This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Wed, Feb 11, 2015 at 3:23 PM by lpoole.
Senator Howard A. Stephenson proposes the following substitute bill:


1     
ASSET FORFEITURE AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Howard A. Stephenson

5     
House Sponsor: John Knotwell

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Forfeiture and Disposition of Property Act by requiring annual
10     reports from law enforcement agencies conducting forfeitures and a summary of the
11     reports by the Commission on Criminal and Juvenile Justice.
12     Highlighted Provisions:
13          This bill:
14          ▸     deletes current provisions regarding forfeiture reports;
15          ▸     establishes detailed requirements for law enforcement agencies to prepare reports
16     providing information regarding any forfeiture actions the agencies have taken;
17          ▸     requires agency reports regarding any awards received under the State Asset
18     Forfeiture Grant Program; and
19          ▸     establishes a procedure for the compilation of the annual agency reports, the
20     preparation of the reports by the Commission on Criminal and Juvenile Justice, and
21     distribution of the reports to the Legislature.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          This bill provides a special effective date.
26     Utah Code Sections Affected:
27     AMENDS:
28          24-4-114, as last amended by Laws of Utah 2014, Chapter 112
29          24-4-117, as last amended by Laws of Utah 2014, Chapter 171
30     ENACTS:
31          24-4-118, Utah Code Annotated 1953
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 24-4-114 is amended to read:
35          24-4-114. Transfer and sharing procedures.
36          (1) (a) Seizing agencies or prosecuting attorneys authorized to bring forfeiture
37     proceedings under this chapter may not directly or indirectly transfer property held for
38     forfeiture and not already named in a criminal indictment to any federal agency or any
39     governmental entity not created under and subject to state law unless the court enters an order,
40     upon petition of the prosecuting attorney, authorizing the property to be transferred.
41          (b) The court may not enter an order authorizing a transfer under Subsection (1)(a)
42     unless:
43          (i) the conduct giving rise to the investigation or seizure is interstate in nature and
44     sufficiently complex to justify the transfer;
45          (ii) the property may only be forfeited under federal law; or
46          (iii) pursuing forfeiture under state law would unreasonably burden prosecuting
47     attorneys or state law enforcement agencies.
48          (c) A petition to transfer property to a federal agency under this section shall include:
49          (i) a detailed description of the property seized;
50          (ii) the location where the property was seized;
51          (iii) the date the property was seized;
52          (iv) the case number assigned by the seizing law enforcement agency; and
53          (v) a declaration that:
54          (A) states the basis for relinquishing jurisdiction to a federal agency;
55          (B) contains the names and addresses of any claimants then known; and
56          (C) is signed by the prosecutor.
57          (d) The court may not authorize the transfer of property to the federal government if
58     the transfer would circumvent the protections of the Utah Constitution or of this chapter that
59     would otherwise be available to the property owner.
60          (e) (i) Prior to granting any order to transfer pursuant to this section, the court shall
61     give any claimant the right to be heard with regard to the transfer by the mailing of a notice to
62     each address contained in the declaration.
63          (ii) If no claimant objects to the petition to transfer property within 10 days of the
64     mailing of the notice, the court shall issue its order under this section.
65          (iii) If the declaration does not include an address for a claimant, the court shall delay
66     its order under this section for 20 days to allow time for the claimant to appear and make an
67     objection.
68          (f) (i) If a claimant contests a petition to transfer property to a federal agency, the court
69     shall promptly set the matter for hearing.
70          (ii) (A) The court shall determine whether the state may relinquish jurisdiction by a
71     standard of preponderance of the evidence.
72          (B) In making the determination, the court shall consider evidence regarding hardship,
73     complexity, judicial and law enforcement resources, and any other matter the court determines
74     to be relevant.
75          (2) All property, money, or other things of value received by an agency pursuant to
76     federal law, which authorizes the sharing or transfer of all or a portion of forfeited property or
77     the proceeds of the sale of forfeited property to an agency:
78          (a) shall be used in compliance with federal laws and regulations relating to equitable
79     sharing;
80          (b) may be used for those law enforcement purposes specified in Subsection
81     24-4-117(9); and
82          (c) may not be used for those law enforcement purposes prohibited in Subsection
83     24-4-117(10).
