SF 2634

Conference Committee Report - 86th Legislature (2009 - 2010) Posted on 12/26/2012 11:26pm

A bill for an act
relating to forfeiture; requiring officers to give forfeiture receipts upon seizure
of property; implementing timelines for forfeiture notice and hearings;
placing a cap on the value of property that may be forfeited administratively;
authorizing petitions for remission and mitigation of seized property; requiring
certification by prosecutor before property may be forfeited administratively;
requiring forfeiture proceeds to be deposited in special trust accounts; directing
Department of Public Safety to establish ethical guidelines related to forfeiture
proceedings; requiring law enforcement to secure seized property; prohibiting
sale of forfeited property to law enforcement officers, employees, and family
members; amending Minnesota Statutes 2008, sections 609.531, subdivisions
4, 5, by adding subdivisions; 609.5311, subdivision 3; 609.5313; 609.5314,
subdivisions 2, 3; 609.5315, subdivisions 1, 2, 5.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 609.531, subdivision 4, is amended to read:

Subd. 4.

Seizure.

new text begin (a) new text end Property subject to forfeiture under sections 609.531 to
609.5318 may be seized by the appropriate agency upon process issued by any court
having jurisdiction over the property. Property may be seized without process if:

(1) the seizure is incident to a lawful arrest or a lawful search;

(2) the property subject to seizure has been the subject of a prior judgment in favor
of the state in a criminal injunction or forfeiture proceeding under this chapter; or

(3) the appropriate agency has probable cause to believe that the delay occasioned
by the necessity to obtain process would result in the removal or destruction of the
property and that:

(i) the property was used or is intended to be used in commission of a felony; or

(ii) the property is dangerous to health or safety.

If property is seized without process under item (i), the county attorney must institute
a forfeiture action under section 609.5313 as soon as is reasonably possible.

new text begin (b) When property is seized, the officer must provide a receipt to the person found in
possession of the property; or in the absence of any person, the officer must leave a receipt
in the place where the property was found, if reasonably possible.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
seizures conducted on or after that date.
new text end

Sec. 2.

Minnesota Statutes 2008, section 609.531, subdivision 5, is amended to read:

Subd. 5.

Right to possession vests immediately; custody of seized property.

All right, title, and interest in property subject to forfeiture under sections 609.531 to
609.5318 vests in the appropriate agency upon commission of the act or omission giving
rise to the forfeiture. Any property seized under sections 609.531 to 609.5318 is not
subject to replevin, but is deemed to be in the custody of the appropriate agency subject to
the orders and decrees of the court having jurisdiction over the forfeiture proceedings.
When property is so seized, the appropriate agency new text begin shall use reasonable diligence to
secure the property and prevent waste and new text end may new text begin do any of the following new text end :

(1) place the property under seal;

(2) remove the property to a place designated by it; new text begin and
new text end

(3) in the case of controlled substances, require the state Board of Pharmacy to
take custody of the property and remove it to an appropriate location for disposition in
accordance with law deleted text begin ; and deleted text end new text begin .
new text end

deleted text begin (4) take other steps reasonable and necessary to secure the property and prevent
waste.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
seizures conducted on or after that date.
new text end

Sec. 3.

Minnesota Statutes 2008, section 609.531, is amended by adding a subdivision
to read:

new text begin Subd. 7. new text end

new text begin Petition for remission or mitigation. new text end

new text begin Whenever any person who has
an interest in forfeited property files with the county attorney, before the disposition of
property, a petition for remission or mitigation of the forfeiture, the county attorney may
remit or mitigate the forfeiture upon the terms and conditions as the county attorney deems
reasonable if the county attorney finds that: (1) the forfeiture was incurred without willful
negligence or without any intention on the part of the petitioner to violate the law; or (2)
extenuating circumstances justify the remission or mitigation of the forfeiture.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2010.
new text end

Sec. 4.

Minnesota Statutes 2008, section 609.531, is amended by adding a subdivision
to read:

new text begin Subd. 8. new text end

new text begin Ethical guidelines. new text end

new text begin The Department of Public Safety shall develop ethical
guidelines and training procedures to be used by appropriate agencies and prosecuting
attorneys in carrying out sections 609.531 to 609.5318. Each appropriate agency and
prosecuting agency that files civil forfeiture actions under sections 609.531 to 609.5318
shall file with the Department of Public Safety, by December 31, 2010, and every other
year thereafter, a certificate signed by the agency head or a designee which represents that
the agency's policies and procedures are in compliance with the Department of Public
Safety's ethical guidelines and training procedures.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2010.
new text end

Sec. 5.

Minnesota Statutes 2008, section 609.5311, subdivision 3, is amended to read:

Subd. 3.

Limitations on forfeiture of certain property associated with controlled
substances.

