WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary
A BILL to amend and
reenact §60A-7-702, §60A-7-704, §60A-7-705 and §60A-7-706 of the Code of West
Virginia, 1931, as amended, all relating to the West Virginia Contraband
Forfeiture Act; restating the legislative findings and purpose; requiring a
receipt for seized property from law enforcement; providing procedure for
replevin; stating purposes for forfeiture of property and the procedure for forfeiture;
and providing that all moneys forfeited under the provisions of this article
shall be distributed for the support of drug courts.
Be it enacted by the
Legislature of West Virginia:
That §60A-7-702, §60A-7-704,
§60A-7-705 and §60A-7-706 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 7. WEST VIRGINIA
CONTRABAND FORFEITURE ACT.
§60A-7-702. Legislative
findings.
(a) The Legislature hereby finds and declares that the
seizure and sale of items under the provisions of this article is not
contemplated to be a forfeiture as the same is used in article twelve, section
five of the West Virginia Constitution and to the extent that such seizure and
sale may be found to be such a forfeiture, the Legislature hereby finds and
declares that the proceeds from a seizure and sale under this article is not
part of net proceeds as the same is contemplated by such article twelve, section
five of the West Virginia Constitution.
(b) The Legislature
hereby further finds and declares that the purposes of this article are to:
(1) Make uniform the
standards and procedures for the seizure and forfeiture of property subject to
forfeiture;
(2) Protect the Constitutional
rights of persons accused of a crime whose property is subject to forfeiture
and of innocent owners holding interests in property subject to forfeiture;
(3) Deter criminal
activity by reducing its economic incentives;
(4) Increase the
pecuniary loss from criminal activity;
(5) Protect against the
wrongful forfeiture of property; and
(6) Ensure that only
criminal forfeiture is allowed in this state.
(c) This article applies
to:
Seizures, forfeitures
and dispositions of property subject to forfeiture pursuant to other laws; but
only to the extent that the procedures in this article for seizing, forfeiting
or disposing of property are consistent with any procedures specified in those
laws and does not apply to contraband, which is subject to seizure pursuant to
applicable state laws, but is not subject to forfeiture pursuant to this
article.
§60A-7-704. Procedures
for seizure of forfeitable property; Receipt for seized property;
replevin hearing.
(a) Seizure of property
made subject to forfeiture by the provisions of this article may be made upon
process issued by any court of record having jurisdiction over the property.
(b) Notwithstanding the
provisions of subsection (a) of this section, seizure of property subject to forfeiture
by the provisions of this article may be made without process if:
(1) The seizure is
incident to a lawful arrest or pursuant to a search under a search warrant or
an inspection warrant;
(2) The property subject
to seizure has been the subject of a prior judgment in favor of the state in a
forfeiture proceeding based upon this article;
(3) The appropriate
person has probable cause to believe that the property is directly or
indirectly dangerous to health or safety; or
(4) The appropriate
person has probable cause to believe that the property was used or intended for
use in violation of this chapter.
(c) In the event of
seizure pursuant to subsection (b) of this section, forfeiture proceedings
shall be instituted within ninety days of the seizure thereof.
(d) Property taken or
detained under this section shall not be subject to replevin, but is deemed to
be in the custody of the appropriate person, subject only to the orders and
decrees of the court having jurisdiction over the forfeiture proceedings. When
property is seized under this article, the appropriate person may:
(1) Place the property
under seal;
(2) Remove the property
to a place designated by him or her;
(3) Require the
appropriate law-enforcement agency to take custody of the property and remove
it to an appropriate location for disposition in accordance with law; or
(4) In the case of
seized moneys, securities or other negotiable instruments, place the assets in
any interest-bearing depository insured by an agency of the federal government.
The requirements of this
subsection pertaining to the removal of seized property are not mandatory in
the case of real property and appurtenances thereto.
(a) When a law-enforcement
officer seizes property that is subject to forfeiture, the officer shall
provide an itemized receipt to the person possessing the property or, in the
absence of a person to whom the receipt could be given, shall leave the receipt
in the place where the property was found, if possible.
(b) Following the
seizure of property, the defendant in the related criminal matter or another
person who claims an interest in seized property may, at any time before sixty
days prior to a related criminal trial, claim an interest in seized property by
a motion to the court to issue a writ of replevin.
(c) A motion filed
pursuant to this section shall include facts to support the person's alleged
interest in the property.
(d) A person who makes a
timely motion pursuant to this section has a right to a hearing on the motion
before the resolution of any related criminal matter or forfeiture proceeding
and within thirty days of the date on which the motion is filed.
(e) At least ten days
before a hearing on a motion filed pursuant to this section, the state shall
file an answer or responsive motion that shows probable cause for the seizure.
