§ 35-7-1049 — Forfeitures and seizures generally; property subject to forfeiture

Wyoming § 35-7-1049

• Jurisdiction: Wyoming
• Title 35: Public Health and Safety
• Ch. 6: IMITATION BUTTER AND CHEESE; OLEOMARGARINE
• Art. 10: CONTROLLED SUBSTANCES

Text

(a) The following are subject to forfeiture:
(i) All controlled substances which have been
manufactured, distributed, dispensed or acquired in violation of
this act;
(ii) All raw materials, products, and equipment of
any kind which are used, or intended for use, in manufacturing,
compounding, processing, delivering, importing, or exporting any
controlled substances in violation of this act;
(iii) All property which is used as a container for
property described in paragraph (i) or (ii) of this subsection;
(iv) All books, records, and research products and
materials, including formulas, microfilm, tapes, and data, which
are used, or intended for use, in violation of this act;
(v) All conveyances including aircraft, vehicles or
vessels, knowingly used or intended for use to transport or in
any manner to knowingly facilitate the transportation for the
sale or receipt of property described in paragraph (i) or (ii)
of this subsection may be seized by the commissioner and
forfeited to the state pursuant to subsection (e) of this
section:
(A) No conveyance used by any person as a common
carrier in the transaction of business as a common carrier is
subject to forfeiture under this section unless it appears that
the owner or corporate officer is a consenting party or privy to
a violation of this act;
(B) No conveyance is subject to forfeiture under
this section by reason of any act committed without the
knowledge or consent of the owner;
(C) A conveyance is not subject to forfeiture
for a violation of W.S. 35-7-1031(c);
(D) A forfeiture of a conveyance encumbered by a
bona fide security interest is subject to the interest of the
secured party if he neither had knowledge of nor consented to
the act.
(vi) All "drug paraphernalia" as defined by W.S.
35-7-1002(a)(xxvii);
(vii) All buildings knowingly used or intended for
use to store, manufacture or distribute property described under
paragraph (i) or (ii) of this subsection if the owner has
knowledge of or gives consent to the act of violation. A
forfeiture of property encumbered by a bona fide security
interest is subject to the interest of the secured party if he
did not have knowledge of or give consent to the act;
(viii) Any property or other thing of pecuniary value
furnished in exchange for a controlled substance in violation of
this act including any proceeds, assets or other property of any
kind traceable to the exchange and any money, securities or
other negotiable instruments used to facilitate a violation of
this act. Property used or furnished without the consent or
knowledge of the owner is not forfeitable under this section to
the extent of his interest.
(b) Property subject to forfeiture under this act may be
seized by any law enforcement officer of the state upon process
issued by any district court or district court commissioner
having jurisdiction over the property. Seizure without process
may be made if:
(i) The seizure is incident to an arrest or a search
under a search warrant or an inspection under an administrative
inspection warrant;
(ii) 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 act;
(iii) The board or commissioner has probable cause to
believe that the property was used or is intended to be used in
violation of this act. Prior to property being seized by any law
enforcement officer of the state pursuant to this paragraph, the
following procedures shall be followed:
(A) The law enforcement officer shall
communicate with the commissioner regarding the facts and
circumstances involving the property to be seized. Based upon
the information provided, the commissioner shall determine
whether probable cause exists that the property identified by
the law enforcement officer was used or was intended to be used
in a violation of this act;
(B) If the commissioner determines there is
probable cause to seize the property, he shall direct the
officer to seize the property. At the time of the seizure, the
person or persons from whom the property was seized shall be
given written notice that the seized property is subject to
forfeiture. The notice shall include an advisement that:
(I) The person has the right to attend the
hearing required by subsection (c) of this section, but shall
not have the right to present evidence or cross examine any
witness;
(II) The person will be given at least
fifteen (15) days' notice of the time, date and location of the
hearing; and
(III) The purpose of the hearing is for a
court to determine whether there was probable cause to believe
that the property was used or was intended to be used in
violation of this act.
(C) If the commissioner determines there is no
probable cause to seize the identified property, he shall not
authorize the seizure of any property based upon that event or
occurrence and the officer shall not seize any property.
(c) Within thirty (30) days of the seizure, a probable
cause hearing shall be held in circuit court, in the county
where the property was seized to determine whether probable
cause existed to seize the property pursuant to paragraph
(b)(iii) of this section. One (1) or more of the law enforcement
officers who made the seizure shall testify under oath regarding
the facts and circumstances which established probable cause to
seize the property. The hearing shall be recorded by sound,
sound-and-visual or stenographic means. If the court determines,
based upon the evidence presented, that at the time of the
seizure:
(i) Probable cause did not exist to seize the
property, the court shall order the property to be immediately
returned to its lawful owner or one (1) of the persons from whom
it was seized; or
(ii) Probable cause existed to seize the property,
the court shall order that the commissioner may file an action
for the forfeiture of the property.
