Section 20-2-93 Forfeitures; Seizures.

(a) For the purposes of this section only, the following words shall have the following meanings: (1) CHARGEABLE CRIMINAL OFFENSE. An offense in which property is used or otherwise implicated as property subject to forfeiture under subsection (b). The term includes any act that could be charged as a felony or misdemeanor, regardless of whether a formal criminal prosecution or delinquency proceeding has begun at the time the forfeiture was initiated. (2) CONTRABAND. All property as described in subsections (t) and (u). The term includes drug paraphernalia, as defined in Section 13A-12-260, and illegal firearms. (3) FORFEITURE ACTION. A civil action to forfeit property to the state which is initiated by the prosecuting authority in accordance with this section. (4) INNOCENT OWNER. A bona fide purchaser, lienholder, mortgagee, or other owner, other than a defendant, of property that is subject to forfeiture, including any of the following: a. A person who has a valid claim, lien, or other interest in the property seized, who did not have knowledge or consent to the conduct that caused the property to be forfeited, seized, or abandoned under subsection (n) and which property is subject to the requirements of subsection (w). b. A person who has an interest in the property and did not participate in the commission of a crime or delinquent act giving rise to the forfeiture. (5) INVENTORY. A written, itemized list of all property seized under this section that names all persons to whom the inventory is given at the time of the seizure, as provided in Rule 3.11 of the Alabama Rules of Criminal Procedure. (6) KNOWLEDGE. An awareness or understanding of information, a fact, or a condition. (7) PROSECUTING AUTHORITY. The Attorney General, a district attorney, or a designee thereof. (8) RESPONDENT. Any person asserting a claim or interest in the property subject to the forfeiture action. (9) SEIZING AGENCY. A state, county, or municipal law enforcement agency or department that seizes property in accordance with this section. (10) SEIZURE ORDER. A written order issued by a court in connection with a seizure, establishing that probable cause exists to believe that the seizure is valid as described by this section. The term includes, but is not limited to, a search warrant issued pursuant to Article 1, commencing with Section 15-5-1, of Chapter 5 of Title 15. (b) The following are subject to seizure and forfeiture: (1) All controlled substances that have been grown, manufactured, distributed, dispensed, or acquired in violation of any law of this state. (2) All raw materials, products, and equipment of any kind that are used or intended for use in manufacturing, cultivating, growing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of any law of this state. (3) All monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all monies, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances. (4) All property that is used or intended for use as a container for property described in subdivision (1), (2), or (3). (5) 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), (2), or (3) . (6) All books, records, and research products and materials, including formulas, microfilm, tapes, and data, which are used or intended for use in violation of any law of this state concerning controlled substances. (7) All imitation controlled substances, as defined under the laws of this state. (8) All real property or fixtures used or intended to be used for the manufacture, cultivation, growth, receipt, storage, handling, distribution, or sale of any controlled substance in violation of any law of this state. (9) All property of any type whatsoever constituting, or derived from, any proceeds obtained directly, or indirectly, from any violation of any law of this state concerning controlled substances. (c)(1) All of the following are exempt from seizure and forfeiture under this section: a. United States currency totaling two hundred fifty dollars ($250) or less. b. A motor vehicle that is less than five thousand dollars ($5,000) in market value. (2) For purposes of seizures and forfeitures under subdivision (1), the Attorney General shall advise law enforcement agencies of publications the agencies may use to establish the value of a motor vehicle. (3) The district attorney for a judicial circuit may increase the minimum dollar amounts provided in subdivision (1) for seizures and forfeitures that occur within the judicial circuit. (d) Except as provided in subsection (c), property subject to forfeiture under this section may be seized by a seizing agency upon process issued by any court having jurisdiction over the property. Seizure without process may be made under any of the following conditions: (1) The seizure is incident to an arrest or a search under a search warrant or an inspection under 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 chapter. (3) The seizing agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety. (4) The seizing agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter. (e)(1) In the event of a seizure pursuant to subsection (d), proceedings under subsection (p) shall be instituted promptly. Prior to the commencement of a forfeiture action by the prosecuting authority under this section against property not seized pursuant to a warrant, the seizing agency shall do all of the following: a. Within seven business days, or an extension of time for good cause shown, after the seizure pursuant to subsection (d), obtain a seizure order from any circuit or district judge in the jurisdiction of the seizure. b. Within 14 days after obtaining a seizure order under paragraph a., the seizing agency shall present the seizure order and an application for forfeiture, which shall include an inventory, to the prosecuting authority in the jurisdiction for consideration. (2)a. Upon the issuance of a