SF 2634

2nd Engrossment - 86th Legislature (2009 - 2010) Posted on 04/19/2010 02:17pm

A bill for an act
relating to public safety; making numerous changes to the controlled substance
forfeiture law; expanding the reporting requirements related to forfeiture;
requiring model policies on forfeiture; addressing the disposition of forfeiture
proceeds; providing for a probable cause determination for certain forfeitures;
amending Minnesota Statutes 2008, sections 97A.221, by adding a subdivision;
97A.223, by adding a subdivision; 97A.225, by adding a subdivision; 169A.63,
by adding a subdivision; 491A.01, subdivision 3; 609.531, subdivisions 1a,
5, 5a, by adding a subdivision; 609.5311, subdivision 3; 609.5313; 609.5314;
609.5315, subdivisions 5, 6, by adding a subdivision; 609.5318, subdivision 3;
609.762, by adding a subdivision; 609.905, by adding a subdivision; Minnesota
Statutes 2009 Supplement, section 84.7741, by adding a subdivision; proposing
coding for new law in Minnesota Statutes, chapters 388; 626.

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

Section 1.

Minnesota Statutes 2009 Supplement, section 84.7741, is amended by
adding a subdivision to read:

Subd. 13.

Reporting.

The appropriate agency and prosecuting authority shall report
on forfeitures of property having a value of more than $250 occurring under this section as
described in section 609.5315, subdivision 6.

Sec. 2.

Minnesota Statutes 2008, section 97A.221, is amended by adding a subdivision
to read:

Subd. 5.

Reporting.

The appropriate agency and prosecuting authority shall report
on forfeitures of property having a value of more than $250 occurring under this section as
described in section 609.5315, subdivision 6.

Sec. 3.

Minnesota Statutes 2008, section 97A.223, is amended by adding a subdivision
to read:

Subd. 6.

Reporting.

The appropriate agency and prosecuting authority shall report
on forfeitures of property having a value of more than $250 occurring under this section as
described in section 609.5315, subdivision 6.

Sec. 4.

Minnesota Statutes 2008, section 97A.225, is amended by adding a subdivision
to read:

Subd. 10.

Reporting.

The appropriate agency and prosecuting authority shall report
on forfeitures of property having a value of more than $250 occurring under this section as
described in section 609.5315, subdivision 6.

Sec. 5.

Minnesota Statutes 2008, section 169A.63, is amended by adding a subdivision
to read:

Subd. 12.

Reporting.

The appropriate agency and prosecuting authority shall report
on forfeitures occurring under this section as described in section 609.5315, subdivision 6.

Sec. 6.

[388.30] CONTROLLED SUBSTANCE FORFEITURE POLICIES.

Subdivision 1.

Statewide model policy required.

The Minnesota County Attorneys
Association, in consultation with the attorney general's office and the Peace Officer
Standards and Training Board, shall develop a model policy on controlled substance
forfeitures designed to encourage the uniform application of these laws across the state.
At a minimum, the policy shall address the following: the type of training and assistance
provided to law enforcement by prosecutors; the level of involvement of prosecutors in
administrative forfeitures, including reviewing administrative forfeiture cases before the
forfeiture is finalized; situations in which forfeitures should not be pursued; and best
practices in pursuing forfeitures.

Subd. 2.

Local policies required.

The county attorney in each county shall adopt
a written policy on controlled substance forfeitures for attorneys within the office.
The policy must be identical or substantially similar to the model policy described in
subdivision 1.

Subd. 3.

Report to legislature.

By February 1, 2011, the Minnesota County
Attorneys Association and each county attorney shall adopt the policies required in
this section and the association shall forward an electronic copy of the model policy
to the chairs and ranking minority members of the senate and house of representatives
committees having jurisdiction over criminal justice and civil law policy. This subdivision
expires on July 1, 2011.

Sec. 7.

Minnesota Statutes 2008, section 491A.01, subdivision 3, is amended to read:

Subd. 3.

Jurisdiction; general.

(a) Except as provided in subdivisions 4 and 5,
the conciliation court has jurisdiction to hear, conciliate, try, and determine civil claims if
the amount of money or property that is the subject matter of the claim does not exceed:
$6,000 or, on and after July 1, 1994, (1) $7,500, or; (2) $4,000, if the claim involves a
consumer credit transaction; or (3) $15,000, if the claim involves property subject to
forfeiture under section 609.5311. "Consumer credit transaction" means a sale of personal
property, or a loan arranged to facilitate the purchase of personal property, in which:

(1) credit is granted by a seller or a lender who regularly engages as a seller or
lender in credit transactions of the same kind;

(2) the buyer is a natural person;

(3) the claimant is the seller or lender in the transaction; and

(4) the personal property is purchased primarily for a personal, family, or household
purpose and not for a commercial, agricultural, or business purpose.

