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ARIZONA HOUSE OF REPRESENTATIVESFifty-fourth Legislature Second Regular Session |
Senate: JUD DPA 7-0-0-0 | 3rd Read 30-0-0-0House: JUD DP 6-4-0-0 |
SB 1556: civil asset forfeiture; conviction; procedures
Sponsor: Senator Farnsworth E, LD 12
Caucus & COW
Overview
States for property to be subjected to forfeiture, the owner of the property must be convicted of an offense where forfeiture applies, with exceptions, and the state must establish by clear and convincing evidence that the property is subject to forfeiture.
History
Racketeering is any act that is chargeable or indictable under the laws of the state or country, punishable by imprisonment for more than a year and includes such acts as homicide, robbery and extortion if committed for financial gain (A.R.S. § 13-2301). Statute also provides a method for the state to seek civil remedies. All proceeds traceable to a racketeering offense and other property used or intended to be used to facilitate the commission of the offense may be subject to a forfeiture proceeding (A.R.S. § 13-2314).
All interests in property are subject to forfeiture unless the owner can establish that he or she is within the enumerated exemptions (A.R.S. § 13-4304). A trial court may grant summary judgment or, if there are contested facts, conduct a hearing to determine by clear and convincing evidence whether the property is subject to forfeiture and whether the owner's interest is within one of the exemptions. An in rem action against the person's property may take place before a conviction for the offense that is linked to the property to be forfeited (A.R.S. § 13-4311).
There may be a fiscal impact to the state General Fund in FY 2021 associated with the proposed prohibition against funding full-time equivalent Attorney General (AG) employees with Anti-Racketeering Revolving Fund monies.
Provisions
State and County Anti-Racketeering Revolving Funds
1.
Prohibits the AG from using monies from
the ARRF for any full-time equivalent positions in the AG's office beginning
August 27th, 2020. (Sec. 2)
2. Requires the AG's report on forfeiture monies and expenditures to include whether a claim was filed by an owner or interest holder and the net amount of proceeds received from the forfeiture. (Sec. 2)
3. Requires any monies or property received from forfeiture by the state, a political subdivision or the federal government must be deposited in the ARRF or the county ARRF. (Sec. 3)
4. Requires the county attorney to deny an application for monies from an agency or agencies responsible for a seizure or forfeiture if the application requests monies for an unauthorized purpose. (Sec. 3)
5. Requires the county attorney's ARRF report on forfeiture monies and expenditures to detail whether a claim was filed by an owner or interest holder and the net amount of proceeds received from the forfeiture. (Sec. 3)
6. States all proceeds traceable to a drug offense committed for financial gain and that resulted in a criminal conviction are subject to seizure and forfeiture. (Sec. 4)
7. Specifies the monies in any anti-racketeering revolving fund can be used for payments reimbursing any federal, state or local agency for expenditures relating to investigative, storage and maintenance functions associated with the property held by the seizing agency. (Sec. 23)
Forfeiture and Seizure
8. Requires the person or people seeking a search warrant, and the judicial officer issuing the warrant, to have probable cause for believing the grounds exist. (Sec. 5)
9. Requires an officer taking property under a warrant give an itemized receipt for the property taken. (Sec. 6)
10. States an officer must leave the receipt at the place where the property was found if it is not possible to give the receipt to a person. (Sec. 6)
11. Requires all property seized by a law enforcement agency be returned to the owner, if known, within 10 business days after the property's seizure, unless any of the following applies:
a) The owner has been arrested and charged with a criminal offense subject to forfeiture;
b) The property is intended to be used as evidence;
c) The property is illegal for the owner to possess; or
d) The property was seized for forfeiture, in which case the property can be returned. (Sec. 7)
12. Requires a magistrate to deliver a copy of the inventory to the person whose property was taken and to the applicant for the warrant. (Sec. 8)
13. States all property, with certain exceptions, is subject to forfeiture if both of the following apply:
a) The owner is convicted of an offense in which forfeiture applies; and
b) The state establishes, by clear and convincing evidence, the property is subject to forfeiture. (Sec. 12)
14. Prohibits a common carrier vehicle from forfeiture, even following a conviction, unless the state provides clear and convincing evidence that the owner or operation was a consenting party or knew of the act giving rise to forfeiture. (Sec. 12)
15. Allows a court to order a person to forfeit any of the following after conviction of an offense in which forfeiture applies:
a) Property, the person, acquired through the commission of the offense;
b) Property directly traceable to property acquired through the commission of the offense; or
