Chapter 4.50
SEIZURE AND FORFEITURE OF PROPERTY USED IN CONTROLLED SUBSTANCE VIOLATIONS
Sections:
4.50.030 Property subject to seizure and forfeiture.
4.50.040 Police officer to seize property.
4.50.050 Police officer to file notice of seizure.
4.50.070 Procedure for hearing.
4.50.080 Burden of proof – Liabilities.
4.50.090 Disposition of forfeited property.
4.50.100 Impound and storage costs recoverable.
4.50.010 Purpose.
The purpose of this chapter is to provide for civil remedial forfeiture of all property used or acquired in controlled substance violations. The remedial measures of this chapter are civil in nature and are designed and intended to encourage compliance with controlled substance regulations and to compensate the Tribe for enforcement and damage to the peace, security, and welfare of the Confederated Tribes of the Chehalis Indian Reservation. Said measures are not designed or intended to punish persons for breach of controlled substance regulations since no property right exists in property subject to seizure and forfeiture under this chapter. [Res. 2011-020; Res. 2006-63; Res. 1997-8 §§ 6.8.010, 6.8.090. Prior code § 3.1.10.010.]
4.50.020 Jurisdiction.
The Tribal Court shall have exclusive jurisdiction to hear matters under this chapter. Any Tribal law enforcement officer may enforce the provisions of this chapter. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 1997-8 §§ 6.8.020, 6.8.090. Prior code § 3.1.10.020.]
4.50.030 Property subject to seizure and forfeiture.
The following property is subject to seizure and forfeiture and no property right exists in them:
A. All controlled substances which have been manufactured, grown, distributed, dispensed, acquired, or possessed in violation of Chapter 4.45 CTC or other controlled substance regulation, and all hazardous chemicals used or intended to be used in the manufacture of controlled substances;
B. All raw materials, plants, products, and equipment of any kind which are used, or intended for use, in manufacturing, producing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of Chapter 4.45 CTC or other controlled substance regulation;
C. All property, real or personal, which is used, or intended to shelter, house, conceal, contain, or store property described in subsection A or B of this section;
D. All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of Chapter 4.45 CTC or other controlled substance regulation;
E. All conveyances, including vehicles, vessels, or aircraft which are used, or intended for use, in any manner to transport, or facilitate the sale, delivery, or receipt of property described in subsection A or B of this section, or in which property described in subsection A or B of this section is deposited, concealed, kept, possessed, or used by an occupant; and
F. All monies, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of Chapter 4.45 CTC or other controlled substance regulation, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of Chapter 4.45 CTC or other controlled substance regulation, and all monies, negotiable instruments, securities used or intended to be used to facilitate any violation of Chapter 4.45 CTC or other controlled substance regulation. However, all property seized under subsection E of this section or this subsection which is encumbered by a bona fide security interest shall be subject to the interest of the security party if the security party establishes by a preponderance of the evidence that he or she neither had knowledge of nor consented to the act or omission. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2004-32; Res. 2004-05; Res. 1997-8 §§ 6.8.030, 6.8.090. Prior code § 3.1.10.030.]
4.50.040 Police officer to seize property.
A. Property subject to forfeiture under this chapter may be seized by any Tribal law enforcement officer upon process issued by any court having jurisdiction over the property. Seizure of property without process may be made if:
1. The seizure is incident to an arrest or search under a search warrant or during a routine administrative inspection;
2. The property subject to seizure has been the subject of a prior judgment in favor of the Tribe in a criminal injunction or forfeiture proceeding based upon this chapter;
3. A law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
4. A law enforcement officer has probable cause to believe that the property was used or intended to be used in violation of Chapter 4.45 CTC.
B. All property seized under this chapter shall immediately be delivered to, or secured by, the Tribal Police Chief to be held as evidence until a final forfeiture is declared or a release ordered. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2004-32; Res. 2004-5; Res. 1997-8 §§ 6.8.040, 6.8.090. Prior code § 3.1.10.040.]
4.50.050 Police officer to file notice of seizure.
A law enforcement officer who seizes property under this chapter shall file notice of seizure and intention to institute forfeiture proceedings with the Clerk of the Tribal Court. The Clerk shall serve notice thereof on all owners of the property within 15 days following the seizure, by one of the following methods:
A. Upon an owner or secured party whose right, title or interest is of record in the division of motor vehicles of the state in which a conveyance is licensed, by mailing a copy of the notice by certified mail with return receipt requested to the address on the records of the division of motor vehicles of said state;
B. Upon an owner or secured party whose name and address are known, by mailing a copy of the notice by certified mail with return receipt requested to his or her last known address;
C. Upon an owner or secured party, whose address is unknown but who is believed to have an interest in the property, by publication in one issue of a newspaper of general circulation within Thurston County and Grays Harbor County, State of Washington. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 1997-8 §§ 6.8.050, 6.8.090. Prior code § 3.1.10.050.]
