House Study Bill 634 - Introduced
HOUSE FILE _____
BY (PROPOSED COMMITTEE ON
PUBLIC SAFETY BILL BY
CHAIRPERSON THOMPSON)
A BILL FOR
1 An Act relating to the forfeiture of property for criminal
2 offenses and repealing civil forfeiture.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 Section 1. NEW SECTION. 809B.1 Short title.
2 This chapter shall be known and may be cited as the “Iowa
3 Criminal Forfeiture Process Act”.
4 Sec. 2. NEW SECTION. 809B.2 Applicability.
5 This chapter applies only to the seizure and forfeiture
6 of property used in and derived directly from a violation of
7 chapter 124, subchapter IV.
8 Sec. 3. NEW SECTION. 809B.3 Definitions.
9 The terms defined in this section have the following
10 meanings in this chapter:
11 1. “Abandoned property” means personal property to which
12 a possessor relinquishes all rights to ownership or control.
13 “Abandoned property” does not include real property.
14 2. “Actual knowledge” means direct and clear awareness of
15 information, a fact, or a condition.
16 3. “Contraband” means goods that, in themselves, are
17 unlawful to possess, including scheduled drugs without a lawful
18 prescription and a firearm that is illegal to possess.
19 4. “Conveyance” means a device used for transportation.
20 “Conveyance” includes a motor vehicle, trailer, snowmobile,
21 airplane, vessel, or any equipment attached to one of these
22 devices. “Conveyance” does not include property that is stolen
23 in violation of the law.
24 5. “Convicted” or “conviction” includes a finding of guilt,
25 a plea of guilty, deferred judgment, deferred or suspended
26 sentence, adjudication of delinquency, or circumstances where
27 a person is not charged with a criminal offense that is a
28 serious or aggravated misdemeanor or felony related to the
29 action for forfeiture based in whole or in part on the person’s
30 cooperation in providing information regarding the criminal
31 activity of another person.
32 6. “Innocent owner” means an owner, co-owner, defendant’s
33 heir, or a person who regularly uses property subject to
34 forfeiture who does not have actual knowledge of the use of
35 the property in a crime that authorizes the forfeiture of the
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1 property. “Innocent owner” does not include the defendant or a
2 secured interest holder.
3 7. “Instrumentality” means property otherwise lawful to
4 possess that is used in a crime that authorizes the forfeiture
5 of property. “Instrumentality” includes land, buildings,
6 containers, conveyances, equipment, materials, products, tools,
7 computers, computer software, telecommunications devices,
8 firearms, ammunition, and ammunition-and-firearm accessories.
9 8. “Law enforcement agency” means any nonfederal police
10 force, or other local, county, or state agency that has the
11 authority under state law to engage in seizure and forfeiture.
12 9. “Proceeds” means United States currency, currency of
13 another nation, digital currency, cryptocurrency, securities,
14 negotiable instruments, or other means of exchange obtained
15 from the sale of property or contraband.
16 10. “Prosecuting authority” means a municipal attorney,
17 solicitor, district attorney, county attorney, attorney
18 general, or other government official legally authorized to
19 prosecute crime.
20 11. “Public defender” means any office of the state public
21 defender.
22 12. “Real property” means land and anything growing on,
23 attached to, or erected on the land including a building. “Real
24 property” includes immovable property, real estate, and realty.
25 13. “Secured interest holder” means a person who is a
26 secured creditor, mortgagee, lienholder, or other person
27 who has a valid claim, security interest, mortgage, lien,
28 leasehold, or other interest in the property subject to
29 forfeiture. “Secured interest holder” does not include the
30 defendant or an innocent owner.
31 Sec. 4. NEW SECTION. 809B.4 Forfeiture disfavored ——
32 purpose of chapter.
33 Forfeiture is disfavored in this state. This chapter’s
34 purpose is to deter criminal activity by reducing criminal
35 activity economic incentives, confiscate property used in the
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1 violation of the law, and protect the due process rights of
2 property owners.
3 Sec. 5. NEW SECTION. 809B.5 Jurisdiction.
4 1. There shall be no civil forfeiture under this chapter.
5 2. The court that has jurisdiction in the related criminal
6 matter shall have jurisdiction over the forfeiture proceeding.
7 3. The forfeiture proceeding shall be part of the trial
8 of the related crime. The proceeding shall follow a finding
9 of the defendant’s guilt or be conducted at the court’s
10 discretion. The forfeiture proceeding shall be conducted by
11 the court without a jury.
12 4. If an initial court bounds over or transfers the
13 prosecution of the criminal case to another court, the initial
14 court shall transfer the forfeiture action along with the
15 criminal case to the other court.
