Chapter 9.15
FORFEITURE OF PROPERTY USED TO PROMOTE ILLEGAL ACTIVITY
Sections:
9.15.070 Institution of legal proceedings.
9.15.080 Disposition of property.
9.15.090 Nonconsensual use of property for illegal activity.
9.15.010 Purpose.
The purpose of this chapter is to provide for the civil forfeiture of property which facilitates the commission of certain crimes, to authorize a civil action to enforce the forfeiture and to adopt a severability clause. [Ord. 307 § 1, 1987].
9.15.020 General.
This chapter provides for the civil forfeiture of personal and intangible property used to promote illegal activity and authorizes civil action to enforce such forfeiture. [Ord. 307 § 2, 1987].
9.15.030 Title.
This chapter shall be known as the forfeiture ordinance of the city of Creswell. [Ord. 307 § 3, 1987].
9.15.040 Definitions.
As used in this chapter, unless the context requires otherwise, the following words or phrases shall mean:
“Controlled substances” means those substances as defined in ORS 475.005(6) (1985 Edition), except that this shall not include less than one avoirdupois ounce of marijuana.
“Criminal conspiracy” means as defined in ORS 161.450 (1985 Edition).
“Deliver” or “delivery” means as defined in ORS 475.005(8) (1985 Edition).
“Illegal activity” means:
A. The manufacture or delivery of controlled substances; or
B. The possession of controlled substances with intent to deliver; or
C. Theft activity; and
D. Criminal conspiracy to commit one of the crimes mentioned in subsections (A) through (C) of this definition.
“Manufacture” means as defined in ORS 475.005(14) (1985 Edition).
“Marijuana” means as defined in ORS 475.005(15) (1985 Edition).
“Possession of controlled substances with the intent to distribute” means as defined in 21 USC 841(a)(1) (1976 Edition; published 1981).
“Production” means as defined in ORS 475.005(19) (1985 Edition).
“Property used to promote illegal activity” means property that has a substantial connection to, or is instrumental in, the commission of illegal activity as prescribed by and defined in this chapter.
Substantial Connection. There is a “substantial connection” to an illegal activity when property is used, or intended to be used, in any manner, in the course of, in furtherance of, derived from, or realized through an illegal activity.
“Theft activity” includes all forms of attempted theft and theft contained in ORS 164.005 through 164.140 (1985 Edition). [Ord. 307 § 4, 1987].
9.15.050 Forfeiture.
Property used to promote illegal activity is hereby declared to be a public nuisance and is subject to forfeiture by the city of Creswell, except as provided in CMC 9.15.090. The following property is subject to forfeiture under this chapter:
A. All controlled substances which are intended for or have been manufactured or delivered as defined in CMC 9.15.040.
B. All raw materials, products, containers, equipment, books, records, and research materials (including formulas, microfilms, tapes and data) of any kind which are used, or are intended for use, in illegal activities.
C. All conveyances, including aircraft, vehicles or vessels which are used to manufacture or deliver or in any manner to facilitate the manufacture or delivery of any controlled substance or any such conveyance which is used to transport or conceal any controlled substance or any other illegal activity.
D. All moneys, negotiable instruments, securities or other things of value furnished or exchanged, or intended to be furnished or exchanged, by or to any person to facilitate any illegal activity, and all proceeds and profits traceable to such furnishment, exchange or illegal activity.
E. All proceeds, profits and things of value traceable to any illegal activity.
F. All equipment, materials or records of any sort that are used, or intended for use, to facilitate any illegal activity.
G.1. All real property which is used to possess, manufacture, or deliver any controlled substance.
2. This subsection shall not apply to residential real property which is used to facilitate the possession, manufacture or delivery of marijuana, or is used for theft activity, unless the city proves beyond a reasonable doubt that the real property or the equity therein was acquired with assets derived from illegal activity as defined in this chapter.
H. This chapter shall not apply to those unlawful acts defined in ORS 166.720(1) and (2) (1985 Edition). [Ord. 307 § 5, 1987].
