Chapter 9.45
CIVIL FORFEITURE
Sections:
9.45.060 Institution of legal proceedings for forfeiture.
9.45.070 Disposition of property.
9.45.080 Nonconsensual use of property for illegal activity/affirmative defense.
9.45.010 Policy.
The common council of the city finds that:
(1) Property that is seized from arrested persons which constitutes the proceeds or instrumentalities of a crime must generally be returned to the criminal upon disposition of the charge.
(2) These instrumentalities and proceeds are often used to again commit the same or another crime and the return of the property thus serves to encourage and perpetuate the commission of crime in the city.
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.
9.45.020 Purpose.
The common council of the city declares that to protect the safety and welfare of city residents, it is in the best interest of the city to:
(1) Cripple illegal drug trafficking and narcotics activities within this city by depriving narcotics dealers, and those persons dealing with them, of the instrumentalities and proceeds of their trade; and
(2) Seize gambling equipment, records and the proceeds of illegal gambling activity; and
(3) Otherwise deter illegal activity and remove the operating instrumentalities, profits and proceeds of certain crimes from criminals; and
(4) Use the forfeited property to further fund general city purposes, including law enforcement and criminal prosecution functions.
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.
9.45.030 Definitions.
As used in this chapter, unless the context requires otherwise:
(1) “Controlled substances” are those terms defined in ORS 475.005(6) [1983 ed.] except that this shall not include less than one avoirdupois ounce of marijuana.
(2) “Deliver or delivery” is that term defined in ORS 475.005(8) [1983 ed.].
(3) “Facilitate” means that the property must have some substantial connection to, or be instrumental in, the commission of the underlying illegal activity which this chapter seeks to prevent.
(4) “Gambling” is that term defined in ORS 167.117(4) [1983 ed.].
(5) “Illegal activity” means:
(a) Gambling or promotion of gambling; or
(b) The manufacture or delivery of controlled substances; or
(c) The possession of controlled substances with the intent to distribute.
(6) “Manufacture” is that term defined at ORS 475.005(14) [1983 ed.].
(7) “Marijuana” is that term defined at ORS 475.005(15) [1983 ed.].
(8) “Possession of controlled substances with the intent to distribute” is that term defined at 21 USC 841(a)(l) [1979 ed., published 1981].
(9) “Production” is that term defined at ORS 475.005(19) [1983 ed.].
(10) “Promotion of gambling” is that term defined at ORS 167.117(10) [1983 ed.].
(11) “Conspiracy” is that term defined at ORS 161.450 [1983 ed.].
Statutory Reference: ORS 221.410
History: Ord. 1078 §l, 1987.)
[Ed. Note: The publication(s) referred to or incorporated by reference in this ordinance are available from the office of the City Recorder.]
9.45.040 Forfeiture.
(1) Any person who engages in or “conspires to engage in” illegal activity within the city shall forfeit to the city the following property, and no property right shall exist in them:
(a) All controlled substances which are intended for or have been manufactured or delivered as defined in GMC Section 9.45.030;
(b) All raw materials, products, containers, equipment, books, records, research materials (including formulas, microfilms, tapes, and data) of any kind which are used, or are intended for use, to manufacture, compound, store, process or deliver any controlled substances;
(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;
(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 activities and all proceeds or profit traceable to such furnishment, exchange or illegal activity;
(e) All proceeds, profits and things of value including residential property 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 gambling activity; and
(g)(A) All real property which is:
(i) Used to manufacture or deliver or distribute any controlled substance, or
(ii) Used to facilitate the promotion of gambling as defined in ORS 167.127 [1983 ed.].
(B) This section shall not apply to residential real property which is used to facilitate the manufacture of less than one pound of marijuana when dried.
(2) This chapter shall not apply to those unlawful acts defined in ORS 166.720(1)(2) [1983 ed.].
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.
[Ed. Note: The publication(s) referred to or incorporated by reference in this ordinance are available from the office of the City Recorder.]
9.45.050 Seizure.
Any property subject to forfeiture to the city under this chapter may be seized by any peace officer on behalf of the city without issuance of court process when:
(1) The seizure is incident to an arrest or search under a search warrant or an inspection under an administrative search.
