16-16-1. [
Index ]
As used in this chapter,
the term:
(1) 'Armed robbery' means the offense
defined in subsection (a) of Code Section 16-8-41.
(2)
'Burglary' means the offense defined in subsection (a) of Code Section 16-7-1.
16-16-2. [
Index ]
(a) All motor
vehicles, tools, and weapons which are used or intended for use in any manner in
the commission of or to facilitate the commission of a burglary or armed robbery
are subject to forfeiture under this chapter, but:
(1)
No motor vehicle used by any person as a common carrier in the transaction of
business as a common carrier is subject to forfeiture under this Code section
unless it appears that the owner or other person in charge of the motor vehicle
is a consenting party or privy to the commission of a burglary or armed robbery;
(2) No motor vehicle is subject to forfeiture under
this Code section by reason of any act or omission established by the owner
thereof to have been committed or omitted without his or her knowledge or
consent, and any co-owner of a motor vehicle without knowledge of or consent to
the act or omission is protected to the extent of the interest of such co-owner;
and
(3) A forfeiture of a motor vehicle encumbered by
a bona fide security interest is subject to the interest of the secured party if
he or she neither had knowledge of or nor consented to the act or omission.
(b) Property subject to forfeiture under this chapter
may be seized by any law enforcement officer of this state or any political
subdivision thereof who has the power to make arrests upon process issued by any
court having jurisdiction over the property. Seizure without process or warrant
may be made if:
(1) The seizure is incident to an
arrest or a search under a search 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; or
(3) If probable cause exists that the
vehicle, tool, or weapon is subject to seizure.
(c)
Property taken or detained under this Code section shall not be subject to
replevin but is deemed to be in the custody of the superior court wherein the
seizure was made or in custody of the superior court where it can be proven that
the burglary or armed robbery was committed, subject only to the orders and
decrees of the court having jurisdiction over the forfeiture proceedings. When
property is seized under this chapter, law enforcement officers seizing such
property shall:
(1) Place the property under seal;
(2) Remove the property to a place designated by the
judge of the superior court having jurisdiction over the forfeiture as set out
in this subsection; or
(3) Deliver such property to
the sheriff or police chief of the county in which the seizure occurred, and the
sheriff or police chief shall take custody of the property and remove it to an
appropriate location for disposition in accordance with law.
(d) When property is seized under this chapter, the
sheriff or law enforcement officer seizing the same shall report the fact of
seizure, within 20 days thereof, to the district attorney of the judicial
circuit having jurisdiction in the county where the seizure was made. Within 60
days from the date he or she receives notice of the seizure, the district
attorney of the judicial circuit shall cause to be filed in the superior court
of the county in which the property is seized or detained an in rem complaint
for forfeiture of such property as provided for in this Code section. The
proceedings shall be brought in the name of the state by the district attorney
of the circuit in which the property was seized, and the complaint shall be
verified by a duly authorized agent of the state in a manner required by the law
of this state. The complaint shall describe the property, state its location,
state its present custodian, state the name of the owner, if known to the duly
authorized agent of the state, allege the essential elements of the violation
upon which the forfeiture is based, and shall conclude with a prayer of due
process to enforce the forfeiture. Upon the filing of such a complaint, the
court shall promptly cause process to issue to the present custodian in
possession of the property described in the complaint, commanding him or her to
seize the property described in the complaint and to hold that property for
further order of the court. A copy of the complaint shall be served on the owner
or lessee, if known. A copy of the complaint shall also be served upon any
person having a duly recorded security interest in or lien upon that property.
If the owner or lessee is unknown or resides out of the state or departs the
state or cannot after due diligence be found within the state or conceals
himself or herself so as to avoid service, notice of the proceedings shall be
published once a week for two weeks in the newspaper in which the sheriff´s
advertisements are published. Such publication shall be deemed notice to any and
all persons having an interest in or right affected by such proceeding and from
any sale of the property resulting therefrom but shall not constitute notice to
any person having a duly recorded security interest in or lien upon such
property and required to be served under this Code section unless that person is
unknown or resides out of the state or departs the state or cannot after due
diligence be found within the state or conceals himself or herself to avoid
service. An owner of or interest holder in the property may file an answer
asserting a claim against the property in the action in rem. Any such answer
shall be filed within 30 days after the service of the summons and complaint.
