Indiana 2022 Regular Session

Indiana Senate Bill SB0152 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2	Introduced Version
3	3	SENATE BILL No. 152
4	4	_____
5	5	DIGEST OF INTRODUCED BILL
6	6	Citations Affected: IC 34-24-1; IC 35-33-5-5.
7	7	Synopsis: Civil forfeiture. Directs certain civil forfeiture proceeds to
8	8	the United Way organization in each county (or to a United Way
9	9	organization that serves the county if the county lacks a United Way
10	10	organization) to be used to provide grants to aid the community.
11	11	Prohibits the use of certain other civil forfeiture proceeds to purchase
12	12	or facilitate the acquisition of armored vehicles, military-style weapons,
13	13	or surplus military equipment. Repeals a provision authorizing the
14	14	transfer of seized property to the United States. Makes conforming
15	15	amendments.
16	16	Effective: July 1, 2022.
17	17	Breaux
18	18	January 4, 2022, read first time and referred to Committee on Judiciary.
19	19	2022 IN 152—LS 6410/DI 149 Introduced
20	20	Second Regular Session of the 122nd General Assembly (2022)
21	21	PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
22	22	Constitution) is being amended, the text of the existing provision will appear in this style type,
23	23	additions will appear in this style type, and deletions will appear in this style type.
24	24	Additions: Whenever a new statutory provision is being enacted (or a new constitutional
25	25	provision adopted), the text of the new provision will appear in this style type. Also, the
26	26	word NEW will appear in that style type in the introductory clause of each SECTION that adds
27	27	a new provision to the Indiana Code or the Indiana Constitution.
28	28	Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
29	29	between statutes enacted by the 2021 Regular Session of the General Assembly.
30	30	SENATE BILL No. 152
31	31	A BILL FOR AN ACT to amend the Indiana Code concerning
32	32	criminal law and procedure.
33	33	Be it enacted by the General Assembly of the State of Indiana:
34	34	1 SECTION 1. IC 34-24-1-2, AS AMENDED BY P.L.47-2018,
35	35	2 SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
36	36	3 JULY 1, 2022]: Sec. 2. (a) Property may be seized under this chapter
37	37	4 by a law enforcement officer only if:
38	38	5 (1) the seizure is incident to a lawful:
39	39	6 (A) arrest;
40	40	7 (B) search; or
41	41	8 (C) administrative inspection;
42	42	9 (2) the property has been the subject of a prior judgment in favor
43	43	10 of the state or unit in a proceeding under this chapter (or
44	44	11 IC 34-4-30.1 before its repeal); or
45	45	12 (3) a court, after making an ex parte determination that there is
46	46	13 probable cause to believe the property is subject to seizure under
47	47	14 this chapter, issues an order for seizure.
48	48	15 (b) If property is seized under subsection (a)(1), the prosecuting
49	49	16 attorney shall file an affidavit of probable cause with a circuit or
50	50	17 superior court in the county in which the seizure occurred not later than
51	51	2022 IN 152—LS 6410/DI 149 2
52	52	1 seven (7) days after the date of the seizure. If the court does not find
53	53	2 probable cause to believe the property is subject to seizure under this
54	54	3 chapter, it shall order the property returned to the owner of record.
55	55	4 (c) When property is seized under subsection (a), the law
56	56	5 enforcement agency making the seizure may, pending final disposition:
57	57	6 (1) place the property under seal;
58	58	7 (2) remove the property to a place designated by the court; or
59	59	8 (3) require another agency authorized by law to take custody of
60	60	9 the property and remove it to an appropriate location.
61	61	10 (d) If property seized under subsection (a)(1) or (a)(3) is real
62	62	11 property or a vehicle operated or possessed at the time of its seizure by
63	63	12 a person who is not an owner of the real property or vehicle, the owner
64	64	13 of the real property or vehicle may file a verified petition for
65	65	14 provisional release pending final forfeiture determination, requesting
66	66	15 the court to grant the owner possession of the real property or vehicle
67	67	16 while the forfeiture action is pending.
68	68	17 (e) A petition for provisional release under this section must:
69	69	18 (1) be in writing;
70	70	19 (2) be verified by the petitioner;
71	71	20 (3) state the grounds for relief;
72	72	21 (4) be filed in a circuit or superior court in the county in which the
73	73	22 seizure occurred; and
74	74	23 (5) be served on the prosecuting attorney.
