House Study Bill 634 - Introduced HOUSE FILE _____ BY (PROPOSED COMMITTEE ON PUBLIC SAFETY BILL BY CHAIRPERSON THOMPSON) A BILL FOR An Act relating to the forfeiture of property for criminal 1 offenses and repealing civil forfeiture. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 5069YC (5) 90 cm/jh

H.F. _____ Section 1. NEW SECTION . 809B.1 Short title. 1 This chapter shall be known and may be cited as the “Iowa 2 Criminal Forfeiture Process Act” . 3 Sec. 2. NEW SECTION . 809B.2 Applicability. 4 This chapter applies only to the seizure and forfeiture 5 of property used in and derived directly from a violation of 6 chapter 124, subchapter IV. 7 Sec. 3. NEW SECTION . 809B.3 Definitions. 8 The terms defined in this section have the following 9 meanings in this chapter: 10 1. “Abandoned property” means personal property to which 11 a possessor relinquishes all rights to ownership or control. 12 “Abandoned property” does not include real property. 13 2. “Actual knowledge” means direct and clear awareness of 14 information, a fact, or a condition. 15 3. “Contraband” means goods that, in themselves, are 16 unlawful to possess, including scheduled drugs without a lawful 17 prescription and a firearm that is illegal to possess. 18 4. “Conveyance” means a device used for transportation. 19 “Conveyance” includes a motor vehicle, trailer, snowmobile, 20 airplane, vessel, or any equipment attached to one of these 21 devices. “ Conveyance” does not include property that is stolen 22 in violation of the law. 23 5. “Convicted” or “conviction” includes a finding of guilt, 24 a plea of guilty, deferred judgment, deferred or suspended 25 sentence, adjudication of delinquency, or circumstances where 26 a person is not charged with a criminal offense that is a 27 serious or aggravated misdemeanor or felony related to the 28 action for forfeiture based in whole or in part on the person’s 29 cooperation in providing information regarding the criminal 30 activity of another person. 31 6. “Innocent owner” means an owner, co-owner, defendant’s 32 heir, or a person who regularly uses property subject to 33 forfeiture who does not have actual knowledge of the use of 34 the property in a crime that authorizes the forfeiture of the 35 -1- LSB 5069YC (5) 90 cm/jh 1/ 30

H.F. _____ property. “Innocent owner” does not include the defendant or a 1 secured interest holder. 2 7. “Instrumentality” means property otherwise lawful to 3 possess that is used in a crime that authorizes the forfeiture 4 of property. “Instrumentality” includes land, buildings, 5 containers, conveyances, equipment, materials, products, tools, 6 computers, computer software, telecommunications devices, 7 firearms, ammunition, and ammunition-and-firearm accessories. 8 8. “Law enforcement agency” means any nonfederal police 9 force, or other local, county, or state agency that has the 10 authority under state law to engage in seizure and forfeiture. 11 9. “Proceeds” means United States currency, currency of 12 another nation, digital currency, cryptocurrency, securities, 13 negotiable instruments, or other means of exchange obtained 14 from the sale of property or contraband. 15 10. “Prosecuting authority” means a municipal attorney, 16 solicitor, district attorney, county attorney, attorney 17 general, or other government official legally authorized to 18 prosecute crime. 19 11. “Public defender” means any office of the state public 20 defender. 21 12. “Real property” means land and anything growing on, 22 attached to, or erected on the land including a building. “Real 23 property” includes immovable property, real estate, and realty. 24 13. “Secured interest holder” means a person who is a 25 secured creditor, mortgagee, lienholder, or other person 26 who has a valid claim, security interest, mortgage, lien, 27 leasehold, or other interest in the property subject to 28 forfeiture. “Secured interest holder” does not include the 29 defendant or an innocent owner. 30 Sec. 4. NEW SECTION . 809B.4 Forfeiture disfavored —— 31 purpose of chapter. 32 Forfeiture is disfavored in this state. This chapter’s 33 purpose is to deter criminal activity by reducing criminal 34 activity economic incentives, confiscate property used in the 35 -2- LSB 5069YC (5) 90 cm/jh 2/ 30

