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ARIZONA STATE SENATE
Fifty-Fourth Legislature, Second Regular Session
civil asset forfeiture; conviction; procedures
Purpose
Requires a person to be convicted, with exceptions, before property that is seized and subject to forfeiture may be forfeited and makes corresponding changes to judicial proceedings. Modifies permissible use of Anti-Racketeering Revolving Fund monies.
Background
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
Anti-Racketeering Revolving Fund Uses and Reporting
1. Prohibits, beginning August 27, 2020, the AG from using monies from the Anti-Racketeering Revolving Fund for salaries of full-time equivalent positions.
2. Specifies that monies in any Anti-Racketeering Revolving Fund may be used to reimburse a law enforcement agency for expenditures made to perform the investigative, storage and maintenance functions associated with the property held by a seizing agency.
3. Requires the AG's and county attorney's report on monies received through forfeiture to include:
a) whether the claim was filed by an owner or interest holder rather than whether it was a judicial or uncontested forfeiture; and
b) the net amount of proceeds received from the forfeiture.
4. Requires, rather than allows, any monies or other property obtained through forfeiture by a political subdivision or federal government to be deposited in the Anti-Racketeering Revolving Fund.
5. Requires, rather than allows, the county attorney to deny an application that requests monies for a purpose that is not authorized by specified state or federal law.
Search Warrants and Seizures
6. Requires the person seeking a search warrant and the judicial officer issuing the warrant to have probable cause for believing grounds exist to issue the warrant.
7. Requires the receipt an officer makes when taking property pursuant to a search warrant to be itemized.
8. Requires all property seized by law enforcement to be returned to the owner, if known, within 10 business days after seizure, unless:
a) the owner has been arrested and charged with a criminal offense subject to forfeiture;
b) the property is sought to be used as evidence;
c) it is illegal for the owner to possess the property; or
d) the property was seized for forfeiture.
9. Requires a magistrate to deliver a copy of the inventory to a person whose property was taken and to the applicant of the warrant, rather than only upon request.
10. Adds property with no evidentiary value to the type of property that may be seized for forfeiture by a peace officer.
Civil Asset Forfeiture
11. Requires, to be subject to forfeiture:
a) the owner of the property is convicted of an offense in which forfeiture applies; and
b) the state establishes by clear and convincing evidence that the property is subject to forfeiture.
12. Sets a clear and convincing standard that must be shown for a common carrier vehicle to be forfeited because the owner or other person in charge of the vehicle was a consenting party or privy to the act or omission giving rise to forfeiture.
13. Allows, after a person is convicted for an offense for which forfeiture applies, a court to order a person to forfeit:
a) property the person acquired through the commission of the offense;
b) property directly traceable to property acquired through the commission of the offense; and
c) any property or instrumentality the person used in the commission of the offense or to facilitate the offense.
14. Allows the court to waive the conviction requirement for forfeiture if the prosecutor shows by clear and convincing evidence that before conviction the defendant or alleged criminal:
a) died;
b) no longer resides in the United States or was deported;
c) was granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement investigation or prosecution;
d) fled the jurisdiction of the state; or
e) abandoned the property.
15. Allows property to be forfeited by the terms of an approved plea agreement.
Innocent Owners
16. Prohibits the property of an innocent owner to be forfeited.
17. Requires a person who claims to be an innocent owner to show that the person holds a legal right, title or interest in the seized property and:
a) held an ownership interest in the seized property at the time the illegal conduct that gave rise to the seizure occurred or was a bona fide purchase for value; or
b) acquired an ownership interest in property subject to forfeiture after the commission of the crime.
18. Requires the state to immediately return property to an established innocent owner who has an interest in:
a) homestead property;
b) a motor vehicle valued at less than $10,000; or
c) a conveyance that is encumbered by a security interest that was perfected pursuant to state law or that is subject to a lease or rental agreement, with exceptions.
19. Requires the state to prove, by clear and convincing evidence, that an established innocent owner had actual knowledge of the underlying crime that gave rise to the forfeiture in order to pursue a forfeiture proceeding for that person's property.
20. Requires the court to order the relinquishment of all claims of title to an innocent owner's property if the state cannot meet its burden.
Seizure of Property for Forfeiture
21. Requires, for an officer to make a warrantless seizure for forfeiture, that the officer specifically has probable cause to believe that the property is subject to forfeiture.
22. Requires, for an officer to make the warrantless seizure for forfeiture, that the delay of getting a court order would result in the removal or destruction of the property or otherwise frustrate the seizure.
23. Removes the ability to seize property for forfeiture by placing the property under constructive seizure.
24. Removes the inference that money or any other negotiable instrument found in proximity to contraband or to instrumentalities of an offense are proceeds of the contraband or intended to be used to facilitate the offense.
