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Forfeitures: Forfeitures:

Agenda § Short overview of the Forfeiture Statute § Starting an Asset Forfeiture Program Agenda § Short overview of the Forfeiture Statute § Starting an Asset Forfeiture Program § Ethical Considerations

Tom Hirschauer and Ron Buckler § Tom. Hirschauer@indy. gov § Ron. Buckler@indy. gov § Tom Hirschauer and Ron Buckler § Tom. [email protected] gov § Ron. [email protected] gov § Tom Hirschauer’s Cell: (317) 603 -7851

Forfeitures WHO CARES? WHY BOTHER? § Money for your office and other law enforcement Forfeitures WHO CARES? WHY BOTHER? § Money for your office and other law enforcement agencies § Because it helps destroy their criminal enterprise § Criminality shouldn’t be more lucrative than a job where you pay taxes § And…

Criminals hate it when you make their stuff your stuff. Criminals hate it when you make their stuff your stuff.

I. C. 34 -24 -1 -1 et seq. Seizure of Property I. C. 34 -24 -1 -1 et seq. Seizure of Property

(1) All vehicles (as defined by IC 35 -41 -1), if they are used (1) All vehicles (as defined by IC 35 -41 -1), if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of the following: (A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following: (i) Dealing in or manufacturing cocaine or a narcotic drug (ii) Dealing in methamphetamine (iii) Dealing in a schedule I, II, or III controlled substance (iv) Dealing in a schedule IV controlled substance (v) Dealing in a schedule V controlled substance (vi) Dealing in a counterfeit substance (vii) Possession of cocaine or a narcotic drug (viii) Possession of methamphetamine (ix) Dealing in paraphernalia. (x) Dealing in marijuana, hash oil, or hashish

I. C. 34 -24 -1 -1 Section 1 (1)(B) Any stolen or converted property I. C. 34 -24 -1 -1 Section 1 (1)(B) Any stolen or converted property if the retail or repurchase value of that property is one hundred dollars ($100) or more. (Shoplifting mainly, but also robbery, burglary, check deception, and forgery) (C) Hazardous Waste Violations (D) Bombs

I. C. 34 -24 -1 -1 (2) All money, negotiable instruments, securities, weapons, communications I. C. 34 -24 -1 -1 (2) All money, negotiable instruments, securities, weapons, communications devices, or any property used to commit, used in an attempt to commit, or used in a conspiracy to commit an offense under IC 35 -47 as part of or in furtherance of an act of terrorism or commonly used as consideration for a violation of IC 35 -48 -4 (drugs) (A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute; (B) used to facilitate any violation of a criminal statute; or (C) traceable as proceeds of the violation of a criminal statute.

I. C. 34 -24 -1 -1 (3) Any portion of real or personal property I. C. 34 -24 -1 -1 (3) Any portion of real or personal property purchased with money that is traceable as a proceed of a violation of a criminal statute.

I. C. 34 -24 -1 -1 (4) A vehicle that is used by a I. C. 34 -24 -1 -1 (4) A vehicle that is used by a person to: (A) commit, attempt to commit, or conspire to commit; (B) facilitate the commission of; or (C) escape from the commission of; murder, kidnapping, criminal confinement, rape, child molesting, or child exploitation, or an offense under IC 35 -47 as part of or in furtherance of an act of terrorism.

I. C. 34 -24 -1 -1 (5) Real property owned by a person who I. C. 34 -24 -1 -1 (5) Real property owned by a person who uses it to commit any of the following as a Class A felony, a Class B felony, or a Class C felony: (A) Dealing in or manufacturing cocaine or narcotic drug (B) Dealing in methamphetamine (C) Dealing in a schedule I, II, or III controlled substance (D) Dealing in a schedule IV controlled substance (E) Dealing in marijuana, hash oil, or hashish

I. C. 34 -24 -1 -1 (6) & (7) Equipment and Recordings used in I. C. 34 -24 -1 -1 (6) & (7) Equipment and Recordings used in frauds (8) Property in Corrupt Business Influence Cases (9) Unlawful telecommunications devices 10) Unlawful tobacco products

I. C. 34 -24 -1 -1 (11) Destructive devices (12) Unlawful Tobacco products (13) I. C. 34 -24 -1 -1 (11) Destructive devices (12) Unlawful Tobacco products (13) Items used in forgery, identity deceptions, etc.

