24-1-15 - Transfer and sharing procedures.
24-1-15. Transfer and sharing procedures.
(1) For purposes of this section, property is considered to be "seized" whenever any state,county, or municipal law enforcement agency takes possession of the property or exercises anydegree of control over the property.
(2) When property is seized pursuant to the order of a state district court or state statute,the state has priority jurisdiction.
(3) Seizing agencies or prosecuting attorneys authorized to bring civil or criminalforfeiture proceedings under this chapter may not directly or indirectly transfer seized propertynot already named in a criminal indictment to any federal agency or any governmental entity notcreated under and subject to state law unless the court enters an order, upon petition of theprosecuting attorney, authorizing the property to be transferred. The court may not enter an orderauthorizing a transfer unless:
(a) the conduct giving rise to the investigation or seizure is interstate in nature andsufficiently complex to justify the transfer;
(b) the seized property may only be forfeited under federal law; or
(c) pursuing forfeiture under state law would unreasonably burden prosecuting attorneysor state law enforcement agencies.
(4) A petition to transfer property under this section to a federal agency shall include:
(a) a detailed description of the property seized;
(b) the location where the property was seized;
(c) the date the property was seized;
(d) case number assigned by the seizing law enforcement agency; and
(e) a sworn affidavit that:
(i) is signed by the prosecutor;
(ii) states the basis for relinquishing priority jurisdiction to a federal agency; and
(iii) contains the names and addresses of any potential owners then known.
(5) Notwithstanding Subsection (3), the court may refuse to enter an order authorizing atransfer to the federal government if the transfer would circumvent the protections of the UtahConstitution or of this chapter that would otherwise be available to the property owner.
(6) (a) Prior to granting any order to transfer pursuant to Subsection (3), the court shallgive any owner the right to be heard with regard to the transfer by sending notice to each addresscontained in the sworn affidavit.
(b) If no potential owner objects to the petition to transfer property within 10 days of themailing of the notice, the court shall issue its order under this section.
(c) If the affidavit provides no address for a potential owner, the court shall delay itsorder under this section for 20 days to allow time for the potential owner to appear and object.
(7) (a) If a potential owner contests a petition to transfer property to a federal agency, thecourt shall promptly set the matter for hearing.
(b) The court shall determine whether the state may relinquish priority jurisdiction by apreponderance of the evidence by considering hardship, complexity, judicial, and lawenforcement resources, and any other matter the court determines to be relevant.
(8) (a) Subject to Subsection (8)(b), all property, money, or other things of value receivedby an agency pursuant to federal law which authorizes the sharing or transfer of all or a portion offorfeited property or the proceeds of the sale of forfeited property to an agency:
(i) shall be used in compliance with federal rules and regulations relating to equitable
sharing;
(ii) shall be used only for those law enforcement purposes specified in Subsection24-1-19(8); and
(iii) may not be used for those law enforcement purposes prohibited in Subsection24-1-19(9).
(b) If an agency receives forfeiture proceeds under Subsection (8)(a) that equal anamount that is more than 25% greater than the annual budget of the receiving agency, the amountof the proceeds that is in excess of 125% of the agency's annual budget shall be passed throughby the agency to the Commission on Criminal and Juvenile Justice to be used for the purposesunder Section 24-1-19.
(c) Subject to Subsection (8)(a), state agencies are encouraged to seek an equitable shareof property forfeited by the federal government and to cooperate with federal law enforcementagencies in all cases in which cooperation is in the interest of this state.
(d) A law enforcement agency awarded any equitable share of property forfeited by thefederal government may only use the award money after approval or appropriation by theagency's legislative body.
(e) Law enforcement agencies are entitled to their equitable share of property forfeited bythe federal government since March 29, 2001.
(f) (i) Each agency awarded any equitable share of property forfeited by the federalgovernment shall file copies of all federal equitable sharing certifications, applications, andreports with the state auditor and the Commission on Criminal and Juvenile Justice at leastannually.
(ii) This information shall provide details of all awards received from the federalgovernment during the preceding reporting period, including for each award:
(A) the agency's case number or other identification;
(B) the amount of the award;
(C) the date of the award;
(D) the identity of the federal agency involved in the forfeiture;
(E) how the awarded property has been used; and
(F) a statement signed by both the agency's executive officer or designee and by theagency's legal counsel, that the agency has only used the awarded property for crime reduction orlaw enforcement purposes authorized under Section 24-1-19, and only upon approval orappropriation by the agency's legislative body.
(9) (a) Any agency that violates Subsection (3) or (8) is civilly liable to the state for threetimes the amount of the forfeiture diverted and for costs of suit and reasonable attorney fees.
(b) Any damages awarded to the state shall be paid to the Criminal Forfeiture RestrictedAccount created in Section 24-1-18.
(c) Any agent, including a state law enforcement officer, detached to, deputized orcommissioned by, or working in conjunction with a federal agency, who knowingly transfers orotherwise trades seized property in violation of Subsection (3) or who receives property, money,or other things of value under Subsection (8)(a) and knowingly fails to transfer the property inaccordance with this section is guilty of a class B misdemeanor.
Amended by Chapter 180, 2007 General Session