H.F. _____ violation of the law, and protect the due process rights of 1 property owners. 2 Sec. 5. NEW SECTION . 809B.5 Jurisdiction. 3 1. There shall be no civil forfeiture under this chapter. 4 2. The court that has jurisdiction in the related criminal 5 matter shall have jurisdiction over the forfeiture proceeding. 6 3. The forfeiture proceeding shall be part of the trial 7 of the related crime. The proceeding shall follow a finding 8 of the defendant’s guilt or be conducted at the court’s 9 discretion. The forfeiture proceeding shall be conducted by 10 the court without a jury. 11 4. If an initial court bounds over or transfers the 12 prosecution of the criminal case to another court, the initial 13 court shall transfer the forfeiture action along with the 14 criminal case to the other court. 15 5. At the initial court’s discretion, the initial court 16 may postpone hearing and bound over a motion to another court 17 in the interests of justice and efficient use of judicial 18 resources. 19 Sec. 6. NEW SECTION . 809B.6 Seizure of personal property 20 with process. 21 At the request of the state, a court may issue an ex parte 22 order to attach, seize, or secure personal property for which 23 forfeiture is sought and to provide for the custody of the 24 personal property. 25 Sec. 7. NEW SECTION . 809B.7 Seizure of personal property 26 without process. 27 Personal property may be seized, as part of a lawful search, 28 without a court order if the personal property subject to 29 forfeiture is seized incident to a lawful arrest, the state has 30 probable cause to believe the delay caused by the necessity of 31 obtaining process would result in the removal or destruction of 32 the personal property that is forfeitable under this chapter, 33 or the personal property is the subject of a prior and valid 34 judgment of forfeiture in favor of the state. 35 -3- LSB 5069YC (5) 90 cm/jh 3/ 30

H.F. _____ Sec. 8. NEW SECTION . 809B.8 Seizure or restraint of real 1 property with process. 2 1. Real property shall not be seized or restrained without 3 a court order. 4 2. A court shall not issue an order unless the defendant and 5 any other person with a known interest in the property receive 6 proper notice and are given an opportunity for a contested 7 hearing to determine the existence of probable cause for the 8 seizure. 9 3. Notice may be made by publication if personal service has 10 not been realized after reasonable attempts. 11 4. This section does not prohibit the state from seeking 12 a lis pendens or restraining order to hinder the sale or 13 destruction of real property. However, if the state obtains a 14 lis pendens or restraining order, the state shall notify the 15 defendant and any other person with a known interest in the 16 property within thirty days. 17 5. Application, filing, issuance, execution, and return of 18 any order are subject to state law and court rules. 19 Sec. 9. NEW SECTION . 809B.9 Stolen property and contraband. 20 1. No property right exists in stolen property or 21 contraband. Stolen property and contraband are subject to 22 seizure. 23 2. Stolen property shall be returned to the innocent owner, 24 and contraband shall be disposed of according to state law. 25 3. Notwithstanding subsection 2, the court may impose 26 reasonable conditions on the release of stolen property and 27 the disposal of contraband, including the use of photographic 28 evidence, to preserve the property for later use as evidence in 29 proceedings under this chapter. 30 Sec. 10. NEW SECTION . 809B.10 Storing seized property and 31 depositing seized currency. 32 1. The seizing law enforcement agency is responsible for 33 providing adequate storage, security, and maintenance for all 34 assets in law enforcement agency custody unless another law 35 -4- LSB 5069YC (5) 90 cm/jh 4/ 30

H.F. _____ enforcement agency agrees to accept the responsibility. The 1 commander of a multijurisdictional task force may assign the 2 responsibility to one agency. 3 2. The seizing law enforcement agency shall deposit seized 4 currency in an interest-bearing account pending the exhaustion 5 of appeals or receiving an order from the court to return or 6 disburse the seized currency. 7 3. Notwithstanding subsection 2, the seizing law 8 enforcement agency may take reasonable actions, including the 9 use of photography, to preserve currency for later use as 10 evidence in proceedings under this chapter. 11 Sec. 11. NEW SECTION . 809B.11 Receipt. 12 1. When property is seized, the law enforcement officer 13 shall give an itemized receipt to the person possessing the 14 property at the time of the seizure. 15 2. The receipt shall be numbered for future reference and 16 constitutes notice of seizure. 17 3. If the person possessing the property is not present, the 18 seizing officer shall leave a receipt in the place where the 19 property was found, if possible. 20 Sec. 12. NEW SECTION . 809B.12 Property exempt from seizure 21 and forfeiture. 22 1. United States currency totaling two hundred dollars or 23 less is exempt from seizure and forfeiture, excluding marked 24 currency used in the controlled buy of a controlled substance. 25 2. A motor vehicle worth two thousand dollars or less in 26 market value is exempt from seizure and forfeiture. 27 3. The prosecuting authority shall advise the publications 28 that law enforcement agencies may use to establish the value of 29 a motor vehicle in the prosecuting authority’s jurisdiction. 30 The valuation publications may include nationally known and 31 relied on pricing guides. 32 4. The prosecuting authority may establish on a 33 case-by-case basis higher values in the interests of justice 34 and efficient use of governmental resources. The higher 35 -5- LSB 5069YC (5) 90 cm/jh 5/ 30