75	75	24 (f) At the hearing on the petition for provisional release under this
76	76	25 section, the petitioner must establish that the:
77	77	26 (1) petitioner is an owner of record;
78	78	27 (2) petitioner or the petitioner's family benefits from the use of the
79	79	28 vehicle or the real property;
80	80	29 (3) petitioner has insured the property against loss from accident
81	81	30 and casualty; and
82	82	31 (4) petitioner had no reason to believe that the vehicle or real
83	83	32 property would be used for illegal activity.
84	84	33 (g) At the hearing on the petition for provisional release under this
85	85	34 section, the prosecuting attorney may present evidence that returning
86	86	35 the property to the owner would likely result in:
87	87	36 (1) damage to the property or diminution of the value of the
88	88	37 property beyond ordinary wear and tear; or
89	89	38 (2) continued use of the property in connection with illegal
90	90	39 activity.
91	91	40 (h) If the court grants the petition for provisional release under this
92	92	41 section, the court shall require the owner to:
93	93	42 (1) maintain the property; and
94	94	2022 IN 152—LS 6410/DI 149 3
95	95	1 (2) refrain from selling or otherwise conveying the property
96	96	2 without the permission of the prosecuting attorney.
97	97	3 (i) If the court grants the petition for provisional release under this
98	98	4 section, it may place reasonable restrictions on the use of the property,
99	99	5 including one (1) or more of the following:
100	100	6 (1) Requiring the owner to post a cash bond.
101	101	7 (2) Placing mileage limitations on the use of a vehicle.
102	102	8 (3) Imposing reasonable limits on the use of the property.
103	103	9 (4) Prohibiting certain persons from the possession, occupation,
104	104	10 or use of the property.
105	105	11 (5) Requiring payment of all taxes, registration, and other fees, if
106	106	12 applicable.
107	107	13 (6) Maintaining property, casualty, and accident insurance.
108	108	14 (j) A court may not grant a petition for provisional release under this
109	109	15 section if the prosecuting attorney has filed a motion under section 9 of
110	110	16 this chapter or IC 35-33-5-5(j).
111	111	17 (k) (j) The prosecuting attorney shall notify the owner of record of
112	112	18 a vehicle or real property of the right to file a petition for provisional
113	113	19 release under this section not later than seven (7) days after probable
114	114	20 cause has been determined under subsection (b).
115	115	21 (l) (k) Property that is seized under subsection (a) (or
116	116	22 IC 34-4-30.1-2(a) before its repeal) is not subject to replevin but is
117	117	23 considered to be in the custody of the law enforcement agency making
118	118	24 the seizure.
119	119	25 SECTION 2. IC 34-24-1-4, AS AMENDED BY P.L.66-2019,
120	120	26 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
121	121	27 JULY 1, 2022]: Sec. 4. (a) At the hearing, the prosecuting attorney
122	122	28 must show by a preponderance of the evidence that the property was
123	123	29 within the definition of property subject to seizure under section 1 of
124	124	30 this chapter. If the property seized was a vehicle, the prosecuting
125	125	31 attorney must also show by a preponderance of the evidence that a
126	126	32 person who has an ownership interest of record in the bureau of motor
127	127	33 vehicles knew or had reason to know that the vehicle was being used
128	128	34 in the commission of the offense.
129	129	35 (b) If the prosecuting attorney fails to meet the burden of proof, the
130	130	36 court shall order the property released to the owner, unless the owner's
131	131	37 possession of the property is illegal. If property is released to the owner
132	132	38 under this subsection, the owner is not subject to or responsible for any
133	133	39 charges for storage of the property or other expenses incurred in the
134	134	40 preservation of the property.
135	135	41 (c) If the court enters judgment in favor of the state, the court,
136	136	42 subject to section 5 of this chapter, shall order distribution of the
137	137	2022 IN 152—LS 6410/DI 149 4
138	138	1 property in accordance with subsection (d). The court's order may
139	139	2 permit the law enforcement agency to use the property for a period not
140	140	3 to exceed three (3) years. However, the order must require that, after
141	141	4 the period specified by the court, the law enforcement agency shall
142	142	5 deliver the property to the county sheriff for public sale.
