January 29, 1997

ATTORNEY GENERAL OPINION NO. 97- 7

Lt. Colonel John R. Mettner, Jr.

Legal Advisor to the Adjutant General

Kansas Air National Guard

2800 Southwest Topeka Blvd.

Topeka, Kansas 66611-1287

Re:	Procedure, Civil--Asset Seizure and Forfeiture--Allocation of Forfeited Property to Law Enforcement Agency; Application to Kansas National Guard

Synopsis:	The Comprehensive Drug Abuse Prevention and Control Act of 1970 authorizes the transfer of forfeited property to any state or local law enforcement agency which participates directly in the seizure or forfeiture of the property. The Kansas National Guard is a law enforcement agency for the limited purpose of counter drug and drug interdiction operations when called into active service for that purpose by the Governor pursuant to K.S.A. 48-241. Cited herein: K.S.A. 48-241; 60-4101; 21 U.S.C. § 881.

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Dear Lt. Colonel Mettner:

As legal advisor to the Adjutant General of Kansas you inquire whether the Kansas National Guard is a state law enforcement agency for purposes of sharing in the proceeds of drug related forfeitures pursuant to 21 U.S.C. § 881.

You indicate that the Kansas National Guard assists law enforcement agencies in the area of counter drug and drug interdiction operations when called into service by the Governor under K.S.A. 48-241. The statute states:

"The commander in chief shall have the power to order into the active service of the state any or all of the units of the national guard, any member

of the national guard or other militia or military organizations of the state that the commander in chief deems necessary in case of : (1) A request by civil authorities to support federal or state law enforcement agencies in counter drug or drug interdiction operations when such request is approved by the commander in chief. . . ."

The federal law, known as the Comprehensive Drug Abuse Prevention and Control Act of 1970, authorizes the "transfer [of forfeited] property to any federal agency or any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property. . . ." 21 U.S.C. § 881(e)(1)(A). In order to obtain the forfeited property an agency must be a federal agency or any state or local law enforcement agency, and must have participated directly in the seizure or forfeiture of the property. Only the first requirement is pertinent to our question.

The Kansas National Guard is an arm of the state and as such is a state agency. Hefley v. Textron, 713 F.2d 1487, 1493 (10th Cir.1983). When called upon into active service by the Governor pursuant to K.S.A. 48-241, the Guard is serving as a law enforcement agency for the limited purpose of counter drug and drug interdiction operations. It is clear that the legislature intended that the Kansas National Guard serve as a law enforcement agency in the limited capacity of counter drug and drug interdiction. See Minutes, Senate Committee on Judiciary, February 26, 1987 (discussion of the establishment of a special fund for monies obtained by state agencies which assist in drug interdiction operations under a repealed statute which was replaced by the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq.)

It is thus our opinion that the Kansas National Guard, when serving under the auspices of K.S.A. 48-241, has the status of a law enforcement agency for the limited purpose of drug interdiction and thus meets the law enforcement agency requirement of the federal statute.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Guen Easley

Assistant Attorney General

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