§ 13A-10-207 — Forfeiture of Property

(a) All of the following property, real or personal, shall be subject to forfeiture:
(1) All raw materials, products, and equipment of any kind which are used or intended for use in manufacturing, cultivating, growing, compounding, processing, delivering, importing, or exporting any explosives or destructive devices in violation of Act 2009-718.
(2) All property which is used or intended for use as a container for property described in subdivision (1).
(3) All moneys, negotiable instruments, securities, other things of value furnished or intended to be furnished by any person in exchange for explosives or destructive devices in violation of any law of this state; all proceeds traceable to the exchange; and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of Act 2009-718.
(4) All conveyances, including aircraft, vehicles, or vessels, or agricultural machinery, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of any property described in subdivision (1).
(5) All books, records, and research products and materials, including formulas, microfilm, tapes, and data, which are used or intended for use in violation of Act 2009-718.
(6) All real property or fixtures used or intended to be used for the manufacture, receipt, storage, handling, distribution, or sale of explosive and destructive devices in violation of Act 2009-718.
(7) All property of any type whatsoever constituting, or derived from, any proceeds obtained directly, or indirectly, from any violation of Act 2009-718.
(b) Property subject to forfeiture under Act 2009-718 may be seized by state, county, or municipal law enforcement agencies upon process issued by a court having jurisdiction over the property. Seizure of property without process may be made if any of the following occurs:
(1) Incident to an arrest, search under a search warrant, or an inspection under an administrative inspection warrant.
(2) If the property is the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon Act 2009-718.
(3) The state, county, or municipal law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety.
(4) The state, county, or municipal law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of Act 2009-718.
(c) In the event of seizure pursuant to subsection (b), proceedings under subsection (d) shall be instituted promptly.
(d) Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the state, county, or municipal law enforcement agency subject only to the orders and judgment of the court having jurisdiction over the forfeiture proceedings. When property is seized under Act 2009-718, the state, county, or municipal law enforcement agency may do any of the following:
(1) Place the removed property under seal.
(2) Remove the property to a designated place.
(3) Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
(4) Post notice of the seizure on real property or fixtures, and file and record notice of the seizure in the probate office.
(e) When property is forfeited under Act 2009-718 the state, county, or municipal law enforcement agency may do any of the following:
(1) Retain the property for official use, except for lawful currency or money of the United States which shall be disposed of in the same manner provided for the disposal of proceeds from a sale in subdivision (2).
(2) Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds from the sale shall be used, first, for payment of all expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of or custody, advertising, and court costs; and the remaining proceeds from the sale shall be awarded and distributed by the court to the law enforcement agencies or departments that were participants in the investigation resulting in the seizure. The award and distribution shall be made on the basis of the percentage as determined by the court, which the respective agency or department contributed to the police work resulting in the seizure. Proceeds from sales authorized by this section awarded by the court to a law enforcement agency or department shall be deposited into the respective agency’s general fund and made available to the law enforcement agency or department upon requisition of the chief law enforcement official of the agency or department.
(3) Take custody of the property and remove the property for final disposition in accordance with law.
(f) An owner’s or bona fide lienholder’s interest in real property or fixtures shall not be forfeited under this section for any act or omission unless the state proves that the act or omission was committed or omitted with the knowledge or consent of the owner or lienholder. An owner’s or bona fide lienholder’s interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s or lienholder’s knowledge or consent, and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property to prevent the use, or both. Except as specifically provided to the contrary in this section, the procedures for the condemnation and forfeiture of property seized under this section shall be governed by and shall conform to the procedures set out in Sections 28-4-286 to 28-4-290, inclusive, except that:
(1) The burden of proof and standard of proof shall be as set out in this subsection instead of as set out in the last three lines of Section 28-4-290.
(2) The official filing the complaint shall also serve a copy of the complaint on any person, corporation, or other entity having a perfected security interest in the property that is known to that official or that can be discovered through the exercise of reasonable diligence.
(g) On application of the seizing law enforcement agency, the circuit court may authorize the seizing law enforcement agency to destroy or transfer to any agency of this state or of the United States which can safely store or render harmless any destructive device, explosive, poison gas, or detonator which is subject to forfeiture pursuant to this section if the court finds that it is impractical or unsafe for the seizing law enforcement agency to store the destructive device, explosive, poison gas, or detonator. The application may be made at any time after seizure. A destruction authorized pursuant to this subsection shall be made in the presence of at least one credible witness or shall be recorded on film, videotape, or other electronic imaging method. A film, videotape, or other electronic imaging method shall be admissible as evidence in lieu of the destructive device, explosive, poison gas, or detonator. The court may also direct the seizing agency or an agency to which the destructive device, explosive, poison gas, or detonator is transferred to make a report of the destruction or take samples, or both.
(h) Subsection (g) shall not prohibit an explosive ordnance technician, other law enforcement officer, or fire service personnel from taking action which shall render safe an explosive, destructive device, poison gas, or detonator or any object which is suspected of being an explosive, destructive device, poison gas, or detonator without the prior approval of a court when the action is intended to protect lives or property.

Legislative History

(Act 2009-718, p. 2115, §18.)