84          (3) A state or local law enforcement agency awarded any equitable share of property
85     forfeited by the federal government may only use the award money after approval of the use by
86     the agency's legislative body.
87          [(4) Each year, every agency awarded any equitable share of property forfeited by the
88     federal government shall file with the commission:]
89          [(a) a copy of that agency's federal equitable sharing certification; and]
90          [(b) information, on a form provided by the commission, that details all awards
91     received from the federal government during the preceding reporting period, including:]
92          [(i) the agency's case number or other identification;]
93          [(ii) the amount of the award;]
94          [(iii) the date of the award;]
95          [(iv) the identity of any federal agency involved in the forfeiture;]
96          [(v) how the awarded property has been used; and]
97          [(vi) a statement signed by both the agency's executive officer or designee and by the
98     agency's legal counsel confirming that the agency has only used the awarded property for crime
99     reduction or law enforcement purposes authorized under Section 24-4-117, and only upon
100     approval by the agency's legislative body.]
101          Section 2. Section 24-4-117 is amended to read:
102          24-4-117. State Asset Forfeiture Grant Program.
103          (1) There is created the State Asset Forfeiture Grant Program.
104          (2) The program shall fund crime prevention, crime victim reparations, and law
105     enforcement activities that have the purpose of:
106          (a) deterring crime by depriving criminals of the profits and proceeds of their illegal
107     activities;
108          (b) weakening criminal enterprises by removing the instrumentalities of crime;
109          (c) reducing crimes involving substance abuse by supporting the creation,
110     administration, or operation of drug court programs throughout the state;
111          (d) encouraging cooperation between local, state, and multijurisdictional law
112     enforcement agencies;
113          (e) allowing the costs and expenses of law enforcement to be defrayed by the forfeited
114     proceeds of crime;
115          (f) increasing the equitability and accountability of the use of forfeited property used to
116     assist law enforcement in reducing and preventing crime; and
117          (g) providing aid to victims of criminally injurious conduct, as defined in Section
118     63M-7-502, who may be eligible for assistance under Title 63M, Chapter 7, Part 5, Utah Office
119     for Victims of Crime.
120          (3) (a) When property is forfeited under this chapter and transferred to the account,
121     upon appropriation the commission shall allocate and administer grants to state agencies, local
122     law enforcement agencies, multijurisdictional law enforcement agencies, or political
123     subdivisions of the state in compliance with this section and to further the program purposes
124     under Subsection (2).
125          (b) The commission may retain up to 3% of the annual appropriation from the account
126     to pay for administrative costs incurred by the commission, including salary and benefits,
127     equipment, supplies, or travel costs that are directly related to the administration of the
128     program.
129          (4) Agencies or political subdivisions shall apply for an award from the program by
130     completing and submitting forms specified by the commission.
131          (5) In granting the awards, the commission shall ensure that the amount of each award
132     takes into consideration the:
133          (a) demonstrated needs of the agency;
134          (b) demonstrated ability of the agency to appropriately use the award;
135          (c) degree to which the agency's need is offset through the agency's participation in
136     federal equitable sharing or through other federal and state grant programs; and
137          (d) agency's cooperation with other state and local agencies and task forces.
138          (6) Applying agencies or political subdivisions shall demonstrate compliance with all
139     reporting and policy requirements applicable under this chapter and under Title 63M, Chapter
140     7, Criminal Justice and Substance Abuse, in order to qualify as a potential award recipient.
141          (7) (a) Recipient law enforcement agencies may only use award money after approval
142     by the agency's legislative body.
143          (b) The award money is nonlapsing.
144          (8) A recipient state agency, local law enforcement agency, multijurisdictional law
145     enforcement agency, or political subdivision shall use awards only for law enforcement
146     purposes as described in this section or for victim reparations as described in Subsection (2)(g),
147     and only as these purposes are specified by the agency or political subdivision in its application
148     for the award.