H.F. _____ values shall be based on the prosecuting authority’s exclusive 1 determination of: 2 a. The type and number of occurrences of offenses that 3 include the seizure of property. 4 b. The average value of seized property less the costs to 5 seize and forfeit such property. 6 Sec. 13. NEW SECTION . 809B.13 Waivers permitted and 7 prohibited. 8 1. A person from whom property is seized may relinquish the 9 person’s rights, interests, and title in the seized property by 10 knowingly and voluntarily executing a waiver that is agreed to 11 by the prosecuting authority. 12 2. The waiver is subject to a claim by a secured interest 13 holder, innocent owner, or other person entitled to notice 14 under section 809B.17. A claimant may consent to some issues 15 and have the court determine remaining issues. 16 3. A law enforcement officer, other than the prosecuting 17 authority, shall not request, induce, or require a person to 18 relinquish, for purpose of forfeiture, the person’s rights, 19 interests, or title in the seized property. 20 4. A document resulting from efforts by a law enforcement 21 officer, other than the prosecuting authority, which purports 22 to relinquish a person’s rights, interests, and title in seized 23 property is void and is inadmissible in court. 24 Sec. 14. NEW SECTION . 809B.14 Initial reporting. 25 1. A law enforcement agency making a seizure shall within 26 ten days submit a report to the appropriate prosecuting agency. 27 2. For purpose of reporting, if the seizure of property is 28 accomplished because of coordinated efforts by more than one 29 law enforcement agency, the law enforcement agency initiating 30 the investigation is considered to be the law enforcement 31 agency making the seizure. 32 3. The report shall provide the following information with 33 respect to the property seized: 34 a. Name of the seizing law enforcement agency. 35 -6- LSB 5069YC (5) 90 cm/jh 6/ 30

H.F. _____ b. Description of the seized property. 1 c. Location where the seizure occurred. 2 d. Date and circumstances of the seizure. 3 e. Location where the property is being stored and present 4 custodian. 5 f. Name and contact information of owner. 6 g. Name and contact information of possible innocent owner 7 claimant. 8 h. Name and contact information of any lienholder. 9 i. The type and quantity of the controlled substance 10 involved. 11 j. Other relevant information. 12 k. If the property is a conveyance, the report shall include 13 all of the following: 14 (1) Make, model, serial number, and year of the conveyance. 15 (2) Name and contact information of person in whose name the 16 conveyance is registered. 17 Sec. 15. NEW SECTION . 809B.15 Title to property. 18 1. Title to the property subject to forfeiture vests with 19 the state when the court issues a forfeiture judgment and 20 relates back to the date when the state seized or restrained 21 the property. 22 2. Title to substitute assets vests when the court issues an 23 order forfeiting substitute assets. 24 Sec. 16. NEW SECTION . 809B.16 Counsel. 25 1. If a defendant in a criminal matter is represented by a 26 public defender or appointed counsel if indigent, that attorney 27 shall represent the defendant in the forfeiture proceeding. 28 2. If the defendant or an innocent owner claimant engages 29 in pro se representation in the forfeiture proceeding, the 30 court may exercise discretion applying the rules of pleading, 31 practice, evidence, and procedure. 32 Sec. 17. NEW SECTION . 809B.17 Notice to other known owners. 33 1. The prosecuting authority shall perform a reasonable 34 search of relevant records, including vehicle registrations, 35 -7- LSB 5069YC (5) 90 cm/jh 7/ 30

