HB120 By Representative Sorrell RFD State Government Rd 1 04-FEB-20

SYNOPSIS: Under existing law, certain property is subject to civil forfeiture when owned or used by a person in the commission of certain unlawful acts. Property subject to civil forfeiture is forfeited to the state and sold, destroyed, or disposed of in a proper manner.

Also under existing law, all property seized by a state, county, or municipal law enforcement agency for forfeiture in connection with a criminal event is required to be reported to the uniform crime reporting system operated by the Alabama State Law Enforcement Agency.

This bill would establish for the Alabama Forfeiture Accountability and Integrity Reform Act and would authorize asset forfeiture in the state only after proof of a conviction of certain criminal offenses, with exceptions.

A BILL TO BE ENTITLED AN ACT

Relating to asset forfeitures; to establish the exclusive process for asset forfeitures in the state; and to repeal Section 13A-8-117, Section 13A-11-37, Article 4 of Chapter 5 of Title 15, and Section 20-2-93, Code of Alabama 1975.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Short title.

This act shall be known and may be cited as the Alabama Forfeiture Accountability and Integrity Reform (FAIR) Act.

Section 2. Statement of purpose.

The purpose of this act is to do all of the following:

(1) Deter criminal activity by reducing its economic incentives.

(2) Increase the pecuniary loss from criminal activity.

(3) Protect against the wrongful forfeiture of property.

(4) Ensure that criminal forfeiture is the only process allowed in this state.

Section 3. Definitions.

As used in this act, the following terms shall have the following meanings:

(1) ABANDONED PROPERTY. Personal property left by an owner who intentionally relinquishes all rights to its control. The term does not include real property or property that is disclaimed through a roadside waiver of property rights.

(2) ACTUAL KNOWLEDGE. Direct and clear awareness of information, a fact, or a condition.

(3) CONSTRUCTIVE KNOWLEDGE. Knowledge that is imputed to an individual where the individual would have had actual knowledge but for deliberate steps taken to achieve a state of willful, intentional ignorance of felonious activity.

(4) CONTRABAND. Goods that are unlawful to possess, including scheduled drugs without a valid prescription.

(5) CONVEYANCE. A device used for transportation. The term includes a motor vehicle, trailer, snowmobile, airplane, and vessel, and any equipment attached to it. The term does not include property that is stolen or taken in violation of the law.

(6) INNOCENT OWNER. A bona fide purchaser, creditor, or lienholder of property that is subject to forfeiture, who proves by clear and convincing evidence that he or she is any of the following:

a. A person who, at the time of the illegal conduct giving rise to the forfeiture, has a valid claim, lien, or other interest in the property subject to forfeiture.

b. A person who acquired an ownership interest in the property subject to forfeiture after the commission of a crime or delinquent act giving rise to the forfeiture.

c. A victim of an alleged criminal offense.

(7) INSTRUMENTALITY. Property otherwise lawful to possess that is used in the furtherance or commission of an offense of a law subject to forfeiture. The term includes land, buildings, containers, conveyances, equipment, materials, products, tools, computers, computer software, telecommunications devices, firearms, or ammunition.

(8) LAW ENFORCEMENT AGENCY. Any non-federal police force, or other local, county, or state agency that has the authority under state law to engage in seizure and forfeiture.

(9) LAW SUBJECT TO FORFEITURE. Any act chargeable as a felony offense under state law.

(10) PROCEEDS. Money, securities, negotiable instruments, or other means of exchange obtained by the sale of property.

Section 4. Criminal Forfeiture; Property Subject to Forfeiture.

When a person is convicted of violating a criminal law subject to forfeiture, the court, consistent with this act, may order the person to forfeit all of the following:

(1) Proceeds the person derived from the commission of the crime.

(2) Property directly traceable to proceeds derived from the commission of the crime.

(3) Instrumentalities the person used in the commission of the crime.

Section 5. Contraband.

No property right exists in contraband. Contraband is subject to seizure and shall be disposed of according to state law. Contraband is not subject to forfeiture under this act.

Section 6. Conviction Required; Standard of Proof.