(a) A conveyance device is subject to forfeiture under this section only if the
retail value of the controlled substance is deleted text begin $25 deleted text end new text begin $50 new text end or more and the conveyance device is
associated with a felony-level controlled substance crime.

(b) Real property is subject to forfeiture under this section only if the retail value of
the controlled substance or contraband is $1,000 or more.

(c) Property used by any person as a common carrier in the transaction of business
as a common carrier is subject to forfeiture under this section only if the owner of the
property is a consenting party to, or is privy to, the use or intended use of the property as
described in subdivision 2.

(d) Property is subject to forfeiture under this section only if its owner was privy to
the use or intended use described in subdivision 2, or the unlawful use or intended use of
the property otherwise occurred with the owner's knowledge or consent.

(e) Forfeiture under this section of a conveyance device or real property encumbered
by a bona fide security interest is subject to the interest of the secured party unless the
secured party had knowledge of or consented to the act or omission upon which the
forfeiture is based. A person claiming a security interest bears the burden of establishing
that interest by clear and convincing evidence.

(f) Forfeiture under this section of real property is subject to the interests of a good
faith purchaser for value unless the purchaser had knowledge of or consented to the act or
omission upon which the forfeiture is based.

(g) Notwithstanding paragraphs (d), (e), and (f), property is not subject to forfeiture
based solely on the owner's or secured party's knowledge of the unlawful use or intended
use of the property if: (1) the owner or secured party took reasonable steps to terminate
use of the property by the offender; or (2) the property is real property owned by the
parent of the offender, unless the parent actively participated in, or knowingly acquiesced
to, a violation of chapter 152, or the real property constitutes proceeds derived from or
traceable to a use described in subdivision 2.

(h) The Department of Corrections Fugitive Apprehension Unit shall not seize
a conveyance device or real property, for the purposes of forfeiture under paragraphs
(a) to (g).

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
offenses committed on or after that date.
new text end

Sec. 6.

Minnesota Statutes 2008, section 609.5313, is amended to read:

609.5313 FORFEITURE BY JUDICIAL ACTION; PROCEDURE.

new text begin (a) new text end The forfeiture of property under sections 609.5311 and 609.5312 is governed
by this section. A separate complaint must be filed against the property stating the act,
omission, or occurrence giving rise to the forfeiture and the date and place of the act or
occurrence. new text begin Within 90 days from when the seizure occurs, new text end the county attorney shall notify
the owner or possessor of the property of the action, if known or readily ascertainable.
The action must be captioned in the name of the county attorney or the county attorney's
designee as plaintiff and the property as defendant. new text begin Upon motion by the county attorney, a
court may extend the time period for sending notice for a period not to exceed 90 days for
good cause shown. new text end

new text begin (b) If notice is not sent in accordance with paragraph (a), and no time extension
is granted or the extension period has expired, the appropriate agency shall return the
property to the person from whom the property was seized, if known. An agency's
return of property due to lack of proper notice does not restrict the right of the agency
to commence a forfeiture proceeding at a later time. The agency shall not be required to
return contraband or other property that the person from whom the property was seized
may not legally possess.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
offenses committed on or after that date.
new text end

Sec. 7.

Minnesota Statutes 2008, section 609.5314, subdivision 2, is amended to read:

Subd. 2.

Administrative forfeiture procedure.

(a) Forfeiture of property described
in subdivision 1 new text begin that does not exceed $75,000 in value new text end is governed by this subdivision.
new text begin Within 90 days from new text end when seizure occurs, deleted text begin or within a reasonable time after that, deleted text end all
persons known to have an ownership, possessory, or security interest in seized property
must be notified of the seizure and the intent to forfeit the property. In the case of a motor
vehicle required to be registered under chapter 168, notice mailed by certified mail to the
address shown in Department of Public Safety records is deemed sufficient notice to the
registered owner. The notification to a person known to have a security interest in seized
property required under this paragraph applies only to motor vehicles required to be
registered under chapter 168 and only if the security interest is listed on the vehicle's title. new text begin
Upon motion by the appropriate agency or county attorney, a court may extend the time
period for sending notice for a period not to exceed 90 days for good cause shown.
new text end

(b) Notice may otherwise be given in the manner provided by law for service of a
summons in a civil action. The notice must be in writing and contain:

(1) a description of the property seized;

(2) the date of seizure;