H.F. _____ property records, and other public records, to identify any 1 person, other than the defendant, known to have an interest in 2 the property subject to forfeiture. 3 2. The prosecuting authority shall give notice to any person 4 identified to have an interest in the property subject to 5 forfeiture who is not charged or indicted. The notice shall 6 include the seizure receipt number given pursuant to section 7 809B.11. Notice may be made by publication if personal service 8 has not been realized after reasonable attempts. 9 3. The following language substantially and conspicuously 10 shall appear in the notice: 11 WARNING: You may lose the right to be heard in court if 12 you do not file promptly a simple statement of interest or 13 ownership. You do not have to pay a filing fee to file your 14 notice. 15 4. If the prosecuting authority does not serve notice by 16 personal service or publication on any persons appearing to 17 have an interest in the property and the extension period has 18 expired, the prosecuting authority or court shall order the 19 return of the property to a person with a valid interest in 20 the property who makes a request. Contraband shall not be 21 returned. 22 Sec. 18. NEW SECTION . 809B.18 Prompt post-seizure hearing. 23 1. Following seizure, a defendant or any other person 24 with an interest in the property has a right to a prompt 25 post-seizure hearing. 26 2. A person with an interest in the property may motion the 27 court for a hearing. 28 3. Upon motion, the court may hold a prompt post-seizure 29 hearing at any of the following: 30 a. As a separate hearing. 31 b. At the same time as a probable cause determination, an 32 arraignment hearing, a suppression hearing, an omnibus hearing, 33 or other pretrial hearing. 34 c. At any other time at the court’s discretion. 35 -8- LSB 5069YC (5) 90 cm/jh 8/ 30

H.F. _____ 4. A party, by agreement or for good cause, may move for one 1 extension of the hearing date. The motion may be supported by 2 affidavits or other submissions. 3 5. The court shall order the return of property if the court 4 finds by a preponderance of the evidence any of the following: 5 a. The seizure was invalid. 6 b. A criminal charge has not been filed and no extension of 7 the filing period is available. 8 c. The final judgment will likely be in favor of the 9 defendant or any other person with an interest in the property. 10 6. At the court’s discretion, the court may order the return 11 of sufficient funds to the defendant, not needed as evidence, 12 for the defendant to obtain counsel of choice but less than the 13 total amount seized. 14 7. Notwithstanding subsections 5 and 6, the court may impose 15 reasonable conditions on the return of the property, including 16 the use of photographic evidence, to preserve the property for 17 later use as evidence in proceedings under this chapter. 18 8. This section does not apply to contraband. 19 Sec. 19. NEW SECTION . 809B.19 Notice of proposed 20 forfeiture. 21 1. In a case in which the state seeks forfeiture of 22 property, the prosecuting authority shall file with the court 23 a notice of proposed forfeiture. The notice of proposed 24 forfeiture shall be a separate document. The notice of 25 proposed forfeiture must include the following information: 26 a. A description of the property seized. 27 b. The time, date, and place of the seizure. 28 c. The seizure receipt number given pursuant to section 29 809B.11. 30 d. A description of how the property was used in or derived 31 from the alleged crime. 32 2. The prosecuting authority may allege, in the notice of 33 proposed forfeiture, the forfeiture of property as a process 34 after the conviction of the crime for which the defendant is 35 -9- LSB 5069YC (5) 90 cm/jh 9/ 30

H.F. _____ charged or as part of sentencing consideration. 1 3. The notice shall not be read to the jury. 2 4. The prosecuting authority shall serve the notice at one 3 of the following times: 4 a. With the initial charging instrument. 5 b. Separately but not later than ninety days after the 6 presentment of the charging instrument for a misdemeanor. 7 c. The earlier of ninety days after presentment to a grand 8 jury or one hundred days after an arrest for a felony. 9 d. Another time in the court’s discretion. 10 5. At the court’s discretion, the court may allow the 11 prosecuting authority to amend the notice as required in the 12 interest of justice. 13 6. The court shall order the return of the property to the 14 owner if the prosecuting authority does not file a charging 15 instrument, the period of an extension expires, or the court 16 does not grant an extension. 17 Sec. 20. NEW SECTION . 809B.20 Discovery. 18 Discovery related to the forfeiture proceeding is subject to 19 the rules of criminal procedure. 20 Sec. 21. NEW SECTION . 809B.21 Trial —— conviction required 21 and standard of proof. 22 1. Property may be forfeited if all of the following are 23 true: 24 a. The defendant has been convicted of a violation of 25 section 124.401. 26 b. The state establishes by a preponderance of the evidence 27 the property is an instrumentality of or proceeds derived 28 directly from a violation of a crime listed in section 809B.2. 29 2. After the defendant’s conviction, the court has the 30 discretion to hold the forfeiture proceeding as soon as 31 practicable, including concurrent with sentencing. 32 3. Except as required by section 809B.12, this chapter does 33 not prevent property from being forfeited by consent order 34 approved by the court, provided that secured interest holders, 35 -10- LSB 5069YC (5) 90 cm/jh 10/ 30