Where service is made by publication and personal service has not been made, an
owner or interest holder shall file an answer within 30 days of the date of
final publication. An answer must be verified by the owner or interest holder
under penalty of perjury. In addition to complying with the general rules
applicable to an answer in civil actions, the answer must set forth:
(1) The caption of the proceedings as set forth in
the complaint and the name of the claimant;
(2) The
address at which the claimant will accept mail;
(3)
The nature and extent of the claimant´s interest in the property;
(4) The date, identity of transferor, and
circumstances of the claimant´s acquisition of the interest in the
property;
(5) The specific provision of this Code
section relied on in asserting that the property is not subject to forfeiture;
(6) All essential facts supporting each assertion;
and
(7) The precise relief sought.
If at the expiration of the period set forth in this
subsection no answer has been filed, the court shall order the disposition of
the seized property as provided for in this Code section. If an answer is filed,
a hearing must be held within 60 days after service of the complaint unless
continued for good cause and must be held by the court without a jury. If the
court determines that a claimant defending the complaint knew or by the exercise
of ordinary care should have known that the property was to be used for an
unlawful purpose subjecting it to forfeiture under this chapter, the court shall
order the disposition of the seized property as provided in this Code section
and that claimant shall have no claim upon the property or proceeds from the
sale thereof.
(e)(1) When property is forfeited under
this chapter, the judge of the superior court in the county where the seizure
was made or in the county in which it can be proven that the burglary or armed
robbery was committed may dispose of the property by issuing an order to:
(A) Retain it for official use by any agency of this
state or any political subdivision thereof;
(B) Sell
that which is not required to be destroyed by law and which is not harmful to
the public. The proceeds shall be used for payment of all proper expenses of the
proceedings for forfeiture and sale, including but not limited to the expenses
of seizure, maintenance of custody, advertising, and court costs;
or
(C) Require the sheriff or police chief of the
county in which the seizure occurred to take custody of the property and remove
it for disposition in accordance with law.
(2)(A)
Money, currency, or proceeds which are realized from the sale or disposition of
forfeited property shall after satisfaction of the interest of secured parties
and after payment of all costs vest in the local political subdivision whose law
enforcement officers seized it. If the property was seized by a municipal law
enforcement agency then the money, currency, or proceeds realized from the sale
or disposition of the property shall vest in that municipality. If the property
was seized by a county law enforcement agency, then the money, currency, or
proceeds realized from the sale or disposition of the property shall vest in
that county. If the property was seized by joint action of a county law
enforcement agency and a municipal law enforcement agency, then the money,
currency, or proceeds realized from the sale or disposition of the property
shall vest in that county and that municipality and shall be divided equally
between the county and municipality. If the property was seized by a state law
enforcement agency, then the money, currency, or proceeds realized from the sale
or disposition of the property shall vest in the county where the condemnation
proceedings are filed. Except as otherwise provided in subparagraph (B) of
paragraph (1) of this subsection for payment of all costs, the local government
in which the money, currency, or proceeds realized from the forfeited property
vests shall expend or use such funds or proceeds received for any official law
enforcement purpose except for the payment of salaries or rewards to law
enforcement personnel, at the discretion of the chief officer of the local law
enforcement agency, or to fund victim-witness assistance programs. Such property
shall not be used to supplant any other local, state, or federal funds
appropriated for staff or operations.
(B) Any local
law enforcement agency receiving property under this subsection shall submit an
annual report to the local governing authority. The report shall be submitted
with the agency´s budget request and shall itemize the property received
during the fiscal year and the utilization made thereof.