BILL NUMBER: AB 639 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 6, 2012
AMENDED IN ASSEMBLY MAY 27, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Norby
FEBRUARY 16, 2011
An act to amend Sections Section
11471 and 11495 of, and to add Section 11471.2 to,
the Health and Safety Code, relating to controlled substances.
LEGISLATIVE COUNSEL'S DIGEST
AB 639, as amended, Norby. Controlled substances.
Existing law provides that in all cases where property used or
intended to be used to facilitate any violation of specified
controlled substance offenses is seized and forfeited to a state or
local governmental entity and, where necessary, sold, the moneys
forfeited or the proceeds of sale shall be distributed by the state
or local governmental entity to specified persons or entities for
specified purposes, including for the purpose of combating drug
abuse.
Existing law, the Uniform Controlled Substances Act, includes
provisions authorizing the seizure and forfeiture of property
involved in, or purchased with the proceeds from, a controlled
substance offense.
This bill would provide that property is deemed to be seized
whenever any agency takes possession or control of it. The bill would
add provisions that provide that seizing agencies or prosecuting
attorneys authorized to bring civil forfeiture proceedings shall not
directly or indirectly transfer seized property, including any
property seized by state or local law enforcement officers who are
detached to, deputized or commissioned by, or working in conjunction
with, a federal agency to any federal agency or any governmental
entity not created under and subject to state law, unless the court
enters an order, as specified, authorizing the property to be
transferred. The bill would provide that , where a state
or local agency transfers seized property to any federal agency for
forfeiture in violation of these provisions, the state or local
agency shall be liable to the state in an action brought by the
Attorney General or a private attorney for 24% of the
proceeds received by the state or local agency from the federal
government and would provide that the funds would be
required , to be deposited in the General Fund
for expenditure, upon appropriation by the Legislature, for drug
prevention and treatment services , and would authorize the
recovery of the costs of the suit by the Attorney General or the
private attorney .
Existing law provides that each year the Attorney General shall
publish a report that sets forth specified information regarding
forfeiture actions.
This bill would provide that the report shall be published in book
form and made publicly accessible by electronic means, if feasible,
and shall include other specified information.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11471 of the Health and Safety Code is amended
to read:
11471. Property is deemed to be seized whenever any agency takes
possession or control of it. Property subject to forfeiture under
this division may be seized by any peace officer upon process issued
by any court having jurisdiction over the property. Seizure without
process may be made if any of the following situations exist:
(a) The seizure is incident to an arrest or a search under a
search warrant.
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a criminal injunction or
forfeiture proceeding based upon this division.
(c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used
or is intended to be used in violation of this division.
(e) Real property subject to forfeiture may not be seized, absent
exigent circumstances, without notice to the interested parties and a
hearing to determine that seizure is necessary to preserve the
property pending the outcome of the proceedings. At the hearing, the
prosecution shall bear the burden of establishing that probable cause
exists for the forfeiture of the property and that seizure is
necessary to preserve the property pending the outcome of the
forfeiture proceedings. The court may issue seizure orders pursuant
to this section if it finds that seizure is warranted or pendente
lite orders pursuant to Section 11492 if it finds that the status quo
or value of the property can be preserved without seizure.
(f) Where business records are seized in conjunction with the
seizure of property subject to forfeiture, the seizing agency shall,
upon request, provide copies of the records to the person, persons,
or business entity from whom the records were seized.
SECTION 1. SEC. 2. Section 11471.2
is added to the Health and Safety Code, to read:
11471.2. (a) Any property seized by state or local law
enforcement officers who are detached to, deputized or commissioned
by, or working in conjunction with, a federal agency shall remain
subject to the provisions of this section.
(b) (1) Seizing agencies or prosecuting attorneys authorized to
bring civil forfeiture proceedings under this chapter shall not
directly or indirectly transfer seized property to any federal agency
or any governmental entity not created under and subject to state
law, unless the court enters an order, upon petition of the
prosecuting attorney, authorizing the property to be transferred.