H.F. _____ innocent owners, or others entitled to notice under section 1 809B.17, consent to the forfeiture. A claimant may consent to 2 some issues and have the court determine remaining issues. 3 4. The consent order may reflect any of the following: 4 a. A plea agreement. 5 b. A diversion agreement. 6 c. A grant of immunity or reduced punishment, with or 7 without the filing of a criminal charge, in exchange for 8 testifying or assisting a law enforcement investigation or 9 prosecution. 10 5. The court may use the consent agreement to transfer 11 title to the property to the state and dispose of the property 12 according to section 809B.33. 13 Sec. 22. NEW SECTION . 809B.22 Exceptions to the conviction 14 requirement. 15 1. The court may waive the conviction requirement in section 16 809B.21 and grant title to the property to the state if the 17 prosecuting authority files a motion no fewer than ninety days 18 after seizure and shows by a preponderance of the evidence that 19 the defendant, before conviction, did any of the following: 20 a. Abandoned the property. 21 b. Fled the jurisdiction. 22 c. Was deported by the United States. 23 d. Died. 24 2. The defendant’s death does not preclude the defendant’s 25 heir or legatee from filing a claim for the seized property as 26 an innocent owner under section 809B.25. 27 Sec. 23. NEW SECTION . 809B.23 Proportionality. 28 1. The defendant may motion the court to determine whether 29 the forfeiture is unconstitutionally excessive under the 30 Constitution of the State of Iowa or the Constitution of the 31 United States. 32 2. At the court’s discretion, the court may hold a 33 proportionality hearing at any of the following times: 34 a. As a separate hearing. 35 -11- LSB 5069YC (5) 90 cm/jh 11/ 30

H.F. _____ b. At the same time as a probable cause determination, an 1 arraignment hearing, a suppression hearing, an omnibus hearing, 2 or other pretrial hearing. 3 c. At trial. 4 d. Upon conviction. 5 3. The defendant has the burden of establishing that the 6 forfeiture is unconstitutionally excessive by a preponderance 7 of the evidence at a hearing conducted by the court without a 8 jury. 9 4. At a hearing prior to conviction, the court first 10 shall determine, by a preponderance of the evidence, if the 11 prosecuting attorney will secure a conviction. The court 12 then shall determine if the forfeiture is unconstitutionally 13 excessive. 14 5. At any hearing, the court may consider all relevant 15 factors to determine if the forfeiture is unconstitutionally 16 excessive including all of the following: 17 a. The seriousness of the crime and its impact on the 18 community, including the duration of the activity, use of a 19 firearm, and harm caused by the defendant. 20 b. The extent to which the defendant participated in the 21 crime. 22 c. The extent to which the property was integral to 23 facilitating the crime. 24 d. Whether the crime was completed or attempted. 25 e. The sentence or fine to be imposed for committing the 26 crime. 27 f. The hardship to the defendant if the forfeiture of a 28 motor vehicle would deprive the defendant of the defendant’s 29 livelihood. 30 g. An unjust hardship to the defendant’s family if the 31 property is forfeited. 32 6. In determining the value of the instrumentality subject 33 to forfeiture, the court may consider all relevant factors 34 related to the fair market value of the property, including 35 -12- LSB 5069YC (5) 90 cm/jh 12/ 30

H.F. _____ information in any publication advised by the prosecuting 1 authority pursuant to section 809B.12, subsection 3. 2 7. The court shall not consider the benefit or value of the 3 property to the state in determining whether the forfeiture is 4 unconstitutionally excessive. 5 Sec. 24. NEW SECTION . 809B.24 Secured interest holder. 6 1. Property encumbered by a security interest shall not be 7 forfeited. 8 2. The prosecuting authority summarily shall return 9 property to a secured interest holder up to the value of the 10 interest. Contraband shall not be returned. 11 3. If the property is not summarily returned, the secured 12 interest holder may motion the court at any time before the 13 court enters judgment in the criminal prosecution or grants the 14 motion in section 809B.22. The motion may include the seizure 15 receipt number given pursuant to section 809B.11, if available. 16 4. The court shall hear the motion within thirty days after 17 filing or at the court’s discretion. The hearing shall be held 18 without a jury. The court may consolidate the hearing on the 19 motion with any other hearing before the court in the case. 20 5. The secured interest holder shall allege the validity of 21 the security interest, mortgage, lien, leasehold, lease, rental 22 agreement, or other agreement. 23 6. If the prosecuting authority seeks to proceed, the 24 prosecuting authority shall prove by a preponderance of the 25 evidence any of the following: 26 a. That the interest is invalid. 27 b. That the interest resulted from a fraudulent conveyance. 28 c. That the interest was created by a purchase made on 29 behalf of the defendant, held through a trust, or otherwise 30 acquired for the benefit of the defendant. 31 d. That the secured interest holder consented to the use of 32 the property in the crime for which the defendant is charged. 33 7. If the state fails to meet its burden in subsection 34 6, the court shall order the state to relinquish claims to 35 -13- LSB 5069YC (5) 90 cm/jh 13/ 30