(b) Except as otherwise provided in this subdivision and subdivisions 5 to 10, the
territorial jurisdiction of conciliation court is coextensive with the county in which the
court is established. The summons in a conciliation court action under subdivisions 6 to
10 may be served anywhere in the state, and the summons in a conciliation court action
under subdivision 7, paragraph (b), may be served outside the state in the manner provided
by law. The court administrator shall serve the summons in a conciliation court action
by first class mail, except that if the amount of money or property that is the subject of
the claim exceeds $2,500, the summons must be served by the plaintiff by certified mail,
and service on nonresident defendants must be made in accordance with applicable law
or rule. Subpoenas to secure the attendance of nonparty witnesses and the production of
documents at trial may be served anywhere within the state in the manner provided by law.

When a court administrator is required to summon the defendant by certified mail
under this paragraph, the summons may be made by personal service in the manner
provided in the Rules of Civil Procedure for personal service of a summons of the district
court as an alternative to service by certified mail.

Sec. 8.

Minnesota Statutes 2008, section 609.531, subdivision 1a, is amended to read:

Subd. 1a.

Construction.

Sections 609.531 to 609.5318 must be liberally construed
to carry out the following remedial purposes:

(1) to enforce the law;

(2) to deter crime;

(3) to reduce the economic incentive to engage in criminal enterprise; and

(4) to increase the pecuniary loss resulting from the detection of criminal activity;
and

(5) (4) to forfeit property unlawfully used or acquired and divert the property to
law enforcement purposes.

Sec. 9.

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 shall use reasonable diligence to
secure the property and prevent waste and may do any of the following:

(1) place the property under seal;

(2) remove the property to a place designated by it; and

(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; and.

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

Sec. 10.

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

Subd. 5a.

Bond by owner for possession.

(a) If the owner of property that has been
seized under sections 609.531 to 609.5318 seeks possession of the property before the
forfeiture action is determined, the owner may, subject to the approval of the appropriate
agency, give security or post bond payable to the appropriate agency in an amount equal to
the retail value of the seized property. On posting the security or bond, the seized property
must be returned to the owner and the forfeiture action shall proceed against the security
as if it were the seized property. This subdivision does not apply to contraband property.

(b) If the owner of a motor vehicle that has been seized under this section seeks
possession of the vehicle before the forfeiture action is determined, the owner may
surrender the vehicle's certificate of title in exchange for the vehicle. The motor vehicle
must be returned to the owner within 24 hours if the owner surrenders the motor vehicle's
certificate of title to the appropriate agency, pending resolution of the forfeiture action. If
the certificate is surrendered, the owner may not be ordered to post security or bond as a
condition of release of the vehicle. When a certificate of title is surrendered under this
provision, the agency shall notify the Department of Public Safety and any secured party
noted on the certificate. The agency shall also notify the department and the secured party
when it returns a surrendered title to the motor vehicle owner.

Sec. 11.

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

Subd. 7.

Release of property before final determination.

Any person with
an interest in property that has been seized for forfeiture under this section may file an
application to have an order to show cause issued to the prosecuting agency to determine
if probable cause existed to seize the property for forfeiture.

When a hearing is held on the show cause order, the court shall determine if
probable cause to seize the property for forfeiture existed. If the court finds that probable
cause for seizure of the property for forfeiture did not exist, the appropriate agency shall
release the property.

Sec. 12.

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 $25 $100 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 $4,000 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).

(i) Property is not subject to forfeiture under this section if the forfeiture would
create an undue hardship for members of the owner's immediate family.

Sec. 13.

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

609.5313 FORFEITURE BY JUDICIAL ACTION; PROCEDURE.

(a) 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. 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.

(b) The county attorney shall file an action for forfeiture under section 609.5311 in
conciliation court if the value of the seized property is $15,000 or less. No court fees may
be charged to the county attorney or the claimant in the matter.

Sec. 14.

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

609.5314 ADMINISTRATIVE FORFEITURE OF CERTAIN PROPERTY
SEIZED IN CONNECTION WITH A CONTROLLED SUBSTANCES SEIZURE.

Subdivision 1.