(a) Property may be forfeited if the state proves all of the following by clear and convincing evidence:

(1) The offense constitutes a state law felony subject to forfeiture.

(2) The offense is established by proof of a criminal conviction.

(3) The property is forfeitable under Sections 4 and 5.

(b) Nothing in this section prevents property from being forfeited by plea agreement approved by the presiding criminal court.

(c) The court may waive the conviction requirement if the prosecuting authority shows, upon its own motion, by clear and convincing evidence that any of the following occurred:

(1) The defendant died.

(2) The defendant was deported by the federal government.

(3) The defendant is granted immunity or reduced punishment for the commission of a crime subject to forfeiture in exchange for testifying or assisting a law enforcement investigation or prosecution.

(4) The defendant fled the jurisdiction after being arrested, charged with a crime that subjects property to forfeiture, and released on bail.

(5) The property subject to forfeiture is abandoned property, as determined by the process required by Section 15-5-64, Code of Alabama 1975.

(d) Notwithstanding the prosecuting authority's motion for a waiver of the conviction requirement, all property remains subject to claims by innocent owners and other third parties with a bona fide claim to the property as provided by this act.

Section 7. Substitution of Assets.

Upon the state's motion following conviction, the court may order the forfeiture of substitute property owned by the defendant up to the value of unreachable property that is beyond the court's jurisdiction or cannot be located through due diligence only if the state proves by a preponderance of the evidence that the defendant intentionally transferred, sold, or deposited the unreachable property with a third party to avoid forfeiture.

Section 8. No Additional Remedies.

The state may not seek personal money judgments or other remedies to satisfy a forfeiture award that is not provided for in this act.

Section 9. No Joint and Several Liability.

A defendant is not jointly and severally liable for forfeiture awards owed by other defendants. When ownership is unclear, a court may order each defendant to forfeit property on a pro rata basis or by another means the court finds equitable.

Section 10. Seizure of Personal Property with Process.

At the request of the state at any time, a court may issue an ex parte preliminary order to attach, seize, or secure personal property for which forfeiture is sought and to provide for its custody, pending the determination of the prosecuting authority's forfeiture request. Application, issuance, execution, and return are subject to the Alabama Rules of Civil Procedure.

Section 11. Seizure of Personal Property without Process.

(a) Personal property subject to forfeiture may be seized, pending the determination of the prosecuting authority's forfeiture request, at any time, without a court order, under any of the following conditions:

(1) The seizure of personal property is incident to a lawful arrest or a search lawfully conducted.

(2) The personal property subject to seizure has been the subject of a prior judgment in favor of the state.

(3) The state has probable cause to believe that the delay occasioned by the necessity to obtain process would result in the removal or destruction of the personal property and that the personal property is forfeitable under this act.

(b) Mere presence or possession of United States currency, a debit card, or a credit card, without other indicia of a crime that subjects the property to forfeiture, is insufficient probable cause for seizure of the United States currency, debit card, or credit card.

Section 12. Seizure of Real Property with Process.

(a) Real property for which forfeiture is sought may not be seized without a court order. A court may issue an order to seize or secure real property, pending the determination of the prosecuting authority's forfeiture request, only after proper notice to property owners and an opportunity for a contested hearing to determine the sufficiency of probable cause for the seizure.

(b) Nothing in this section prohibits the prosecuting authority from seeking a lis pendens or restraining order to hinder the sale or destruction of the real property.

(c) Application, issuance, execution, and return of any order are subject to the Alabama Rules of Civil Procedure.

Section 13. Receipt.

When property is seized, the law enforcement officer shall give an itemized receipt to the person possessing the property. In the absence of the person possessing the property, the law enforcement officer shall leave a receipt in the place where the property was found, if reasonably possible.

Section 14. Title to Property.

(a) Title to property subject to forfeiture vests with the state when a court issues a forfeiture judgment and relates back to the time when the state seizes or restrains the property.

(b) Title to substituted assets vests when the court issues an order forfeiting substitute assets.

(c) Notwithstanding subsections (a) and (b), title to the property is subject to claims by innocent owners, bona fide creditors, lienholders, and other third parties adjudicated under this act.

