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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY EICHELBERGER, RAFFERTY, ORIE, M. WHITE, STACK, FOLMER AND GREENLEAF, NOVEMBER 8, 2010 |
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| REFERRED TO JUDICIARY, NOVEMBER 8, 2010 |
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| AN ACT |
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1 | Amending Titles 42 (Judiciary and Judicial Procedure) and 61 |
2 | (Prisons and Parole) of the Pennsylvania Consolidated |
3 | Statutes, in other criminal provisions, further providing for |
4 | supervisory relationship to offenders; and, in Pennsylvania |
5 | Board of Probation and Parole, further providing for |
6 | supervisory relationship to offenders. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | Section 1. Section 9912 of Title 42 of the Pennsylvania |
10 | Consolidated Statutes is amended by adding a subsection to read: |
11 | § 9912. Supervisory relationship to offenders. |
12 | * * * |
13 | (e.1) Forfeiture of seized items.-- |
14 | (1) To protect the public from its illicit introduction, |
15 | use or movement, all contraband which is seized from an |
16 | offender shall be subject to forfeiture, and no property |
17 | right shall exist in it, except as otherwise provided in this |
18 | section. |
19 | (2) Contraband seized under this section shall not be |
20 | subject to replevin, but shall be deemed to be in the custody |
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1 | of the county adult probation and parole department. The |
2 | county adult probation and parole department shall tag and |
3 | secure the contraband at a place designated by it for such |
4 | time as is necessary to secure its use as evidence in a |
5 | revocation or criminal proceeding. In no event shall the |
6 | county adult probation and parole department retain the |
7 | property for a period of less than 180 days after the hearing |
8 | conducted under paragraph (4). |
9 | (3) No later than the time of the first hearing to |
10 | determine whether probable cause exists to believe that a |
11 | violation of probation or parole has been committed, also |
12 | known as the "Gagnon I" hearing, the county adult probation |
13 | and parole department shall provide notice to the offender |
14 | that it intends to seek forfeiture under this section. If the |
15 | probable cause hearing is waived, or there is a new criminal |
16 | charge arising from the incident which included the seizure |
17 | of the property, then notice under this paragraph shall be |
18 | given at least five days prior to the hearing under paragraph |
19 | (4) or the date scheduled for final disposition of the |
20 | criminal case. The notice shall inform the offender of the |
21 | right to challenge the forfeiture, the right to waive |
22 | challenges to forfeiture or to provide information that |
23 | someone other than the offender is the true owner of the |
24 | property. The county adult probation and parole department |
25 | shall also provide the same notice to all persons known by it |
26 | to possess a claim of ownership or lien against the property. |
27 | (4) The determination of whether property is contraband |
28 | which shall be forfeited shall take place at the hearing held |
29 | to determine by a preponderance of the evidence that a |
30 | violation has occurred, also known as the "Gagnon II" |
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1 | hearing. At the time of the hearing, if the county adult |
2 | probation and parole department produces evidence that the |
3 | contraband seized was unlawfully possessed or otherwise |
4 | subject to forfeiture under paragraph (1), the burden shall |
5 | be upon the offender or other claimant to show that the |
6 | contraband was lawfully acquired and possessed by the |
7 | offender, or that the unlawful use or possession by the |
8 | offender was without the claimant's knowledge or consent. No |
9 | property shall be forfeited under this section to the extent |
10 | of the interest of an owner or lienholder other than the |
11 | offender who establishes that the acts or omissions of the |
12 | offender with regard to the property were committed or |
13 | omitted without the knowledge or consent of the owner. The |
14 | determination regarding forfeiture of contraband shall be |
15 | contained in any findings or order issued in connection with |
16 | the hearing and shall be public record. |
17 | (5) If it has been determined that property is |
18 | contraband which shall be forfeited, the contraband shall be |