16 5. At the initial court’s discretion, the initial court
17 may postpone hearing and bound over a motion to another court
18 in the interests of justice and efficient use of judicial
19 resources.
20 Sec. 6. NEW SECTION. 809B.6 Seizure of personal property
21 with process.
22 At the request of the state, a court may issue an ex parte
23 order to attach, seize, or secure personal property for which
24 forfeiture is sought and to provide for the custody of the
25 personal property.
26 Sec. 7. NEW SECTION. 809B.7 Seizure of personal property
27 without process.
28 Personal property may be seized, as part of a lawful search,
29 without a court order if the personal property subject to
30 forfeiture is seized incident to a lawful arrest, the state has
31 probable cause to believe the delay caused by the necessity of
32 obtaining process would result in the removal or destruction of
33 the personal property that is forfeitable under this chapter,
34 or the personal property is the subject of a prior and valid
35 judgment of forfeiture in favor of the state.
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1 Sec. 8. NEW SECTION. 809B.8 Seizure or restraint of real
2 property with process.
3 1. Real property shall not be seized or restrained without
4 a court order.
5 2. A court shall not issue an order unless the defendant and
6 any other person with a known interest in the property receive
7 proper notice and are given an opportunity for a contested
8 hearing to determine the existence of probable cause for the
9 seizure.
10 3. Notice may be made by publication if personal service has
11 not been realized after reasonable attempts.
12 4. This section does not prohibit the state from seeking
13 a lis pendens or restraining order to hinder the sale or
14 destruction of real property. However, if the state obtains a
15 lis pendens or restraining order, the state shall notify the
16 defendant and any other person with a known interest in the
17 property within thirty days.
18 5. Application, filing, issuance, execution, and return of
19 any order are subject to state law and court rules.
20 Sec. 9. NEW SECTION. 809B.9 Stolen property and contraband.
21 1. No property right exists in stolen property or
22 contraband. Stolen property and contraband are subject to
23 seizure.
24 2. Stolen property shall be returned to the innocent owner,
25 and contraband shall be disposed of according to state law.
26 3. Notwithstanding subsection 2, the court may impose
27 reasonable conditions on the release of stolen property and
28 the disposal of contraband, including the use of photographic
29 evidence, to preserve the property for later use as evidence in
30 proceedings under this chapter.
31 Sec. 10. NEW SECTION. 809B.10 Storing seized property and
32 depositing seized currency.
33 1. The seizing law enforcement agency is responsible for
34 providing adequate storage, security, and maintenance for all
35 assets in law enforcement agency custody unless another law
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1 enforcement agency agrees to accept the responsibility. The
2 commander of a multijurisdictional task force may assign the
3 responsibility to one agency.
4 2. The seizing law enforcement agency shall deposit seized
5 currency in an interest-bearing account pending the exhaustion
6 of appeals or receiving an order from the court to return or
7 disburse the seized currency.
8 3. Notwithstanding subsection 2, the seizing law
9 enforcement agency may take reasonable actions, including the
10 use of photography, to preserve currency for later use as
11 evidence in proceedings under this chapter.
12 Sec. 11. NEW SECTION. 809B.11 Receipt.
13 1. When property is seized, the law enforcement officer
14 shall give an itemized receipt to the person possessing the
15 property at the time of the seizure.
16 2. The receipt shall be numbered for future reference and
17 constitutes notice of seizure.
18 3. If the person possessing the property is not present, the
19 seizing officer shall leave a receipt in the place where the
20 property was found, if possible.
21 Sec. 12. NEW SECTION. 809B.12 Property exempt from seizure
22 and forfeiture.
23 1. United States currency totaling two hundred dollars or
24 less is exempt from seizure and forfeiture, excluding marked
25 currency used in the controlled buy of a controlled substance.
26 2. A motor vehicle worth two thousand dollars or less in
27 market value is exempt from seizure and forfeiture.
28 3. The prosecuting authority shall advise the publications
29 that law enforcement agencies may use to establish the value of
30 a motor vehicle in the prosecuting authority’s jurisdiction.
31 The valuation publications may include nationally known and
32 relied on pricing guides.
33 4. The prosecuting authority may establish on a
34 case-by-case basis higher values in the interests of justice
35 and efficient use of governmental resources. The higher
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1 values shall be based on the prosecuting authority’s exclusive
2 determination of:
3 a. The type and number of occurrences of offenses that
4 include the seizure of property.
5 b. The average value of seized property less the costs to
6 seize and forfeit such property.
7 Sec. 13. NEW SECTION. 809B.13 Waivers permitted and
8 prohibited.