Section 15. Pretrial Replevin Hearing.

(a) As used in this section, claimant means a defendant, innocent owner, or other third party with an interest in seized property.

(b) Following the seizure of property, a claimant has a right to a pretrial hearing to determine the validity of the seizure.

(c) Prior to 60 days before trial of the related criminal offense, the claimant may claim the right to possession of property by motion to the court to issue a writ of replevin.

(d) The claimant shall file a motion establishing the validity of the alleged interest in the property.

(e) The court shall hear the motion no more than 30 days after the motion is filed.

(f) The state shall file an answer showing probable cause for the seizure, or cross motions, at least 10 days before the hearing.

(g) Either party, by agreement or for good cause, may move the court for one extension of no more than 10 days. The motion may be supported by affidavits or other submissions.

(h) The court shall decide the motion for replevin within seven days of the hearing.

(i) The court shall issue a writ of replevin if the court finds any of the following:

(1) It is likely the final judgment will be that the state must return the property to the claimant.

(2) The state has failed to prove the property is reasonably required to be held for evidentiary reasons.

(3) The property is the only reasonable means for a defendant to pay for legal representation in the forfeiture or criminal proceeding. The court may order the return of funds or property sufficient to obtain counsel of choice but less than the total amount seized.

(j) In lieu of ordering the issuance of the writ, the court may order the state to give security or written assurance for satisfaction of any judgment, including damages, that may be rendered in the action, or order other relief as may be just.

Section 16. Discovery.

(a) Discovery concerning the forfeiture by a defendant is subject to the Alabama Rules of Criminal Procedure.

(b) Discovery concerning the forfeiture by an innocent owner or other third party is subject to the Alabama Rules of Civil Procedure.

Section 17. Trial Proceedings.

(a) The litigation related to the forfeiture of property shall be held in a single proceeding following the trial of the related alleged offense. The trial judge shall make all findings of fact for any litigation associated with the forfeiture of property of less than ten thousand dollars ($10,000) in value. Nothing in this act provides a right to a jury trial for any litigation associated with the forfeiture of property of less than ten thousand dollars ($10,000) in value.

(b) Within 30 days of the seizure of property or simultaneously upon filing a related criminal indictment, the state shall file a forfeiture charge that shall include all of the following:

(1) The date of the seizure.

(2) The address of the seizure.

(3) The name of the law enforcement agency that conducted the seizure.

(4) The type of property seized.

(5) A general description of the property seized.

(6) The name of the person or entity, if known, from whom the property was seized.

(7) A description of the suspected underlying criminal activity which led to the seizure.

(8) Any known arrest, including the date and charge, related to the seizure which occurred prior to a forfeiture final judgment of the seized property.

(9) Any and all civil case action numbers assigned in state court.

(10) Any known claimants, including title holders of record or lienholders of record, of the seized property.

(11) The disposition of the property, including the date of any order.

(12) The name of each entity receiving all or any portion of the seized property subject to the forfeiture disposition. If the forfeiture order requires the selling of the property, all proceeds from the sale shall be accounted for by the recipient.

(c) The charging document shall be served upon the defendant, the person from whom the property was seized, the person's attorney of record, and all persons known or reasonably believed to have an interest in the property, including innocent owners and other third parties.

Section 18. Proportionality Hearing.

(a) At any time following determination of forfeiture by the trier of fact, the defendant may petition the court to determine whether the forfeiture is unconstitutionally excessive under the Constitution of Alabama of 1901 or the United States Constitution.

(b) The defendant has the burden of establishing the forfeiture is grossly disproportional to the seriousness of the offense by a preponderance of the evidence at a hearing conducted by the court without a jury.

(c) In determining whether the forfeiture of property is unconstitutionally excessive, the court shall consider all relevant factors, including all of the following:

(1) The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the defendant.

(2) The extent to which the defendant participated in the offense.

(3) The extent to which the property was used in committing the offense.

(4) The sentence imposed for committing the crime subject to forfeiture.

(5) Whether the offense was completed or attempted.