19 | retained by the county adult probation and parole department |
20 | for a period of at least 180 calendar days to provide an |
21 | opportunity for any additional parties to assert a claim of |
22 | ownership or lienhold interest in the contraband. If the |
23 | county adult probation and parole department receives notice |
24 | of such a claim, the claimant or claimants shall be provided |
25 | a hearing pursuant to paragraph (4). |
26 | (6) Whenever contraband is forfeited under this |
27 | subchapter, title to the contraband shall be transferred to |
28 | the county adult probation and parole department. After the |
29 | expiration of the necessary time period, the county adult |
30 | probation and parole department shall be entitled to any or |
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1 | all of the following: |
2 | (i) Retain the contraband for official use. |
3 | (ii) Destroy the contraband. |
4 | (iii) Donate the contraband to a nonprofit |
5 | organization or governmental entity. |
6 | (iv) Sell any forfeited contraband which is not |
7 | required to be destroyed by law. |
8 | (v) If the item is of de minimus value, as |
9 | determined by the county adult probation and parole |
10 | department, dispose of, without sale. |
11 | (7) The county treasurer of each county shall establish |
12 | and administer a community correction forfeiture fund |
13 | consisting of all cash or proceeds obtained under this |
14 | section. The county treasurer shall disburse money from this |
15 | fund only at the discretion of the president judge of the |
16 | court of common pleas. |
17 | (8) Cash or proceeds generated by the sale of any |
18 | forfeited contraband shall first be made available to satisfy |
19 | any restitution owed by the offender to crime victims who are |
20 | known at the time of the seizure by the Pennsylvania |
21 | Commission on Crime and Delinquency's Office of Victim |
22 | Services or by the courts of the Commonwealth where the |
23 | offender was sentenced. Any funds not used to satisfy crime |
24 | victim restitution obligations shall be transferred to |
25 | community corrections forfeiture fund pursuant to this |
26 | section. |
27 | (9) The county adult probation and parole department and |
28 | its employees shall be immune from liability for good faith |
29 | conduct under this section. |
30 | (10) The Pennsylvania Board of Probation and Parole may |
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1 | enact regulations which are necessary to implement this |
2 | subsection on a uniform basis throughout this Commonwealth. |
3 | If regulations are promulgated, a county adult probation and |
4 | parole department must comply with the regulations. |
5 | (11) The provisions set forth in this subsection shall |
6 | apply to all contraband seized after the effective date of |
7 | this subsection. |
8 | * * * |
9 | Section 2. Section 6153 of Title 61 is amended by adding a |
10 | subsection to read: |
11 | § 6153. Supervisory relationship to offenders. |
12 | * * * |
13 | (g) Forfeiture of seized items.-- |
14 | (1) To protect the public from its illicit introduction, |
15 | use or movement, all contraband which is seized from an |
16 | offender shall be subject to forfeiture, and no property |
17 | right shall exist in it, except as otherwise provided in this |
18 | section. |
19 | (2) Contraband seized under this section shall not be |
20 | subject to replevin, but shall be deemed to be in the custody |
21 | of the board. The board shall tag and secure the contraband |
22 | at a place designated by it for such time as is necessary to |
23 | secure its use as evidence in a revocation or criminal |
24 | proceeding. In no event shall the board retain the property |
25 | for a period of less than 180 days after the hearing |
26 | conducted under paragraph (4). |
27 | (3) No later than the time of the first hearing to |
28 | determine whether probable cause exists to believe that a |
29 | violation of probation or parole has been committed, also |
30 | known as the "Gagnon I" hearing, the board shall provide |
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1 | notice to the offender that it intends to seek forfeiture |
2 | under this section. If the probable cause hearing is waived, |
3 | or there is a new criminal charge arising from the incident |
4 | which included the seizure of the property, then notice under |
5 | this paragraph shall be given at least five days prior the |
6 | hearing under paragraph (4) or the date scheduled for final |