(d) In the event of seizure pursuant to subsection (b) of
this section, no action for the forfeiture of property pursuant
to this section shall be instituted unless it is brought within
one hundred twenty (120) days from the date of seizure or within
thirty (30) days following the completion of any criminal
prosecution relating to the seizure, whichever is later. All
forfeiture proceedings or actions shall be brought by the
commissioner.
(e) Property taken or detained under this section shall
not be subject to replevin, but is deemed to be in the custody
of the commissioner subject only to the orders and decrees of
the court having jurisdiction over the proceedings. When
property is seized under this act, the commissioner shall place
the property under seal or otherwise assure the property is
maintained under conditions reasonably necessary to preserve the
property's value or may sell the property and hold the proceeds
thereof if the property is perishable or threatens to decline
speedily in value until the forfeiture proceedings have become
final as to all parties and all rights of appeal have been
exhausted. In order to preserve the property, if cash, the
commissioner may deposit funds into a demand deposit account at
an institution located within the state of Wyoming.
(f) Before a forfeiture action may be filed and no later
than thirty (30) days from the date of entry of an order finding
probable cause pursuant to subsection (c) of this section, the
commissioner shall serve a notice of seizure and intended
forfeiture upon any third party, ascertained after reasonably
diligent inquiry, known to have an interest in the property. The
notice shall describe the date and location of the seizure, the
property seized and the statutory basis for the forfeiture. The
notice shall be served in accordance with the Wyoming Rules of
Civil Procedure except that service by publication shall not be
required. The notice requirements of this subsection shall not
apply to the party or parties from whom the property was
directly seized.
(g) A court shall not issue any forfeiture order unless
the notice under subsection (f) of this section has been
accomplished to the satisfaction of the court.
(h) After the commissioner is authorized by the court or
by this section to file a forfeiture action, the Wyoming Rules
of Civil Procedure shall govern the action unless in conflict
with subsections (j) through (n) of this section.
(j) The complaint to seek forfeiture of property under
this section shall describe with reasonable particularity:
(i) The approximate value of the property;
(ii) The facts giving rise to the seizure or custody;
(iii) The name and position of the person making the
seizure or taking the property into custody;
(iv) The name and address of the owners of the
property or those persons who were in possession of the property
at the time of the seizure; and
(v) The manner in which all parties reasonably known
to have an interest in the property seized were served in
accordance with subsection (f) of this section.
(k) In the action for the forfeiture of property, the
burden of proof shall be on the commissioner to establish by
clear and convincing evidence the extent to which, if any, the
property is subject to forfeiture.
(m) Subsequent to the commissioner carrying his burden of
proof pursuant to subsection (k) of this section, an interest in
property belonging to a third party shall not be forfeited to
the extent the third party establishes he has a perfected lien
in the property, proves by a preponderance of evidence that he
has a perfected priority interest in the property or that he is
an innocent owner. For purposes of this subsection:
(i) With respect to a property interest in existence
at the time the violation of this act took place, "innocent
owner" means a person who held an interest in the property and
neither had knowledge of nor consented to the violation;
(ii) With respect to a property interest acquired
after the violation of this act has taken place, "innocent
owner" means a person who, at the time that person acquired the
interest in the property:
(A) Was a bona fide purchaser or seller for
value of goods or services or a holder of a bona fide security
interest; and
(B) Did not know and was reasonably without
cause to believe the property was subject to forfeiture.
(n) The right to trial by jury applies to forfeiture
proceedings under this section.
(o) A person's interest in property is not subject to
forfeiture to the extent that the forfeiture is grossly
disproportionate to the gravity of the offense giving rise to
the forfeiture. The commissioner shall have the burden of
demonstrating by a preponderance of the evidence that a
forfeiture is not grossly disproportionate. Proportionality
shall be decided by the court as follows:
(i) In determining whether a forfeiture is grossly
disproportionate, the court shall consider:
(A) The extent to which the property was used or
intended to be used in executing the underlying offense;
(B) The value of the property, including both
its fair market and subjective value;
(C) The actions of the person involved in the
activity giving rise to the forfeiture proceedings;
(D) The severity of the criminal sanctions
associated with the actions of the person;
(E) Whether the property constitutes the
person's lawful livelihood or means of earning a living;
(F) Whether the offense or attempted offense has
severe collateral consequences; and
(G) Any other factors the court deems necessary
and relevant.
(ii) If the court finds the forfeiture is grossly
disproportionate to the offense, it shall reduce or eliminate
the forfeiture as it finds appropriate.
(p) In any forfeiture proceeding under this section, the
court shall award a prevailing property owner reasonable:
(i) Attorney fees and costs; and
(ii) Damages.
(q) The proceedings and judgment of forfeiture shall be in
rem and shall be against the property itself.
