Senate File 446 - Reprinted SENATE FILE 446 BY COMMITTEE ON JUDICIARY (SUCCESSOR TO SSB 1148) (As Amended and Passed by the Senate March 28, 2017 ) A BILL FOR An Act relating to asset forfeiture by prohibiting civil 1 asset forfeiture for property valued at less than a minimum 2 amount, raising the standard of proof for asset forfeiture, 3 requiring a proportionality review for property to be 4 forfeited, and requiring law enforcement agencies to retain 5 certain records related to asset forfeiture and including 6 applicability provisions. 7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 8 SF 446 (2) 87 jh/nh/jh

S.F. 446 Section 1. Section 809A.1, Code 2017, is amended by adding 1 the following new subsections: 2 NEW SUBSECTION . 01. “Convicted” or “conviction” includes 3 a finding of guilt, a plea of guilty, deferred judgment, 4 deferred or suspended sentence, adjudication of delinquency, 5 or circumstances where a person is not charged with a criminal 6 offense that is a serious or aggravated misdemeanor or felony 7 related to the action for forfeiture based in whole or in part 8 on the person’s cooperation in providing information regarding 9 the criminal activity of another person. 10 NEW SUBSECTION . 001. “Instrumentality” means property 11 otherwise lawful to possess that is used in or intended to be 12 used in a public offense. 13 NEW SUBSECTION . 1A. “Minimum civil forfeiture amount” means 14 five thousand dollars. 15 Sec. 2. Section 809A.5, subsection 2, paragraph b, Code 16 2017, is amended to read as follows: 17 b. The owner or interest holder is criminally responsible 18 for the conduct giving rise to its forfeiture , whether or not 19 the owner or interest holder is prosecuted or convicted . If 20 the forfeiture is for property valued at less than the minimum 21 civil forfeiture amount, the owner or interest holder must also 22 be convicted of the criminal offense for the conduct giving 23 rise to forfeiture. 24 Sec. 3. Section 809A.8, subsection 1, paragraph a, 25 subparagraph (2), Code 2017, is amended to read as follows: 26 (2) File a judicial forfeiture proceeding within ninety 27 days after notice of pending forfeiture of property upon which 28 a proper claim has been timely filed pursuant to section 29 809A.11 , or, if the value of the property is less than the 30 minimum civil forfeiture amount, file a judicial forfeiture 31 proceeding within ninety days after the conclusion of the 32 criminal prosecution . 33 Sec. 4. Section 809A.8, subsection 1, paragraph d, 34 unnumbered paragraph 1, Code 2017, is amended to read as 35 -1- SF 446 (2) 87 jh/nh/jh 1/ 6

S.F. 446 follows: 1 If a petition is timely filed, the prosecuting attorney may 2 delay filing a judicial forfeiture proceeding for one hundred 3 eighty days after the notice of pending forfeiture, or, if the 4 value of the property is less than the minimum civil forfeiture 5 amount, one hundred eighty days after the conclusion of the 6 criminal prosecution, and the following procedures shall apply: 7 Sec. 5. Section 809A.12, subsections 6, 7, and 14, Code 8 2017, are amended to read as follows: 9 6. A defendant convicted in any whose criminal proceeding 10 results in a conviction is precluded from later denying the 11 essential allegations of the criminal offense of which the 12 defendant was convicted in any proceeding pursuant to this 13 section . For the purposes of this section , a conviction 14 results from a verdict or a plea of guilty. A defendant 15 whose conviction is overturned on appeal may file a motion to 16 correct, vacate, or modify a judgment of forfeiture under this 17 subsection . 18 7. In any proceeding under this chapter , if a claim is based 19 on an exemption provided for in this chapter , the burden of 20 proving the existence of the exemption is on the claimant must 21 make a prima facie showing of the existence of the exemption . 22 However, once the claimant comes forward with some evidence 23 supporting the existence of the exemption, the state The 24 prosecuting attorney must provide some evidence to negate the 25 assertion of the then prove by clear and convincing evidence 26 that the exemption does not apply . The state’s evidence must 27 be substantial, though not necessarily rising to the level of a 28 preponderance of the evidence, and more than a simple assertion 29 of the claimant’s interest in the property. The agency or 30 political subdivision bringing the forfeiture action shall 31 pay the reasonable attorney fees and costs, as determined by 32 the court, incurred by a claimant who prevails on a claim for 33 exemption in a proceeding under this chapter . 34 14. An acquittal or dismissal in a criminal proceeding shall 35 -2- SF 446 (2) 87 jh/nh/jh 2/ 6

S.F. 446 not preclude civil proceedings under this chapter if the value 1 of the property to be forfeited is equal to or exceeds the 2 minimum civil forfeiture amount . 3 Sec. 6. Section 809A.12, Code 2017, is amended by adding the 4 following new subsection: 5 NEW SUBSECTION . 7A. The prosecuting attorney must prove 6 by clear and convincing evidence that the property is property 7 subject to forfeiture. 8 Sec. 7. Section 809A.12, subsection 10, paragraph a, Code 9 2017, is amended to read as follows: 10 a. The If the property to be forfeited is equal to or 11 exceeds the minimum civil forfeiture amount, that the person 12 has engaged in conduct giving rise to forfeiture. If the 13 property to be forfeited is less than the minimum civil 14 forfeiture amount, that the person was convicted for the 15 conduct giving rise to forfeiture. 16 Sec. 8. NEW SECTION . 809A.12A Limitations on civil 17 forfeiture. 18 1. If the total value of the property seized for forfeiture 19 is less than the minimum civil forfeiture amount, a judicial 20 forfeiture proceeding shall not be brought unless one of the 21 following applies: 22 a. The conduct giving rise to forfeiture resulted in a 23 conviction. 24 b. The property owner is deceased. 25 c. Charges have been filed against the property owner, a 26 warrant was issued for the arrest of the property owner, and 27 either of the following applies: 28 (1) The property owner is outside the state and is unable to 29 be extradited or brought back to the state for prosecution. 30 (2) Law enforcement has made reasonable efforts to locate 31 and arrest the property owner, but the property owner has not 32 been located. 33 d. The property owner has not claimed the property subject 34 to forfeiture or asserted any interest in the property at any 35 -3- SF 446 (2) 87 jh/nh/jh 3/ 6