(2) The property subject to seizure has been the subject of a prior judgment in favor of the city in a forfeiture proceeding under this chapter.
(3) A peace officer lawfully seizes the property under ORS 133.525 to 133.703 [1983 ed.] 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.
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.
[Ed. Note: The publication(s) referred to or incorporated by reference in this ordinance are available from the office of the City Recorder.]
9.45.060 Institution of legal proceedings for forfeiture.
(1) In the event of a seizure under this ordinance, and upon recommendation of the Chief of Police, the City Attorney, acting in the name of the city, may institute a forfeiture proceeding in circuit court to obtain a judgment of forfeiture against the seized property.
(2) The proceedings shall be instituted within sixty days of the seizure for purposes of this ordinance, and in accordance with the Oregon Rules of Civil Procedure and the Oregon Rules of Evidence relating to civil actions. The defendant or the owner of the property may demand a trial by jury in any civil action brought pursuant to this section.
(3) The City Attorney shall cause notice of any forfeiture proceeding to be served by certified mail to all parties with a recorded security interest in the property to be forfeited.
(4) The City Attorney shall be entitled to deduct from the proceeds any attorney fees, costs and expenses incurred in the litigation.
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.
[Ed. Note: The publication(s) referred to or incorporated by reference in this ordinance are available from the office of the City Recorder.]
9.45.070 Disposition of property.
(1) Prior to obtaining any forfeiture judgment, any money, securities and negotiable instruments that are not retained by the Chief of Police, sheriff, or other law enforcement agency for evidentiary purposes shall be held by the City Recorder pending the outcome of the forfeiture proceedings.
(2) Seized property other than money, securities and negotiable instruments shall be kept in the custody of the City Recorder for safekeeping until a forfeiture judgment is obtained.
(3) When a judgment of forfeiture is obtained under this chapter, the property shall be disposed of as follows:
(a) At the discretion of the Chief of Police, forfeited property other than cash, securities or negotiable instruments may be retained for official use for the Chief of Police for criminal justice and law enforcement purposes;
(b) Cash and proceeds from securities and negotiable instruments shall be forfeited to the city and disbursed in the manner provided by this section;
(c) When the Chief of Police determines that the property, other than cash or proceeds from securities or negotiable instruments, will not be needed or will no longer be used for criminal justice or law enforcement purposes, it shall be sold at a public auction, or at the discretion of the City Council, sold on consignment or at a private sale on such terms as the council shall declare, and the net proceeds of the sale shall be disbursed as provided in this section;
(d) The City Recorder shall give notice of the aforementioned public sale by posting written notice of the sale in three public places within the city, at least ten days before the sale. The notice shall describe the property and shall state the time and place of public sale at which the property may be purchased by the highest bidder, for cash;
(e) The City Recorder may deduct reasonable costs incurred in conducting the sale. The City Recorder may also cancel the sale if the bids are deemed to be inadequate by the City Recorder;
(f) Members of city government, including officials and employees, shall not be allowed to bid at any of these sales;
(g) The net proceeds of any distribution of the sale of any property shall, after reimbursement of the costs of sale and after deduction of any attorney’s fees, costs and expenses incurred in the forfeiture litigation, be disbursed as follows:
(A) If the seizure is affected by or in coordination with another law enforcement agency, one-third of the proceeds shall be distributed to the participating agency if that agency has created a budget account for said funds insuring that said funds shall be used for law enforcement purposes. In the event that a participating agency does not have such a fund, the moneys that it would have otherwise received shall be divided equally between the accounts described in subparagraph (B) of this subsection.
(B) The remaining net proceeds after the deduction, if any, of the participating agency’s share shall be divided equally between (1) the city general fund to be used for general city purposes; and (2) an account of the city general fund to be reflected as revenue to the budget of the Gladstone Police Department to be used for law enforcement purposes.
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.
9.45.080 Nonconsensual use of property for illegal activity/affirmative defense.
No property shall be forfeited under this chapter to the extent of the interest of an owner or holder of a recorded security interest who did not consent to or was not aware of the use of the property in the illegal activity.
Statutory Reference: ORS 221.410
History: Ord. 1078 §1, 1987.