143	143	6 (d) If the court enters judgment in favor of the state, the court shall,
144	144	7 subject to section 5 of this chapter order that:
145	145	8 (1) the property, if it is not money or real property, be sold under
146	146	9 section 6 of this chapter, by the sheriff of the county in which the
147	147	10 property was seized, and if the property is a vehicle, this sale must
148	148	11 occur after any period of use specified in subsection (c);
149	149	12 (2) the property, if it is real property, be sold in the same manner
150	150	13 as real property is sold on execution under IC 34-55-6; and
151	151	14 (3) the proceeds of the sale or the money be distributed as
152	152	15 follows:
153	153	16 (A) To pay attorney's fees, if outside counsel is employed
154	154	17 under section 8 of this chapter.
155	155	18 (B) After payment of attorney's fees under clause (A), one
156	156	19 third (1/3) of the remaining amount shall be deposited into the
157	157	20 forfeiture fund established by the prosecuting attorney to offset
158	158	21 expenses incurred in connection with the investigation and
159	159	22 prosecution of the action.
160	160	23 (C) Except as provided in clause (D) after distribution of the
161	161	24 proceeds described in clauses (A) and (B), if applicable,
162	162	25 eighty-five percent (85%) forty-two and one-half percent
163	163	26 (42.5%) of the remaining proceeds shall be deposited in the:
164	164	27 (i) general fund of the state;
165	165	28 (ii) general fund of the unit that employed the law
166	166	29 enforcement officers that seized the property; or
167	167	30 (iii) county law enforcement fund established for the support
168	168	31 of the drug task force;
169	169	32 as determined by the court, to offset expenses incurred in the
170	170	33 investigation of the acts giving rise to the action.
171	171	34 (D) After distribution of the proceeds described in clauses (A)
172	172	35 and (B), if applicable, eighty-five percent (85%) forty-two
173	173	36 and one-half percent (42.5%) of the remaining proceeds
174	174	37 shall be deposited in the general fund of a unit if the property
175	175	38 was seized by a local law enforcement agency of the unit for
176	176	39 an offense, an attempted offense, or a conspiracy to commit a
177	177	40 felony terrorist offense (as defined in IC 35-50-2-18) or an
178	178	41 offense under IC 35-47 as part of or in furtherance of an act of
179	179	42 terrorism.
180	180	2022 IN 152—LS 6410/DI 149 5
181	181	1 (E) After distribution of the proceeds as described in
182	182	2 clause (C) or (D), forty-two and one-half percent (42.5%)
183	183	3 of the remaining proceeds shall be transferred to the
184	184	4 United Way organization in the county. The United Way
185	185	5 organization shall use the proceeds to provide grants to
186	186	6 charitable organizations that are exempt from federal
187	187	7 income taxation under Internal Revenue Code Section
188	188	8 501(c)(3) to aid the community. If a county has more than
189	189	9 one (1) United Way organization, the court shall distribute
190	190	10 the proceeds among the United Way organizations in
191	191	11 proportion to the population each United Way
192	192	12 organization serves. If a county does not have a United
193	193	13 Way organization, the court shall distribute the proceeds
194	194	14 to a regional United Way organization that serves the
195	195	15 county. The regional United Way organization must use
196	196	16 the proceeds as described in this clause within the county.
197	197	17 Proceeds described in this subdivision may not be used in any
198	198	18 way to purchase or facilitate the acquisition of armored
199	199	19 vehicles, military-style weapons, or surplus military
200	200	20 equipment. The court shall order that the proceeds remaining
201	201	21 after the distribution of funds to offset expenses described in
202	202	22 subdivision (3) be forfeited and transferred to the treasurer of
203	203	23 state for deposit in the common school fund.
204	204	24 (e) If property that is seized under this chapter (or IC 34-4-30.1-4
205	205	25 before its repeal) is transferred:
206	206	26 (1) after its seizure, but before an action is filed under section 3
207	207	27 of this chapter (or IC 34-4-30.1-3 before its repeal); or
208	208	28 (2) when an action filed under section 3 of this chapter (or
209	209	29 IC 34-4-30.1-3 before its repeal) is pending;
210	210	30 the person to whom the property is transferred must establish an
211	211	31 ownership interest of record as a bona fide purchaser for value. A
212	212	32 person is a bona fide purchaser for value under this section if the
213	213	33 person, at the time of the transfer, did not have reasonable cause to
214	214	34 believe that the property was subject to forfeiture under this chapter.
215	215	35 (f) If the property seized was an unlawful telecommunications
216	216	36 device (as defined in IC 35-45-13-6) or plans, instructions, or
217	217	37 publications used to commit an offense under IC 35-45-13, the court
218	218	38 may order the sheriff of the county in which the person was convicted
219	219	39 of an offense under IC 35-45-13 to destroy as contraband or to
220	220	40 otherwise lawfully dispose of the property.