H.F. _____ the property, up to the value of the interest, and return the 1 interest to the secured interest holder. 2 8. Notwithstanding subsection 7, the court may impose 3 reasonable conditions on the return of the property, including 4 the use of photographic evidence to preserve the property for 5 later use as evidence in proceedings under this chapter. 6 Sec. 25. NEW SECTION . 809B.25 Innocent owner. 7 1. Property of an innocent owner shall not be forfeited. 8 2. The prosecuting authority summarily shall return 9 property to an innocent owner. Contraband shall not be 10 returned. 11 3. If the property is not summarily returned, an innocent 12 owner claimant may motion the court at any time before the 13 court enters judgment in the criminal prosecution or grants the 14 motion in section 809B.22. 15 4. The court shall hear the innocent owner claimant’s motion 16 within thirty days after filing or at the court’s discretion. 17 The hearing shall be held without a jury. The court may 18 consolidate the hearing on the claimant’s motion with any other 19 hearing before the court in the case. 20 5. The innocent owner claimant may motion the court 21 by filing a statement that provides all of the following 22 information: 23 a. The claimant’s interest in or regular use of the 24 property. 25 b. Facts or evidence supporting the claim. 26 c. An affirmation of the validity of interest or regular use 27 of the property. 28 d. The relief sought by the claimant. 29 e. The seizure receipt number given pursuant to section 30 809B.11, if available. 31 6. The filing fee for the claimant’s motion under this 32 section is waived. 33 7. If the prosecuting authority seeks to proceed, the 34 prosecuting authority shall prove by a preponderance of the 35 -14- LSB 5069YC (5) 90 cm/jh 14/ 30

H.F. _____ evidence that the claimant is not an innocent owner because of 1 any of the following: 2 a. The claimant’s interest in the property is invalid. 3 b. The claimant was not a bona fide purchaser without notice 4 of any defect in title and for valuable consideration. 5 c. The claimant was willfully blind to the crime for which 6 the defendant is charged. 7 d. The claimant did not regularly use the property as the 8 claimant claimed. 9 e. The claimant had actual knowledge and the claimant did 10 not take reasonable steps to prevent the use of the property 11 in the crime for which the defendant is charged. The claimant 12 is not required to take steps the claimant reasonably believes 13 would subject the claimant to physical danger. 14 8. If the prosecuting authority fails to meet the burden in 15 subsection 7, the court shall order the state to relinquish all 16 claims and return the property to the innocent owner. 17 9. Notwithstanding subsection 8, the court may impose 18 reasonable conditions on the return of the property, including 19 the use of photographic evidence, to preserve the property for 20 later use as evidence in proceedings under this chapter. 21 10. Information in the claimant’s statement in subsection 5 22 shall not be used as evidence in the underlying criminal case. 23 11. This section shall not prohibit the claimant from 24 providing information to any party or testifying in any trial 25 as to facts the claimant knows. 26 12. The defendant or convicted offender may invoke the right 27 against self-incrimination or the marital privilege during the 28 forfeiture proceeding. The trier of fact may draw an adverse 29 inference from the invocation of the right or privilege. 30 Sec. 26. NEW SECTION . 809B.26 Judgment. 31 1. If the prosecuting authority fails to meet the burden in 32 the criminal or forfeiture proceeding, the court shall enter 33 judgment dismissing the forfeiture proceeding and ordering 34 the return of property to the rightful owner. If the owner’s 35 -15- LSB 5069YC (5) 90 cm/jh 15/ 30