9 1. A person from whom property is seized may relinquish the
10 person’s rights, interests, and title in the seized property by
11 knowingly and voluntarily executing a waiver that is agreed to
12 by the prosecuting authority.
13 2. The waiver is subject to a claim by a secured interest
14 holder, innocent owner, or other person entitled to notice
15 under section 809B.17. A claimant may consent to some issues
16 and have the court determine remaining issues.
17 3. A law enforcement officer, other than the prosecuting
18 authority, shall not request, induce, or require a person to
19 relinquish, for purpose of forfeiture, the person’s rights,
20 interests, or title in the seized property.
21 4. A document resulting from efforts by a law enforcement
22 officer, other than the prosecuting authority, which purports
23 to relinquish a person’s rights, interests, and title in seized
24 property is void and is inadmissible in court.
25 Sec. 14. NEW SECTION. 809B.14 Initial reporting.
26 1. A law enforcement agency making a seizure shall within
27 ten days submit a report to the appropriate prosecuting agency.
28 2. For purpose of reporting, if the seizure of property is
29 accomplished because of coordinated efforts by more than one
30 law enforcement agency, the law enforcement agency initiating
31 the investigation is considered to be the law enforcement
32 agency making the seizure.
33 3. The report shall provide the following information with
34 respect to the property seized:
35 a. Name of the seizing law enforcement agency.
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1 b. Description of the seized property.
2 c. Location where the seizure occurred.
3 d. Date and circumstances of the seizure.
4 e. Location where the property is being stored and present
5 custodian.
6 f. Name and contact information of owner.
7 g. Name and contact information of possible innocent owner
8 claimant.
9 h. Name and contact information of any lienholder.
10 i. The type and quantity of the controlled substance
11 involved.
12 j. Other relevant information.
13 k. If the property is a conveyance, the report shall include
14 all of the following:
15 (1) Make, model, serial number, and year of the conveyance.
16 (2) Name and contact information of person in whose name the
17 conveyance is registered.
18 Sec. 15. NEW SECTION. 809B.15 Title to property.
19 1. Title to the property subject to forfeiture vests with
20 the state when the court issues a forfeiture judgment and
21 relates back to the date when the state seized or restrained
22 the property.
23 2. Title to substitute assets vests when the court issues an
24 order forfeiting substitute assets.
25 Sec. 16. NEW SECTION. 809B.16 Counsel.
26 1. If a defendant in a criminal matter is represented by a
27 public defender or appointed counsel if indigent, that attorney
28 shall represent the defendant in the forfeiture proceeding.
29 2. If the defendant or an innocent owner claimant engages
30 in pro se representation in the forfeiture proceeding, the
31 court may exercise discretion applying the rules of pleading,
32 practice, evidence, and procedure.
33 Sec. 17. NEW SECTION. 809B.17 Notice to other known owners.
34 1. The prosecuting authority shall perform a reasonable
35 search of relevant records, including vehicle registrations,
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1 property records, and other public records, to identify any
2 person, other than the defendant, known to have an interest in
3 the property subject to forfeiture.
4 2. The prosecuting authority shall give notice to any person
5 identified to have an interest in the property subject to
6 forfeiture who is not charged or indicted. The notice shall
7 include the seizure receipt number given pursuant to section
8 809B.11. Notice may be made by publication if personal service
9 has not been realized after reasonable attempts.
10 3. The following language substantially and conspicuously
11 shall appear in the notice:
12 WARNING: You may lose the right to be heard in court if
13 you do not file promptly a simple statement of interest or
14 ownership. You do not have to pay a filing fee to file your
15 notice.
16 4. If the prosecuting authority does not serve notice by
17 personal service or publication on any persons appearing to
18 have an interest in the property and the extension period has
19 expired, the prosecuting authority or court shall order the
20 return of the property to a person with a valid interest in
21 the property who makes a request. Contraband shall not be
22 returned.
23 Sec. 18. NEW SECTION. 809B.18 Prompt post-seizure hearing.
24 1. Following seizure, a defendant or any other person
25 with an interest in the property has a right to a prompt
26 post-seizure hearing.
27 2. A person with an interest in the property may motion the
28 court for a hearing.
29 3. Upon motion, the court may hold a prompt post-seizure
30 hearing at any of the following:
31 a. As a separate hearing.
32 b. At the same time as a probable cause determination, an
33 arraignment hearing, a suppression hearing, an omnibus hearing,
34 or other pretrial hearing.
35 c. At any other time at the court’s discretion.
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1 4. A party, by agreement or for good cause, may move for one
2 extension of the hearing date. The motion may be supported by
3 affida