Chapter 4.21
ASSET FORFEITURES
Sections:
4.21.010 Items subject to forfeiture.
4.21.020 Seizure and custody of property.
4.21.030 Action for forfeiture.
4.21.040 Presumptions regarding illegal controlled substances.
4.21.050 Defenses to forfeitures of real property and conveyances.
4.21.060 Publication of information.
4.21.070 Filing of notice of claim.
4.21.080 Proceedings concerning questions of fact or law.
4.21.090 Petition for sale of seized item.
4.21.100 City disposal of forfeited property.
4.21.110 Remittance to claimant.
4.21.500 Recovery of costs and attorney fees.
4.21.010 Items subject to forfeiture.
The following shall be subject to forfeiture to the City and no property rights shall exist in them:
A. All illegal controlled substances, defined as all substances which have been manufactured, distributed, possessed, dispensed or acquired in violation of State or Federal law.
B. All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any illegal controlled substance.
C. Any property which is used, or intended for use, as a container for property described in subsection (A) or (B) of this section.
D. Any conveyance used, or intended for use, to store, conceal or transport any amount of property described in subsection (A) or (B) of this section, regardless of how the illegal controlled substances were packaged within said conveyance.
E. Any conveyance used to facilitate the commission of a felony crime.
F. All books, records, and research products and materials including formulas, microfilm, tapes, and data which are used or intended for use in the manufacture, distribution or possession of illegal controlled substances.
G. All money, negotiable instruments, securities, or any other thing of value furnished, or intended to be furnished, in exchange for an illegal controlled substance or derived from the commission of a felony.
H. Any property purchased with items listed in subsection (G) of this section (substituted proceeds).
I. Any real property, including any right, title, or interest in any part of any lot or tract of land, and any appurtenances or improvements on such land, which is used, or is intended for use, to store, grow, manufacture, compound, process, deliver, import or export any illegal controlled substance, except that real property is not subject to forfeiture based upon a violation of State or Federal laws regarding controlled substances that is a misdemeanor, infraction, or violation of civil administrative rule or regulation.
J. Any property used or intended to be used to facilitate the distribution, sale or possession of illegal controlled substances.
4.21.020 Seizure and custody of property.
A. Property subject to forfeiture under this chapter may be seized by a peace officer upon an order issued by a court having jurisdiction over the property upon a showing of probable cause that the property may be forfeited under this chapter.
B. Seizure without a court order may be made if:
1. The seizure is incident to a valid arrest or a search under a valid search warrant;
2. The property subject to seizure has been the subject of an earlier judgment in favor of the City in a criminal proceeding or civil proceeding under this chapter or State or Federal law; or
3. There is probable cause that the property was used, is being used, or is intended for use in violation of this chapter or State or Federal law and the property is easily movable; provided, that such property may not be held for more than forty-eight hours without the City filing an action seeking a court order obtained to continue its detention.
C. Property taken or detained under subsection (A) or (B) of this section shall be held in the custody of the City subject only to the orders and decrees of a court having jurisdiction. If property is seized under this chapter, the Chief of Police may direct the following:
1. Place the property under seal;
2. Remove the property to a place designated by the court; or
3. Take custody of the property and remove it to an appropriate location for disposition of any property with law.
D. Within ten days after a seizure, the Chief of Police or designee shall make an inventory of any property seized.
4.21.030 Action for forfeiture.
A. Property listed in NPMC 4.21.010 may be forfeited to the City upon judgment of a court in a civil proceeding in rem. The City must show the existence of probable cause for forfeiture of the property. If the City shows probable cause, a claimant has the burden of showing by a preponderance of the evidence that the claimant’s interest in the property is not subject to forfeiture.
B. If the City shows the existence of probable cause and the claimant does not establish by a preponderance of evidence that claimant’s interest in the property is not subject to forfeiture, the courts shall order all property forfeited to the City. If a claimant establishes by a preponderance of evidence that claimant’s interest in the property is not subject to forfeiture, the courts shall order the interest in such property returned or conveyed to the claimant.
C. A claimant’s claim that property is not subject to forfeiture is not precluded by the existence of claimant’s conviction for violation of a felony, or conviction of any State or Federal law relating to controlled substances, if the behavior which led to the conviction is not related to the use of the property that the City seeks to forfeit under this chapter.