S.F. 446 time during or after the seizure of the property, and all 1 claims brought under section 809A.11 have been denied. 2 2. The prosecuting attorney has the burden to prove by 3 clear and convincing evidence that the value of the property 4 is or exceeds the minimum civil forfeiture amount in any civil 5 action. 6 Sec. 9. NEW SECTION . 809A.12B Proportionality review. 7 1. Property shall not be forfeited as an instrumentality 8 under this chapter to the extent that the amount or value of 9 the property is grossly disproportionate to the severity of the 10 offense. 11 2. Contraband and any proceeds obtained from the offense are 12 not subject to proportionality review under this section. 13 Sec. 10. Section 809A.13, subsections 7 and 8, Code 2017, 14 are amended to read as follows: 15 7. The forfeiture hearing shall be held without a jury 16 and within sixty days after service of the complaint unless 17 continued for good cause. The prosecuting attorney shall 18 have the initial burden of proving by clear and convincing 19 evidence that the property is subject to forfeiture by a 20 preponderance of the evidence . If the state so proves the 21 property is subject to forfeiture, the claimant has the burden 22 of proving may assert that the claimant has an interest in the 23 property which is exempt from forfeiture under this chapter by 24 a preponderance of the evidence . If the claimant asserts and 25 makes a prima facie showing of the existence of the exemption, 26 the prosecuting attorney then has the burden of proving by 27 clear and convincing evidence that the exemption does not 28 apply. 29 8. The court shall order the interest in the property 30 returned or conveyed to the claimant if the prosecuting 31 attorney fails to meet the state’s burden or the claimant 32 establishes by a preponderance of the evidence that the 33 claimant has an interest that is exempt from forfeiture . The 34 court shall order all other property forfeited to the state and 35 -4- SF 446 (2) 87 jh/nh/jh 4/ 6

S.F. 446 conduct further proceedings pursuant to sections 809A.16 and 1 809A.17 . 2 Sec. 11. Section 809A.14, subsection 7, paragraph d, Code 3 2017, is amended to read as follows: 4 d. In accordance with the findings made at the hearing, the 5 court may amend the order of forfeiture if it determines that 6 any claimant has established by a preponderance of the evidence 7 that the claimant has properly petitioned for recognition 8 of exemption under section 809A.11 and that the prosecuting 9 attorney has not shown, by clear and convincing evidence, that 10 the claimant does not have an interest in the property which is 11 exempt under the provisions of section 809A.5 . 12 Sec. 12. Section 809A.15, subsection 1, unnumbered 13 paragraph 1, Code 2017, is amended to read as follows: 14 The court shall order the forfeiture of any other property 15 of a person, including a claimant, up to the value of 16 that person’s property found by the court to be subject to 17 forfeiture under this chapter , if the prosecuting attorney 18 proves by clear and convincing evidence that any of the 19 following applies to the person’s forfeitable property: 20 Sec. 13. Section 809A.16, subsection 2, Code 2017, is 21 amended to read as follows: 22 2. Within one hundred eighty days of the date of a 23 declaration of forfeiture, an owner or interest holder in 24 property declared forfeited pursuant to subsection 1 may 25 petition the court to have the declaration of forfeiture set 26 aside, after making a prima facie showing that the state failed 27 to serve proper notice as provided by section 809A.13 . Upon 28 such a showing the court shall allow the state to demonstrate 29 by a preponderance of the clear and convincing evidence that 30 notice was properly served. If the state fails to meet 31 its burden of proof, the court may order the declaration of 32 forfeiture set aside. The state may proceed with judicial 33 proceedings pursuant to this chapter . 34 Sec. 14. NEW SECTION . 809A.18A Recordkeeping. 35 -5- SF 446 (2) 87 jh/nh/jh 5/ 6

S.F. 446 1. Each law enforcement agency that has custody of any 1 property that is subject to this chapter shall adopt and comply 2 with a written internal control policy that does all of the 3 following: 4 a. Provides for keeping detailed records as to the amount 5 of property acquired by the agency and the date property was 6 acquired. 7 b. Provides for keeping detailed records of the disposition 8 of the property, which shall include but not be limited to all 9 of the following: 10 (1) The manner in which the property was disposed, the 11 date of disposition, and detailed financial records concerning 12 any property sold. The records shall not identify or enable 13 identification of the individual officer who seized any item of 14 property or the name of any person or entity who received any 15 item of property. 16 (2) An itemized list of the specific expenditures made 17 with amounts that are gained from the sale of the property and 18 that are retained by the agency, including the specific amount 19 expended on each expenditure, except that the policy shall 20 not provide for or permit the identification of any specific 21 expenditure that is made in an ongoing investigation. 22 2. The records kept under the internal control policy 23 shall be open to public inspection during the agency’s regular 24 business hours. The policy adopted under this section is a 25 public record open for inspection under chapter 22. 26 Sec. 15. APPLICABILITY. This Act applies to forfeiture 27 proceedings that begin on or after the effective date of this 28 Act. 29 -6- SF 446 (2) 87 jh/nh/jh 6/ 6