c) Any property or instrumentality the person used in the commission of the offense or to facilitate the offense. (Sec. 12)
16. Permits the court to waive the conviction requirement if the prosecuting authority shows by clear and convincing evidence that the following apply:
a) There is no known owner of the seized property;
b) Diligent efforts have been made to identify the owner of the seized property, and no person has asserted an ownership interest in the seized property, or that before conviction, the defendant or alleged criminal:
i. Died;
ii. No longer resided in the US or was deported;
iii. Was granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement investigation or prosecution;
iv. Fled the jurisdiction of this state; or
v. Abandoned the property. (Sec. 12)
17. States a plea agreement approved by a court or other agreement does not prevent the property from being forfeited. (Sec. 12)
18. States a person who claims to be an innocent owner, has the burden to show the following:
a) Held a legal right, title or interest in the property seized at the time the illegal conduct that gave rise to the seizure of the property occurred; or
b) Acquired a legal right, title or interest in the property subject to forfeiture after the commission of the crime that gave rise to the seizure of the property. (Sec. 12)
19. Requires the state to prove by clear and convincing evidence that an innocent owner had actual knowledge of the underlying crime when pursuing a forfeiture proceeding. (Sec. 12)
20. Requires the court to find a person an innocent owner, and order the state to relinquish all claims of title to the property and return the property, if the state is unable to prove the person is not an innocent owner. (Sec. 12)
21. Allows a peace officer to make a seizure for forfeiture if the officer has probable cause to believe the property is subject to forfeiture and any of the following apply:
a) The property relates to a lawful arrest or a lawful search;
b) The property is subject to seizure from a prior judgment; or
c) The officer believes the property is subject to forfeiture and that delaying to obtain a court order may result in the removal or destruction of the property. (Sec. 12)
22. Removes language relating to constructive seizures. (Sec. 13)
23. Removes language stating money or negotiable instruments found in proximity to contraband cannot be assumed to have been used, or intended to be used, for the commission of an offense. (Sec. 13)
24. States the presence or possession of US currency, debit or credit cards, without other indicators of a crime that subjects property to forfeiture, may not be considered probable cause for seizure. (Sec. 13)
Notice of Pending Forfeiture and Commencement of Proceedings
25. Requires, within 60 days after making a seizure or simultaneously while filing a related criminal indictment, the state to file a notice of pending forfeiture proceeding or return the property. (Sec. 15)
26. States the notice of pending forfeiture must include the following:
a) A description of the property seized;
b) The date and place of seizure of the property;
c) The name and address of the law enforcement agency making the seizure; and
d) The specific statutory and factual grounds for the seizure. (Sec. 15)
27. States, if real property sought to be forfeited, the attorney for the state can file a lis pendens or a notice of pending forfeiture concerning the property with the county recorder of the county where the property is located. (Sec. 15)
28. Maintains the notice of pending forfeiture proceeding must also be served to the person's attorney of record and all people known or reasonably believed by the state to claim an interest in the property. (Sec. 15)
29. Allows an owner or interest holder of the property to file a claim against the property at any time within 60 after the notice or 60 days before a criminal trial, whichever is later, requesting a hearing to adjudicate the validity of the claimed interest in the property. (Sec. 15)
30. Prohibits an owner or interest holder from being charged a filing fee or other charge for filing the claim. (Sec. 15)
31. Directs copies of the claim be mailed to the seizing agency and the attorney for the state. (Sec. 15)
32. Requires the claim to be signed by the claimant under penalty of perjury and include the following:
a) The caption of the proceeding as set forth on the notice of pending forfeiture or complaint and the name of the claimant;
b) The address where the claimant will accept future mailings from the court or the attorney for the state;
c) The nature and extent of the claimant's interest in the property;
d) All facts supporting the claimant's claim in the property and its return to the claimant; and
e) The precise relief sought. (Sec. 15)
33. States the attorney for the state must determine whether it is probable that the property is subject to forfeiture and if so, may initiate judicial forfeiture proceedings by filing a complaint if a claim has been filed. (Sec. 16)
34. Prohibits the state from initiating forfeiture proceedings before a criminal conviction for an offense to which forfeiture applies unless no claims for the seized property were timely filed or the court waived the conviction requirement. (Sec. 16)
Post-Deprivation Hearing
35. Repeals statute relating to uncontested forfeiture. (Sec. 17)