D. As to forfeiture actions relating to controlled substances, an acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this chapter. However, for good cause shown on a motion by the City’s attorney or legal representative, the court may stay civil forfeiture proceedings during the criminal proceeding for a related criminal indictment or information alleging a violation of State or Federal laws regarding controlled substances. Such a stay shall not be available during the pendency of an appeal.
E. All property declared forfeited under this chapter vests in the City as of the date of the commission of the conduct giving rise to forfeiture, together with the proceeds of the property after that time. Any such property or proceeds subsequently transferred to any person remains subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes that the transferee’s interest is not subject to forfeiture. If transferee did not pay fair consideration for such interest, it shall be presumed that transferee knew that such interest was subject to forfeiture under this chapter.
F. A civil action under this chapter must be commenced within five years after the last conduct giving rise to forfeiture became known or should have become known or five years after the forfeitable property is discovered, whichever is later, excluding any time during which either the property or the claimant is out of the State or in confinement or during which criminal proceedings relating to the same conduct are in progress.
G. Notwithstanding other provisions of this chapter, the City’s attorney or legal representative and a claimant of seized property may enter into an agreed-upon settlement concerning the seized property in such an amount and upon such terms as are set out in writing in a settlement agreement.
H. Nothing in this chapter shall apply to property which constitutes reasonable bona fide attorney’s fees paid to an attorney for services rendered or to be rendered in the forfeiture proceeding or criminal proceeding relating directly thereto where such property was paid before its seizure, before the issuance of any seizure warrant or court order prohibiting transfer of the property and where the attorney at the time he or she received the property did not know that it was property subject to forfeiture under this chapter.
I. It shall be the intent of the City Council that the forfeiture provisions of this chapter be liberally construed to affect their remedial purpose. The forfeiture of property and other remedies hereunder shall be considered to be in addition, and not exclusive of any sentence or other remedy provided by law.
J. If any provision of this chapter is held to be unenforceable or unconstitutional, then that provision shall be severed from the chapter and the forfeiture provisions of the chapter enforced to the maximum extent allowable under the law.
4.21.040 Presumptions regarding illegal controlled substances.
The following situations shall give rise to a presumption that the property described in this section was furnished or intended to be furnished in exchange for an illegal controlled substance or is the proceeds of such an exchange, or the substituted proceeds of such an exchange, and therefore forfeitable under this chapter, such presumptions being rebuttable by a claimant by a preponderance of the evidence:
A. All money, negotiable instruments, securities, weapons or other things of value found in close proximity to illegal controlled substances, to forfeitable drug manufacturing or distributing paraphernalia, or to records concerning the importation, manufacture, sale, or distribution of illegal controlled substances;
B. All money, negotiable instruments, securities or other things of value found to have trace amounts of controlled substances on them; and
C. All property acquired by a person who has a prior felony conviction in Alaska or in another state or country related to the manufacture, distribution, sale, or possession of illegal controlled substance if:
1. The prior conviction was within five years of the act which gave rise to a forfeiture action under this article; and
2. The property in question was acquired after the date of the prior conviction; and
3. There is no source of funds for the acquisition of such property other than the conduct that gave rise to the forfeiture action.
4.21.050 Defenses to forfeitures of real property and conveyances.
A. A conveyance, as defined in NPMC 4.21.900, and real property are not subject to forfeiture if:
1. The owner of a conveyance establishes, by a preponderance of the evidence, legal ownership with dominion and control over the conveyance, that the act that gives rise to the forfeiture was committed by someone other than the owner, that the act that gives rise to the forfeiture was committed without the owner’s knowledge and consent, and that the owner was not willfully blind to such acts.
2. The owner of a conveyance used as a common carrier in the transaction of business as a common carrier establishes by a preponderance of the evidence that the act that gives rise to the forfeiture was committed by someone other than the owner, that the act that gives rise to the forfeiture was committed without the owner’s knowledge and consent, and that the owner was not willfully blind to such acts.
3. A bona fide lender establishes by a preponderance of the evidence that the conveyance or real property is subject to a bona fide security interest, that the act that gives rise to the forfeiture was committed by someone other than the lender, that the act that gives rise to the forfeiture was committed without the lender’s knowledge and consent, and that the lender was not willfully blind to such acts.
