CHAPTER 1. FORFEITURE OF PROPERTY USED IN VIOLATION OF CERTAIN CRIMINAL STATUTES
IC 34-24
ARTICLE 24. CIVIL PROCEEDINGS RELATED TOCRIMINAL ACTIVITIES
IC 34-24-1
Chapter 1. Forfeiture of Property Used in Violation of CertainCriminal Statutes
IC 34-24-1-1
Seizure of vehicles and property commonly used as considerationfor controlled substances offenses; seizure of tobacco products andpersonal property owned and used to facilitate violation
Sec. 1. (a) The following may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used orare intended for use by the person or persons in possession ofthem to transport or in any manner to facilitate thetransportation of the following:
(A) A controlled substance for the purpose of committing,attempting to commit, or conspiring to commit any of thefollowing:
(i) Dealing in or manufacturing cocaine or a narcotic drug(IC 35-48-4-1).
(ii) Dealing in methamphetamine (IC 35-48-4-1.1).
(iii) Dealing in a schedule I, II, or III controlled substance(IC 35-48-4-2).
(iv) Dealing in a schedule IV controlled substance (IC35-48-4-3).
(v) Dealing in a schedule V controlled substance (IC35-48-4-4).
(vi) Dealing in a counterfeit substance (IC 35-48-4-5).
(vii) Possession of cocaine or a narcotic drug (IC35-48-4-6).
(viii) Possession of methamphetamine (IC 35-48-4-6.1).
(ix) Dealing in paraphernalia (IC 35-48-4-8.5).
(x) Dealing in marijuana, hash oil, or hashish (IC35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property (IC35-43-4-3) if the retail or repurchase value of that propertyis one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-10-1.5.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon ofmass destruction (as defined in IC 35-41-1-29.4) used tocommit, used in an attempt to commit, or used in aconspiracy to commit an offense under IC 35-47 as part of orin furtherance of an act of terrorism (as defined byIC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons,communications devices, or any property used to commit, usedin an attempt to commit, or used in a conspiracy to commit an
offense under IC 35-47 as part of or in furtherance of an act ofterrorism or commonly used as consideration for a violation ofIC 35-48-4 (other than items subject to forfeiture underIC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person inexchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminalstatute.
(3) Any portion of real or personal property purchased withmoney that is traceable as a proceed of a violation of a criminalstatute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminalconfinement (IC 35-42-3-3), rape (IC 35-42-4-1), childmolesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4),or an offense under IC 35-47 as part of or in furtherance of anact of terrorism.
(5) Real property owned by a person who uses it to commit anyof the following as a Class A felony, a Class B felony, or aClass C felony:
(A) Dealing in or manufacturing cocaine or a narcotic drug(IC 35-48-4-1).
(B) Dealing in methamphetamine (IC 35-48-4-1.1).
(C) Dealing in a schedule I, II, or III controlled substance (IC35-48-4-2).
(D) Dealing in a schedule IV controlled substance (IC35-48-4-3).
(E) Dealing in marijuana, hash oil, or hashish (IC35-48-4-10).
(6) Equipment and recordings used by a person to commit fraudunder IC 35-43-5-4(10).
(7) Recordings sold, rented, transported, or possessed by aperson in violation of IC 24-4-10.
(8) Property (as defined by IC 35-41-1-23) or an enterprise (asdefined by IC 35-45-6-1) that is the object of a corrupt businessinfluence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined inIC 35-45-13-6) and plans, instructions, or publications used tocommit an offense under IC 35-45-13.
(10) Any equipment, including computer equipment andcellular telephones, used for or intended for use in preparing,photographing, recording, videotaping, digitizing, printing,copying, or disseminating matter in violation of IC 35-42-4.
(11) Destructive devices used, possessed, transported, or soldin violation of IC 35-47.5.
(12) Tobacco products that are sold in violation of IC 24-3-5,
tobacco products that a person attempts to sell in violation ofIC 24-3-5, and other personal property owned and used by aperson to facilitate a violation of IC 24-3-5.
(13) Property used by a person to commit counterfeiting orforgery in violation of IC 35-43-5-2.
(14) After December 31, 2005, if a person is convicted of anoffense specified in IC 25-26-14-26(b) or IC 35-43-10, thefollowing real or personal property:
(A) Property used or intended to be used to commit,facilitate, or promote the commission of the offense.
