Judge blocks forfeiture of alleged drug house

A Floyd County circuit judge has refused to allow the state to seize a couple’s home alleged to have been the site of a major marijuana distribution operation. The judge cited the fact that only one spouse had been convicted of a drug charge.

Police claim they found more than 30 pounds of marijuana at the rural house less than a mile from the Blue Ridge Parkway. Authorities contend the weed was worth nearly $90,000.

But Judge K. Mike Fleenor Jr., a former prosecutor, ruled last month the state could not take the couple’s home place because it was jointly owned by both husband and wife, and only the wife was convicted of a drug offense. The forfeiture would be excessive given the nature of the crime, the judge also concluded.

Fleenor’s April 6 decision is In re: Commonwealth v. Real Property in Floyd County (VLW 021-8-079).

30 pounds of pot

Police made a remarkable discovery as they attempted to serve an arrest warrant for a son of Mark and Norma Minnix in 2016, according to facts recited in the commonwealth’s brief filed in January. The deputies did not find the son, but one of them spotted what appeared to be a large quantity of marijuana on a basement table, the brief said.

The authorities obtained a search warrant and raided the house two weeks later, the brief said. As deputies went from room to room, they found more and more marijuana in various stages of processing, the state said. All told, the search produced more than nine pounds of “confirmed marijuana” and about 30 pounds of green plant material consistent with marijuana, the state said.

Mark Minnix reportedly told police it was all for personal use since he needed it for several health conditions. Deputies were unpersuaded. Besides arresting the couple, authorites moved to seize the Minnix’ real property.

A judge rejected a probable cause challenge to the search in 2017. Norma Minnix pleaded guilty to possession with the intent to distribute and was sentenced to two years’ probation.

A jury convicted Mark Minnix of a firearm charge, but Minnix was declared unrestorably incompetent before he could face trial on the marijuana charges. The prosecutor nolle prossed the drug charges, and the sheriff’s office destroyed all the alleged marijuana.

Tenants by the entirety

A judge had stayed the forfeiture action pending the outcome of the criminal charges. In 2020, the General Assembly changed some of the rules for criminal forfeiture. Among other changes, the legislation declared that a criminal conviction was required before the state could seize crime-connected property.

“Mere suspicion is not sufficient,” wrote Harry F. Bosen Jr. of Salem, representing Mark Minnix in the forfeiture case.

But the state argued Minnix’ hands were not clean.

“Mr. Minnix should not benefit from the drug activity in his home even if he was not criminally convicted for any drug violation,” wrote Assistant Commonwealth’s Attorney C. Ryan Hupp.

The home was owned by Mark and Norma Minnix as tenants by the entirety, a legal status that commonly protects a couple’s property from claims against only one of the spouses. The 4^th U.S. Circuit Court of Appeals has not yet decided whether property held as tenants by the entirety is immune from forfeiture when there is one innocent owner, Hupp said.

But Bosen pointed to Virginia law that protects such property from the monetary debts of individual property owners. The same principle should apply for state forfeiture, he contended.

Fleenor agreed.

“By analogy to the creditor/debtor analysis, the forfeiture action must fail,” Fleenor wrote.

Proportionality

The parties also disputed whether forfeiture of the couple’s $117,000 in equity in the property would be excessive considering the outcome of the criminal prosecution. “[T]he nature and extent of the illegal activity in this case was extreme,” Hupp wrote.

Bosen argued the test is more stringent after the 2020 reforms.

“In considering all the real-world consequences of this forfeiture and the liberties at stake, justice demands denial of forfeiture in this case. Mr. Minnix has not been found guilty of any drug crime. In fact, the actual contraband evidence was destroyed by law enforcement,” Bosen wrote.

Fleenor concluded the forfeiture action would amount to an excessive fine under the U.S. Constitution. He considered only the weed that was state-certified as marijuana, about nine pounds. “At $1,800/pound, the value of the marijuana was approximately $16,500,” Fleenor wrote. Thus, the value of the contraband was more than $100,000 less that the value of the equity in the home, he reasoned.

While Norma Minnix was convicted of possession of at least five pounds of marijuana with intent to distribute, her plea agreement left her with only a suspended five-year sentence – the minimum allowed – and two years of probation, the judge observed.

Bosen said Fleenor’s opinion is significant for its interpretation of the revised forfeiture statute, the analysis of the tenancy-by-the-entirety issue and the constitutional ruling on the proportionality of the proposed taking.

Fleenor entered what is labeled a “final order” on May 18, dismissing the forfeiture action.

Hupp filed a motion for reconsideration, and Hupp declined to comment while the matter was still under consideration.

Fleenor denied the motion on May 26.

Norma Minnix was represented in the forfeiture action by Jeffrey L. Dorsey of Salem.