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LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 916
Introduced by Brewer, 43.
Read first time January 04, 2024
Committee: Judiciary
1 A BILL FOR AN ACT relating to forfeiture; to amend sections 28-439,
2 28-440, 28-445, 28-1439.02, 28-1439.03, 28-1601, 28-1602, 28-1603,
3 29-820, 37-1299, 37-12,102, 60-1901, 60-1903.01, and 81-2004.05,
4 Reissue Revised Statutes of Nebraska, sections 28-441, 28-442, and
5 81-2004.10, Revised Statutes Cumulative Supplement, 2022, and
6 sections 28-101 and 28-416, Revised Statutes Supplement, 2023; to
7 adopt the Controlled Substance Offenses Forfeiture Act; to eliminate
8 and transfer provisions relating to forfeiture and disposition of
9 seized contraband; to eliminate an obsolete provision; to harmonize
10 provisions; to repeal the original sections; and to outright repeal
11 sections 28-431, 28-1439.04, and 28-1439.05, Reissue Revised
12 Statutes of Nebraska.
13 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 35 of this act shall be known and may be
2 cited as the Controlled Substance Offenses Forfeiture Act.
3 Sec. 2. (1) The Controlled Substance Offenses Forfeiture Act
4 governs the forfeiture of property as relates to controlled substance
5 offenses.
6 (2) The Legislature finds and declares that forfeiture is
7 disfavored. The purpose of the Controlled Substance Offenses Forfeiture
8 Act is to:
9 (a) Deter crime by reducing its economic incentives;
10 (b) Confiscate property used in the violation of the law;
11 (c) Disgorge the fruit of illegal conduct; and
12 (d) Protect the due process rights of property owners.
13 Sec. 3. For purposes of the Controlled Substance Offenses
14 Forfeiture Act:
15 (1) Abandoned, with respect to property, means personal property to
16 which a possessor has relinquished all rights of ownership and control;
17 (2) Actual knowledge means direct and clear awareness of
18 information, a fact, or a condition;
19 (3) Contraband means goods that, in themselves, are unlawful to
20 possess, such as controlled substances or a firearm described in section
21 28-1203;
22 (4) Controlled substance offense means:
23 (a) Any violation of subsection (1) of section 28-416; or
24 (b) Attempt, conspiracy, solicitation, being an accessory to, aiding
25 and abetting, aiding the consummation of, or compounding a felony if (i)
26 such offense is punishable as a felony and (ii) the underlying offense is
27 a felony violation of subsection (1) of section 28-416;
28 (5) Conveyance means a device used for transportation. It includes a
29 motor vehicle, trailer, snowmobile, airplane, boat, or any equipment
30 attached to one of these devices;
31 (6)(a) Innocent owner means an owner, co-owner, defendant's heir, or
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1 a person who regularly uses property subject to forfeiture who does not
2 have actual knowledge that property was derived from or used or intended
3 to be used to facilitate the controlled substance offense.
4 (b) Innocent owner does not include the defendant or a secured
5 interest holder;
6 (7) Law enforcement agency means a police department, a town
7 marshal, the office of sheriff, or the Nebraska State Patrol;
8 (8) Proceeds means United States currency, currency of another
9 nation, digital and cryptocurrency, securities, negotiable instruments,
10 or other means of exchange obtained from the sale of property or
11 contraband;
12 (9) Prosecuting attorney means a city attorney, county attorney,
13 deputy city or county attorney, the Attorney General, or any other
14 attorney authorized by law to prosecute offenses;
15 (10) Real property includes immovable property, real estate, realty,
16 land, and anything growing on, attached to, or erected thereon, including
17 a building;
18 (11)(a) Secured interest holder means a person who is a secured
19 creditor, lienholder, or other person who has a valid claim, security
20 interest, lien, leasehold, or other interest in the property subject to
21 forfeiture.
22 (b) Secured interest holder does not include the defendant or an
23 innocent owner; and
24 (12) Subject to forfeiture means that personal property was derived
25 from or used or intended to be used to facilitate the controlled
26 substance offense.