Property subject to administrative forfeiture; presumption.

(a) Subject to paragraph (b), the following are presumed to be subject to administrative
forfeiture under this section:

(1) all money, precious metals, and precious stones found in proximity to: controlled
substances with a retail value of $100 or more if possession or sale of the controlled
substance would be a felony under chapter 152;

(2) all money, precious metals, and precious stones found in proximity to:

(i) controlled substances;

(ii) (i) forfeitable drug manufacturing or distributing equipment or devices; or

(iii) (ii) forfeitable records of manufacture or distribution of controlled substances;

(2) (3) all conveyance devices containing controlled substances with a retail value of
$100 $400 or more if possession or sale of the controlled substance would be a felony
under chapter 152; and

(3) (4) all firearms, ammunition, and firearm accessories found:

(i) in a conveyance device used or intended for use to commit or facilitate the
commission of a felony offense involving a controlled substance;

(ii) on or in proximity to a person from whom a felony amount of controlled
substance is seized; or

(iii) on the premises where a controlled substance is seized and in proximity to the
controlled substance, if possession or sale of the controlled substance would be a felony
under chapter 152.

(b) The value of property forfeited under this section may not exceed $15,000.
Forfeitures of property with values exceeding $15,000 are governed by section 609.5311.

(c) The Department of Corrections Fugitive Apprehension Unit shall not seize items
listed in paragraph (a), clauses (2) (3) and (3) (4), for the purposes of forfeiture.

(c) (d) Firearms, ammunition, and firearm accessories described in paragraph (a),
clause (4), are presumed subject to forfeiture. A claimant of the property bears the burden
to rebut this presumption. A claimant may do this by a preponderance of the evidence.

Subd. 2.

Administrative forfeiture procedure.

(a) Forfeiture of property described
in subdivision 1 is governed by this subdivision. When seizure occurs, or within a
reasonable time 15 business days after that, 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.

(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, Somali, 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." The notice must be worded in plain language that is likely
to be understandable to persons with limited reading skills; and

(4) a separate detachable form designed in a manner and with sufficient space to be
easily used by the person to object to the forfeiture.

Subd. 3.

Judicial determination Objection to forfeiture.

(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 an objection to the forfeiture. The objection
must identify the claimant, describe the property, and state the grounds for the objection.
The demand objection must be in the form of a civil complaint writing and must be filed
with made to 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. The
proceedings are governed by the Rules of Civil Procedure. The clamant may, but is not
required to, use the detachable form described in subdivision 2, paragraph (b), clause (4).
A court administrator who receives an objection under this paragraph shall forward a
copy of it to the county attorney.

(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 objection to
forfeiture under this subdivision, the appropriate agency must conduct the forfeiture
under section 609.531, subdivision 6a county attorney, after reviewing the case, may
pursue a judicial forfeiture under section 609.5311. The limitations and defenses set forth
in section 609.5311, subdivision 3, apply to the judicial determination. If the county
attorney does not initiate a forfeiture under section 609.5311 within 75 days of the date the
claimant's written objection to the forfeiture is made to the court, the appropriate agency
shall return the seized property.

(d) If a demand for judicial determination of an administrative an objection to
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.

Sec. 15.

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

Subd. 5.

Distribution of money.

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 follows:

(1) 70 60 percent of the money or proceeds must be forwarded to the appropriate
agency for deposit as a supplement to the agency's operating fund or similar fund for
use in law enforcement;

(2) 20 percent of the money or proceeds must be forwarded to the county attorney
or other prosecuting agency that handled the forfeiture for deposit as a supplement to its
operating fund or similar fund for prosecutorial purposes; and

(3) five percent of the money or proceeds must be forwarded to the Department of
Public Safety to establish a grant program for local law enforcement agencies to purchase
or replace in-car camera systems. Up to 2.5 percent of this money may be used by the
department to administer the program; and

(4) the remaining ten 15 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.

Sec. 16.

Minnesota Statutes 2008, section 609.5315, subdivision 6, is amended to read:

Subd. 6.

Reporting requirement.

(a) For each forfeiture occurring in the state
regardless of the authority for it, the appropriate agency and the prosecutor shall provide
a written record of each the forfeiture incident to the state auditor. The record shall
include the amount forfeited, the statutory authority for the forfeiture, its date, and a brief
description of the circumstances involved, and whether the forfeiture was contested. For
controlled substance and driving while impaired forfeitures, the record shall indicate
whether the forfeiture was initiated as an administrative or a judicial forfeiture. The
record shall also list the number of firearms forfeited and the make, model, and serial
number of each firearm forfeited. The record shall indicate how the property was or is
to be disposed of.