H.F. _____ possession of the property is illegal, the court shall dispose 1 of the property pursuant to section 809B.33. 2 2. If the prosecuting authority meets the burden in the 3 criminal and forfeiture proceeding, the court shall enter 4 judgment forfeiting the property. 5 3. A court may enter judgment following a hearing, 6 pursuant to a stipulation or plea agreement, or at the court’s 7 discretion. 8 Sec. 27. NEW SECTION . 809B.27 Substitution of assets. 9 Upon the prosecuting authority’s motion following conviction 10 or at the court’s discretion, the court may order the 11 forfeiture of substitute property owned solely by the defendant 12 up to the value of property that is beyond the court’s 13 jurisdiction or cannot be located through due diligence, only 14 if the state proves by a preponderance of the evidence that any 15 of the following occurred: 16 1. The defendant intentionally dissipated the property. 17 2. The defendant transferred, sold, or deposited property 18 with a third party to avoid forfeiture. 19 3. The defendant substantially diminished the value of 20 property. 21 4. The defendant commingled property with other property 22 that cannot be divided without difficulty. 23 Sec. 28. NEW SECTION . 809B.28 No additional remedies. 24 The state shall not seek personal money judgments or other 25 remedies related to the forfeiture of property not provided for 26 in this chapter. 27 Sec. 29. NEW SECTION . 809B.29 No joint and several 28 liability. 29 A defendant is not jointly and severally liable for 30 forfeiture awards owed by other defendants. When ownership is 31 unclear, a court may order each defendant to forfeit property 32 on a pro rata basis or by another means the court finds 33 equitable. 34 Sec. 30. NEW SECTION . 809B.30 Appeals. 35 -16- LSB 5069YC (5) 90 cm/jh 16/ 30

H.F. _____ 1. A party to forfeiture proceeding, other than the 1 defendant, may appeal the court’s order concerning the 2 disposition of the property upon the issuance of the order. 3 2. The defendant may appeal the court’s decision regarding 4 the seizure or forfeiture of property following final judgment 5 in the forfeiture proceeding. 6 Sec. 31. NEW SECTION . 809B.31 Attorney fees. 7 In any proceeding in which a property owner’s claim prevails 8 by recovering at least half, by value, of the property or 9 currency claimed, the court shall order the seizing law 10 enforcement agency or prosecuting authority at fault to pay all 11 of the following: 12 1. Reasonable attorney fees and other litigation costs 13 incurred by the claimant. 14 2. Post-judgment interest. 15 3. In cases involving currency, other negotiable 16 instruments, or the proceeds of an interlocutory sale, any 17 interest actually paid from the date of seizure. 18 Sec. 32. NEW SECTION . 809B.32 Return of property, damages, 19 and costs. 20 1. If the court orders the return of property, the law 21 enforcement agency that holds the property shall return the 22 property to the rightful owner within a reasonable period not 23 to exceed five days after the date of the order. 24 2. The rightful owner shall not be subject to any expenses 25 related to towing, storage, or preservation of the property. 26 3. The law enforcement agency that holds the property is 27 responsible for any damages, storage fees, and related costs 28 applicable to property returned under this section. 29 Sec. 33. NEW SECTION . 809B.33 Disposition of property and 30 proceeds. 31 1. At any time when contraband is no longer needed as 32 evidence, the court may order the contraband be sold or 33 destroyed according to state law. 34 2. Except as required by sections 809B.24 and 809B.25, the 35 -17- LSB 5069YC (5) 90 cm/jh 17/ 30

H.F. _____ court may order property be sold at any time when: 1 a. The property is no longer needed as evidence. 2 b. Abandoned property or property seized from a defendant 3 who died, was deported, or fled the jurisdiction is no longer 4 needed as evidence. 5 3. If the forfeiture is granted, the court shall order the 6 sale of forfeited property other than seized currency. 7 4. When all forfeited property is reduced to proceeds, 8 the court may order, upon exhaustion of all appeals or at its 9 discretion, the distribution of forfeited proceeds to do any 10 of the following: 11 a. Pay restitution to the victim of the crime. 12 b. Satisfy recorded liens, mortgages, or filed security 13 interests in the forfeited property. 14 c. Pay reasonable costs for the towing, storage, 15 maintenance, repairs, advertising, sale, and other operating 16 costs related to the forfeited property. 17 d. Reimburse the seizing law enforcement agency for 18 nonpersonnel operating costs, including controlled-drug buy 19 money, related to the investigation of the crime. 20 e. Reimburse the prosecuting authority, public defender, 21 or court-appointed attorney for nonpersonnel court costs, 22 including filing fees, subpoenas, court reporters, and 23 transcripts. 24 5. After disbursements under subsection 4, the court may 25 reimburse actual costs of up to one hundred thousand dollars by 26 ordering the disbursements of: 27 a. Up to fifty percent of remaining funds to reimburse the 28 seizing law enforcement agency for the salaries, benefits, and 29 overtime pay of uniformed personnel expended in the seizure of 30 the property and investigation of the crime. 31 b. Up to twenty-five percent of the remaining funds to 32 reimburse the prosecuting authority for the salaries, benefits, 33 and overtime pay expended in the prosecution of the crime and 34 forfeiture proceeding. 35 -18- LSB 5069YC (5) 90 cm/jh 18/ 30