27 Sec. 4. (1) Except as provided in section 18 of this act, the
28 Controlled Substance Offenses Forfeiture Act does not authorize any form
29 of civil forfeiture.
30 (2) The court with jurisdiction over a controlled substance offense
31 shall have jurisdiction over any related forfeiture proceeding.
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1 (3) Proceedings under the Controlled Substance Offenses Forfeiture
2 Act shall be conducted without a jury.
3 Sec. 5. Property subject to forfeiture under the Controlled
4 Substance Offenses Forfeiture Act may be seized without a warrant or
5 court order if:
6 (1) The property is seized incident to a lawful arrest;
7 (2) The prosecuting attorney has probable cause to believe that any
8 delay caused by the necessity of obtaining process would result in the
9 removal or destruction of the property; or
10 (3) The property is the subject of a prior and valid judgment of
11 forfeiture in favor of the state.
12 Sec. 6. At the request of a prosecuting attorney and upon a showing
13 of probable cause to believe that such property is subject to forfeiture
14 under the Controlled Substance Offenses Forfeiture Act, a court may issue
15 an ex parte order to attach, seize, or secure property for which
16 forfeiture is sought and to provide for its custody.
17 Sec. 7. Real property is exempt from forfeiture under the
18 Controlled Substance Offenses Forfeiture Act.
19 Sec. 8. (1) A person from whom property is seized may relinquish
20 such person's rights, interests, and title in the seized property by
21 knowingly and voluntarily executing a written waiver that is agreed to by
22 the prosecuting attorney.
23 (2) A waiver under this section does not affect the rights,
24 interest, or title to seized property with respect to any other person,
25 including, but not limited to, a secured interest holder, an innocent
26 owner, or a person entitled to notice under section 13 of this act.
27 (3) A law enforcement officer, other than the prosecuting attorney,
28 shall not request, induce, or require a person to relinquish, for purpose
29 of forfeiture, the person's rights, interests, and title in seized
30 property.
31 (4) Any document resulting from efforts by a law enforcement
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1 officer, other than a prosecuting attorney, which purports to relinquish
2 a person's rights, interests, and title in seized property is void.
3 Sec. 9. (1) When property is seized pursuant to the Controlled
4 Substance Offenses Forfeiture Act, the law enforcement officer shall give
5 an itemized receipt to the person possessing the property at the time of
6 the seizure.
7 (2) The receipt shall be numbered for future reference and shall
8 constitute notice of seizure.
9 (3) If the person possessing the property is not present, the
10 seizing officer shall leave a receipt in the place where the property was
11 found, if reasonably practicable.
12 Sec. 10. (1) A law enforcement agency making a seizure of property,
13 other than contraband, for which forfeiture may be sought under the
14 Controlled Substance Offenses Forfeiture Act shall, within ten days after
15 the seizure, submit a written report to the appropriate prosecuting
16 attorney.
17 (2) The report may be included in a standard investigation report or
18 a customary affidavit and shall include:
19 (a) The name of the law enforcement agency;
20 (b) The date and circumstances of the seizure;
21 (c) The location where the seizure occurred;
22 (d) The type of property seized, such as a vehicle or currency;
23 (e) A description of the property seized, including, if applicable,
24 the make, model, year, and serial number of the property seized;
25 (f) The location where the property is being stored and its
26 custodian;
27 (g) The name and contact information of the owner or possessor from
28 whom the property was seized;
29 (h) The name and contact information of any potential secured
30 interest holders or innocent owners;
31 (i) The type and quantity of any controlled substance involved; and
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1 (j) Any other relevant information requested by the prosecuting
2 attorney.
3 (3) If the property seized was a conveyance, the report shall also
4 include:
5 (a) The make, model, serial number, and year of the conveyance; and
6 (b) The name and contact information of any person in whose name the
7 conveyance is registered.
8 (4) When the seizure of property is accomplished because of
9 coordinated efforts by more than one law enforcement agency, the agency
10 initiating the investigation shall make the report required by this
11 section.
12 Sec. 11. (1) Title to property subject to forfeiture vests with the
13 state when the court issues a forfeiture judgment and relates back to the
14 time when the state seizes or restrains the property.