221	221	41 SECTION 3. IC 34-24-1-4.5, AS AMENDED BY P.L.47-2018,
222	222	42 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
223	223	2022 IN 152—LS 6410/DI 149 6
224	224	1 JULY 1, 2022]: Sec. 4.5. (a) After a prosecuting attorney files a
225	225	2 forfeiture action, the prosecuting attorney shall report the following to
226	226	3 the Indiana prosecuting attorneys council:
227	227	4 (1) The date the property was seized.
228	228	5 (2) Whether the property seized was cash, a vehicle, real property,
229	229	6 or other personal property.
230	230	7 (3) Whether the forfeiture was filed in state court or through
231	231	8 federal adoptive seizure.
232	232	9 This subsection applies even if the prosecuting attorney has retained an
233	233	10 attorney to bring the forfeiture action.
234	234	11 (b) After a court enters a judgment in favor of the state or a unit
235	235	12 under section 4 of this chapter, the prosecuting attorney shall report the
236	236	13 following to the Indiana prosecuting attorneys council:
237	237	14 (1) The amount of money or property that is the subject of the
238	238	15 judgment.
239	239	16 (2) The law enforcement agency to which the money or property
240	240	17 is ordered to be transferred.
241	241	18 (3) Whether the forfeiture was contested.
242	242	19 (4) Whether an innocent owner made a claim to the property.
243	243	20 (5) Whether the final disposition of the property resulted in the
244	244	21 property being returned, destroyed, forfeited, retained, or
245	245	22 distributed by settlement.
246	246	23 (6) The date of the final disposition.
247	247	24 This subsection applies even if the prosecuting attorney has retained an
248	248	25 attorney to bring an action under this chapter.
249	249	26 (c) After a court, upon motion of the prosecuting attorney under
250	250	27 IC 35-33-5-5(j), orders property transferred to a federal authority for
251	251	28 disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
252	252	29 881(e), and any related regulations adopted by the United States
253	253	30 Department of Justice, the prosecuting attorney shall report to the
254	254	31 Indiana prosecuting attorneys council the amount of money or property
255	255	32 transferred. This subsection applies even if the prosecuting attorney has
256	256	33 retained an attorney to bring an action under this chapter.
257	257	34 (d) (c) A report made to the Indiana prosecuting attorneys council
258	258	35 under this section must be in a format approved by the prosecuting
259	259	36 attorneys council. A prosecuting attorney with no forfeitures to report
260	260	37 shall file a report with the Indiana prosecuting attorneys council.
261	261	38 SECTION 4. IC 34-24-1-9 IS REPEALED [EFFECTIVE JULY 1,
262	262	39 2022]. Sec. 9. (a) Upon motion of a prosecuting attorney under
263	263	40 IC 35-33-5-5(j), property seized under this chapter must be transferred,
264	264	41 subject to the perfected liens or other security interests of any person
265	265	42 in the property, to the appropriate federal authority for disposition
266	266	2022 IN 152—LS 6410/DI 149 7
267	267	1 under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any
268	268	2 related regulations adopted by the United States Department of Justice.
269	269	3 (b) Money received by a law enforcement agency as a result of a
270	270	4 forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
271	271	5 881(e) and any related regulations adopted by the United States
272	272	6 Department of Justice must be deposited into a nonreverting fund and
273	273	7 may be expended only with the approval of:
274	274	8 (1) the executive (as defined in IC 36-1-2-5), if the money is
275	275	9 received by a local law enforcement agency; or
276	276	10 (2) the governor, if the money is received by a law enforcement
277	277	11 agency in the executive branch.
278	278	12 The money received under this subsection must be used solely for the
279	279	13 benefit of any agency directly participating in the seizure or forfeiture
280	280	14 for purposes consistent with federal laws and regulations.
281	281	15 SECTION 5. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
282	282	16 SECTION 225, IS AMENDED TO READ AS FOLLOWS
283	283	17 [EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
284	284	18 by any law enforcement agency as a result of an arrest, search warrant,
285	285	19 or warrantless search, shall be securely held by the law enforcement
286	286	20 agency under the order of the court trying the cause, except as provided
287	287	21 in this section.
