Olmsted County Model Forfeiture Policy
The definition of “designated offense” includes most serious felonies against persons, a number of property felonies, and felony or gross misdemeanor violations of the crime of unauthorized computer access. It also includes the gross misdemeanor crime of carrying a rifle or shotgun in a public place and the crimes of promoting, soliciting, or engaging in prostitution, regardless of the penalty prescribed for the violation.
Property is subject to forfeiture if it was either (1) personal property used or intended for use to commit or facilitate the commission of a designated offense; or (2) real or personal property representing the proceeds of a designated offense. Additionally, all contraband property is subject to forfeiture as is any weapon used or possessed in furtherance of any criminal code violation, controlled substance offense, violation of chapter 624, or violation of a domestic abuse order for protection.
Property associated with a designated offense (other than weapons and contraband) may be forfeited by judicial order, following a civil in rem proceeding. The government has the burden of proving by clear and convincing evidence that the property is subject to forfeiture. The fact that a designated offense was committed may be established only by proof of a criminal conviction. The law also provides certain defenses for innocent common carriers, innocent owners, and innocent secured parties. “Innocent” in this context means that the party neither knew of, consented to, or was involved in the act or omission giving rise to the forfeiture. The existence of a security interest must be established by clear and convincing evidence.
This procedure is identical to the judicial forfeiture procedure for designated offenses with the following exceptions:
The seizure may be made under process issued by any court having jurisdiction over the property. The law also authorizes seizure without process under the following circumstances:
This administrative forfeiture law creates a presumption that the following property is subject to forfeiture:
The law enforcement agency is permitted to seize the property immediately and send a notice to all persons known to have an ownership, possessory, or security interest in the property. The notice must state that the property will be forfeited unless the property claimant files a demand within 60 days for a judicial forfeiture hearing. If the demand is filed, the judicial forfeiture procedures must be followed. If no demand for judicial forfeiture is filed, the property is forfeited.
The “drive-by shooting” offense imposes felony penalties on any person who recklessly discharges a firearm at or toward a person, vehicle, or building while in or having just exited from a motor vehicle. A motor vehicle used to commit the drive-by shooting offense is subject to administrative forfeiture if the prosecutor establishes by clear and convincing evidence that the motor vehicle was used to commit the crime. The prosecutor does not need the fact of a criminal conviction to meet this burden; however, if the vehicle owner was convicted of a drive-by shooting offense, that fact creates a presumption that the vehicle was used in the violation.
As is true of other types of administrative forfeitures, this law permits the immediate seizure of the property and, unless the owner demands a judicial forfeiture proceeding, the forfeiture of the vehicle without any further hearings. However, this law differs from other administrative forfeiture laws in the following ways:
The property may be sold if it is not otherwise required by law to be destroyed and is not harmful to the public; it may be kept for official use by the law enforcement and prosecuting agencies; or it may be forwarded to the federal Drug Enforcement Administration.
If property representing proceeds of a crime is sold, the proceeds must be applied first, to satisfy valid liens and forfeiture sale expenses and second, to pay court-ordered restitution. If other forfeited property is sold, the proceeds also must be used first to satisfy valid liens and forfeiture sale expenses. The remaining sale proceeds from both types of property are distributed according to the following formula:
Each law enforcement agency must give a written record of each forfeiture incident to the state auditor. The report must be made monthly and include the amount forfeited, the date of the forfeiture, and a brief description of the circumstances involved. The report also must include the number, make, model, and serial number of firearms seized by the agency. The state auditor must, in turn, report annually to the legislature on the nature and extent of forfeitures during the preceding year.
