§ 39-15-1195 — Seizure and forfeiture; storage and maintenance of seized property; reports to prosecuting agencies; return of items.

(A) The following property is subject to seizure by and forfeiture to any law enforcement agency upon violation of Section 39-15-1190: (1) all items bearing the counterfeit mark; (2) all personal property that is employed or used in connection with a violation of Section 39-15-1190 including, but not limited to, any items, objects, tools, machines, equipment, or instrumentalities of any kind; (3) all conveyances including, but not limited to, trailers, aircraft, motor vehicles, and watergoing vessels which are used unlawfully to conceal, contain, or transport or facilitate the unlawful concealment, possession, containment, manufacture, or transportation of counterfeit marks; (4) all books, records, computers, and data that are used or intended for use in the production, manufacture, sale, or delivery of items bearing a counterfeit mark or services identified by a counterfeit mark; and (5) all monies, negotiable instruments, balances in deposit or other accounts, securities, or other things of value furnished or intended to be furnished by any person used to engage in a violation or to further a violation of Section 39-15-1190. (B) Property subject to forfeiture pursuant to this section may be seized by the department having authority upon a warrant issued by a court having jurisdiction over the property. Seizure without process may be made if: (1) the seizure is incident to an arrest or a search pursuant to a search warrant or an inspection pursuant to an administrative inspection warrant; (2) 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 section; (3) the department has probable cause to believe that the property is directly or indirectly dangerous to an individual's health or safety; or (4) the department has probable cause to believe that the property was used or is intended to be used in violation of Section 39-15-1190. (C) If a seizure is made pursuant to subsection (B), proceedings pursuant to Section 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time. (D) Property taken or detained pursuant to this section is not subject to replevin but is considered to be in the custody of the department making the seizure, subject only to the orders of the court having jurisdiction over the forfeiture proceedings. (E) For the purposes of this section, when the seizure of property subject to seizure is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure. (F) Law enforcement agencies seizing property pursuant to this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidentiary nature and provides for security in another manner. (G) When property, conveyances, monies, negotiable instruments, securities, or anything else of value is seized pursuant to the provisions of subsection (A), the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, shall submit a report to the appropriate prosecution agency. (1) The report must provide the following information with respect to the property seized: (a) description; (b) circumstances of seizure; (c) present custodian and where the property is being stored or its location; (d) name of owner; (e) name of lienholder, if any; and (f) seizing agency. (2) If the property is a conveyance, the report must include the: (a) make, model, serial number, and year of the conveyance; (b) person in whose name the conveyance is registered; and (c) name of any lienholders. (3) In addition to the report provided for in items (1) and (2), the law enforcement agency shall prepare for dissemination to the public, upon request, a report providing the following information: (a) a description of the quantity and nature of the property and money seized; (b) the seizing agency; (c) the make, model, and year of a conveyance; and (d) the law enforcement agency responsible for the property or conveyance seized. (H)(1) An owner may apply to the court of common pleas for the return of an item seized pursuant to the provisions of this chapter. Notice of hearing or rule to show cause accompanied by a copy of the application must be directed to all persons and agencies entitled to notice as provided in Section 44-53-530. If the court denies the application, the hearing may proceed as a forfeiture hearing held pursuant to the provisions of Section 44-53-530. (2) The court may return a seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence that the owner was not a consenting party to, or privy to, or did not have knowledge of, the use of the property that made it subject to seizure and forfeiture. (3) The lien of an innocent person or other legal entity, recorded in public records, continues in force upon transfer of title of a forfeited item, and a transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that the lienholder was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture. (I) Property or conveyances seized by a law enforcement agency or department must not be used by officers for personal purposes.

Legislative History

HISTORY: 2006 Act No. 348, SECTION 2, eff June 12, 2006.