(3) notice of the right to obtain judicial review of the forfeiture and of the procedure
for obtaining that judicial review, printed in English, Hmong, and Spanish. Substantially
the following language must appear conspicuously: "IF YOU DO NOT DEMAND
JUDICIAL REVIEW EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES,
SECTION 609.5314, SUBDIVISION 3, YOU LOSE THE RIGHT TO A JUDICIAL
DETERMINATION OF THIS FORFEITURE AND YOU LOSE ANY RIGHT YOU
MAY HAVE TO THE ABOVE DESCRIBED PROPERTY. YOU MAY NOT HAVE TO
PAY THE FILING FEE FOR THE DEMAND IF DETERMINED YOU ARE UNABLE
TO AFFORD THE FEE. IF THE PROPERTY IS WORTH $7,500 OR LESS, YOU MAY
FILE YOUR CLAIM IN CONCILIATION COURT. YOU DO NOT HAVE TO PAY
THE CONCILIATION COURT FILING FEE IF THE PROPERTY IS WORTH LESS
THAN $500."

new text begin (c) If notice is not sent in accordance with paragraph (a), and no time extension
is granted or the extension period has expired, the appropriate agency shall return the
property to the person from whom the property was seized, if known. An agency's
return of property due to lack of proper notice does not restrict the right of the agency
to commence a forfeiture proceeding at a later time. The agency shall not be required to
return contraband or other property that the person from whom the property was seized
may not legally possess.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
offenses committed on or after that date.
new text end

Sec. 8.

Minnesota Statutes 2008, section 609.5314, subdivision 3, is amended to read:

Subd. 3.

Judicial determination.

(a) Within 60 days following service of a notice
of seizure and forfeiture under this section, a claimant may file a demand for a judicial
determination of the forfeiture. The demand must be in the form of a civil complaint and
must be filed with the court administrator in the county in which the seizure occurred,
together with proof of service of a copy of the complaint on the county attorney for that
county, and the standard filing fee for civil actions unless the petitioner has the right to
sue in forma pauperis under section 563.01. If the value of the seized property is $7,500
or less, the claimant may file an action in conciliation court for recovery of the seized
property. If the value of the seized property is less than $500, the claimant does not have
to pay the conciliation court filing fee. No responsive pleading is required of the county
attorney and no court fees may be charged for the county attorney's appearance in the
matter. new text begin The hearing must be held at the earliest practicable date, and in any event no later
than 180 days following the filing of the demand by the claimant. new text end The proceedings are
governed by the Rules of Civil Procedure.

(b) The complaint must be captioned in the name of the claimant as plaintiff and
the seized property as defendant, and must state with specificity the grounds on which
the claimant alleges the property was improperly seized and the plaintiff's interest in the
property seized. Notwithstanding any law to the contrary, an action for the return of
property seized under this section may not be maintained by or on behalf of any person
who has been served with a notice of seizure and forfeiture unless the person has complied
with this subdivision.

(c) If the claimant makes a timely demand for judicial determination under this
subdivision, the appropriate agency must conduct the forfeiture under section 609.531,
subdivision 6a. The limitations and defenses set forth in section 609.5311, subdivision 3,
apply to the judicial determination.

(d) If a demand for judicial determination of an administrative forfeiture is filed
under this subdivision and the court orders the return of the seized property, the court shall
order that filing fees be reimbursed to the person who filed the demand. In addition, the
court may order sanctions under section 549.211. If the court orders payment of these
costs, they must be paid from forfeited money or proceeds from the sale of forfeited
property from the appropriate law enforcement and prosecuting agencies in the same
proportion as they would be distributed under section 609.5315, subdivision 5.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
offenses committed on or after that date.
new text end

Sec. 9.

Minnesota Statutes 2008, section 609.5315, subdivision 1, is amended to read:

Subdivision 1.

Disposition.

(a) Subject to paragraph (b), if the court finds under
section 609.5313, 609.5314, or 609.5318 that the property is subject to forfeiture, it shall
order the appropriate agency to do one of the following:

(1) unless a different disposition is provided under clause (3) or (4), either destroy
firearms, ammunition, and firearm accessories that the agency decides not to use for
law enforcement purposes under clause (8), or sell them to federally licensed firearms
dealers, as defined in section 624.7161, subdivision 1, and distribute the proceeds under
subdivision 5 or 5b;

(2) sell property that is not required to be destroyed by law and is not harmful to the
public and distribute the proceeds under subdivision 5 or 5b;

(3) sell antique firearms, as defined in section 624.712, subdivision 3, to the public
and distribute the proceeds under subdivision 5 or 5b;

(4) destroy or use for law enforcement purposes semiautomatic military-style assault
weapons, as defined in section 624.712, subdivision 7;

(5) take custody of the property and remove it for disposition in accordance with law;

(6) forward the property to the federal drug enforcement administration;

(7) disburse money as provided under subdivision 5 or 5b; or

(8) keep property other than money for official use by the agency and the prosecuting
agency.