seizure order pursuant to this subsection, the clerk of the court for the jurisdiction shall establish a circuit civil case number and file the order in that case number, which shall become the case number for the forfeiture action should a prosecuting authority file a forfeiture action pursuant to subsection (g). b. At the request of the seizing agency, the court may order the filing sealed to protect the confidentiality of any ongoing investigation or witnesses. (3) If the prosecuting authority has not filed a forfeiture action pursuant to this section after 90 days from the date of the seizure order, the clerk shall notify the judge assigned to the case who may review the case with the prosecuting authority for a possible dismissal due to inaction. Pursuant to an order under this subsection, the property shall be tendered to the owner within 14 business days after the dismissal, unless the property is contraband, in which case the property shall be destroyed at the conclusion of the criminal case. (4) On motion by the prosecuting authority, property otherwise due to be tendered to the owner pursuant to subdivision (3) or subsection (f) may be retained by the prosecuting authority for the duration of the criminal prosecution only if the prosecuting authority proves, by a preponderance of the evidence, that the seized property is necessary for evidentiary purposes in the criminal prosecution, and that the use of affidavits, photographic evidence, or other admissible evidence is an insufficient means to establish an element of the underlying criminal offense. (f) A forfeiture action may only be instituted after a finding of probable cause by the prosecuting authority that the seizure is valid. If the prosecuting authority does not find probable cause that the seizure is valid, the property shall be tendered to the owner within 14 business days of the denial, unless the property is contraband, in which case the property shall be destroyed at the conclusion of the criminal case. (g) Upon compliance with subsection (f), the prosecuting authority may file a forfeiture action in the circuit court under this section within 42 days, or a greater time upon a showing of good cause to the court, from the date of the seizure of the property. (h) The seizing agency shall provide an inventory to any person in possession of the seized property at the time of the seizure. The inventory shall be prima facie evidence of notice of the seizure to any person served with the inventory at the time of the seizure. (i)(1) Nothing in this section shall be construed to permit a seizing agency to conduct extrajudicial seizures or forfeitures. (2) A law enforcement officer may not induce or require a person to waive, for purposes of a seizure or forfeiture action, the person’s interest in property. (j) On motion of any party, the court may stay the proceedings under this section, including any requirement under the Alabama Rules of Civil Procedure. (k) Nothing in this section shall prevent the pro tanto dismissal of any party pursuant to the Alabama Rules of Civil Procedure. (l) An innocent owner may petition the court for a hearing under Section 15-5-63 at any time after seizure of property and before entry of a conviction in the related criminal case. (m) The state may stipulate that the interest of an innocent owner is exempt from forfeiture upon presentation of proof of the claim. The state shall file the stipulation with the court exercising jurisdiction over the forfeiture action, and the filing of the stipulation shall constitute an admission by the state that the interest is exempt from forfeiture. If a stipulation is submitted, no further claim, answer, or pleading shall be required of the stipulated innocent owner or lienholder, and a judgment shall be entered exempting that interest from forfeiture. An order under this subsection shall waive all court costs. (n) Convictions or adjudications of chargeable criminal offenses may be considered by the court as prima facie evidence that the property seized is contraband, proceeds, or instrumentalities, and is due to be forfeited. The conviction or adjudication may be proven by the court taking judicial notice or by providing a certified copy of the conviction or adjudication to the court. (o) All civil forfeiture cases are in rem and all issues shall be tried in the circuit court without the presence of a jury. The state must prove by a preponderance of the evidence the property subject to forfeiture is an instrumentality of, or proceeds derived directly from, a chargeable criminal offense. (p)(1) The state may file for a default judgment against any party at any time pursuant to the Alabama Rules of Civil Procedure unless the case is stayed under subsection (j). The state may satisfy its burden for a default judgment with testimony taken under oath, or by presenting a sworn to and notarized affidavit. (2) A respondent shall be deemed to have abandoned the property and any claims to the property, and a default judgment may be entered by the court, upon the occurrence of any of the following: a. The death of the respondent. b. The deportation of the respondent. c. The absconding of the respondent. Violation of bond in the underlying criminal case and the issuance of a failure to appear warrant is prima facie evidence of the respondent’s abandonment of the property. (q) As part of an order of final judgment, pursuant to a trial or a default judgment hearing, the court shall not condemn and forfeit an instrumentality that is disproportionate to the underlying chargeable criminal offense or offenses that gave rise to the forfeiture action. Among other factors, the court may consider the following in determining whether a seizure is proportional to the underlying chargeable criminal offense or offenses: (1) The extent to which the property was used in committing the chargeable criminal offense or