(2) Where a state or local agency transfers seized property to any
federal agency for forfeiture, directly or indirectly, in violation
of this subdivision, the state or local agency shall be liable to the
state in any action brought by the Attorney General or a
private attorney in an amount equal to 24 percent of the
proceeds received by the state or local agency from the federal
agency. Moneys awarded in the action shall be deposited in the
General Fund for allocation pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 11489 of the Health and Safety
Code. The Attorney General or private attorney may recover
the cost of suit in this type of action.
(c) The court may not enter an order authorizing a transfer unless
one of the following conditions exists:
(1) It reasonably appears that the activity giving rise to the
investigation or seizure is interstate in nature and sufficiently
complex to justify a transfer.
(2) The seized property may only be forfeited under federal law.
(3) Pursuing forfeiture under state law would unduly burden
prosecuting attorneys or state law enforcement agencies.
(d) Prior to entering any order to transfer property pursuant to
this section, the court shall provide the owner of the property a
right to be heard with respect to that transfer.
SEC. 2. Section 11495 of the Health and Safety
Code is amended to read:
11495. (a) The funds received by the law enforcement agencies
under Section 11489 shall be deposited into an account maintained by
the Controller, county auditor, or city treasurer. These funds shall
be distributed to the law enforcement agencies at their request. The
Controller, auditor, or treasurer shall maintain a record of these
disbursements which records shall be open to public inspection,
subject to the privileges contained in Sections 1040, 1041, and 1042
of the Evidence Code.
(b) Upon request of the governing body of the jurisdiction in
which the distributions are made, the Controller, auditor, or
treasurer shall conduct an audit of these funds and their use. In the
case of the state, the governing body shall be the Legislature.
(c) Each year, the Attorney General shall publish a report, in
book form and made publicly accessible by electronic means, if
feasible, which sets forth the following information for the state,
each county, each city, and each city and county:
(1) The number of forfeiture actions initiated.
(2) The number of cases and the administrative number or court
docket number of each case for which forfeiture was ordered or
declared.
(3) The value of the assets forfeited.
(4) The recipients of the forfeited assets, the amounts received,
and the date of the disbursement.
(5) The number of forfeiture actions initiated under federal law
in which a state or local agency had a role, and a description of the
role served in each federal forfeiture action by each participating
state or local agency. The description shall include, but not be
limited to, the following information:
(A) The date of the seizure; the date of transfer of the case from
state or local authorities to federal authorities, if applicable;
and the date on which forfeiture was ordered or declared.
(B) The case number assigned to each federal forfeiture action by
federal authorities, if known.
(C) Whether the state or local agency originated information
leading to a seizure or federal forfeiture action.
(D) Whether the state or local agency supplied unique or
indispensable assistance to the federal forfeiture action, and a
description of the assistance.
(E) The number of hours expended by the state or local agency on
the case.
(F) Whether a federal agency has classified the federal forfeiture
case as a "joint" seizure and forfeiture action, or as an "adoption"
by federal authorities of a case initiated by a state or local
agency, if that federal classification is known.
(6) The value of assets forfeited under federal law in each case
in which a state or local agency had a role.
(7) The value of all shares of assets forfeited under federal law
that are returned to a state or local agency that had a role in the
federal forfeiture action, and the date of receipt of the shares.
(8) A complete description by state and local agencies that
receive assets forfeited under federal law of the purposes for which
all the forfeited assets were designated or used, and the dates of
all disbursements for each purpose.
(d) The Attorney General shall develop administrative guidelines
for the collection and publication of the information required in
subdivision (c).
(e) The Attorney General's report shall cover the calendar year
and shall be made no later than March 1 of each year beginning with
the year after the enactment of this law, except that the portion of
the report setting out the data and information required by
paragraphs (5) to (8), inclusive, of subdivision (c) shall be made no
later than March 1, 2013, and by that day every year thereafter.