SB 312 - This act repeals the current procedures regarding criminal activity forfeiture actions and establishes new procedures. Any property used or intended to be used in the commission of a crime or the proceeds of any crime will be subject to criminal forfeiture. Property may be subject to forfeiture even though a criminal prosecution is not conducted.
This act establishes that the circuit court where the property seizure occurred has jurisdiction over any seized property. A proceeding for forfeiture may be brought in a circuit in which any part of the property is found or where a civil or criminal action could be maintained against an owner for the conduct alleged to give rise to the forfeiture. The defendant may obtain a change of venue if the prejudice against him or her is too great.
This act specifies what property may be subject to criminal forfeiture and creates certain exceptions to protect innocent parties. Real property will not be subject to forfeiture if the only conduct giving rise to forfeiture is possession of controlled substances solely for personal consumption.
Under this act, property may be seized for forfeiture under constructive or actual seizure. This act delineates the process, including notification, that must be followed in order to seize property constructively. Law enforcement may seize any property subject to forfeiture upon the issuance of a search warrant or when there is probable cause that the property is subject to forfeiture. The seizure of inhabited residential property requires an adversarial judicial determination of probable cause prior to seizure unless the prosecution can demonstrate exigent circumstances at an ex parte proceeding.
Property seized for forfeiture is not subject to alienation, conveyance, sequestration, attachment, or a motion to the return of property seized as evidence with or without a search warrant. The owner of seized property may obtain release of the property upon posting a surety bond equal to the fair market value of the property.
Upon seizing property, the prosecuting attorney may decide where the property should physically be stored or moved. The seizing agency must conduct a written inventory and estimate the value of the property seized. The court may order the seized property to be sold, leased, rented or operated to preserve the interests of any party after notifying persons with interest in the property and giving an opportunity for a hearing.
This act specifies the requirements for the commencement of a forfeiture proceeding, including the proper filings that must be made. If the prosecuting attorney fails to make certain filings the property shall be released to the owner. The owner may file for recognition of exemption from forfeiture and further procedures exist to allow such innocent parties, who have a legal claim to the property, protect their interests.
The act provides the procedures, including notification, that must be followed once a prosecuting attorney may proceed with a forfeiture. The prosecuting attorney may file a lien for the forfeiture of the property upon initiation of proceedings relating to the conduct giving rise to forfeiture, upon seizure for forfeiture, or in connection with a proceeding or forfeiture in another state. The lienor must provide notice of such lien and will create a lien in favor of the lienor. Upon entry of judgment in its favor, the state may proceed to execute on the lien.
With limited exceptions, a trustee who has notice that a forfeiture lien, pending forfeiture, or civil forfeiture has been filed must provide certain information to the seizing agency or prosecuting attorney within 15 days. A trustee who fails to do so is subject to criminal and civil penalties. Any employee of the seizing agency or prosecuting attorney who releases information obtained from the trustee is guilty of a Class A misdemeanor. A judgement or order entered pursuant to these provisions becomes a judgement lien against the property alleged to be subject to forfeiture.
This act specifies what actions, including entering an injunction or appointing conservators, the court may take before or after the filing of a notice of pending forfeiture. The court may hold a hearing regarding whether there was probable cause for the property to be seized if a judicial determination has not yet been made and the property owner files a timely application. A person charged with a criminal offense may apply to the court where the forfeiture proceeding is pending for the release of property seized to pay criminal defense expenses.
If the property owner can prove that he or she has not been able to participate in previous determinations of probable cause, the court must hold a probable cause hearing. If no probable cause is found the property shall be released. There shall be a rebuttable presumption that any money found near contraband is presumed to have been the proceeds of the conduct giving rise to forfeiture.
A person who acquires any property subject to forfeiture is a constructive trustee. If property subject to forfeiture is lost, transferred to a third party, moved beyond the jurisdiction of the court, commingled with other property, or subject to a legal claim by an innocent party exempt from forfeiture proceedings, the court may order the forfeiture of other property in the owner's possession. Under certain circumstances, the prosecuting attorney may bring a civil action against a person with knowledge who destroys, conveys, or otherwise renders property unavailable.
Under this act, a judicial in rem forfeiture proceeding may be brought by the prosecuting attorney in addition to, or in lieu of, civil in personam forfeiture proceedings. The act states what procedures must be followed during these proceedings.
A judicial in personam forfeiture proceeding brought by the prosecuting attorney under a civil action alleging conduct giving rise to forfeiture is also subject to the provisions of this act. The court may enter an order to protect the state's interest in the property, including the issuance of a temporary restraining order.
If notice of pending forfeiture is properly served in an action in rem or in personam in which personal property is seized, and no claim opposing forfeiture is filed within 30 days of notice of service, the prosecuting attorney shall prepare a written declaration of forfeiture and allocate the property. The act provides for what action may be taken by the owner or interest holder of the property following the declaration to have it set aside for failure to notify. After final disposition of all claims in an action in rem, the court shall enter an order that the state has clear title to the forfeited property interest. The state may transfer good and sufficient title to any subsequent purchaser or transferee.
The court may release or convey forfeited personal property to a regulated interest holder if certain conditions exist. If released, the property must be disposed of by a commercially reasonable public sale held by the interest holder.
When property is forfeited, the prosecuting attorney may destroy or use for investigative purposes any illegal or controlled substances or other contraband or authorize a public or other commercially reasonable sale for other property. The money from the sale shall be distributed in the following order: 1) satisfaction of exempt security interests or liens, 2) payment of proceeding expenses, and 3) payment to the schools.
A prosecuting attorney may conduct an investigation of any conduct that gives rise to forfeiture under this act. The examination of witnesses must be conducted by the prosecuting attorney, must be before an officer authorized to administer oaths, and shall be recorded and transcribed. When examined, a person must be informed of his or her right to refuse to answer any questions.
All materials, transcripts, or testimony that the prosecuting attorney possesses shall not be available for examination by any individual other than a law enforcement official without consent of the person who produced the material or transcripts prior to the filing of a forfeiture action.
Under this act, no one shall knowingly destroy material that is subject to a subpoena with the intent to avoid compliance with such a subpoena. A violation is a Class C felony.
Forfeiture proceedings must be commenced within seven years of the activity making the property subject to forfeiture being committed. However, any time during which the property or defendant is out of the state or in confinement is excluded from this time limit.
Any controlled substances included in Chapter 195, RSMo, which are contraband and those whose owners are unknown are summarily forfeited to the state.
This act is similar to SB 1208 (2008).
SUSAN HENDERSON MOORE