offenses. (2) The extent to which the respondent participated in the chargeable criminal offense or offenses. (3) Any legitimate use of the property seized. (4) The maximum possible prison sentence for the chargeable criminal offense or offenses. (5) The maximum possible fines for the chargeable criminal offense or offenses. (6) Possession of a firearm by the respondent during the chargeable criminal offense or offenses. (7) The seriousness of the chargeable criminal offense or offenses and its impact on the community, including the duration of the activity and the harm caused. (r) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the seizing agency, subject only to the orders and judgment of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the seizing agency may do any of the following: (1) Place the property under seal. (2) Remove the property to a place designated by the seizing agency. (3) Require the seizing agency to take custody of the property and remove the property to an appropriate location for disposition in accordance with law. (4) In the case of real property or fixtures, post notice of the seizure on the property, and file and record notice of the seizure in the probate office. (s) When property is forfeited under this chapter, the seizing agency may do any of the following: (1) Retain the property for official use; except for lawful currency of the United States of America 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 authorized by this subdivision shall be used, first, for payment of all proper 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 seizing agency or prosecuting authority following a determination of the court of which law enforcement agencies are determined by the court to have been a participant in the investigation resulting in the seizure and litigation. The award and distribution shall be made on the basis of the percentage, as determined by the court, of which respective law enforcement agency or prosecuting authority contributed to the police work or litigation resulting in the seizure and forfeiture. Provided, however, any proceeds from sales authorized by this section awarded by the court to a county or municipal law enforcement agency shall be deposited into the respective county or municipal general fund and made available to the affected law enforcement agency or department upon requisition of the chief law enforcement official of the agency. (3) Require the seizing agency to take custody of the property and remove it for disposition in accordance with law. (t) Controlled substances listed in Schedule I that are possessed, transferred, sold, or offered for sale in violation of any law of this state are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in Schedule I which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state. (u) Species of plants from which controlled substances in Schedules I and II may be derived, which have been planted or cultivated in violation of any law of this state or of which the owners or cultivators are unknown or which are wild growths, are contraband and may be seized and summarily forfeited to the state. (v) As used in this subsection, the term “false or secret compartment” means any enclosure that is integrated into or attached to a vehicle, the purpose of which enclosure is to conceal, hide, or prevent discovery of contraband by a law enforcement officer. The term includes, but is not limited to, false, altered, or modified fuel tanks; original factory equipment on a vehicle that has been modified; and any compartment, space, or box that is added or attached to existing compartments, spaces, or boxes of the vehicle. Upon the seizure of a vehicle, the court may infer that the respondent intended to use a false or secret compartment to conceal a controlled substance or other contraband if the vehicle has a false or secret compartment that concealed a controlled substance or other contraband, or evidence is shown of the previous concealment of a controlled substance or other contraband within the false or secret compartment. (w) An innocent owner’s interest in personal property, real property, or fixtures shall not be forfeited under this section for any act or omission unless the state proves by a preponderance of the evidence that the act or omission was committed or omitted with the knowledge or consent of that owner. An owner’s interest in any type of property other than real property, personal property, and fixtures shall be forfeited under this section unless the owner proves that the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s knowledge or consent. 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 through 28-4-290, 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; and (2) the official filing the complaint shall also serve a copy of it 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. (x)(1) A prosecuting authority or seizing agency may not transfer or offer for adoption property seized under this section to a federal agency for the purpose of forfeiture under the federal Controlled Substances Act, Public Law 91-513 (Oct. 27, 1970), or other federal law, unless the property includes United States currency that exceeds ten thousand dollars ($10,000). (2) Subdivision (1) only applies to a seizure by a state or local law enforcement agency pursuant to their own authority under this section and without involvement of the federal government. Nothing in subdivision (1) shall be construed to limit state and local agencies from participating in joint task forces with the federal government. (3) State and local law enforcement agencies may not accept payment of any kind or distribution of forfeiture proceeds from the federal government if the state or local law enforcement agency violates subdivision (1). Any proceeds received as a result of any violation of subdivision (1) shall be directed to the State General Fund.