(f) A court shall grant
a claimant's motion if the court finds that:
(1) It is likely that
the final judgment will require the state to return the property to the
claimant;
(2) The property is not
reasonably required to be held for investigatory reasons; or
(3) The property is the
only reasonable means for a defendant to pay for legal representation in a
related criminal or forfeiture proceeding.
(g) The court may order
the return of funds or property sufficient to obtain legal counsel but less
than the total amount seized, and it may require an accounting.
(h) In lieu of ordering
the issuance of the writ of replevin, a court may order:
(1) The state to give
security or written assurance for satisfaction of any judgment, including
damages, that may be rendered in a related forfeiture action; or
(2) Any other relief the
court determines to be just.
§60A-7-705. Procedures
for forfeiture.
(a) (1) Any proceeding
wherein the state seeks forfeiture of property subject to forfeiture under this
article shall be a civil proceeding. A petition for forfeiture may be filed on
behalf of the state and any law-enforcement agency making a seizure under this
article by the prosecuting attorney of a county, or duly appointed special prosecuting
attorney-.
(2) A petition for
forfeiture may be filed and proceedings held thereon in the circuit court of
the county wherein the seizure was made, the real property subject to
forfeiture is situate, or the circuit court of the county wherein any owner of
the property subject to forfeiture may reside.
(3) Any civil trial
stemming from a petition for forfeiture brought under this chapter at the
demand of either party shall be by jury.
(4) A petition for
forfeiture of the seized property shall be filed within ninety days after the
seizure of the property in question. The petition shall be verified by oath or
affirmation of a law-enforcement officer representing the law-enforcement
agency responsible for the seizure or the prosecuting attorney and shall
contain the following:
(i) A description of the
property seized;
(ii) A statement as to
who is responsible for the seizure;
(iii) A statement of the
time and place of seizure;
(iv) The identity of the
owner or owners of the property, if known;
(v) The identity of the
person or persons in possession of the property at the time seized, if known;
(vi) A statement of
facts upon which probable cause for belief that the seized property is subject
to forfeiture pursuant to the provisions of this article is based;
(vii) The identity of
all persons or corporations having a perfected security interest or lien in the
subject property, as well as the identity of all persons or corporations known
to the affiant who may be holding a possessory or statutory lien against such
property;
(viii) A prayer for an
order directing forfeiture of the seized property to the state, and vesting
ownership of such property in the state.
(b) At the time of
filing or as soon as practicable thereafter, a copy of the petition for
forfeiture shall be served upon the owner or owners of the seized property, as
well as all holders of a perfected security interest or lien or of a possessory
or statutory lien in the same class, if known. Should diligent efforts fail to
disclose the lawful owner or owners of the seized property, a copy of the
petition for forfeiture shall be served upon any person who was in possession
or alleged to be in possession of the property at the time of seizure, where
such person's identity is known. The above service shall be made pursuant to
the provisions of the West Virginia Rules of Civil Procedure. Any copy of the
petition for forfeiture so served shall include a notice substantially as
follows:
"To any claimant to
the within described property: You have the right to file an answer to this
petition setting forth your title in, and right to possession of, the property
within thirty days from the service hereof. If you fail to file an answer, a
final order forfeiting the property to the state will be entered, and such
order is not subject to appeal."
If no owner or
possessors, lienholders or holders of a security interest be found, then such
service may be by Class II legal publication in accordance with the provisions
of article three, chapter fifty-nine of this code, and the publication area
shall be the county wherein such property was located at the time of seizure
and the county wherein the petition for forfeiture is filed.
(c) In addition to the
requirements of subsection (b) above, the prosecuting attorney or
law-enforcement officer upon whose oath or affirmation the petition for
forfeiture is based, shall be responsible for the publication of a further
notice. Such further notice that a petition for forfeiture has been filed shall
be published by Class II legal advertisement in accordance with article three,
chapter fifty-nine of this code. The publication area shall be the county
wherein the property was seized and the county wherein the petition for
forfeiture is filed. The notice shall advise any claimant to the property of
their right to file a claim on or before the date set forth in the notice,
which date shall not be less than thirty days from the date of the first
publication. The notice shall specify that any claim must clearly state the identity
of the claimant and an address where legal process can be served upon that
person. In addition, such notice shall contain the following information:
(1) A description of the
property seized;
(2) A statement as to
who is responsible for the seizure;
(3) A statement of the
time and place of seizure;
(4) The identity of the
owner or owners of the property, if known;
(5) The identity of the
person or persons in possession of the property at the time of seizure, if
known;
(6) A statement that
prayer for an order directing forfeiture of the seized property to the state,
and vesting ownership of such property in the state shall be requested of the
court.
