Chapter 9.20
PROPERTY FORFEITURE
Sections:
9.20.060 Institution of legal proceedings.
9.20.070 Disposition of property.
9.20.080 Nonconsensual use of property for prohibited activity.
9.20.090 Attorneys’ fees and costs.
9.20.010 Title.
This chapter shall be known as the Forfeiture Ordinance of Josephine County and may be so pleaded and referred to. [Ord. 87-19 § I; Ord. 87-11 § I.]
9.20.020 Policy and purpose.
A. The Board of County Commissioners finds that:
1. Property that is seized from arrested persons which constitutes the proceeds or instrumentalities of prohibited activities is generally returned to the criminal upon disposition of the charge.
2. These instrumentalities and proceeds are often used to again commit the same or other prohibited activity and the return of the property thus serves to encourage and perpetuate the commission of prohibited activity in Josephine County.
B. The Board of County Commissioners therefore declares that to protect the safety and welfare of Josephine County residents it is in the best interest of Josephine County to:
1. Cripple drug trafficking and narcotics activities within this County by depriving narcotics dealers, and those persons dealing with them, of the instrumentalities and proceeds of their prohibited activity; and
2. Seize equipment, records, operating instrumentalities, and proceeds realized from or used to facilitate the theft, burglary, or robbery of property, thus depriving stolen property dealers, and other persons engaged in criminal activity involving stolen property of the instrumentalities of their prohibited activity; and
3. Otherwise deter prohibited activity and remove the operating instrumentalities, profits and proceeds of certain prohibited activity from persons engaged in such prohibited activity; and
4. Use the forfeited property to further fund law enforcement and criminal prosecution functions. [Ord. 87-19 § II; Ord. 87-11 § II.]
9.20.030 Definitions.
As used in this chapter, unless the context otherwise requires:
“Appropriate,” or “Appropriation,” or “Appropriate Property of Another to Oneself or a Third Person” is that defined in ORS 164.005(1).
“Burglary” is that defined in ORS 164.215(1) or 164.225(1) with the intent to commit the crime of theft therein.
“Conspiracy” is that defined in ORS 161.450.
“Controlled Substances” are those defined in ORS 475.005(6) except that this shall not include less than one avoirdupois ounce of marijuana.
“Deliver or Delivery” is that defined in ORS 475.005(8).
“Deprive” or “Deprive Another of Property” is that defined in ORS 164.005(2).
“Facilitate” means that the property must have some substantial connection to, or be instrumental in, the commission of the underlying prohibited activity which this chapter seeks to prevent.
“Keep,” “Keeps,” or “Keeping” means keeping a place while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285 and 475.991 to 475.995.
“Manufacture” is that defined in ORS 475.005(14).
“Marijuana” is that defined in ORS 475.005(15).
“Obtain” is that defined in ORS 164.005(3).
“Possess” is that defined in ORS 161.015(8).
“Possession of Controlled Substances with the Intent to Distribute” is as defined in 21 U.S.C. 841(a)(1).
“Production” is that defined in ORS 475.005(19).
“Prohibited Activity” means:
1. The manufacture or delivery of controlled substances; or
2. The possession of controlled substances, except as authorized by law; or
3. The possession of controlled substances with the intent to distribute; or
4. Theft as defined in ORS 164.015; or
5. Burglary; or
6. Robbery as defined in ORS 164.395 or 164.405; or
7. Entering into a conspiracy to engage in the prohibited activity set forth in subsections (1) through (6) of this definition; or
8. Any attempt to engage in the prohibited activity set forth in subsections (1) through (7) of this definition.
“Robbery” is that defined in ORS 164.395(1), 164.405(1), or 164.415(1).
“Theft” is that described in ORS 164.015. [Ord. 87-19 § III; Ord. 87-11 § III.]