(d) In determining the value of the property subject to forfeiture, the court shall consider all relevant factors, including all of the following:

(1) The fair market value of the property.

(2) The value of the property to the defendant, including hardship to the defendant if the forfeiture is realized, and whether the forfeiture would deprive the property owner of his or her livelihood.

(3) The hardship from the loss of a primary residence, motor vehicle, or other property to the defendant's family members or others if the property is forfeited.

(e) The court may not consider the value of the property to the state in determining whether the forfeiture of an instrumentality is constitutionally excessive.

Section 19. Secured Interest.

(a) Except as otherwise provided in this section, property encumbered by a bona fide security interest is not subject to forfeiture. A person claiming a security interest must establish by a preponderance of the evidence the validity of the interest perfected under Article 9A of Title 7 of the Code of Alabama 1975, or a lease or rental agreement.

(b) The prosecuting authority shall summarily return seized property to the person with the bona fide security interest, up to the value of the secured interest.

(c) If the person alleges a valid security interest but the state seeks to proceed with the forfeiture against the property, the state shall prove by a preponderance of the evidence that the person had actual knowledge of the underlying crime giving rise to the forfeiture.

Section 20. Third Party Claims.

(a) Any person, other than the defendant, asserting a legal interest in property which has been seized or restrained, at any time up until 90 days after the criminal conviction, may petition the court for a hearing to adjudicate the validity of the person's alleged interest in the property. The hearing shall be held before the court alone, without a jury.

(b) The petition shall be signed by the petitioner under penalty of perjury and shall set forth all of the following:

(1) The nature and extent of the petitioner's right, title, or interest in the property.

(2) The time and circumstances of the petitioner's acquisition of the right, title, or interest in the property.

(3) Any additional facts supporting the petitioner's claim.

(4) The relief sought.

(c) The hearing on the petition, to the extent practicable and consistent with the interests of justice, shall be held within 60 days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition or motion filed by a person other than the defendant under this subsection.

(d) At the hearing, the petitioner may testify and present evidence and witnesses on the petitioner's own behalf and cross-examine witnesses who appear at the hearing. The state may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing.

(e) A court shall rule on the petition within 14 days of the hearing.

(f) The petitioner who has an ownership interest in property subject to forfeiture existing at the time the illegal conduct giving rise to forfeiture occurred and who claims to be an innocent owner or other third party with an interest in the property bears the burden of proving by clear and convincing evidence that the petitioner has a legal right, title, or interest in the property seized under this act.

(g) If subsection (f) is satisfied and the state seeks to proceed with the forfeiture against the property, the state shall prove by clear and convincing evidence that the petitioner consented to the use of the property with actual or constructive knowledge that it would be or was used for the underlying crime giving rise to the forfeiture.

(h) A petitioner who acquired an ownership interest in property subject to forfeiture after the commission of a crime giving rise to the forfeiture and who claims to be an innocent owner or other third party with an interest in the property bears the burden of proving by clear and convincing evidence that the petitioner has a legal right, title, or interest in the property seized under this act.

(i) If subsection (h) is satisfied and the state seeks to proceed with the forfeiture against the property, the state shall prove by clear and convincing evidence that at the time the petitioner acquired the property either of the following were true:

(1) The petitioner had actual or constructive knowledge that the property was an instrumentality or the proceeds of a felonious act subjecting it to forfeiture.

(2) The petitioner was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

(j) If the state fails to meet its burden in subsections (g) and (i), the court shall find that the petitioner is an innocent owner and shall order the state to relinquish all claims of title to the property and return the property to the innocent owner within a reasonable period not to exceed five days.

(k) The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

Section 21. Appeal.

A party to forfeiture litigation, including a criminal defendant, a petitioner seeking innocent owner status, or a petitioner for replevin, may appeal the court's decision regarding the seizure or forfeiture of property under this act. The appeal may be on an interlocutory basis.

Section 22. Disposition of Property and Proceeds.

(a) At any time when unclaimed property or contraband held for evidentiary purposes is no longer needed for that purpose, the court may order it be delivered to the prosecuting or seizing agency within 30 days, or, in the case of contraband, be destroyed within 30 days.