4. The owner of real property establishes by a preponderance of the evidence that the act that gives rise to the forfeiture was committed by someone other than the owner, that the act that gives rise to the forfeiture was committed without the owner’s knowledge and consent, and that the owner was not willfully blind to such acts.
B. If an owner or a lender establishes a defense set out in subsection (A) of this section, property held by the City will be returned to the owner or lender.
C. If an owner or a lender successfully establishes a defense to a forfeiture as set out in subsection (A) of this section, the owner or lender will be considered to have been put on notice regarding the person whose conduct gave rise to the forfeiture action and will not be able to claim any defense under this section in any future action triggered by the conduct of that person.
D. It is not a defense in an action brought under this chapter that a criminal proceeding has resulted in a conviction or conviction of a lesser offense for a violation of State or Federal law regarding controlled substances.
4.21.060 Publication of information.
Within twenty days after a seizure under this chapter, the Chief of Police or designee shall, by certified mail, notify any person known to have an interest in an item, or who is ascertainable from official registration numbers, licenses or other State, Federal or municipal numbers on the item, of the pending forfeiture action. Additionally, the Chief of Police or designee shall publish notice of forfeiture action of an item valued at $500 (five hundred dollars) or more in a newspaper of general circulation in the judicial district in which the seizure was made, or if no newspaper is published in that judicial district, in a newspaper published in the State and distributed in that judicial district. The notice shall be published once each week during four consecutive calendar weeks. The requirements of this section do not apply to the forfeiture of illegal controlled substances.
4.21.070 Filing of notice of claim.
Upon service or publication of notice of commencement of a forfeiture action under this chapter, a person claiming interest in the property shall file, within thirty days after the service or publication, a notice of claim setting out the nature of the interest, the date it was acquired, the consideration paid and an answer to the City’s allegations. If a claim and answer are not filed within the time specified, the property described in the City’s allegation must be ordered forfeited to the City without further proceedings or showings.
4.21.080 Proceedings concerning questions of fact or law.
Questions of law or fact raised by a notice of forfeiture action and answer of a claimant in an action commenced under this chapter must be determined by the court sitting without a jury.
4.21.090 Petition for sale of seized item.
A claimant or the City may petition the court for sale of an item before final disposition of court proceedings. The court shall grant a petition for sale upon a finding that the sale is in the best interests of the parties. Proceeds from the sale shall become the subject of the forfeiture action.
4.21.100 City disposal of forfeited property.
Property forfeited under this chapter, other than controlled substances, shall be disposed of by the City, which may:
A. Destroy property harmful to the public.
B. Sell the property and use the proceeds for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, custody and court costs.
C. Take custody of the property and authorize its use in the enforcement of this chapter.
D. Take custody of the property and remove it for disposition in accordance with law.
E. Sell the property and transfer the proceeds to the general fund of the City.
4.21.110 Remittance to claimant.
Upon a showing that a claimant is entitled to remittance, the courts shall order that:
A. If the claimant is entitled to the item, it shall be delivered to the claimant immediately.
B. If the claimant is entitled to remittance of some value less than the total value of the item, the claimant is entitled, at the claimant’s choice, to receive either the value of the claimant’s interest or, upon receipt of payment of the difference in value by the claimant, the entire item.
4.21.500 Recovery of costs and attorney fees.
The City, in a successful forfeiture action, shall be entitled from the claimant to a full award of costs and attorney fees.
4.21.900 Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
“City” means the City of North Pole.
“Conveyance” means a vehicle, aircraft, or vessel of any type.
“Facilitate” means to make possible, enable, aid, assist or expedite.
“Fair consideration” is given for property or obligation when in exchange for such property or obligation, as a fair equivalent and in good faith, property is conveyed or an antecedent debt is satisfied or when such property or obligation is received in good faith to secure a present advance or antecedent debt in amount so disproportionately small as compared with the value of the property or obligation obtained.
“Instrumentality of a crime” means any property other than real property and any buildings, fixtures, appurtenances and improvements on such real property, whose use contributes directly and materially to the commission of a defined crime.
“Property” means and includes real property, personal property, money, negotiable instruments, securities, or any thing of value or any interest in a thing of value.
“Substituted proceeds” of a crime means any property obtained by the sale or exchange of illegal controlled substances, any gain realized by such sale or exchange and any appreciation in value. (Ord. 07-01 § 2, 2007)