9.20.040 Forfeiture.
A. Any person who engages in prohibited activity within Josephine County shall forfeit to Josephine County the following property:
1. All controlled substances which are possessed or intended for or have been manufactured or delivered as defined in JCC 9.20.030;
2. 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, possess, keep, compound, store, process or deliver any controlled substances;
3. All conveyances, including aircraft, vehicles or vessels which are used to manufacture, deliver, possess, keep, or in any manner to facilitate the manufacture, delivery, possession, or keeping of any controlled substance or any such conveyance which is used to transport or conceal any controlled substance;
4. All conveyances, including aircraft, vehicles or vessels which are used to transport, deliver, conceal, or in any manner to facilitate the theft, burglary, or robbery of property;
5. All monies, negotiable instruments, securities or other things of value furnished, exchanged, received, or intended to be furnished to, exchanged or received by any person to facilitate any prohibited activity, and all proceeds and profits derived from such furnishment, exchange, receipt or prohibited activity;
6. All proceeds, profits and things of value, including real property (whether residential or not) derived from any prohibited activity;
7. All equipment, materials or records of any sort that are used, or intended for use, to facilitate any prohibited activity; and
8. All real property, including residential property, including any right, title or interest in the whole or any part of any lot(s), tract(s), or parcel(s) of land and any appurtenances or improvements thereto, which is:
a. Used to facilitate the manufacture, possession, keeping or delivery of any controlled substance; or
b. Used to facilitate theft, burglary, or robbery;
9. Subsection (A)(8) of this section shall not apply to residential real property which is used to facilitate the manufacture, possession, or keeping of less than one ounce of marijuana when dried.
B. This chapter shall not apply to those unlawful acts defined in ORS 166.720(1) and (2). [Ord. 87-19 § IV; Ord. 87-11 § IV.]
9.20.050 Seizure.
Any property subject to forfeiture to Josephine County under this chapter may be seized by any police officer on behalf of Josephine County without issuance of court process when:
A. The seizure is incident to an arrest or search (1) under a search warrant, or (2) without a warrant but still allowed by law; or
B. The property subject to seizure has been the subject of a prior judgment in favor of Josephine County in a forfeiture proceeding under this chapter; or
C. A police officer lawfully seized the property and has probable cause to believe that the property has been used or is intended for use in or to facilitate prohibited activity as defined by this chapter. [Ord. 87-19 § V.]
9.20.060 Institution of legal proceedings.
A. In the event of a seizure under this chapter, or in the absence of a seizure, if it is seizable under this chapter, the County Counsel, District Attorney, or a Special Prosecuting Attorney appointed by the Board of County Commissioners, acting in the name of the County, may institute an in rem forfeiture proceeding to obtain a judgment of forfeiture against the seized property.
B. The proceedings shall be instituted in accordance with the Oregon Rules of Civil Procedure and be subject to the Oregon Rules of Evidence relating to civil actions. The owner of the property may demand a trial by jury in any civil action brought pursuant to this section.
C. An action under this chapter shall be commenced within 30 days after seizure on behalf of Josephine County of all property, other than real property. An action under this chapter for the forfeiture of real property shall be commenced prior to, or within one year from, the date of seizure of said real property. This section shall operate as a limitation period on forfeiture actions. [Ord. 87-19 § VI; Ord. 87-11 § VI.]
9.20.070 Disposition of property.
A. Prior to obtaining any forfeiture judgment, any money, securities and negotiable instruments that are not retained for evidentiary purposes by the Sheriff, or other law enforcement agency, shall be deposited with the Josephine County Treasurer pending the outcome of the forfeiture proceedings, subject to order of the Sheriff or the Court.
B. Other seized property shall be kept in the custody of Josephine County. The Sheriff or his designated representative shall hold the property in safe keeping until a forfeiture judgment is obtained or until the Court orders the Sheriff to release the property.
C. When a judgment of forfeiture is obtained under this chapter, the property shall be disposed of as follows:
1. Properly perfected liens on the property shall be paid;
2. There shall be paid from the proceeds of the property, any costs and expenses, including reasonable attorney’s fees, incurred in the prosecution of the action and in the investigation supporting it;
3. At the discretion of the Sheriff, forfeited property may, subject to subsection (C)(1) of this section, be retained (except money, securities, and negotiable instruments) for official use in law enforcement activities. If the Sheriff determines that the property is not to be used in law enforcement or is no longer to be used in law enforcement, he shall advise the Board of County Commissioners. At the discretion of the Commissioners, the property may be retained for official County use, or may be disposed of in accordance with subsections (C)(4) and (5) of this section.
4. Property remaining after the application of subsections (C)(1) through (3) of this section (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 Sheriff. The Sheriff shall deduct from the proceeds of sale the expense of keeping the property and the cost of the sale.