I. C. 34 -24 -1 -1 (14) Anything used in the distribution of a I. C. 34 -24 -1 -1 (14) Anything used in the distribution of a legend drug (15) OVWI situations-if Defendant has two prior unrelated convictions for OVWI within last five years, third arrest makes vehicle eligible forfeiture

Other Crimes § § Animal Fighting Gambling Fencing Rings Promoting Prostitution Other Crimes § § Animal Fighting Gambling Fencing Rings Promoting Prostitution

How do we actually seize things? § Trial Rules and civil procedure apply. § How do we actually seize things? § Trial Rules and civil procedure apply. § Need to have storage and security issues worked out BEFORE you start seizing items! § Law enforcement is in a bailment situation with these items, so CYA.

I. C. 34 -24 -1 -2 Sec. 2. (a) Property may be seized under I. C. 34 -24 -1 -2 Sec. 2. (a) Property may be seized under this chapter by a law enforcement officer only if: • (1) the seizure is incident to a lawful: • (A) arrest; • (B) search; or • (C) administrative inspection;

I. C. 34 -24 -1 -2 (2) the property has been the subject of I. C. 34 -24 -1 -2 (2) the property has been the subject of a prior judgment in favor of the state or unit in a proceeding under this chapter (or IC 34 -4 -30. 1 before its repeal); or • (3) a court, after making an ex parte determination that there is probable cause to believe the property is subject to seizure under this chapter, issues an order for seizure.

Seizure Orders (b) When property is seized under subsection (a), the law enforcement agency Seizure Orders (b) When property is seized under subsection (a), the law enforcement agency making the seizure may, pending final disposition: (1) place the property under seal; (2) remove the property to a place designated by the court; or (3) require another agency authorized by law to take custody of the property and remove it to an appropriate location.

FROM WHOM? Items of DEFENDANT FROM WHOM? Items of DEFENDANT

WHO ELSE? Items of Others Used by Defendant One 1968 Buick 4 Door v. WHO ELSE? Items of Others Used by Defendant One 1968 Buick 4 Door v. State (638 N. E. 2 d 1313)(1994)

One 1968 Buick 4 Door v. State Car owned by brother of bad guy One 1968 Buick 4 Door v. State Car owned by brother of bad guy Must show by the preponderance that owner knew or should have known of illegal acts How?

Innocent Owners Exception § Vehicle not subject to seizure unless State can show the Innocent Owners Exception § Vehicle not subject to seizure unless State can show the owner knew the vehicle was being used illegally. § Not as simple as who the title owner is. § We can show sham or straw man ownership, as well as primary dominion and control

Be Careful! § This can be a steep burden and seems to be the Be Careful! § This can be a steep burden and seems to be the area that the courts frown upon the most. § Have some proof! § § Previous tickets, arrests or seizures Jail phone calls Same ownership Any agreement to release should have notice clause

WHEN Under What Circumstance: Per Statute Used in crime and proceeds Katner v. State WHEN Under What Circumstance: Per Statute Used in crime and proceeds Katner v. State (635 N. E. 2 d 345)(1995) Raised standard Time limit-180 days after items seized (not after the criminal case is filed!) 90 days after written notice is received demanding return of property.

WHERE When arrest in residence When arrest in car Caudill v. State (613 N. WHERE When arrest in residence When arrest in car Caudill v. State (613 N. E. 2 d 433)(1993) any money near and around defendant § Venue-must be filed in county where item was seized, regardless of where crime occurred. However, you can “entice” criminal to bring items into the jurisdiction.

Logistics of Forfeiting How do I actually take their stuff? Logistics of Forfeiting How do I actually take their stuff?

Department Procedures § Written Policy § Secured Storage Area § Paperwork Department Procedures § Written Policy § Secured Storage Area § Paperwork

I. C. 34 -24 -1 -2 (c) Property that is seized under subsection (a) I. C. 34 -24 -1 -2 (c) Property that is seized under subsection (a) is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.

What NOT to forfeit • Anything that breathes, eats, dies, or $%#$%. • Outdated What NOT to forfeit • Anything that breathes, eats, dies, or $%#$%. • Outdated technology (Laserdiscs, VCRs) • Clothing • Wheelchairs, walkers, ect. • Anything you wouldn’t buy at a garage sale. • Children’s Toys

What about when legitimate and dirty money mixes together? § Co-mingling of funds is What about when legitimate and dirty money mixes together? § Co-mingling of funds is common § Area of law not well settled in Indiana § Rely on presumption that money found near the person convicted of certain offenses is prima facie dirty money, but also need to do more investigation

Burden of Proof § Civil burden of proof (preponderance of evidence). State must demonstrate Burden of Proof § Civil burden of proof (preponderance of evidence). State must demonstrate that property is subject to seizure § If property is a vehicle, state must show that any other person with an interest in the vehicle knew or should have known the vehicle was used illegally