288	288	22 (b) Evidence that consists of property obtained unlawfully from its
289	289	23 owner may be returned by the law enforcement agency to the owner
290	290	24 before trial, in accordance with IC 35-43-4-4(h).
291	291	25 (c) Following the final disposition of the cause at trial level or any
292	292	26 other final disposition the following shall be done:
293	293	27 (1) Property which may be lawfully possessed shall be returned
294	294	28 to its rightful owner, if known. If ownership is unknown, a
295	295	29 reasonable attempt shall be made by the law enforcement agency
296	296	30 holding the property to ascertain ownership of the property. After
297	297	31 ninety (90) days from the time:
298	298	32 (A) the rightful owner has been notified to take possession of
299	299	33 the property; or
300	300	34 (B) a reasonable effort has been made to ascertain ownership
301	301	35 of the property;
302	302	36 the law enforcement agency holding the property shall, at a
303	303	37 convenient time, dispose of this property at a public auction. The
304	304	38 proceeds of this property shall be paid into the county general
305	305	39 fund.
306	306	40 (2) Except as provided in subsection (e), property, the possession
307	307	41 of which is unlawful, shall be destroyed by the law enforcement
308	308	42 agency holding it sixty (60) days after final disposition of the
309	309	2022 IN 152—LS 6410/DI 149 8
310	310	1 cause.
311	311	2 (3) A firearm that has been seized from a person who is
312	312	3 dangerous (as defined in IC 35-47-14-1) shall be retained,
313	313	4 returned, or disposed of in accordance with IC 35-47-14.
314	314	5 (d) If any property described in subsection (c) was admitted into
315	315	6 evidence in the cause, the property shall be disposed of in accordance
316	316	7 with an order of the court trying the cause.
317	317	8 (e) A law enforcement agency may destroy or cause to be destroyed
318	318	9 chemicals, controlled substances, or chemically contaminated
319	319	10 equipment (including drug paraphernalia as described in
320	320	11 IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
321	321	12 controlled substances without a court order if all the following
322	322	13 conditions are met:
323	323	14 (1) The law enforcement agency collects and preserves a
324	324	15 sufficient quantity of the chemicals, controlled substances, or
325	325	16 chemically contaminated equipment to demonstrate that the
326	326	17 chemicals, controlled substances, or chemically contaminated
327	327	18 equipment was associated with the illegal manufacture of drugs
328	328	19 or controlled substances.
329	329	20 (2) The law enforcement agency takes photographs of the illegal
330	330	21 drug manufacturing site that accurately depict the presence and
331	331	22 quantity of chemicals, controlled substances, and chemically
332	332	23 contaminated equipment.
333	333	24 (3) The law enforcement agency completes a chemical inventory
334	334	25 report that describes the type and quantities of chemicals,
335	335	26 controlled substances, and chemically contaminated equipment
336	336	27 present at the illegal manufacturing site.
337	337	28 The photographs and description of the property shall be admissible
338	338	29 into evidence in place of the actual physical evidence.
339	339	30 (f) For purposes of preserving the record of any conviction on
340	340	31 appeal, a photograph demonstrating the nature of the property, and an
341	341	32 adequate description of the property must be obtained before the
342	342	33 disposition of the property. In the event of a retrial, the photograph and
343	343	34 description of the property shall be admissible into evidence in place
344	344	35 of the actual physical evidence. All other rules of law governing the
345	345	36 admissibility of evidence shall apply to the photographs.
346	346	37 (g) The law enforcement agency disposing of property in any
347	347	38 manner provided in subsection (b), (c), or (e) shall maintain certified
348	348	39 records of any disposition under subsection (b), (c), or (e). Disposition
349	349	40 by destruction of property shall be witnessed by two (2) persons who
350	350	41 shall also attest to the destruction.
351	351	42 (h) This section does not affect the procedure for the disposition of
352	352	2022 IN 152—LS 6410/DI 149 9
353	353	1 firearms seized by a law enforcement agency.
354	354	2 (i) A law enforcement agency that disposes of property by auction
355	355	3 under this section shall permanently stamp or otherwise permanently
356	356	4 identify the property as property sold by the law enforcement agency.
357	357	5 (j) Upon motion of the prosecuting attorney, the court shall order
358	358	6 property seized under IC 34-24-1 transferred, subject to the perfected
359	359	7 liens or other security interests of any person in the property, to the
360	360	8 appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
361	361	9 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
362	362	10 by the United States Department of Justice.
363	363	2022 IN 152—LS 6410/DI 149