25. Establishes that the presence or possession of U.S. currency, debit cards or credit cards, without other indicia of a crime that subjects property to forfeiture, is insufficient probable cause for seizure of U.S. currency, debit cards or credit cards.
26. Removes the exemption for seized property that is subject to forfeiture to not be subject to replevin, conveyance, sequestration or attachment.
Notice of Pending Forfeiture Proceeding
27. Requires the state, within 60 days of making a seizure for forfeiture or simultaneously on filing a related criminal indictment, to file a notice of pending forfeiture proceeding or return the property to the person from whom it was seized.
28. Requires a notice of pending forfeiture to include:
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 ground for the seizure.
29. Requires the notice of pending forfeiture proceeding to be served on the person's attorney of record and all persons known or reasonably believed by the state to claim an interest in the property.
30. Allows an owner of, or interest holder in, property in a pending forfeiture proceeding to file a claim against the property at any time within 60 days, rather than within 30 days, of the later of the notice of the pending forfeiture proceeding or criminal trial commencement.
31. Delineates what must be included in the owner's or interest holder's claim.
Post-Deprivation Hearing
32. Prohibits the state from initiating forfeiture proceedings before a criminal conviction for an offense to which the forfeiture applies.
33. Prohibits the state from initiating an uncontested forfeiture proceeding.
34. Allows a defendant in the criminal matter or another person claiming interest in seized property to claim an interest in seized property by filing a motion with the court requesting an order for the return of the property and requires the claim to be made within 60 days of the later of the notice of pending forfeiture proceeding or criminal trial commencement.
35. Affords the person who makes a timely motion for the return of seized property the right to a hearing within 30 days of filing the motion.
36. Requires the state to file its answer or responsive motion within 10 days before a hearing filed by the defendant or other person claiming interest in the seized property.
37. Requires the state's answer or responsive motion to include the reasons why the state is entitled to retain possession of the property.
38. Requires the court to grant the claimant's motion if it finds:
a) it's likely that the final judgment will require the state to return the property to the claimant;
b) that the property is not reasonably required to be held for evidentiary reasons; or
c) that the property is the only reasonable means for a defendant to pay for legal representation in a related criminal or forfeiture proceeding.
39. Allows the court to order the return of money or property that is enough to obtain legal counsel but less than the total amount seized.
40. Allows the court, instead of ordering the return of the property, to order:
a) the state to give security or written assurance for satisfaction of any judgement, including damages, that may be rendered in a related forfeiture action; or
b) any other relief that the court deems just.
Judicial Forfeiture Proceedings
41. Requires a person who claims an interest in seized property to file an answer to the complaint of forfeiture that includes supporting facts within 30 days after service of the forfeiture complaint.
42. Requires the court to enter a judgment of forfeiture, whereby the seized property is forfeited to the state, if the state proves by clear and convincing evidence, that:
a) the property is subject to forfeiture;
b) the criminal prosecution related to the seized property resulted in 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:
i. the pecuniary gain delivered or sought to be derived by the crime;
ii. the pecuniary loss caused or sought to be caused by the crime; and
iii. the value of the convicted owner's interest in the property.
43. Stipulates that a person is not jointly and severally liable for orders for forfeiture of another person's property.
44. Allows a court to order each person to forfeit that person's property on a pro rata basis or by another equitable way if ownership of property is unclear.
45. Requires the state to prove by clear and convincing evidence, for subsequently transferred property to be forfeited, that a transferee:
a) had actual knowledge that the property was subject to forfeiture; and
b) was not a bona fide purchaser for value who unknowingly took part in an illegal transaction.
46. Removes inapplicable procedures for forfeiture proceedings that previously took place prior to conviction.
47. Moves procedures for injured persons to request compensation from forfeited property from in rem forfeiture proceedings to judicial forfeiture proceedings.
48. Allows, rather than requires, a court to order an action in rem if a forfeiture is authorized by law.
49. Requires, in order to bring a civil in rem action, the prosecutor to show by clear and convincing evidence that, before or after the conviction, the defendant or alleged criminal:
a) died;
b) no longer resides in the United States or was deported;
c) was granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement investigation or prosecution;
d) fled the jurisdiction of the state; or
e) abandoned the property.
Miscellaneous
50. Defines abandoned property.
51. Specifies that property that is subject to seizure and forfeiture for a drug offense must be traceable to an offense that resulted in a criminal conviction.
52. Prohibits a state attorney to transfer title of forfeited property to:
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 prosecuting authority or individual by blood or marriage.
53. Makes technical and conforming changes.
54. Becomes effective on the general effective date.
Prepared by Senate Research
February 11, 2020
JA/kja