Forfeitures:

Agenda

Short overview of the Forfeiture Statute Starting an Asset Forfeiture Program Ethical Considerations

Tom Hirschauer and Ron Buckler Tom.Hirschauer@indy.gov Ron.Buckler@indy.gov

Tom Hirschauer’s Cell: (317) 603-7851

Forfeitures

WHO CARES? WHY BOTHER? Money for your office and other law

enforcement agencies Because it helps destroy their criminal

enterprise Criminality shouldn’t be more lucrative than

a job where you pay taxes And…

Criminals hate it when you make their stuff your stuff.

I.C. 34-24-1-1 et seq.Seizure of Property

(1) All vehicles (as defined by IC 35-41-1), if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of the following:

(A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following:

(i) Dealing in or manufacturing cocaine or a narcotic drug(ii) Dealing in methamphetamine (iii) Dealing in a schedule I, II, or III controlled substance (iv) Dealing in a schedule IV controlled substance (v) Dealing in a schedule V controlled substance (vi) Dealing in a counterfeit substance (vii) Possession of cocaine or a narcotic drug (viii) Possession of methamphetamine (ix) Dealing in paraphernalia.(x) Dealing in marijuana, hash oil, or hashish

I.C. 34-24-1-1Section 1

(1)(B) Any stolen or converted property if the retail or repurchase value of that property is one hundred dollars ($100) or more. (Shoplifting mainly, but also robbery, burglary, check deception, and forgery)

(C) Hazardous Waste Violations(D) Bombs

I.C. 34-24-1-1

(2) All money, negotiable instruments, securities, weapons, communications devices, or any property used to commit, used in an attempt to commit, or used in a conspiracy to commit an offense under IC 35-47 as part of or in furtherance of an act of terrorism or commonly used as consideration for a violation of IC 35-48-4 (drugs)

(A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute;

(B) used to facilitate any violation of a criminal statute; or

(C) traceable as proceeds of the violation of a criminal statute.

I.C. 34-24-1-1

(3) Any portion of real or personal property purchased with money that is traceable as a proceed of a violation of a criminal statute.

I.C. 34-24-1-1

(4) A vehicle that is used by a person to:

(A) commit, attempt to commit, or conspire to commit;

(B) facilitate the commission of; or

(C) escape from the commission of;

murder, kidnapping, criminal confinement, rape, child molesting, or child exploitation, or an offense under IC 35-47 as part of or in furtherance of an act of terrorism.

I.C. 34-24-1-1

(5) Real property owned by a person who uses it to commit any of the following as a Class A felony, a Class B felony, or a Class C felony:

(A) Dealing in or manufacturing cocaine or narcotic drug(B) Dealing in methamphetamine (C) Dealing in a schedule I, II, or III controlled substance (D) Dealing in a schedule IV controlled substance (E) Dealing in marijuana, hash oil, or hashish

I.C. 34-24-1-1

(6) & (7) Equipment and Recordings used in frauds

(8) Property in Corrupt Business Influence Cases

(9) Unlawful telecommunications devices

10) Unlawful tobacco products

I.C. 34-24-1-1

(11) Destructive devices

(12) Unlawful Tobacco products

(13) Items used in forgery, identity deceptions, etc.

I.C. 34-24-1-1

(14) Anything used in the distribution of a legend drug

(15) OVWI situations-if Defendant has two prior unrelated convictions for OVWI within last five years, third arrest makes vehicle eligible for forfeiture

Other Crimes

Animal Fighting Gambling Fencing Rings Promoting Prostitution

How do we actually seize things?

Trial Rules and civil procedure apply. Need to have storage and security issues

worked out BEFORE you start seizing items! Law enforcement is in a bailment situation

with these items, so CYA.

I.C. 34-24-1-2Sec. 2. (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;

I.C. 34-24-1-2

(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.

Seizure Orders

(b) 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.

FROM WHOM?

Items of DEFENDANT

WHO ELSE?

Items of Others Used by DefendantOne 1968 Buick 4 Door

v. State

(638 N.E.2d 1313)(1994)

One 1968 Buick 4 Door v. State

Car owned by brother of bad guy

Must show by the preponderance that owner

knew or should have known

of illegal acts

How?

Innocent Owners Exception

Vehicle not subject to seizure unless State can show the owner knew the vehicle was being used illegally.

Not as simple as who the title owner is. We can show sham or straw man ownership,

as well as primary dominion and control

Be Careful!

This can be a steep burden and seems to be the area that the courts frown upon the most.

Have some proof! Previous tickets, arrests or seizures Jail phone calls Same ownership Any agreement to release should have notice

clause

WHENUnder What Circumstance:

Per StatuteUsed in crime and proceeds

Katner v. State (635 N.E. 2d 345)(1995)Raised standard

Time limit-180 days after items seized (not after the criminal case is filed!)