(b) Notwithstanding paragraph (a), the Hennepin or Ramsey County sheriff may
not sell firearms, ammunition, or firearms accessories if the policy is disapproved by the
applicable county board.

new text begin (c) If property is sold under paragraph (a), the appropriate agency shall not sell
property to an officer or employee of the agency that seized the property or to a person
related to the officer or employee by blood or marriage.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2010.
new text end

Sec. 10.

Minnesota Statutes 2008, section 609.5315, subdivision 2, is amended to read:

Subd. 2.

Disposition of administratively forfeited property.

If property is
forfeited administratively under section 609.5314 or 609.5318 and no demand for judicial
determination is made, the appropriate agency new text begin shall provide the county attorney with a
copy of the forfeiture or evidence receipt, the notice of seizure and intent to forfeit, a
statement of probable cause for forfeiture of the property, and a description of the property
and its estimated value. Upon review and certification by the county attorney that (1) the
appropriate agency provided a receipt in accordance with section 609.531, subdivision 4,
or 626.16; (2) the appropriate agency served notice in accordance with section 609.5314,
subdivision 2, or 609.5318, subdivision 2; and (3) probable cause for forfeiture exists
based on the officer's statement, the appropriate agency new text end may dispose of the property
in any of the ways listed in subdivision 1.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010, and applies to
offenses committed on or after that date.
new text end

Sec. 11.

Minnesota Statutes 2008, section 609.5315, subdivision 5, is amended to read:

Subd. 5.

Distribution of money.

new text begin (a) new text end The money or proceeds from the sale of
forfeited property, after payment of seizure, storage, forfeiture, and sale expenses, and
satisfaction of valid liens against the property, must be distributed as deleted text begin follows deleted text end new text begin provided in
paragraphs (b) to (f) using the following formula new text end :

(1) 70 percent of the money or proceeds must be deleted text begin forwarded to the appropriate
agency for deposit deleted text end new text begin distributed to the appropriate agency;
new text end

new text begin (2) 20 percent of the money or proceeds must be distributed to the prosecuting
agency that handled the forfeiture; and
new text end

new text begin (3) the remaining ten percent of the money or proceeds must be forwarded within 60
days after resolution of the forfeiture to the state treasury and credited to the general fund.
new text end

new text begin (b) If the appropriate agency is a county sheriff's department or a city police
department, the money or proceeds shall be deposited into a special law enforcement trust
fund established by the governing body of the local unit of government. These funds
may be expended upon request by the sheriff or chief of police to the governing body,
accompanied by a written certification that the funds will be used new text end as a supplement to the
agency's operating fund or similar fund for use in law enforcement deleted text begin ; deleted text end new text begin .
new text end

deleted text begin (2) 20 percent of deleted text end new text begin (c) If the appropriate agency is a state agency or other agency not
listed in paragraph (b), the money or proceeds must be deposited into a special revenue
fund. These funds may be expended upon request by the head of the agency to the
commissioner of management and budget, accompanied by a written certification that the
funds will be used as a supplement to the agency's operating fund or similar fund for
use in law enforcement. new text end

new text begin (d) If more than one appropriate agency acted to effect the forfeiture, the money
or proceeds shall be distributed among the agencies pursuant to contractual agreement;
or if no contractual agreement exists, the court having jurisdiction over the forfeiture
proceeding shall, upon motion, equitably distribute all money and proceeds among the
agencies based upon each agency's participation in the forfeiture. All money and proceeds
shall be deposited in accordance with paragraphs (b) and (c).
new text end

new text begin (e) If the prosecuting agency that handled the forfeiture is a county attorney or
city attorney, new text end the money or proceeds must be deleted text begin forwarded to the county attorney or other
prosecuting agency that handled the forfeiture for deposit deleted text end new text begin deposited into a special
prosecutor trust fund established by the governing body of the local unit of government.
These funds may be expended upon request by the city attorney or county attorney to the
governing body, accompanied by a written certification that the funds will be used new text end as a
supplement to its operating fund or similar fund for prosecutorial purposes deleted text begin ; and deleted text end new text begin .
new text end

deleted text begin (3) the remaining ten percent of the money or proceeds must be forwarded within 60
days after resolution of the forfeiture to the state treasury and credited to the general fund.
Any local police relief association organized under chapter 423 which received or was
entitled to receive the proceeds of any sale made under this section before the effective
date of Laws 1988, chapter 665, sections 1 to 17, shall continue to receive and retain the
proceeds of these sales.
deleted text end

new text begin (f) If the prosecuting agency that handled the forfeiture is the attorney general, the
money or proceeds must be deposited into a special revenue fund. These funds may be
expended upon request by the attorney general to the commissioner of management and
budget, accompanied by a written certification that the funds will be used as a supplement
to its operating fund or similar fund for prosecutorial purposes.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2010.
new text end