(d) If no answer or
claim is filed within thirty days of the date of service of the petition
pursuant to subsection (b) of this section, or within thirty days of the first
publication pursuant to subsection (b) of this section, the court shall enter
an order forfeiting the seized property to the state. If any claim to the
seized property is timely filed, a time and place shall be set for a hearing
upon such claim. The claimant or claimants shall be given notice of such
hearing not less than ten days prior to the date set for the hearing.
(e) At the hearing upon
the claim or claims, the state shall have the burden of proving by a
preponderance of the evidence that the seized property is subject to forfeiture
pursuant to the provisions of this chapter.
(f) Any order forfeiting
property to the state and entered pursuant to this section perfects the state's
right, title and interest in the forfeited property and relates back to the
date of seizure: Provided, That in any proceeding under this article the
circuit court shall in its final order make specific findings with respect to
whether or not probable cause to seize such property existed at the time of
such seizure.
(g) During the pendency
of a forfeiture proceeding, it is unlawful for any property owner or holder of
a bona fide security interest or other valid lienholder to transfer or attempt
to transfer any ownership interest or security interest in seized property with
the intent to defeat the purpose of this article, and the court wherein the
petition for forfeiture is filed may enjoin a property owner or holder of a
security interest or other lienholder from making such a transfer should one
come to its attention. Any such transfer which is made in violation of the
provisions of this subsection shall have no effect upon an order of the court
forfeiting seized property to the state if a notice of lis pendens is filed
prior to the recording of the instrument of transfer.
(h) The court may void
any transfer of property made before or after a forfeiture proceeding has been
commenced, which is subject to forfeiture, if the transfer was not to a bona
fide purchaser without notice for value.
(i) An appeal of a
decision of the circuit court concerning a forfeiture proceeding brought
pursuant to this chapter must be filed within one hundred twenty days of the
date of entry of the final appealable order. The appellant shall be required to
give notice of intent to appeal within thirty days of the entry of such
appealable order.
(a) Forfeitures under
this article shall be governed by all of the following purposes:
(1) To provide economic
disincentives and remedies to deter and offset the economic effect of offenses
by seizing and forfeiting contraband, proceeds and certain instrumentalities;
(2) To ensure that
seizures and forfeitures of instrumentalities are proportionate to the offense
committed;
(3) To protect third parties
from wrongful forfeiture of their property;
(4) To prioritize
restitution for victims of offenses.
(b) In a civil
forfeiture case under this article in which the state seeks to seize real
property, the property owner may request the prosecuting attorney to file a
motion in the circuit court of the county wherein the seizure was made to
request a hearing before the seizure, and shall notify the property owner of
the motion. The court shall hold the hearing not sooner than twenty-one days
after the motion is filed. At the hearing, the court shall grant the motion if
the state shows probable cause demonstrates by a preponderance of the evidence
that the real property is subject to forfeiture.
(c) A person aggrieved
by an alleged unlawful seizure of property may seek relief from the seizure by
filing a motion in the appropriate court that shows the person's interest in
the property, states why the seizure was unlawful and requests the property's
return. If the motion is filed before an indictment, information, or a
complaint seeking forfeiture of the property is filed, the court shall promptly
schedule a hearing on the motion, and at not later than twenty-one days after
it is filed.
(d) The court may extend
the time for the hearing on the motion by consent of the parties or for good
cause shown. At the hearing if the property seized is titled or registered
under law, the state or political subdivision shall demonstrate by a
preponderance of the evidence that the seizure was lawful and that the person
is not entitled to the property. If the property seized is not titled or
registered under law, the person shall demonstrate by a preponderance of the
evidence that the seizure was unlawful and that the person is entitled to the
property.
(e) If the motion is
filed by a defendant after an indictment, information or a complaint seeking
forfeiture of the property has been filed, the court shall treat the motion as
a motion to suppress evidence. If the motion is filed by a third party after an
indictment, information or complaint seeking forfeiture of the property has
been filed, the court shall treat the motion as a petition of a person with an
alleged interest in the subject property.
(f) Upon application by
the prosecuting attorney who prosecutes or brings an action that allows
forfeiture under this article, the court in which the action is prosecuted or
filed may issue an order taking any reasonable action necessary to preserve the
reachability of the property including, but not limited to, a restraining order
or injunction, an order requiring execution of a satisfactory bond or insurance
policy, an order to inspect, photograph or inventory the property, an order
placing a lien or lis pendens against the property or an order appointing a
receiver or trustee. The court may issue an order of this nature at any of the
following times:
(1) Upon the filing of a
complaint, indictment, or information alleging the property to be subject to
forfeiture under this article;
(2) Prior to the filing
of a complaint, an indictment, or information alleging the property to be
subject to forfeiture under this article, if, after giving notice to all
persons known to have an interest in the property and giving those persons an
opportunity to be heard, the court determines that all of the following apply:
(A) There is a
substantial probability the state will prevail on the forfeiture issue;
(B) There is a
substantial probability that failure to enter the order will result in the
property being destroyed, being removed from the court's jurisdiction, or
otherwise being made unavailable for forfeiture;
(C) The need to preserve
the availability of the property outweighs the hardship on the person against
whom the order is to be entered.