90 days after written notice is received demanding return of property.

WHERE

When arrest in residence

When arrest in car

Caudill v. State (613 N.E.2d 433)(1993)any money near and around defendant

Venue-must be filed in county where item was seized, regardless of where crime occurred. However, you can “entice” criminal to bring items into the jurisdiction.

Logistics of Forfeiting

How do I actually take their stuff?

Department Procedures

Written Policy

Secured Storage Area

Paperwork

I.C. 34-24-1-2 (c)

(c) Property that is seized under subsection (a) is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.

What NOT to forfeit

• Anything that breathes, eats, dies, or $%#$%.

• Outdated technology (Laserdiscs, VCRs)• Clothing • Wheelchairs, walkers, ect.• Anything you wouldn’t buy at a garage

sale.• Children’s Toys

What about when legitimate and dirty money mixes together?

Co-mingling of funds is common Area of law not well settled in Indiana Rely on presumption that money found near

the person convicted of certain offenses is prima facie dirty money, but also need to do more investigation

Burden of Proof

Civil burden of proof (preponderance of evidence). State must demonstrate that property is subject to seizure

If property is a vehicle, state must show that any other person with an interest in the vehicle knew or should have known the vehicle was used illegally

Presumptions

Statutory presumption: Property found “near or on” a person who is committing, attempting to commit, or inspiring to commit drug dealing as at least a C felony prior to July 1st, or a Level 3, 4, 5, or 6 depending on the controlled substance, or possession of cocaine, meth, or heroin at the same levels is prima facie evidence that the money is subject to forfeiture

Co-Owners and Lien Holders

I.C. 34-24-1-5 Determine owners value Allow co-owner/lien holder to “pay into

court” owners interest and have property returned

NO Conviction needed

$100 & a Black Cadillacv.

State

(638 N.E.2d 1001)(2005)

Criminal Case Issues

Strictly speaking outcome of criminal case is irrelevant to forfeiture case

The Statute does include a Collateral Estoppel sub-section, so an adverse ruling in the criminal case can bar your forfeiture

Reality is that it will have an effect DO NOT AGREE TO FORFEITURE ISSUE IN A PLEA

AGREEMENT

Other considerations

Double Jeopardy: Willis v. State, 806 N.E.2d 817 (Ind. App. 2004)

Exclusionary Rule: Caudill v. State, 613 N.E.2d 433 (Ind. App. 1993)

What happens when we win?

Cash goes into law enforcement fund Can keep items seized for 3 years Can use for whatever purpose you desire Items must then be auctioned off in Sheriff's

sale. If you don’t use the items, they will be

auctioned off in Sheriff's sale.

Ethical Considerations

Memorandums of Understanding Pro Se Defendants 5th Amendment Stays “Midnight Agreements” Use of property Common School Fund Issues

Memorandums of Understanding

Have an MOU in place BEFORE you start doing forfeiture matters.

Clearly delineate everyone’s responsibilities and THE SPLIT OF PROCEEDS.

Don’t get greedy. Things will even out in the end.

Have a rep for each party do accounting.

Pro Se Defendants

Keep things in writing. Make it clear in writing you don’t represent

them and they should seek their own counsel.

Be wary of talking to them while their criminal case is pending if you are in a small office

5th Amendment Issues

Trier of fact in a civil case is allowed to draw an adverse inference from the Defendant’s exercise of his right to remain silent.

In practice, Courts will consider it, but not consider it dispositive.

Don’t give defendants immunity. Do agree to stay until criminal case over

Midnight Agreements

Have ended the career of at least one Indiana Prosecutor.

NEVER agree to a forfeiture in lieu of prosecution. Looks bad to everyone, including the Disciplinary Commission.

EVERY FORFEITURE CASE gets filed in court and signed off by a judge, even when you’ve settled it in advance.

Use of Property

A case of what’s legal to do and what looks bad.

Using forfeiture funds to pay salaries and buy equipment-GOOD!

Using it to go to a CLE in Hawaii, office picnics, to redecorate your office, to drive a pimped out car, or supplementing your salary-BAD!

Do you need a wall between the criminal and civil matters? No caselaw says that. Problem in McKinney was that PA benefitted

financially. Best practice is to give cases to different

deputies, or to stay the civil matter while the criminal case is pending.

Ensure that agreements include protective language.

Common School Fund Issues

Still very much in flux. AG’s opinion is on our side, but IN Supremes

in Serrano indicated displeasure. Guv’s veto message wasn’t helpful either. Court of Appeals language is on our side. All recent challenges have failed on

procedural and standing grounds

Con’t.

• Case law says that Defendants do not get to object to where the proceeds go, only the IN Dept of Education has standing to challenge non-payments to the Fund. $100 v. State, 822 N.E.2d 1001.

• Advice at this point would be to stay the course and be prepared to lobby for or against any proposed legislation.

Questions?