5. Any forfeited securities or negotiable instruments shall be exchanged for money by the Josephine County Treasurer. Money received in such exchange, money forfeited, and the proceeds of any sale occurring as set forth in subsection (C)(4) of this section shall, subject to subsections (C)(1) and (2) of this section, be distributed as follows:
a. Fifteen percent shall be paid to the Office of the District Attorney for Josephine County to be utilized for law enforcement purposes.
b. Fifty-five percent shall be paid to the Office of the Sheriff of Josephine County to be utilized for law enforcement investigation purposes.
c. Thirty percent shall be for use of the County Jail.
6. Notwithstanding this subsection (C), however, the Sheriff may decide to return the property to its (pre-forfeiture) owner if the Sheriff deems the cost of carrying the judgment into full effect (including the cost of paying properly perfected liens) to exceed the value of the property.
D. This chapter shall not apply to property seized inside of incorporated cities; notwithstanding this limitation, however, provided that the governing body or the electors of the incorporated city consent, this chapter shall apply inside the incorporated city and property seized within the incorporated city shall be disposed of as follows:
1. The law enforcement agency making the seizure in accordance with JCC 9.20.050, subject only to the order of the Court and pending outcome of the forfeiture proceedings, may require the Sheriff of Josephine County to take custody of the property, except while the seizing agency retains the property for evidentiary purposes, in the manner provided by this section. The seizing law enforcement agency may elect, and so notify the Sheriff of its intent, to maintain custody of the property pending outcome of the forfeiture proceeding, or if necessary, for evidentiary purposes in any other proceeding. In the event a law enforcement agency makes such an election, it, and not Josephine County or the Sheriff, is responsible for safekeeping of the property and for any damage or injury to property while in the other agency’s custody.
2. Institution of legal proceedings for forfeiture of property seized in the incorporated city shall be in the manner provided by JCC 9.20.060.
3. Upon conclusion of forfeiture proceedings, disposition of the property shall be as follows:
a. If another agency has elected to maintain custody of the property under subsection (D)(1) of this section, it shall transfer such property forthwith to the Sheriff, who shall give receipt for it.
b. The Sheriff shall ascertain the amounts and lienholders of properly perfected liens, if any, on the property.
c. The Sheriff shall notify the incorporated city of [1] the amounts of the liens mentioned in subsection (C)(1) of this section, and [2] the costs of keeping the property during the pendency of the forfeiture proceeding.
d. Upon receipt of the payment mentioned in subsection (D)(3)(c) of this section, the Sheriff shall pay the properly perfected liens, according to priorities.
e. If the incorporated city pays the amount specified by the Sheriff in subsection (D)(3)(c) of this section within 10 days of the notice given in subsection (D)(3)(c) of this section (or within such longer period, up to 30 days, as may be extended by the Sheriff), then the incorporated city, in a timely fashion and prior to public auction of any subject property, may claim property to be used for official use. The Sheriff shall deliver the property to the incorporated city and possession of, and title to, the property shall thenceforth rest in the incorporated city. The incorporated city then shall put the property to official law enforcement use.
f. If the incorporated city does not claim the property as provided in subsection (D)(3)(c) of this section, then the Sheriff may either: [1] return the property to the party from which it was forfeited, or [2] follow the procedure outlined in subsection (D)(4) of this section.
4. If the incorporated city does not claim the property as provided in subsection (D)(3) of this section, then:
a. The provisions of subsections (C)(4) and (5) of this section shall apply except that prior to the distribution in subsections (C)(5)(a) through (c) of this section, the remaining proceeds shall then be divided as follows: one-third to the incorporated city and the remaining two-thirds to be distributed according to subsections (C)(5)(a) through (c) of this section. [Ord. 87-19 § VII; Ord. 87-11 § VII.]
9.20.080 Nonconsensual use of property for prohibited activity.
No property shall be forfeited under this chapter to the extent of the interest of an owner who was not aware of the use of the property in, or its derivation from, the prohibited activity. Such lack of awareness, however, shall be an affirmative defense which must be proved by a preponderance of the evidence. [Ord. 87-19 § VIII; Ord. 87-11 § VIII.]
9.20.090 Attorneys’ fees and costs.
The prevailing party is entitled to reasonable attorneys’ fees, costs and disbursements. The County is the prevailing party if a judgment of forfeiture of any property results; the owner of the property is the prevailing party if a judgment results in no forfeiture. Upon agreement of the parties, the Court may waive application of this section. [Ord. 87-19 § IX; Ord. 87-11 § IX.]