(b) If the forfeiture is granted, the court may order the property be delivered to the prosecuting or seizing agency within 30 days.

(c) If the forfeiture is denied, the court must order the property be returned to the person from whom the property was seized within a reasonable period, not to exceed five days.

(d) Upon motion, the court may order that a portion of the currency seized or proceeds from the sale of forfeited property be used to pay reasonable non-personnel expenses for the seizure, storage, and maintenance of any forfeited property.

(e)(1) The prosecuting or seizing agency shall dispose of all non-currency forfeited property. The sale proceeds and forfeited currency shall be distributed in the following order:

a. To pay all outstanding recorded liens on the forfeited property.

b. To pay reasonable non-personnel expenses to comply with an order of the court.

c. The remaining proceeds from the sale or distribution shall be awarded by the court pursuant to a recommendation by the state on a pro rata share to the participating law enforcement agencies, the prosecuting entity that pursued the action, and as payment of restitution to any victims of the underlying offense.

(2) Any proceeds from sales authorized by this section awarded by the court to a county or municipal law enforcement agency shall be deposited into the respective county or municipal general fund and made available to the appropriate law enforcement agency upon requisition of the chief law enforcement official of the agency. Any monies or proceeds authorized by this act and ordered by the court to be distributed to the district attorney shall be deposited into the district attorney's solicitor's fund to be expended for law enforcement purposes.

(f) Abandoned property or property seized from an owner who fled the jurisdiction shall be delivered to the State Treasurer. The State Treasurer shall dispose of all such non-currency property in accordance with state law. The sale proceeds and currency shall be deposited into the State General Fund.

Section 23. Prohibition on Retaining Property; Sale Restrictions.

No law enforcement agency may retain forfeited or abandoned non-currency property for its own use or sell it, directly or indirectly, to any employee of the agency, to a person related to an employee by blood or marriage, or to another law enforcement agency.

Section 24. Return of Property, Damages, and Costs.

(a) The law enforcement agency that holds the property shall return the property to the owner or other prevailing claimant within a reasonable period of time not to exceed five days after judgment in favor of that person.

(b) The law enforcement agency that holds the property is responsible for any damages, storage fees, and related costs applicable to property returned under subsection (a).

Section 25. Adoption, Joint Task Forces and Receipt of Payment of Forfeiture Proceeds from the Federal Government.

(a) A law enforcement agency shall not refer, transfer, or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property's forfeiture under the federal Controlled Substances Act.

(b) A law enforcement agency or participant in a joint task force with the federal government or other multijurisdictional collaboration with the federal government shall not accept payment of any kind or distribution of forfeiture proceeds or property resulting from a joint task force with the federal government or other multijurisdictional collaboration with the federal government unless the aggregate net equity value of the property or currency forfeited in a case exceeds one hundred thousand dollars ($100,000), excluding the value of contraband.

(c) Nothing in subsection (a) or (b) shall be construed to restrict a law enforcement agency from acting alone or collaborating with a federal agency or other agency to seize contraband or property a law enforcement agent has probable cause to believe is the proceeds or instruments of a crime that subjects the property to forfeiture.

(d) Nothing in subsection (a) or (b) shall be construed to prohibit the federal government from seizing property and seeking forfeiture under federal law.

Section 26. Repeal of all other inconsistent forfeiture provisions.

This act sets out the exclusive process for asset forfeitures in the state and supersedes other provisions in state or local law that are inconsistent with this act. All civil forfeiture provisions of the Code of Alabama 1975, that are inconsistent with this act are repealed. Specifically, the following sections are repealed: Section 20-2-93, Code of Alabama 1975, relating to forfeiture in controlled substance cases; Section 13A-8-117, Code of Alabama 1975, relating to forfeiture of certain computers and software; Article 4, commencing with Section 15-5-60 of Chapter 5 of Title 15 of the Code of Alabama 1975, The Alabama Comprehensive Criminal Proceeds Forfeiture Act; and Section 13A-11-37, Code of Alabama 1975, relating to forfeiture of an eavesdropping device.

Section 27. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

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