  §  15A-244  (1997).    Nor do we decide whether the Town has
shown an adequate basis for issuance of the warrant, see N.C.
Gen. Stat.  §  15A-245  (1997).    Our holding today is limited to
recognizing the Town's standing to apply for the search warrant.
We reiterate and emphasize that the Town has no authority
whatsoever to execute the search warrant for Ms. Morgan's Jeep.
See N.C. Gen. Stat.  §§  14-86.1 and  15A-247.




In summary, we conclude that the trial court correctly
denied petitioner's motion for forfeiture under  14-86.1.    The
trial court erred, however, when it denied petitioner's "Motion
for Seizure Order" on the basis that petitioner lacked standing
to seek it.    We remand the case to the trial court for
disposition of petitioner's "Motion for Seizure Order."
Affirmed in part, reversed in part, and remanded.
Judges MARTIN, John C. and SMITH concur.

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