PA 17-193—sHB 7146

Banking Committee

Judiciary Committee

AN ACT REQUIRING A CRIMINAL CONVICTION FOR CERTAIN OFFENSES BEFORE ASSETS SEIZED IN A LAWFUL ARREST OR LAWFUL SEARCH MAY BE FORFEITED IN A CIVIL PROCEEDING

SUMMARY: This act makes changes to the laws governing civil forfeiture of property seized in connection with criminal offenses.

Under the act, property seized during a lawful search may be subject to forfeiture proceedings only if the search results in an arrest.

The act requires the court to deny the state's petition to forfeit property and return the seized property to its owner unless the criminal proceeding results in a:

1. guilty plea or nolo contendere to any offense charged as a result of the same criminal information;

2. guilty verdict after a trial for the forfeiture-eligible offense which led to the seizure of the property and the property (a) was possessed, controlled, designed, or intended for use in the offense; (b) was or had been used in committing the offense; or (c) constitutes the proceeds of such an offense; or

3. dismissal resulting from completion of a pretrial diversionary program (e.g., the accelerated rehabilitation program).

The act also makes minor, technical, and conforming changes.

EFFECTIVE DATE: October 1, 2017

PROPERTY SUBJECT TO FORFEITURE PROCEEDINGS

Applicability

The act applies to seized property taken during a (1) lawful arrest or (2) lawful search that resulted in an arrest for a criminal offense, except for certain drug paraphernalia, sale, and possession offenses that the state claims to be a nuisance and wants to dispose of or destroy.

The act also makes conforming changes to several criminal procedures, including those that apply to seized property constituting or derived from proceeds obtained:

1. by a person as a result of certain identity theft offenses;

2. in connection with certain drug and controlled substances (including selling and manufacturing) and money laundering offenses, or property used or associated with such offenses; and

3. in connection with certain sexual exploitation, prostitution, or human trafficking offenses, or property used to commit such offenses.

Lawful Searches Resulting in an Arrest

The act allows the chief state's attorney to petition the court to order forfeiture of property seized as a result of a (1) lawful arrest or (2) lawful search that results in an arrest. It eliminates the chief state's attorney's ability to petition for forfeiture after a lawful search that does not result in an arrest.

For certain offenses, prior law did not indicate whether the forfeiture provision could apply in connection with either a lawful arrest or search. These offenses include identity theft; trafficking in personal information; and fraudulently obtaining or altering a professional license, registration, or certificate. The act limits property subject to forfeiture for these offenses to property seized in connection with a (1) lawful arrest or (2) lawful search resulting in an arrest, thus making the lawful arrest and search provisions for these crimes consistent with those for other crimes.

FORFEITURE PROCEEDINGS

By law, forfeiture proceedings are civil suits in equity in which the court has jurisdiction over property. Any petition to the court to forfeit property associated with a crime must be brought by the chief state's attorney within 90 days of its seizure. The court must identify and notify the owner of the property and any other interested party.

Prior law required the court to hold a hearing on the petition at least two weeks after notifying the owner and interested parties. The act instead requires the hearing to be held within two weeks after the criminal proceeding is nolled, disposed of, or dismissed.

RETURN OF SEIZED PROPERTY

Under the act, seized property may be returned to its owner if the court (1) denies the state's forfeiture petition or (2) finds that the property was not associated with the criminal offense for which the seizure was conducted, with an exception for certain drug-related offenses.

Existing law, unchanged by the act, provides a process by which an owner may petition the court for the return of certain property seized during a criminal arrest or pursuant to a search warrant (see BACKGROUND).

Non-Drug Crimes

By law, the court must order seized property returned to its owner if it finds that the property (1) was not possessed, controlled, designed, or intended for criminal use; (2) is not or was not intended to be used to commit a crime; or (3) does not constitute criminal proceeds. The act specifies that the court must return property under these circumstances regardless of the findings in the related criminal proceeding.

By law, property must also be returned if the court finds it (1) has not been kept to violate, or in violation of, the law or (2) is the property of a person who is not the defendant.

DESTROYING OR DISPOSING OF SEIZED PROPERTY

By law, unchanged by the act, if the state meets its burden of proof, the court must find that the property is a nuisance and order that it be destroyed or disposed of to a charitable or educational institution or government agency or institution. Under the act, the court may not issue such an order unless one of the following is entered: (1) a guilty plea or nolo contendere to the offense or another charge in the same criminal information, (2) a guilty verdict after a trial for the forfeiture-eligible offense, or (3) a dismissal resulting from a completed pretrial diversionary program.

By law, the state may not destroy or dispose of the property if it is subject to a bona fide mortgage, lease, rent, lien, or security deposit and destroying or disposing it would violate the holder's rights.

BACKGROUND

Related Law

CGS 54-36a provides a process for disposing of property seized in connection with a criminal arrest or seized pursuant to a search warrant. It includes specific provisions for the forfeiture of seized property such as stolen property, currency, fireworks, drugs, or drug paraphernalia. Among other things, the law generally requires law enforcement to inventory the seized property and provides a way for an owner to petition the court for its return.