(g) Property may be
seized by a law-enforcement officer:
Pursuant to an order of
seizure issued by a circuit court based on a sworn application of a law-enforcement
officer from which a determination is made by the court.
(h) A person's property
is subject to forfeiture if:
(1) The person was
arrested for an offense to which forfeiture applies;
(2) The person is
convicted by a criminal court of the offense; and
(3) The state
establishes by clear and convincing evidence that the property is subject to
forfeiture as provided in this article.
(i) Following a person's
conviction for an offense to which forfeiture applies, a court may order the
person to forfeit:
(1) Property the person
acquired through commission of the offense;
(2) Property directly
traceable to property acquired through the commission of the offense; and
(3) Any instrumentality
the person used in the commission of the offense.
(j) Nothing in this
section may prevent property from being forfeited by the terms of a plea agreement
that is approved by a court or by other agreement of the parties to a criminal
proceeding.
(k). Subject to the
provisions of this article, at any time, at the request of the state, a court
may issue an ex parte preliminary order to seize property that is subject to
forfeiture and for which forfeiture is sought and to provide for the custody of
the property. The execution on the order to seize the property and the return
of the property, if applicable, are subject to this article and other
applicable state laws. Before issuing an order pursuant to this subsection, the
court shall make a determination that:
(1) There is a
substantial probability that: (i) The property is subject to forfeiture; (ii)
the state will prevail on the issue of forfeiture; and (iii) failure to enter
the order will result in the property being destroyed, removed from the state
or otherwise made unavailable for forfeiture; and
(2) The need to preserve
the availability of the property through the entry of the requested order
outweighs the hardship to the owner and other parties known to be claiming
interests in the property.
(l) Property subject to
forfeiture may be seized at any time, without a prior court order, if the
property alleged to be property subject to forfeiture is not a residence or a
business, when:
(1) The seizure is
incident to a lawful arrest for a crime or a search lawfully conducted pursuant
to a search warrant and the law-enforcement officer making the arrest or
executing the search has probable cause to believe the property is subject to
forfeiture and that the subject of the arrest or search warrant is an owner of
the property;
(2) The property subject
to seizure is the subject of a previous judgment in favor of the state; or
(3) The law-enforcement
officer making the seizure has probable cause to believe the property is
subject to forfeiture and that the delay occasioned by the need to obtain a
court order would result in the removal or destruction of the property or
otherwise frustrate the seizure.
§60A-7-706. Disposition
of forfeited moneys, securities or other negotiable instruments; distribution
of proceeds.
(a) Whenever moneys,
securities or other negotiable instruments are forfeited under the provisions
of this article, such proceeds shall be distributed as follows:
(1) Ten percent of the
proceeds shall be tendered to the office of the prosecuting attorney which
initiated the forfeiture proceeding;
(2) The balance shall be
deposited in a special Law-enforcement Investigation Fund. The fund may be
placed in any interest-bearing depository insured by an agency of the federal
government. The fund shall be administered by the chief of the Law-enforcement Agency
that seized the forfeited property.
(3) All moneys forfeited
under the provisions of this article shall be distributed for the support of
drug courts.
(b) No funds shall be
expended from the special Law-enforcement Investigation Fund except as follows:
(1) In the case of the
funds belonging to the State Police, the funds shall only be expended at the
direction of the Superintendent of the State Police and in accordance with the
provisions of article two, chapter eleven-b of this code and the provisions of
subdivision (10), subsection (b), section two, article two, chapter twelve of
this code;
(2) In the case of funds
belonging to the office of either the sheriff or prosecuting attorney of any
county in which the special fund has been created, the funds therein may only
be expended in the manner provided in sections four and five, article five,
chapter seven of this code; and
(3) In the case of funds
belonging to the police department of any municipality in which the special
fund has been created, the funds therein may only be expended in the manner
provided in section twenty-two, article thirteen, chapter eight of this code.
NOTE: The purpose of this bill is
to amend certain provisions of the West Virginia Contraband Forfeiture Act. It
restates the legislative findings and purpose. The bill; requires a receipt for
seized property from law enforcement and provides a procedure for replevin. The
bill states purposes for forfeiture of property and the procedure for
forfeiture. And the bill and provides that all moneys forfeited under the
provisions of this article shall be distributed for the support of drug courts.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.