149          (9) Permissible law enforcement purposes for which award money may be used
150     include:
151          (a) controlled substance interdiction and enforcement activities;
152          (b) drug court programs;
153          (c) activities calculated to enhance future law enforcement investigations;
154          (d) law enforcement training that includes:
155          (i) implementation of the Fourth Amendment to the United States Constitution and
156     Utah Constitution, Article I, Section 7, and that addresses the protection of the individual's
157     right of due process;
158          (ii) protection of the rights of innocent property holders; and
159          (iii) the Tenth Amendment to the United States Constitution regarding states'
160     sovereignty and the states' reserved rights;
161          (e) law enforcement or detention facilities;
162          (f) law enforcement operations or equipment that are not routine costs or operational
163     expenses;
164          (g) drug, gang, or crime prevention education programs that are sponsored in whole or
165     in part by the law enforcement agency or its legislative body;
166          (h) matching funds for other state or federal law enforcement grants; and
167          (i) the payment of legal costs, attorney fees, and postjudgment interest in forfeiture
168     actions.
169          (10) Law enforcement purposes for which award money may not be granted or used
170     include:
171          (a) payment of salaries, retirement benefits, or bonuses to any person;
172          (b) payment of expenses not related to law enforcement;
173          (c) uses not specified in the agency's award application;
174          (d) uses not approved by the agency's legislative body;
175          (e) payments, transfers, or pass-through funding to entities other than law enforcement
176     agencies; or
177          (f) uses, payments, or expenses that are not within the scope of the agency's functions.
178          [(11) (a) For each fiscal year, any state, local, or multijurisdictional agency or political
179     subdivision that received an award shall prepare, and file with the commission, a report in a
180     form specified by the commission.]
181          [(b) The report shall include the following regarding each award:]
182          [(i) the agency's name;]
183          [(ii) the amount of the award;]
184          [(iii) the date of the award;]
185          [(iv) how the award has been used; and]
186          [(v) a statement signed by both the agency's or political subdivision's executive officer
187     or designee and by the agency's legal counsel, that:]
188          [(A) the agency or political subdivision has complied with all inventory, policy, and
189     reporting requirements of this chapter; and]
190          [(B) all awards were used for crime reduction, crime victim reparations, or law
191     enforcement purposes as specified in the application and only upon approval by the agency's or
192     political subdivision's legislative body.]
193          [(12) (a) The commission shall report in writing to the legislative Law Enforcement
194     and Criminal Justice Interim Committee annually regarding the forfeited property transferred to
195     the account, awards made by the program, uses of program awards, and any equitable share of
196     property forfeited by the federal government as reported by agencies pursuant to Subsection
197     24-4-114(4).]
198          [(b) The report shall be submitted annually on or before November 1.]
199          Section 3. Section 24-4-118 is enacted to read:
200          24-4-118. Forfeiture reporting requirements.
201          (1) On and after January 1, 2016, every state, county, municipal, or other law
202     enforcement agency shall, when transferring the final disposition of any civil or criminal
203     forfeiture matter to the Commission on Criminal and Juvenile Justice as required under this
204     chapter, provide all available data described in Subsection (5), along with the transfer of any
205     applicable forfeited property.
206          (2) The Commission on Criminal and Juvenile Justice shall develop a standardized
207     report format that each agency shall use in reporting the data required under this section.
208          (3) The Commission on Criminal and Juvenile Justice shall annually, on or before
209     April 30, prepare a summary report of the case data submitted by each agency under Subsection
210     (1) during the prior calendar year.
211          (4) (a) If an agency does not comply with the reporting requirements under this section,
212     the Commission on Criminal and Juvenile Justice shall contact the agency and request that the
213     agency comply with the required reporting provisions.
214          (b) If an agency fails to comply with the reporting requirements under this section
215     within 30 days after receiving the request to comply, the Commission on Criminal and Juvenile