36. Allows a defendant, or another person, to claim an interest in the seized property by filing a motion with the court for the return of the property within 60 days after the notice or 60 days before a criminal trial, whichever is later. (Sec. 18)
37. Requires a filed motion to include facts to support the person's interest in the property. (Sec. 18)
38. States a person who makes a timely motion for the return of property has a right to a hearing on the motion before the resolution of any related criminal matter or forfeiture proceeding and within 30 days after the date that the motion is filed. (Sec. 18)
39. Requires the state, within 10 days of a hearing on a filed motion, to file an answer or response that includes the reasons why the state is entitled to retain possession of the property. (Sec. 18)
40. Requires the court to grant the motion of the claimant if the court finds any of the following applies:
a) The final judgment will likely require the state to return the property to the claimant;
b) The property is not reasonably required to be held for evidentiary reasons;
c) The property is the only reasonable means for a defendant to pay for legal representation in a related criminal or forfeiture proceeding. (Sec. 18)
41. Allows the court to order the return of money or property sufficient to obtain legal counsel, but less than the total amount seized, and the court can require an accounting. (Sec. 18)
42. Permits the court, in lieu of ordering the return of property, to order the following:
a) The state to give security or written assurance for satisfaction of any judgment, including damages, that can be rendered in a related forfeiture action; or
b) Any other relief the court deems just. (Sec. 18)
Judicial Forfeiture Proceedings
43. Requires a person who claims an interest in seized property to file an answer to the complaint of forfeiture within 30 days after service of the forfeiture complaint. (Sec. 19)
44. States the answer must include facts to support the claimant's alleged interest in the property. (Sec. 19)
45. Prohibits the clerk of court from charging a person who claims ownership or to be an interest holder a filing fee or any charge for filing the answer. (Sec. 19)
46. Stipulates the court must enter a judgment of forfeiture and the seized property must be forfeited to the state if the state proves by clear and convincing evidence that the following apply:
a) The property is subject to forfeiture;
b) The criminal prosecution related to the seized property resulted in a conviction or the court waived the requirement for a conviction;
c) There is no innocent owner or third-party interest holder to whom the property should be delivered; and
d) The value of the property to be forfeited does not unreasonably exceed the following:
i. The pecuniary gain derived or sought to be derived by the crime;
ii. The pecuniary loss caused or sought to be caused by the crime; or
iii. The value of the convicted owner's interest in the property. (Sec. 19)
47. States a person is not jointly and severally liable for orders for forfeiture of another person's property; if ownership of property is unclear, a court can order each person to forfeit the person's property on a pro rata basis or by another means that the court deems equitable. (Sec. 19)
48. States any property or proceeds transferred to any person are subject to forfeiture and thereafter must be ordered forfeited if the state proves by clear and convincing evidence that the following occurred:
a) The transferee had actual knowledge the property was subject to forfeiture; and
b) The transferee was not a bona fide purchaser for value not knowingly taking part in an illegal transaction. (Sec. 19)
49. Allows an injured person to submit a request for compensation from forfeited property to the court at any time before the earlier of the entry of a final judgment or an application for an order of the forfeiture of the property; or if a hearing is held, not less than 30 days before the hearing. (Sec. 19)
50. Instructs the request be signed by the requestor under penalty of perjury and set forth all the following:
a) The caption of the proceeding as set forth on the notice of pending forfeiture or complaint and the name of the requestor;
b) The address where the requestor will accept future mailings from the court or parties to the action;
c) The property subject to forfeiture from which the requestor seeks compensation;
d) The nature of the economic loss sustained by the requestor;
e) All facts supporting each such assertion;
f) Any additional facts supporting the request; and
g) The amount of economic loss the requestor seeks compensation for. (Sec. 19)
51. States if a proper request for compensation from forfeited property is timely filed, the court must hold a hearing to establish whether there is a factual basis for the request. (Sec. 19)
52. Designates the requestor as having the burden of establishing by a preponderance of evidence that the requestor is an injured person who sustained economic loss. (Sec. 19)
53. Requires the hearing on a claim to held 60 days after all parties have complied with disclosure required. (Sec. 19)
54. Allows the court to consolidate the hearing on the claim with a hearing on any other claim concerning the same property. (Sec. 19)