4.50.060 Answer to notice.
Within 30 days after the mailing or publication of notice of seizure as provided under CTC 4.50.050, the owner or secured party of the seized property may file a verified answer to the allegation of the use of the property contained in the notice of seizure and of the intended forfeiture proceedings. [Res. 2011-020; Res. 2006-63; Res. 1997-8 §§ 6.8.060, 6.8.090. Prior code § 3.1.10.060.]
4.50.070 Procedure for hearing.
A. If a verified answer to the notice is not filed within 30 days after the mailing or publication thereof, the Tribal Court shall hear evidence upon the charge of unlawful use of the property, and upon motion for a default judgment, shall order the property forfeited to the Chehalis Tribe.
B. If a verified answer is filed, the forfeiture proceedings shall be set for a hearing on a day not less than 30 days after the answer is filed, and the proceedings shall have priority over other civil cases. The property owner or claimant may voluntarily waive this right to a speedy trial. Notice of the hearing shall be given in the same manner provided for service of the notice of seizure as provided under CTC 4.50.050.
C. At the hearing, any owner or secured party who has filed a verified answer may establish by a preponderance of the evidence that the act or omission was not committed or was committed or omitted without the party’s knowledge or consent. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 1997-8 §§ 6.8.070, 6.8.090. Prior code § 3.1.10.070.]
4.50.080 Burden of proof – Liabilities.
A. It is not necessary for the Tribe to negate any exemption or exception in this chapter in any complaint, answer, information, indictment or other pleading or in any trial, hearing, or other proceeding under this chapter. The burden of proof of any exception is upon the person claiming it and must be established by a preponderance of the evidence.
B. In the absence of evidence that a person is the lawful owner or has a secured interest in the property, the person is presumed not to be the owner or a secured party. The burden of proof is upon the person to rebut the presumption by a preponderance of the evidence.
C. No liability is imposed by this chapter upon the Tribe or any authorized law enforcement officer while engaged in the lawful performance of his or her duties. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 1997-8 §§ 6.8.080, 6.8.090. Prior code § 3.1.10.080.]
4.50.090 Disposition of forfeited property.
A. All controlled substances in violation of Chapter 4.45 CTC or other Tribal controlled substance regulation are contraband and shall be seized and summarily forfeited to the Tribe. Such contraband shall be properly destroyed after it is no longer needed as evidence for an investigation or prosecution of a case or an appeal from conviction.
B. When property is forfeited under this chapter the Tribal Law Enforcement Department may dispose of the property as follows:
1. If the Court determined that the interest of a secured party in property under CTC 4.50.030(E) and (F) is bona fide, the Court shall order the encumbered property released to the secured party if the amount due the secured party is equal to or in excess of the value of the property as of the date of seizure, it being the purpose of this chapter to forfeit only the interest of the party charged;
2. If the amount due a bona fide secured party is less than the value of the property, the Tribal Police Chief may either satisfy the bona fide security interest and retain the property or sell the property at public auction after due and proper notice has been given of such sale;
3. If no such secured party exists, the Tribal Police Department may retain the property for official Tribal use. If such property is not to be retained, the Tribal Police Chief shall sell that which is not required to be destroyed by law or harmful to the public as provided in subsection A of this section.
C. When the property is forfeited, the Tribal Police Department shall keep a record indicating the identity of the prior owner, if known, a description of the property, the disposition of the property, the value of the property at the time of seizure, and the amounts of proceeds realized from disposition of the property. A record of forfeited property shall be forwarded to the Accounting Department each calendar year. The Tribal Police Department shall retain records of forfeited property for at least seven years.
D. By January 31st of each year, the Tribal Police Department shall remit to the general fund an amount equal to 25 percent of the net proceeds of any property forfeited and sold during the preceding calendar year.
1. The net proceeds of property forfeited and sold is the value of the forfeitable interest in the property after deducting the cost of sale, including reasonable fees or commissions paid to selling agents or appraisers.
2. The value of the sold forfeited property is the sale price. The value of retained forfeited property is the fair market value of the property at the time of seizure, determined when possible by reference to an applicable commonly used index. The Tribal Police Chief may use, but need not use, an independent qualified appraiser to determine the value of retained property. If an appraiser is used, the value of the property appraised is net of the cost of the appraisal. The value of destroyed property and retained firearms or illegal property is zero.
E. Forfeited property and net proceeds not required to be paid to the general fund shall be retained by the Tribal Police Department for any official use related to controlled substance enforcement, prevention, or education. Upon proper application, such forfeited property may be sold to any Tribal department for official Tribal use. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 1997-8 § 6.8.090. Prior code § 3.1.10.090.]
4.50.100 Impound and storage costs recoverable.
The Tribal Police Department is entitled to recover any and all costs or fees associated with towing, impoundment, or storage from all owners or secured parties prior to the release of property seized under this chapter. [Res. 2011-020; Res. 2006-63; Res. 1998-14 § 6.8.100. Prior code § 3.1.10.100.]