Asset Forfeiture 101
Asset forfeiture, the ability of a law enforcement agency to seize assets for the benefit of the agency, has been part of Kentucky law since 1975. General forfeiture provisions are covered in KRS 500.090, which specifies how any property that is subject to forfeiture will be handled. Other than firearms, forfeited items may be ordered destroyed by the sheriff’s office, for example, contraband drugs or other items of no value. If the item has value, and again, other than firearms, it may be advertised pursuant to KRS 424 and sold at public auction with the proceeds divided as required by the statute.
Firearms, if not subject to return to an innocent owner, must be transferred to the Kentucky State Police for disposition. However, any property, including firearms, seized and subject to forfeiture may be kept for official use. A firearm, however, under KRS 500.093, cannot be retained simply for the purpose of avoiding a transfer of the firearm or ammunition to KSP.
A detailed process for forfeiture under KRS 218A is laid out in KRS 218A.405 – 460. It describes the categories of real and personal property that might be seized and how to address a situation where forfeitable property has been taken out of state and is unreachable. Property may be seized with appropriate court process, or without process if taken pursuant to a search warrant or incident to an arrest, is subject to a prior judgement, is “directly or indirectly dangerous to health or safety” or the agency has probable cause to believe it is subject to forfeiture pursuant to the facts known. Real property (land and buildings) may only be seized pursuant to a court hearing and order. Once seized, the property becomes the responsibility of the seizing agency to maintain and protect.
Once seized, all property held under this section of the law is controlled by KRS 218A.420, which details how the property may be used and the division of proceeds should the property be sold. Each agency that seizes property is required to have a policy that is substantially in compliance with the Kentucky Department of Criminal Justice Training’s model policy (available on the DOCJT website) and have at least one employed officer who has attended an asset-forfeiture class approved by the Kentucky Law Enforcement Council.
“Asset forfeiture is an important way for law enforcement agencies to both remove assets from an individual who is using cash, vehicles, other personal property and real property for criminal purposes. It serves as a punishment and a deterrent, and it deprives, to some extent, the criminal of what they need to further their criminal course of action.”
Annually, any agency seizing such money or property is required to file appropriate paperwork detailing what was seized and its disposition. Under KRS 218A.420, the Kentucky Attorney General, working with the Prosecutor’s Advisory Council, is tasked to promulgate administrative regulations concerning how funds are to be expended. This information is provided in 40 KAR 4.010, regarding disbursement of asset forfeiture receipts, and specifies for what purposes the prosecutor’s office involved may use the money received. It does not, however, address the use of the money returned to the law enforcement agency. Although it becomes agency money, under KRS 218A.420(4)(a), it must be used for “direct law enforcement purposes.”
Of course, most asset forfeitures in Kentucky are based upon an underlying criminal prosecution under KRS 218A – Controlled Substances. However, there are a number of other provisions of the Kentucky Revised Statutes that may trigger a forfeiture of personal property. For example, under KRS 500.092, a conviction under KRS 508.140-.150, stalking in the first and second degrees, or KRS 510.155, unlawful use of electronic means, may permit the forfeiture of communication devices and computers directly involved in the crime. Almost all convictions under KRS 531, dealing with pornography and voyeurism, will do so as well. A sexual-offender registrant may face seizure and forfeiture, if they use such equipment in violation of KRS 17.546, which prohibits registrants from using social network websites, instant messaging or chatroom programs accessible by minors. This statute also provides that, with one minor exception, all forfeitures done under the Kentucky Penal Code shall use the same process as laid out in KRS 218A.
Other laws scattered throughout the Kentucky Revised Statutes provide for forfeiture in specific circumstances, such as KRS 242.310, which allows the forfeiture of a premises or vehicle used for selling or transporting intoxicating liquors in a dry territory.
Case law regarding forfeiture is, at this time, minimal. However, in Com. v. Burnett, an unpublished Kentucky Court of Appeals case from 2012, the Court agreed that although property could be seized, it could not be permanently confiscated until there was a conviction. The Court harkened back to the case of Singleton v. Com., 208 S.W.2d 325 (1948) in which it held “[c]onfiscation of [a person’s] property is only authorized after a conviction of the party alleged to have committed the offense. This is a foundation of the commonwealth’s right.” This differs, to some degree, from how forfeitures are handled under federal law.
Further, in Gritton v. Com., an unpublished Kentucky Court of Appeals decision from 2015, the Court agreed that the seized and forfeited item, in this case, a recently purchased vehicle, must be connected to the underlying drug trafficking. The case of Osborne & McClain v. Com., another unpublished Kentucky Court of Appeals case, from 2013, the innocent co-owner of the truck was entitled to half the value of the seized vehicle and could elect to purchase the other half of the vehicle from the agency, at presumably fair market value, and receive it, or receive half the proceeds of the vehicle if sold at auction.
Asset forfeiture is an important way for law enforcement agencies to both remove assets from an individual who is using cash, vehicles, other personal property and real property for criminal purposes. It serves as a punishment and a deterrent, and it deprives, to some extent, the criminal of what they need to further their criminal course of action.
It certainly can provide much needed resources to law enforcement agencies as well, but must be used wisely and be carefully documented. Officers should ensure they comply with the law, both in the seizure and in the documentation and use of any funds, to ensure not only good results, but also to maintain public trust.