9.15.060 Seizure.
Any property subject to forfeiture to the city of Creswell under this chapter may be seized by any police officer on behalf of the city of Creswell without issuance of court process when:
A. The seizure is incident to a lawful arrest or search under a search warrant or an inspection under an administrative search; or
B. A police officer lawfully seizes the property under ORS 133.525 through 133.703 (1985 Edition) and has probable cause to believe that the property has been used, or is intended for use, in or to facilitate illegal activity as defined by this chapter; or
C. The property subject to seizure has been the subject of a prior judgment in favor of the city of Creswell in a forfeiture proceeding under this chapter. [Ord. 307 § 6, 1987].
9.15.070 Institution of legal proceedings.
A. In the event of a seizure under this chapter, or upon receipt of information which gives the city attorney probable cause to believe that property could be subject to forfeiture under this chapter, the city attorney, acting in the name of the city, may institute a forfeiture proceeding in rem to obtain a judgment of forfeiture against the seized property.
B. If property has been seized pursuant to CMC 9.15.060(A) or (B), within 30 calendar days of the seizure, in the name of the city, the city attorney may file a complaint and initiate an application for a temporary restraining order restraining the return of the seized property to any person claiming an interest in it. Forfeiture proceedings shall not be initiated against property that was seized after the 30-day period described above has expired.
C. The proceedings for the forfeiture of the property shall be in accordance with the Oregon Rules of Civil Procedure and any person claiming an ownership interest in the property may file an answer and have the right to a jury trial. The burden of proof is on the city of Creswell by a preponderance of the evidence, except as provided in CMC 9.15.050(G)(2).
D. The city attorney shall be entitled to deduct from the proceeds any attorney fees, costs and expenses incurred in the litigation, but those costs recovered shall not exceed 25 percent of the value of the seized property. [Amended during 2016 codification; Ord. 307 § 7, 1987].
9.15.080 Disposition of property.
A. Prior to obtaining any forfeiture judgment, any money, securities and negotiable instruments that are not retained by the seizing law enforcement agency for evidentiary purposes shall be deposited with the city manager, city of Creswell, pending the outcome of the forfeiture proceedings. Other property shall be kept in the custody of the authorized law enforcement agency for the city of Creswell, or its designated agent, until a forfeiture judgment is obtained.
B. When a judgment of forfeiture is obtained under this chapter the property shall be disposed of as follows:
1. At the discretion of the law enforcement agency for the city of Creswell, or its designated agent, the forfeited property, excluding money, securities and negotiable instruments, may be retained for official use in law enforcement activities. When the authorized law enforcement agency for the city of Creswell, or its designated agent, determines that the property will no longer be used for law enforcement purposes, it shall be sold in accordance with subsections (B)(2) and (B)(3) of this section.
2. Property (except money, securities and negotiable instruments) which is not required by law to be destroyed and which is not harmful to the public shall be sold at a public auction by the authorized law enforcement agency for the city of Creswell, or its designated agent.
3. The proceeds of any sale, after deduction for city attorney’s costs set forth in CMC 9.15.070(D) and any costs incurred by the authorized law enforcement agency for the city of Creswell, or its designated agent, arising from duties under this chapter, and any money, securities or negotiable instruments shall be divided as follows: 70 percent to the seizing law enforcement agency for law enforcement purposes, 20 percent to the Lane County district attorney’s office for criminal justice purposes, and 10 percent to the city of Creswell to be budgeted for drug intervention and treatment programs.
4. Property deposited with the city manager, city of Creswell, pursuant to subsection (A) of this section shall be placed in a segregated account and invested consistent with the city policies considering safety, liquidity and yield. The funds earned by the investment shall be deposited and held in the same account. At the time of disposition of the forfeiture proceeding, the interest shall be transferred to the general fund of the city of Creswell, or returned to the owner along with the property if the forfeiture proceeding does not result in an award of that property to the city of Creswell. [Ord. 519 § 3, 2018; amended during 2016 codification; Ord. 307 § 8, 1987].
9.15.090 Nonconsensual use of property for illegal activity.
No property shall be forfeited under this chapter to the extent of the interest of an owner or holder of security interest who did not consent to or was not aware of the use of the property in the illegal activity. [Ord. 307 § 9, 1987].