(B) Property constituting, derived from, or traceable to thegross proceeds that the person obtained directly or indirectlyas a result of the offense.
(15) Except as provided in subsection (e), a motor vehicle usedby a person who operates the motor vehicle:
(A) while intoxicated, in violation of IC 9-30-5-1 throughIC 9-30-5-5, if in the previous five (5) years the person hastwo (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated inviolation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar toIC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction; or
(B) on a highway while the person's driver's license issuspended in violation of IC 9-24-19-2 throughIC 9-24-19-4, if in the previous five (5) years the person hastwo (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated inviolation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar toIC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction.
If a court orders the seizure of a motor vehicle under thissubdivision, the court shall transmit an order to the bureau ofmotor vehicles recommending that the bureau not permit amotor vehicle to be registered in the name of the person whosemotor vehicle was seized until the person possesses a currentdriving license (as defined in IC 9-13-2-41).
(16) The following real or personal property:
(A) Property used or intended to be used to commit,facilitate, or promote the commission of an offense specifiedin IC 23-14-48-9, IC 30-2-9-7(b), IC 30-2-10-9(b), orIC 30-2-13-38(f).
(B) Property constituting, derived from, or traceable to thegross proceeds that a person obtains directly or indirectly asa result of an offense specified in IC 23-14-48-9,IC 30-2-9-7(b), IC 30-2-10-9(b), or IC 30-2-13-38(f).
(b) A vehicle used by any person as a common or contract carrierin the transaction of business as a common or contract carrier is notsubject to seizure under this section, unless it can be proven by apreponderance of the evidence that the owner of the vehicleknowingly permitted the vehicle to be used to engage in conduct that
subjects it to seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unlessit can be proven by a preponderance of the evidence that the ownerof the equipment knowingly permitted the equipment to be used toengage in conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,communications devices, or any property commonly used asconsideration for a violation of IC 35-48-4 found near or on a personwho is committing, attempting to commit, or conspiring to commitany of the following offenses shall be admitted into evidence in anaction under this chapter as prima facie evidence that the money,negotiable instrument, security, or other thing of value is propertythat has been used or was to have been used to facilitate the violationof a criminal statute or is the proceeds of the violation of a criminalstatute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine or anarcotic drug).
(2) IC 35-48-4-1.1 (dealing in methamphetamine).
(3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlledsubstance).
(4) IC 35-48-4-3 (dealing in a schedule IV controlledsubstance).
(5) IC 35-48-4-4 (dealing in a schedule V controlled substance)as a Class B felony.
(6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) asa Class A felony, Class B felony, or Class C felony.
(7) IC 35-48-4-6.1 (possession of methamphetamine) as a ClassA felony, Class B felony, or Class C felony.
(8) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) asa Class C felony.
(e) A motor vehicle operated by a person who is not:
(1) an owner of the motor vehicle; or
(2) the spouse of the person who owns the motor vehicle;
is not subject to seizure under subsection (a)(15) unless it can beproven by a preponderance of the evidence that the owner of thevehicle knowingly permitted the vehicle to be used to engage inconduct that subjects it to seizure under subsection (a)(15).
As added by P.L.1-1998, SEC.19. Amended by P.L.17-2001, SEC.9;P.L.3-2002, SEC.1; P.L.123-2002, SEC.30; P.L.117-2003, SEC.2;P.L.253-2003, SEC.2; P.L.45-2005, SEC.1; P.L.160-2005, SEC.17;P.L.181-2005, SEC.4; P.L.212-2005, SEC.75; P.L.1-2006, SEC.518;P.L.94-2006, SEC.11; P.L.151-2006, SEC.13; P.L.137-2007,SEC.34; P.L.114-2008, SEC.27; P.L.119-2008, SEC.13; P.L.1-2009,SEC.162; P.L.143-2009, SEC.44.
IC 34-24-1-2
Seizure procedure; custody
Sec. 2. (a) Property may be seized under this chapter by a lawenforcement officer only if:
(1) the seizure is incident to a lawful: (A) arrest;
(B) search; or
(C) administrative inspection;
(2) the property has been the subject of a prior judgment infavor of the state or unit in a proceeding under this chapter (orIC 34-4-30.1 before its repeal); or
(3) a court, after making an ex parte determination that there isprobable cause to believe the property is subject to seizureunder this chapter, issues an order for seizure.
(b) When property is seized under subsection (a), the lawenforcement agency making the seizure may, pending finaldisposition:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody ofthe property and remove it to an appropriate location.