7 | disposition of the criminal case. The notice shall inform the |
8 | offender of the right to challenge the forfeiture, the right |
9 | to waive challenges to forfeiture or to provide information |
10 | that someone other than the offender is the true owner of the |
11 | property. The board shall also provide the same notice to all |
12 | persons known by it to possess a claim of ownership or lien |
13 | against the property. |
14 | (4) The determination of whether property is contraband |
15 | which shall be forfeited shall take place at the hearing held |
16 | to determine by a preponderance of the evidence that a |
17 | violation has occurred, also known as the "Gagnon II" |
18 | hearing. At the time of the hearing, if the board produces |
19 | evidence that the contraband seized was unlawfully possessed |
20 | or otherwise subject to forfeiture under paragraph (1), the |
21 | burden shall be upon the offender or other claimant to show |
22 | that the contraband was lawfully acquired and possessed by |
23 | the offender, or that the unlawful use or possession by the |
24 | offender was without the claimant's knowledge or consent. No |
25 | property shall be forfeited under this section to the extent |
26 | of the interest of an owner or lienholder other than the |
27 | offender who establishes that the acts or omissions of the |
28 | offender with regard to the property were committed or |
29 | omitted without the knowledge or consent of the owner. The |
30 | hearing shall be conducted in accordance with the provisions |
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1 | of 1 Pa. Code Pt.II (relating to general rules of |
2 | administrative practice and procedure) unless the board has |
3 | adopted regulations, policies or procedures to the contrary |
4 | under this section. The determination regarding forfeiture of |
5 | contraband shall be contained in any findings or order issued |
6 | in connection with the hearing and shall be public record. |
7 | (5) If it has been determined that property is |
8 | contraband which shall be forfeited, the contraband shall be |
9 | retained by the board for a period of at least 180 calendar |
10 | days to provide an opportunity for any additional parties to |
11 | assert a claim of ownership or lienhold interest in the |
12 | contraband. If the board receives notice of such a claim, the |
13 | claimant or claimants shall be provided a hearing pursuant to |
14 | paragraph (4). |
15 | (6) Whenever contraband is forfeited under this |
16 | subchapter, title to the contraband shall be transferred to |
17 | the board. After the expiration of the necessary time period, |
18 | the board shall be entitled to do any or all of the |
19 | following: |
20 | (i) Retain the contraband for official use. |
21 | (ii) Destroy the contraband. |
22 | (iii) Donate the contraband to a nonprofit |
23 | organization or governmental entity. |
24 | (iv) Sell any forfeited contraband which is not |
25 | required to be destroyed by law. |
26 | (v) If the item is of de minimus value, as |
27 | determined by the board, dispose of, without sale. |
28 | (7) The board shall establish and administer a |
29 | contraband forfeiture account consisting of all cash or |
30 | proceeds obtained under this section. |
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1 | (8) Cash or proceeds generated by the sale of any |
2 | forfeited contraband and placed in the contraband forfeiture |
3 | account shall first be made available to satisfy any |
4 | restitution owed by the offender to crime victims who are |
5 | known at the time of the seizure by the Pennsylvania |
6 | Commission on Crime and Delinquency's Office of Victim |
7 | Services or by the courts of the Commonwealth where the |
8 | offender was sentenced. Any funds not used to satisfy crime |
9 | victim restitution obligations shall be made available to the |
10 | board pursuant to this section as a budget augmentation of |
11 | the operating funds of the board. |
12 | (9) The board and its employees shall be immune from |
13 | liability for good faith conduct under this section. |
14 | (10) The board may enact regulations which are necessary |
15 | to implement this subsection for its agents and for use by |
16 | county adult probation and parole departments on a uniform |
17 | basis throughout this Commonwealth. |
18 | (11) The provisions set forth in this subsection shall |
19 | apply to all contraband seized after the effective date of |
20 | this subsection. |
21 | Section 3. This act shall take effect in 60 days. |
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