§ 34-24-1-2 — Seizure procedure; custody; provisional release

Indiana § 34-24-1-2

• Jurisdiction: Indiana
• Title 34: CIVIL LAW AND PROCEDURE
• Art. 24: CIVIL PROCEEDINGS RELATED TO CRIMINAL
• Ch. 1: Forfeiture of Property Used in Violation of Certain

Text

(a) Property may be seized under this chapter
by a law enforcement officer only if:
(1) the seizure is incident to a lawful:
(A) arrest;
(B) search; or
(C) administrative inspection;
(2) the property has been the subject of a prior judgment in favor
of the state or unit in a proceeding under this chapter (or IC 34-4-30.1 before its repeal); or
(3) a court, after making an ex parte determination that there is
probable cause to believe the property is subject to seizure under
this chapter, issues an order for seizure.
(b) If property is seized under subsection (a)(1), the prosecuting
attorney shall file an affidavit of probable cause with a circuit or
superior court in the county in which the seizure occurred not later than
seven (7) days after the date of the seizure. If the court does not find
probable cause to believe the property is subject to seizure under this
chapter, it shall order the property returned to the owner of record.
(c) When property is seized under subsection (a), the law
enforcement agency making the seizure may, pending final disposition:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(d) If property seized under subsection (a)(1) or (a)(3) is real
property or a vehicle operated or possessed at the time of its seizure by
a person who is not an owner of the real property or vehicle, the owner
of the real property or vehicle may file a verified petition for
provisional release pending final forfeiture determination, requesting
the court to grant the owner possession of the real property or vehicle
while the forfeiture action is pending.
(e) A petition for provisional release under this section must:
(1) be in writing;
(2) be verified by the petitioner;
(3) state the grounds for relief;
(4) be filed in a circuit or superior court in the county in which the
seizure occurred; and
(5) be served on the prosecuting attorney.
(f) At the hearing on the petition for provisional release under this
section, the petitioner must establish that the:
(1) petitioner is an owner of record;
(2) petitioner or the petitioner's family benefits from the use of the
vehicle or the real property;
(3) petitioner has insured the property against loss from accident
and casualty; and
(4) petitioner had no reason to believe that the vehicle or real
property would be used for illegal activity.
(g) At the hearing on the petition for provisional release under this
section, the prosecuting attorney may present evidence that returning
the property to the owner would likely result in:
(1) damage to the property or diminution of the value of the
property beyond ordinary wear and tear; or
(2) continued use of the property in connection with illegal
activity.
(h) If the court grants the petition for provisional release under this
section, the court shall require the owner to:
(1) maintain the property; and
(2) refrain from selling or otherwise conveying the property
without the permission of the prosecuting attorney.
(i) If the court grants the petition for provisional release under this
section, it may place reasonable restrictions on the use of the property,
including one (1) or more of the following:
(1) Requiring the owner to post a cash bond.
(2) Placing mileage limitations on the use of a vehicle.
(3) Imposing reasonable limits on the use of the property.
(4) Prohibiting certain persons from the possession, occupation,
or use of the property.
(5) Requiring payment of all taxes, registration, and other fees, if
applicable.
(6) Maintaining property, casualty, and accident insurance.
(j) A court may not grant a petition for provisional release under this
section if the prosecuting attorney has filed a motion under section 9 of
this chapter or IC 35-33-5-5(k).
(k) The prosecuting attorney shall notify the owner of record of a
vehicle or real property of the right to file a petition for provisional
release under this section not later than seven (7) days after probable
cause has been determined under subsection (b).
(l) Property that is seized under subsection (a) (or IC 34-4-30.1-2(a)
before its repeal) is not subject to replevin but is considered to be in the
custody of the law enforcement agency making the seizure.
[Pre-1998 Recodification Citation: 34-4-30.1-2.]

Legislative History

As added by P.L.1-1998, SEC.19. Amended by P.L.47-2018, SEC.1; P.L.89-2022, SEC.1.