(b) An appropriate agency or the prosecutor shall report to the state auditor all
instances in which property seized for forfeiture is returned to its owner either because
forfeiture is not pursued or for any other reason.

(c) The state auditor may require information not specified in this subdivision to
be reported as well.

(d) Reports shall be made on a monthly basis in a manner prescribed by the state
auditor. The state auditor shall report annually to the legislature on the nature and extent
of forfeitures.

(e) For forfeitures resulting from the activities of multijurisdictional law enforcement
entities, the entity on its own behalf shall report the information required in this
subdivision.

(f) The prosecutor is not required to report information required by this subdivision
if the appropriate agency has already reported it.

Sec. 17.

Minnesota Statutes 2008, section 609.5315, is amended by adding a
subdivision to read:

Subd. 8.

Sales of forfeited property.

(a) Sales of forfeited property under this
section must be conducted in a commercially reasonable manner.

(b) Employees of law enforcement agencies and their family members may not
purchase forfeited items directly from the appropriate agency.

Sec. 18.

Minnesota Statutes 2008, section 609.5318, subdivision 3, is amended to read:

Subd. 3.

Hearing.

(a) Within 60 days following service of a notice of seizure and
forfeiture, a claimant may demand a judicial determination of the forfeiture. If a related
criminal proceeding is pending, the 60-day period begins to run at the conclusion of
those proceedings. The demand must be in the form of a civil complaint an objection to
forfeiture as provided in section 609.5314, subdivision 3, except as otherwise provided
in this section.

(b) If the claimant makes a timely demand for judicial determination under this
subdivision, the appropriate agency must conduct the forfeiture under subdivision 4.

Sec. 19.

Minnesota Statutes 2008, section 609.762, is amended by adding a subdivision
to read:

Subd. 6.

Reporting.

The law enforcement and prosecuting agencies shall report on
forfeitures occurring under this section as described in section 609.5315, subdivision 6.

Sec. 20.

Minnesota Statutes 2008, section 609.905, is amended by adding a subdivision
to read:

Subd. 3.

Reporting.

The prosecuting authority shall report on forfeitures occurring
under this section as described in section 609.5315, subdivision 6.

Sec. 21.

[626.8475] CONTROLLED SUBSTANCE FORFEITURE POLICIES.

Subdivision 1.

Statewide model policy required.

The Peace Officer Standards
and Training Board, after consulting with the Minnesota County Attorneys Association,
the Minnesota Sheriffs Association, the Minnesota Chiefs of Police Association, and
the Minnesota Police and Peace Officers Association, shall develop a model policy
on controlled substance forfeitures designed to encourage the uniform application of
these laws across the state. At a minimum, the policy shall address the following: the
level of cooperation with and involvement of prosecutors in forfeiture cases, including
reviewing administrative forfeiture cases before the forfeiture is finalized; situations in
which forfeitures should not be pursued; disposition of forfeited items; and best practices
in pursuing forfeitures.

Subd. 2.

Local policies required.

The chief law enforcement officer of every
state and local law enforcement agency shall adopt and implement a written policy on
controlled substance forfeitures that is identical or substantially similar to the model
policy described in subdivision 1.

Subd. 3.

Report to legislature.

By February 1, 2011, the Peace Officer Standards
and Training Board and each chief law enforcement officer shall adopt the policies
required in this section and the board shall forward an electronic copy of the model policy
to the chairs and ranking minority members of the senate and house of representatives
committees having jurisdiction over criminal justice and civil law policy. This subdivision
expires on July 1, 2011.

Sec. 22. DEVELOPMENT OF CONTROLLED SUBSTANCE
ADMINISTRATIVE FORFEITURE NOTICE LANGUAGE.

The commissioner of public safety and the executive director of the Peace Officer
Standards and Training Board, in consultation with the Minnesota County Attorneys
Association, shall develop the notice described in Minnesota Statutes, section 609.5314,
subdivision 2, paragraph (b), clause (3). By November 1, 2010, the commissioner and
executive director shall forward the language of the notice to the chief law enforcement
officer of each state and local law enforcement agency. Each chief law enforcement officer
shall ensure that the notice is used for controlled substance administrative forfeitures
taking place within the jurisdiction on and after November 1, 2010.