(r) When property is forfeited under this act, the
commissioner may:
(i) Retain it for official use; in which case it
shall become the property of the state of Wyoming;
(ii) Sell any such property which is not required to
be destroyed by law and which is not harmful to the public. The
proceeds shall be used for payment of all proper expenses of the
proceedings for forfeiture and sale, including expenses of
seizure, maintenance of custody, advertising and court costs;
(iii) Require the board to take custody of the
property and remove it for disposition in accordance with law;
(iv) Repealed by Laws 1983, ch. 160, § 2.
(v) Transfer ownership and control of the property to
any municipality or political subdivision of the state for its
official use; or
(vi) Authorize any law enforcement officer to apply
to the district court with jurisdiction for an order providing
for destruction of the contraband controlled substances or
paraphernalia if no longer necessary for evidentiary purposes,
provided, however, that a district court order shall not be
necessary for the division of criminal investigation to destroy
quantities of contraband controlled substances after the
division has tested random samples. The division of criminal
investigation shall adopt rules necessary to operate a program
to destroy bulk quantities of contraband controlled substances,
which shall include:
(A) The photographing and videotaping of the
entire bulk amount of seized contraband controlled substances to
maintain its evidentiary value and to create exhibits for use in
legal proceedings;
(B) The extraction of ten (10) random samples
from the entire bulk amount of seized contraband controlled
substances for laboratory analysis;
(C) A weighing on properly calibrated scales of
both the bulk amount of seized contraband controlled substances
and the representative samples;
(D) The additional retention of:
(I) Five (5) ounces of organic material if
the controlled substance is marihuana or a substance of similar
organic composition;
(II) Five (5) grams of a controlled
substance in powdered or crystalline form;
(III) Five-tenths (0.5) of a gram of a
controlled substance in liquid form;
(IV) An amount sufficient for testing by
experts shall be made available from the additionally retained
sample for the purpose of defending criminal charges arising
from the possession, use or sale of the controlled substance.
(E) After the testing and retention of samples
specified in this paragraph, the commissioner or his designee
may order the destruction of the bulk amount of the seized
contraband controlled substance in excess of the representative
sample and the additional retained samples of the seized
contraband controlled substance;
(F) Once the representative samples and the
additional retained samples of the contraband controlled
substance are no longer necessary for evidentiary purposes, any
law enforcement officer, upon authorization from the
commissioner, may apply to the district court with jurisdiction
for an order providing for the destruction of the remaining
contraband controlled substance.
(s) Any controlled substance listed in Schedules I through
V that is possessed, transferred, sold or offered for sale in
violation of this act is contraband and shall be seized and
summarily forfeited to the state. Any controlled substance
listed in Schedules I through V which is seized or comes into
possession of the state and the owner is unknown, is contraband
and shall be summarily forfeited to the state.
(t) Species of plants from which controlled substances in
Schedules I and II may be derived which have been planted or
cultivated in violation of this act, or of which the owners or
cultivators are unknown, or which are wild growths, may be
seized and summarily forfeited to the state.
(u) The failure, upon demand by the commissioner, or his
authorized agent, of the person in occupancy or in control of
land or premises upon which the species of plants are growing or
being stored, to produce an appropriate registration, or proof
that he is the holder thereof, constitutes authority for the
seizure and forfeiture of the plants.
(w) Any law enforcement agency of this state may accept,
receive, dispose of and expend the property or proceeds from any
property forfeited to the federal government or any state and
allocated to the agency by the United States attorney general
pursuant to 21 U.S.C. 881(e) or any law of another state. The
property or proceeds shall be in addition to funds appropriated
to the law enforcement agency by the state legislature or any
unit of local government. The property or proceeds may be
credited to any lawfully created fund or account designated to
receive proceeds of forfeitures.
(y) Any law enforcement agency of this state which
receives property or proceeds pursuant to subsection (w) of this
section shall report to the attorney general on forms to be
prescribed by the attorney general:
(i) The receipt of property or proceeds within thirty
(30) days from the receipt; and
(ii) The disposition or expenditure of any property
or proceeds within ninety (90) days from the disposition or
expenditure.
(z) The attorney general shall submit an annual report to
the joint appropriations interim committee and the joint
judiciary interim committee not later than August 1 concerning
recipients and the amount of property and proceeds accepted,
received, disposed of or expended during the prior calendar year
under this section by law enforcement agencies, other than
property subject to summary forfeiture.
(aa) No law enforcement agency of this state shall accept
property or proceeds pursuant to subsection (w) of this section
if the tender of the property or proceeds is conditioned upon
the state law enforcement agency's adoption of federal law
enforcement practices and procedure.
(bb) A law enforcement officer may not request, require or
in any manner induce any person to execute a document purporting
to waive, for purpose of forfeiture under this section, the
person's interest in or rights to property seized, and provided:
(i) Any document obtained by a law enforcement
officer purporting to waive a person's interest in or right to
property seized under this section is null and void; and
(ii) Nothing in this subsection prohibits the
commissioner, after a hearing and a finding of probable cause as
required by subsection (c) of this section, from requesting a
person to waive the person's interest in or rights to property.