216     Justice shall report the noncompliance to the Utah attorney general, the speaker of the House of
217     Representatives, and the president the Senate.
218          (5) The data for any civil or criminal forfeiture matter for which final disposition has
219     been made under Subsection (1) shall include:
220          (a) the agency that conducted the seizure;
221          (b) the case number or other identification;
222          (c) the date or dates on which the seizure was conducted;
223          Ŝ→ [(d) each named potential interest holder for each seizure of property;]
223a          (d) the number of individuals having a known property interest in each seizure of
223b     property; ←Ŝ
224          (e) the type of property seized Ŝ→ [, including identifying marks or numbers, the year, make,
225     and model, or other unique identifiers, as applicable] ←Ŝ ;
226          (f) the alleged offense that was the cause for seizure of the property;
226a     Ŝ→      (g) the type of enforcement action that resulted in the seizure, including an
226b     enforcement stop, a search warrant, or an arrest warrant; ←Ŝ
227          Ŝ→ [(g)] (h) ←Ŝ whether the forfeiture procedure was civil or criminal;
228          Ŝ→ [(h)] (i) ←Ŝ the final disposition of the matter, including whether final disposition was
228a     entered
229     by stipulation of the parties, including the amount of property returned to any claimant, by
230     default, by summary judgment, by jury award, or by guilty plea or verdict in a criminal
231     forfeiture; and
232          Ŝ→ [(i)] (j) ←Ŝ if the property was transferred to a federal agency or any governmental entity
232a     not
233     created under and subject to state law:
234          (i) the date of the transfer;
235          (ii) the name of the federal agency or entity to which the property was transferred;
236          (iii) a reference to which reason under Subsection 24-4-114(1)(a) justified the transfer;
237          (iv) the court or agency where the forfeiture case was heard;
238          (v) the date of the order of transfer of the property; Ŝ→ and ←Ŝ
239          Ŝ→ [(vi) the market value of the property as estimated by the court hearing the forfeiture ☆
240     ☆ case; and
241          (vii)] (vi) ←Ŝ the value of the property transferred to the federal agency, including currency
241a     and
242     the estimated market value of any tangible property.
243          (6) On and after January 1, 2016, every state, county, municipal, or other law
244     enforcement agency shall annually on or before April 30 submit a report for the prior calendar
245     year to the Commission on Criminal and Juvenile Justice which states:
246          (a) whether the agency received an award from the State Asset Forfeiture Grant
247     Program under Section 24-4-117 and, if so, the following information for each award:
248          (i) the amount of the award;
249          (ii) the date of the award;
250          (iii) how the award was used or is planned to be used; and
251          (iv) a statement signed by both the agency's executive officer or designee and by the
252     agency's legal counsel, that:
253          (A) the agency has complied with all inventory, policy, and reporting requirements
254     under Section 24-4-117; and
255          (B) all awards were used for crime reduction or law enforcement purposes as specified
256     in the application and that the awards were used only upon approval by the agency's legislative
257     body; and
258          (b) whether the agency received any property, money, or other things of value pursuant
259     to federal law as described in Subsection 24-4-114(2) and, if so, the following information for
260     each piece of property, money, or other thing of value:
261          (i) the case number or other case identification;
262          (ii) the value of the award and the property, money, or other things of value received by
263     the agency;
264          (iii) the date of the award;
265          (iv) the identity of any federal agency involved in the forfeiture;
266          (v) how the awarded property has been used or is planned to be used; and
267          (vi) a statement signed by both the agency's executive officer or designee and by the
268     agency's legal counsel, that the agency has only used the award for crime reduction or law
269     enforcement purposes authorized under Section 24-4-117, and that the award was used only
270     upon approval by the agency's legislative body.
271          (7) (a) On or before July 1 of each year, the Commission on Criminal and Juvenile
272     Justice shall submit Ŝ→ notice of ←Ŝ the Ŝ→ annual ←Ŝ reports in Subsection (3) and
272a     Ŝ→ [in] ←Ŝ Subsection (6) Ŝ→ , in electronic format, ←Ŝ to:
273          (i) the Utah attorney general;
274          (ii) the speaker of the House of Representatives, for referral to any House standing or
275     interim committees with oversight over law enforcement and criminal justice;
276          (iii) the president of the Senate, for referral to any Senate standing or interim
277     committees with oversight over law enforcement and criminal justice; and
278          (iv) each Ŝ→ [state, county, municipal, and other] ←Ŝ law enforcement agency.
279          (b) The reports described in Subsection (3) and Subsection (6), as well as the
280     individual case data described in Subsection (1) for the previous calendar year, shall be
281     published on the Utah Open Government website at open.utah.gov on or before July 15 of each
282     year.
283          Section 4. Effective date.
284          This bill takes effect on July 1, 2015.