H.F. _____ c. Up to twenty-five percent of the remaining funds to 1 reimburse the public defense or the fund to pay court-appointed 2 counsel for the salaries, benefits, and overtime pay expended 3 in the defense of the criminal defendant and forfeiture 4 proceeding. 5 6. After disbursements under subsections 4 and 5, the 6 court may order the remaining funds be disbursed to any of the 7 following: 8 a. The general fund of the state. 9 b. The department of public safety to supplement existing 10 statewide grants to law enforcement agencies for the purchases 11 of equipment. 12 c. The prosecuting agency for uses other than reimbursement 13 of salaries, benefits, and overtime pay of personnel associated 14 with the criminal prosecution of the case. 15 d. To the public defender for uses other than reimbursement 16 of salaries, benefits, and overtime pay of personnel associated 17 with the criminal defense of the case. 18 Sec. 34. NEW SECTION . 809B.34 Sale restrictions. 19 A law enforcement agency shall not sell forfeited property 20 directly or indirectly to any employee of the law enforcement 21 agency, to a person related to an employee of the law 22 enforcement agency within the third degree of consanguinity or 23 affinity, or to another law enforcement agency. 24 Sec. 35. NEW SECTION . 809B.35 Preemption. 25 This chapter preempts laws by township, municipal, county 26 and other governments in the state which regulate civil and 27 criminal forfeiture. 28 Sec. 36. NEW SECTION . 809B.36 Limitation on federal 29 adoption. 30 1. A law enforcement agency shall not transfer or offer for 31 adoption property, seized under state law, to a federal agency 32 for the purpose of forfeiture under 18 U.S.C. ch. 46, or other 33 federal law. 34 2. Subsection 1 shall only apply to a seizure by law 35 -19- LSB 5069YC (5) 90 cm/jh 19/ 30

H.F. _____ enforcement agency pursuant to a law enforcement agency 1 authority under state law and without involvement of the 2 federal government. Subsection 1 shall not be construed to 3 limit a law enforcement agency from participating in joint task 4 forces with the federal government. 5 3. A law enforcement agency shall not accept payment of any 6 kind or distribution of forfeiture proceeds from the federal 7 government. All such forfeiture proceeds shall be directed to 8 the general fund of the state. 9 Sec. 37. NEW SECTION . 809B.37 Limitation on state and 10 federal joint task forces. 11 1. Except as allowed for in subsection 2, a joint task force 12 of a law enforcement agency and a federal agency shall transfer 13 seized property to the prosecuting authority for forfeiture 14 under this chapter. 15 2. The joint task force may transfer seized property to 16 the United States department of justice for forfeiture under 17 federal law if the seized property includes United States 18 currency that exceeds twenty-five thousand dollars. 19 3. A law enforcement agency shall not accept payment 20 or distribution of any kind from the federal government if 21 the federal government requires seized property less than 22 twenty-five thousand dollars to be transferred to the federal 23 government for forfeiture under federal law. 24 4. Subsections 1 and 2 shall not be construed to prohibit 25 the federal government, acting alone, from seizing property and 26 seeking forfeiture under federal law. 27 Sec. 38. NEW SECTION . 809B.38 Guidance. 28 1. A prosecuting authority, after consulting with the 29 responsible United States attorney, shall establish guidelines 30 for joint task forces and multijurisdictional collaboration in 31 the prosecuting authority’s jurisdiction. The guidelines shall 32 be consistent with federal safeguards to ensure that activities 33 are conducted in compliance with the United States department 34 of justice policies. 35 -20- LSB 5069YC (5) 90 cm/jh 20/ 30