Procedures for Property Seizure
Kentucky’s asset forfeiture laws lay out specific details regarding the proper procedures for seizing property in a criminal investigation. This statute was current as of the end of the 2016 legislative session. Anyone with questions about the details of this statute should discuss them with the prosecutors in their local jurisdiction, or contact Department of Criminal Justice Training legal staff for guidance.
Below is the portion of Kentucky’s law that specifically addresses seizure procedures.
218A.415 Procedure for seizure of property.
(1) Personal property subject to forfeiture under this chapter may be seized by any law enforcement agency upon process issued by any judge that is empowered to issue a warrant of arrest or search warrant and in whose jurisdiction the property is located. Seizure of personal property without process may be made if:
(a) The seizure is incident to an arrest or a search under a search warrant;
(b) 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 based upon this chapter;
(c) The law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(d) The law enforcement agency has probable cause to believe that the property is subject to forfeiture pursuant to this chapter.
(2) Property taken or detained under this section shall not be subject to replevin, but shall be deemed to be in the custody of the law enforcement agency subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the law enforcement agency may:
(a) Remove the property to a place designated by it; or
(b) Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
(3) Real property subject to forfeiture may be seized only pursuant to final judgment and order of forfeiture or upon order of the court having jurisdiction over the property. The order may be obtained pursuant to this subsection upon application of the Commonwealth.
(a) Upon receipt of the application, the court shall immediately enter an order setting a date for hearing on the matter no fewer than five (5) days nor more than ten (10) days after the filing of the application. At the hearing:
1. The court shall take evidence on the issues of whether the property named in the application is forfeit and seizure is necessary to preserve the property pending final judgment.
2. The Commonwealth shall have the initial burden of showing the existence of probable cause for forfeiture of the property and the necessity of seizure. On the showing by the Commonwealth, the respondent shall have the burden of showing by a preponderance of the evidence that the property is not subject to forfeiture.
3. Evidence at the seizure hearing may not be suppressed on the ground that its acquisition by search or seizure violated constitutional protections applicable in criminal cases relating to unreasonable searches or seizures.
4. If the court makes a determination in favor of the Commonwealth, it shall enter an order authorizing the seizure of the property.
5. The court may, in its discretion, permit the owner of the property to post security equal to the value of the property in lieu of seizure.
(b) A temporary seizure order pursuant to this section may be entered on application without notice or an opportunity for a hearing if the Commonwealth demonstrates that there is probable cause to believe that the property with respect to which the order is sought is subject to forfeiture and the need to preserve the availability of property through immediate seizure outweighs the hardship that an immediate seizure may cause the owner. The temporary order shall expire ten (10) days after the date on which it is entered or at the time of the hearing provided for in paragraph (a) of this subsection.
Texas U.S. Customs and Border Protection officers seized over half a ton of alleged marijuana in a commercial shipment of mud floor tiles. Packages containing 1,303 pounds of marijuana were seized. (Photo courtesy of U.S. Customs and Border Protection)
Federal Forfeiture
For criminal investigations that meet the parameters of federal prosecution, there are guidelines in place for participation in federal asset forfeiture. The United States Department of Justice has provided an online policy manual, which can be accessed by scanning the QR code on this page. Full details of the program are provided on their website. For further assistance, you can contact DOJ directly by email, or call the Forfeiture Systems Customer Service Center at (202) 616-2287.
Below are descriptions from the DOJ website regarding the different types of federal asset forfeiture.
CRIMINAL FORFEITURE is an action brought as part of the criminal prosecution of a defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant. If the jury finds the property forfeitable, the court issues an order of forfeiture.
For forfeitures pursuant to the Controlled Substances Act, Racketeer Influenced and Corrupt Organizations, as well as money laundering and obscenity statutes, there is an ancillary hearing for third parties to assert their interest in the property. Once the interests of third parties are addressed, the court issues a final forfeiture order.
CIVIL JUDICIAL FORFEITURE is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary.
ADMINISTRATIVE FORFEITURE is an in rem action that permits the federal-seizing agency to forfeit the property without judicial involvement. The authority for a seizing agency to start an administrative forfeiture action is found in the Tariff Act of 1930, 19 U.S.C. § 1607. Property that can be administratively forfeited is: merchandise the importation of which is prohibited; a conveyance used to import, transport or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value.
Source: A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, U.S. Department of Justice, March 1994.