(c) Property that is seized under subsection (a) (orIC 34-4-30.1-2(a) before its repeal) is not subject to replevin but isconsidered to be in the custody of the law enforcement agencymaking the seizure.
As added by P.L.1-1998, SEC.19.
IC 34-24-1-3
Action for reimbursement of law enforcement costs and forfeiture;procedure
Sec. 3. (a) The prosecuting attorney for the county in which theseizure occurs may, within ninety (90) days after receiving writtennotice from the owner demanding return of the seized property orwithin one hundred eighty (180) days after the property is seized,whichever occurs first, cause an action for reimbursement of lawenforcement costs and forfeiture to be brought by filing a complaintin the circuit, superior, or county court in the jurisdiction where theseizure occurred. The action must be brought:
(1) in the name of the state or the state and the unit thatemployed the law enforcement officers who made the seizureif the state was not the employer; and
(2) within the period that a prosecution may be commencedunder IC 35-41-4-2 for the offense that is the basis for theseizure.
(b) If the property seized was a vehicle or real property, theprosecuting attorney shall serve, under the Indiana Rules of TrialProcedure, a copy of the complaint upon each person whose right,title, or interest is of record in the bureau of motor vehicles, in thecounty recorder's office, or other office authorized to receive orrecord vehicle or real property ownership interests.
(c) The owner of the seized property, or any person whose right,title, or interest is of record may, within twenty (20) days afterservice of the complaint under the Indiana Rules of Trial Procedure,file an answer to the complaint and may appear at the hearing on theaction. (d) If, at the end of the time allotted for an answer, there is noanswer on file, the court, upon motion, shall enter judgment in favorof the state and the unit (if appropriate) for reimbursement of lawenforcement costs and shall order the property disposed of inaccordance with section 4 of this chapter.
As added by P.L.1-1998, SEC.19.
IC 34-24-1-4
Hearing; burden of proof; disposition of seized property
Sec. 4. (a) At the hearing, the prosecuting attorney must show bya preponderance of the evidence that the property was within thedefinition of property subject to seizure under section 1 of thischapter. If the property seized was a vehicle, the prosecuting attorneymust also show by a preponderance of the evidence that a personwho has an ownership interest of record in the bureau of motorvehicles knew or had reason to know that the vehicle was being usedin the commission of the offense.
(b) If the prosecuting attorney fails to meet the burden of proof,the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state, or the stateand a unit (if appropriate), the court, subject to section 5 of thischapter, shall order delivery to the law enforcement agency thatseized the property. The court's order may permit the agency to usethe property for a period not to exceed three (3) years. However, theorder must require that, after the period specified by the court, thelaw enforcement agency shall deliver the property to the countysheriff for public sale.
(d) If the court enters judgment in favor of the state, or the stateand a unit (if appropriate), the court shall, subject to section 5 of thischapter:
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) the property, if it is not money or real property, be soldunder section 6 of this chapter, by the sheriff of the countyin which the property was seized, and if the property is avehicle, this sale must occur after any period of use specifiedin subsection (c);
(B) the property, if it is real property, be sold in the samemanner as real property is sold on execution underIC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unitthat employed the law enforcement officers that seized theproperty; or
(ii) deposited in the general fund of a unit if the propertywas seized by a local law enforcement agency of the unitfor an offense, an attempted offense, or a conspiracy tocommit an offense under IC 35-47 as part of or infurtherance of an act of terrorism; and
(D) any excess in value of the proceeds or the money over
the law enforcement costs be forfeited and transferred to thetreasurer of state for deposit in the common school fund.
(e) If property that is seized under this chapter (or IC 34-4-30.1-4before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section3 of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (orIC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish anownership interest of record as a bona fide purchaser for value. Aperson is a bona fide purchaser for value under this section if theperson, at the time of the transfer, did not have reasonable cause tobelieve that the property was subject to forfeiture under this chapter.
(f) If the property seized was an unlawful telecommunicationsdevice (as defined in IC 35-45-13-6) or plans, instructions, orpublications used to commit an offense under IC 35-45-13, the courtmay order the sheriff of the county in which the person wasconvicted of an offense under IC 35-45-13 to destroy as contrabandor to otherwise lawfully dispose of the property.
As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002,SEC.31.