Presumptions § Statutory presumption: Property found “near or on” a person who is committing, Presumptions § Statutory presumption: Property found “near or on” a person who is committing, attempting to commit, or inspiring to commit drug dealing as at least a C felony prior to July 1 st, or a Level 3, 4, 5, or 6 depending on the controlled substance, or possession of cocaine, meth, or heroin at the same levels is prima facie evidence that the money is subject to forfeiture

Co-Owners and Lien Holders I. C. 34 -24 -1 -5 § Determine owners value Co-Owners and Lien Holders I. C. 34 -24 -1 -5 § Determine owners value § Allow co-owner/lien holder to “pay into court” owners interest and have property returned

NO Conviction needed $100 & a Black Cadillac v. State (638 N. E. 2 NO Conviction needed $100 & a Black Cadillac v. State (638 N. E. 2 d 1001)(2005)

Criminal Case Issues § Strictly speaking outcome of criminal case is irrelevant to forfeiture Criminal Case Issues § Strictly speaking outcome of criminal case is irrelevant to forfeiture case § The Statute does include a Collateral Estoppel sub-section, so an adverse ruling in the criminal case can bar your forfeiture § Reality is that it will have an effect § DO NOT AGREE TO FORFEITURE ISSUE IN A PLEA AGREEMENT

Other considerations § Double Jeopardy: Willis v. State, 806 N. E. 2 d 817 Other considerations § Double Jeopardy: Willis v. State, 806 N. E. 2 d 817 (Ind. App. 2004) § Exclusionary Rule: Caudill v. State, 613 N. E. 2 d 433 (Ind. App. 1993)

What happens when we win? Cash goes into law enforcement fund Can keep items What happens when we win? Cash goes into law enforcement fund Can keep items seized for 3 years Can use for whatever purpose you desire Items must then be auctioned off in Sheriff's sale. § If you don’t use the items, they will be auctioned off in Sheriff's sale. § §

Ethical Considerations § § § § Memorandums of Understanding Pro Se Defendants 5 th Ethical Considerations § § § § Memorandums of Understanding Pro Se Defendants 5 th Amendment Stays “Midnight Agreements” Use of property Common School Fund Issues

Memorandums of Understanding § Have an MOU in place BEFORE you start doing forfeiture Memorandums of Understanding § Have an MOU in place BEFORE you start doing forfeiture matters. § Clearly delineate everyone’s responsibilities and THE SPLIT OF PROCEEDS. § Don’t get greedy. Things will even out in the end. § Have a rep for each party do accounting.

Pro Se Defendants § Keep things in writing. § Make it clear in writing Pro Se Defendants § Keep things in writing. § Make it clear in writing you don’t represent them and they should seek their own counsel. § Be wary of talking to them while their criminal case is pending if you are in a small office

5 th Amendment Issues § Trier of fact in a civil case is allowed 5 th Amendment Issues § Trier of fact in a civil case is allowed to draw an adverse inference from the Defendant’s exercise of his right to remain silent. § In practice, Courts will consider it, but not consider it dispositive. § Don’t give defendants immunity. § Do agree to stay until criminal case over

Midnight Agreements § Have ended the career of at least one Indiana Prosecutor. § Midnight Agreements § Have ended the career of at least one Indiana Prosecutor. § NEVER agree to a forfeiture in lieu of prosecution. Looks bad to everyone, including the Disciplinary Commission. § EVERY FORFEITURE CASE gets filed in court and signed off by a judge, even when you’ve settled it in advance.

Use of Property § A case of what’s legal to do and what looks Use of Property § A case of what’s legal to do and what looks bad. § Using forfeiture funds to pay salaries and buy equipment-GOOD! § Using it to go to a CLE in Hawaii, office picnics, to redecorate your office, to drive a pimped out car, or supplementing your salary -BAD!

Do you need a wall between the criminal and civil matters? § No caselaw Do you need a wall between the criminal and civil matters? § No caselaw says that. § Problem in Mc. Kinney was that PA benefitted financially. § Best practice is to give cases to different deputies, or to stay the civil matter while the criminal case is pending. § Ensure that agreements include protective language.

Common School Fund Issues § Still very much in flux. § AG’s opinion is Common School Fund Issues § Still very much in flux. § AG’s opinion is on our side, but IN Supremes in Serrano indicated displeasure. § Guv’s veto message wasn’t helpful either. § Court of Appeals language is on our side. § All recent challenges have failed on procedural and standing grounds

Con’t. • Case law says that Defendants do not get to object to where Con’t. • Case law says that Defendants do not get to object to where the proceeds go, only the IN Dept of Education has standing to challenge non-payments to the Fund. $100 v. State, 822 N. E. 2 d 1001. • Advice at this point would be to stay the course and be prepared to lobby for or against any proposed legislation.

Questions? Questions?