55. Permits the claimant to testify, present evidence and witnesses on the claimant's own behalf and cross-examine witnesses who appear at a hearing. (Sec. 19)
56. Allows the state to present evidence and witnesses, and cross-examine witnesses who appear at the hearing. (Sec. 19)
57. Specifies the state has the burden of establishing, by clear and convincing evidence, that the property is subject to forfeiture at the hearing. (Sec. 19)
58. States any claimant who has previously established by preponderance of the evidence that the claimant is an owner of or interest holder in the property is exempt from forfeiture. (Sec. 19)
59. Stipulates, after a hearing, the court must order an interest in property returned or conveyed to a claimant, if any, who has established by a preponderance of the evidence that the claimant is an owner of or interest holder in the property if either of the following applies:
a) The state has failed to establish by clear and convincing evidence that the interest is subject to forfeiture; or
b) The claimant has established by a preponderance of evidence that the interest is subject to forfeiture. (Sec. 19)
60. Mandates after a hearing the court must order all other property, including all interests in the property, forfeited to the state and proceed according to statutory requirements. (Sec. 19)
61. States, after a hearing, if the court finds that a requestor is an injured person, the court must determine the amount of the injured person's economic loss caused by the conduct giving rise to the forfeiture of the designated property and must require the following:
a) If the designated property is not contraband and is not altered or designed for use in conduct giving rise to forfeiture, the attorney for the state must sell the property and must apply the resulting balance to compensate the injured person's economic loss in the amount found by the court;
b) If the balance is insufficient to compensate the economic loss of all injured people, the attorney for the state must distribute the balance among the injured people according to a method determined by the court;
c) After compensating all injured people, the attorney for the state must transmit 10 percent of the remaining balance, if any, to the state treasurer for deposit in the victim compensation and assistance fund; and
d) The attorney for the state must deposit the remainder of the balance, if any, in an appropriate ARRF. (Sec. 19)
Judicial in rem Forfeiture Proceedings
62. States if a forfeiture is authorized by law, it can be ordered by a court on an action in rem brought by the state pursuant to a notice of pending forfeiture or a verified complaint for forfeiture. (Sec. 20)
63. Establishes judicial in rem forfeiture proceedings are in the nature of an action in rem and are governed by the Arizona Rules of Civil Procedure unless a different procedure is provided by law. (Sec. 20)
64. Allows a civil in rem action to be brought by the state if the prosecutor shows by clear and convincing evidence there is no known owner of the seized property, diligent efforts have been made to identify the owner of the seized property and no person has asserted an ownership interest in the seized property; or that, before or after the conviction, the following apply:
a) The defendant or alleged criminal died;
b) The defendant or alleged criminal no longer resides in the US or was deported;
c) The defendant or alleged criminal was granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement investigation or prosecution;
d) The defendant or alleged criminal fled the jurisdiction of this State; or
e) The defendant or alleged criminal abandoned the property. (Sec. 20)
65. States a temporary restraining order can be entered on application of the state without notice or an opportunity for a hearing if the state demonstrates both of the following:
a) The seizure is incident to a lawful arrest for a crime or a search lawfully conducted pursuant to a search warrant and the state has probable cause to believe that the property with respect to which the order is sought would, if a conviction occurs, be subject to forfeiture and that the subject of the arrest or search warrant is an owner of the property; and
b) Provision of notice will jeopardize the availability of the property for forfeiture; a temporary restraining order expires within 10 days after the date it is entered unless the party against whom it is entered consents to an extension for a longer period or unless the state can demonstrate the property is being held as evidence in a criminal case. (Sec. 21)
Miscellaneous
66. Defines abandoned property. (Sec. 10)
67. Expands the definition of seizure for forfeiture to include a peace officer's seizure of property with no evidentiary value. (Sec. 10)
68. Prohibits the attorney for the state from transferring a title to either of the following:
a) An officer or employee of the agency that seized the property or a person who is related to the officer or employee by blood or marriage; or
b) The attorney for the state or any individual working in the same office or any person related to the authority or individual by blood or marriage. (Sec. 22)
69. Makes technical and conforming changes. (Sec. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24)
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73. SB 1556
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