IC 34-24-1-5
Determination of secured interest and appraised value; dispositionof property; payment
Sec. 5. (a) If:
(1) the court has entered judgment in favor of the state, and aunit (if appropriate) concerning property that is subject toseizure under this chapter; and
(2) a person:
(A) holding a valid lien, mortgage, security interest, orinterest under a conditional sales contract; or
(B) who is a co-owner of the property;
did not know of the illegal use;
the court shall determine whether the secured interest or theco-owner's interest is equal to or in excess of the appraised value ofthe property.
(b) Appraised value is to be determined as of the date of judgmenton a wholesale basis by:
(1) agreement between the secured party or the co-owner andthe prosecuting attorney; or
(2) the inheritance tax appraiser for the county in which theaction is brought.
(c) If the amount:
(1) due to the secured party; or
(2) of the co-owner's interest;
is equal to or greater than the appraised value of the property, thecourt shall order the property released to the secured party or theco-owner.
(d) If the amount: (1) due the secured party; or
(2) of the co-owner's interest;
is less than the appraised value of the property, the holder of theinterest or the co-owner may pay into the court an amount equal tothe owner's equity, which shall be the difference between theappraised value and the amount of the lien, mortgage, securityinterest, interest under a conditional sales contract, or co-owner'sinterest. Upon such payment, the state or unit, or both, shallrelinquish all claims to the property, and the court shall order thepayment deposited as provided in section 4(d) of this chapter.
(e) If the seized property is a vehicle and if the security holder orthe co-owner elects not to make payment as stated in subsection (d),the vehicle shall be disposed of in accordance with section 4(c) ofthis chapter.
As added by P.L.1-1998, SEC.19.
IC 34-24-1-6
Public sale of property; publication of notice; proceeds
Sec. 6. (a) Where disposition of property is to be made at a publicsale, notice of sale shall be published in accordance with IC 34-55-6.
(b) When property is sold at a public sale under this chapter, theproceeds shall be distributed in the following order:
(1) First, to the sheriff of the county for all expenditures madeor incurred in connection with the sale, including storage,transportation, and necessary repair.
(2) Second, to any person:
(A) holding a valid lien, mortgage, land contract, or interestunder a conditional sales contract or the holder of other suchinterest; or
(B) who is a co-owner and has an ownership interest;
up to the amount of that person's interest as determined by thecourt.
(3) The remainder, if any, shall be transferred by the sheriff tothe appropriate fund as ordered by the court in section 4(d) ofthis chapter.
As added by P.L.1-1998, SEC.19.
IC 34-24-1-7
Court order; filing; effect
Sec. 7. (a) If the property seized was a vehicle, a copy of thecourt's order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the department of motor vehicles or otherappropriate agency; and
(2) constitutes authority for the issuance of clear title to thatvehicle in the name of the person or purchaser to whom theorder authorizes delivery.
(b) If the property seized was real property, a copy of the court'sorder under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the county recorder; and
(2) constitutes authority for: (A) the sale of the property in the manner provided underIC 34-55-6; and
(B) the issuance of clear title to a bona fide purchaser forvalue who acquires the real property at the sale.
As added by P.L.1-1998, SEC.19.
IC 34-24-1-8
Retention of attorney to bring action
Sec. 8. (a) A prosecuting attorney may retain an attorney to bringan action under this chapter.
(b) An attorney retained under this section is not required to be adeputy prosecuting attorney but must be admitted to the practice oflaw in Indiana.
As added by P.L.1-1998, SEC.19.
IC 34-24-1-9
Disposition of seized property; expenditures of money
Sec. 9. (a) Upon motion of a prosecuting attorney underIC 35-33-5-5(j), property seized under this chapter must betransferred, subject to the perfected liens or other security interestsof any person in the property, to the appropriate federal authority fordisposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.881(e) and any related regulations adopted by the United StatesDepartment of Justice.
(b) Money received by a law enforcement agency as a result of aforfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.881(e) and any related regulations adopted by the United StatesDepartment of Justice must be deposited into a nonreverting fundand may be expended only with the approval of:
(1) the executive (as defined in IC 36-1-2-5), if the money isreceived by a local law enforcement agency; or
(2) the governor, if the money is received by a law enforcementagency in the executive branch.
The money received under this subsection must be used solely for thebenefit of any agency directly participating in the seizure orforfeiture for purposes consistent with federal laws and regulations.
As added by P.L.174-1999, SEC.1. Amended by P.L.97-2004,SEC.115.