15 (2) Title to substitute property vests when the court issues an
16 order forfeiting substitute property.
17 Sec. 12. (1) The seizing law enforcement agency is responsible for
18 providing adequate storage, security, and maintenance for all assets in
19 its custody unless another law enforcement agency agrees to accept the
20 responsibility. The commander of a multijurisdictional task force may
21 assign the responsibility to one law enforcement agency.
22 (2) The seizing law enforcement agency shall deposit seized currency
23 in an interest-bearing account pending the exhaustion of appeals or
24 receiving an order from the court to return or disburse the seized
25 currency.
26 (3) Notwithstanding subsection (2) of this section, the seizing law
27 enforcement agency may take reasonable actions, including the use of
28 photography, to preserve currency for later use as evidence.
29 Sec. 13. (1) Upon seizing property subject to forfeiture under the
30 Controlled Substance Offenses Forfeiture Act, the prosecuting attorney
31 shall perform a reasonable search of vehicle registrations, public
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1 records, and other records available to the prosecuting attorney to
2 identify any person, other than the defendant, who may have an interest
3 in the property.
4 (2)(a) The prosecuting attorney shall give notice to any person
5 identified to have an interest in the property subject to forfeiture,
6 unless such other person is also charged with a related controlled
7 substance offense. The notice shall be served upon any such person either
8 in person or by registered or certified mail at such person's last-known
9 address.
10 (b) If the owner or other person with an interest is unknown or
11 there is a reasonable probability that there are unknown persons with
12 interests in the property, the prosecuting attorney shall cause the
13 notice to be printed once a week for four consecutive weeks in a
14 newspaper of general circulation in the county where the seizure
15 occurred. At least five days shall elapse between each publication of
16 notice.
17 (3) The notice required by this section shall include:
18 (a) A description of the property seized;
19 (b) The seizure receipt number provided for in section 9 of this
20 act;
21 (c) Conspicuously printed text that is substantially identical to
22 the following: "WARNING: You may lose the right to be heard in court if
23 you do not promptly file a motion with the court to assert your interest
24 in or ownership of this property. You do not have to pay a filing fee to
25 file your motion."; and
26 (d) A description of the alleged controlled substance offense that
27 provides the basis for forfeiture.
28 (4) This section does not apply to contraband.
29 Sec. 14. (1) Following seizure of property alleged to be subject to
30 forfeiture under the Controlled Substance Offenses Forfeiture Act, the
31 defendant or any other person with an interest in the property has a
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1 right to a prompt hearing before the district court.
2 (2) The defendant or other person with an interest in the property
3 may file a motion requesting a hearing under this section. The court may
4 conduct the hearing as a separate proceeding or together with any other
5 pretrial hearing.
6 (3) Following the hearing, the court shall order the return of
7 property if it finds that:
8 (a) The seizure was unlawful;
9 (b) The prosecuting attorney has not filed charges for a controlled
10 substance offense as required by the court, the period of an extension
11 has expired, or the court does not grant an extension;
12 (c) The court finds the claimant is a secured creditor or an
13 innocent owner as provided in section 20 or 21 of this act;
14 (d) The prosecuting attorney failed to give notice to a person with
15 an interest in the property as required by section 13 of this act and
16 such person filed the motion under this section. For this subdivision to
17 apply, the court must find that the prosecuting attorney either:
18 (i) Knew of the existence of such person and their interest in the
19 property; or
20 (ii) Would have known such facts if the prosecuting attorney had
21 complied with section 13 of this act.
22 (4) Any factual findings required under subsection (3) of this
23 section shall be considered satisfied if the court finds such facts by a
24 preponderance of the evidence.
25 (5) The court may impose reasonable conditions on the return of the
26 property, including the use of photographic evidence, to preserve the
27 property for later use as evidence.
28 (6) At the court's discretion, it may order the return of sufficient
29 funds, not needed as evidence, to the defendant.
30 (7) This section does not apply to contraband.
31 Sec. 15. (1) The prosecuting attorney must specifically plead the
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1 state's intent to seek forfeiture of any property upon a conviction for a
2