60-4112.Judicial proceedings, generally.(a) A judicial forfeiture proceeding under this act is subjecttothe provisions of this section.
(b) The court, on application of the plaintiff's attorney, mayenter any restraining order or injunction, require the execution ofsatisfactory performance bonds, create receiverships, appointconservators, custodians, appraisers, accountants, or trustees, ortake any other action to seize, secure, maintain, or preserve theavailability of property subject to forfeiture under this act,including a writ of attachment or a warrant for such property's seizure,whether before or after the filing of a notice of pendingforfeiture or complaint.
(c) If property is seized for forfeiture or a forfeiture lien isfiled without a previous judicial determination of probable causeor order of forfeiture or a hearing under subsection (c) of K.S.A. 60-4114, thecourt, on an application filed by an owner ofor interest holder in the property within 10 days after notice ofthe property's seizure for forfeiture or lien, or actual knowledge of it,whichever is earlier, and after complying with the requirements forclaims in K.S.A. 60-4109, after five days' notice to theplaintiff's attorney, may issue an order to show cause to theseizing agency, for a hearing on the sole issue of whether probablecause for forfeiture of the property then exists. The hearingshall be held within 30 days of the order to show cause unlesscontinued for good cause on motion of either party. If the courtfinds that there is no probable cause for forfeiture of theproperty, or if the seizing agency elects not to contest the issue,the property shall be released to the custody of the applicant, ascustodian for the court, or from the lien pending the outcome of ajudicial proceeding pursuant to this act. If the court finds thatprobable cause for the forfeiture of the property exists, the courtshall not order the property released.
(d) All applications filed within the 10-day period prescribed bysubsection (c) shall be consolidated for a singlehearing relating to each applicant's interest in the propertyseized for forfeiture.
(e) A person charged with a criminal offense may apply at anytime before final judgment to the court where the forfeitureproceeding is pending for the release of property seized forforfeiture, that is necessary for the defense of the person'scriminal charge. The application shall satisfy the requirementsunder subsection (b) of K.S.A. 60-4111. The court shall hold aprobable cause hearing if the applicant establishes that:
(1) The person has not had an opportunity to participate in aprevious adversarial judicial determination of probable cause.
(2) The person has no access to other moneys adequate for thepayment of criminal counsel.
(3) The interest in property to be released is not subject toany claim other than the forfeiture.
(f) If the court finds that there is no probable cause forforfeiture of the property, the court shall order the propertyreleased pursuant to subsection (c). If theseizing agency does not contest the hearing, the court may releasea reasonable amount of property for the payment of the applicant'scriminal defense costs. Property that has been released by thecourt and that has been paid for criminal defense services actuallyrendered is exempt under this act.
(g) A defendant convicted in any criminal proceeding is precludedfrom later denying the essential allegations of the criminaloffense of which the defendant was convicted in any proceedingpursuant to this section. For the purposes of this section, aconviction results from a verdict or plea of guilty, including aplea of no contest or nolo contendere.
(h) In any proceeding under this act, if a claim is based on anyexemption provided for in this act, the burden of proving theexistence of the exemption is on the claimant, and is notnecessary for the seizing agency or plaintiff's attorney to negatethe exemption in any application or complaint.
(i) In hearings and determinations pursuant to this section, thecourt may receive and consider, in making any determination ofprobable cause or reasonable cause, all evidence admissible indetermining probable cause at a preliminary hearing or in theissuance of a search warrant, together with inferences therefrom.
(j) The fact that money, negotiable instruments, precious metals,communication devices, and weapons were found in close proximity tocontraband or an instrumentality of conduct giving rise toforfeiture shall give rise to the rebuttable presumption, in themanner provided in subsection (a) of K.S.A. 60-414, and amendments thereto,thatsuch item was the proceeds of conduct giving rise to forfeiture orwas used or intended to be used to facilitate the conduct.
(k) There shall be a rebuttable presumption, in the mannerprovided in subsection (a) K.S.A. 60-414, and amendments thereto, that anyproperty of a person is subject to forfeiture under this act if theseizing agency establishes, by the standard of proof applicable tothat proceeding, all of the following:
(1) The person has engaged in conduct giving rise toforfeiture;
(2) the property was acquired by the person during thatperiod of the conduct giving rise to forfeiture or within areasonable time after the period; and
(3) there was no likely source for the property other thanthe conduct giving rise to forfeiture.
(l) A finding that property is the proceeds of conduct givingrise to forfeiture does not require proof the property is theproceeds of any particular exchange or transaction.
(m) A person who acquires any property subject to forfeiture isa constructive trustee of the property, and such property's fruits, for thebenefit of the seizing agency, to the extent that such agency's interest isnot exempt from forfeiture. If property subject to forfeiture hasbeen commingled with other property, the court shall order theforfeiture of the mingled property and of any fruits of the mingledproperty, to the extent of the property subject to forfeiture,unless an owner or interest holder proves that specified propertydoes not contain property subject to forfeiture, or that such owner's orinterest holder'sinterest in specified property is exempt from forfeiture.
(n) All property declared forfeited under this act vests in thelaw enforcement agency seeking forfeiture on the date of commissionof the conduct giving rise to forfeiture together with the proceedsof the property after that time. Any such property or proceedssubsequently transferred to any person remain subject to forfeitureand thereafter shall be ordered forfeited unless the transfereeacquired the property in good faith, for value, and was notknowingly taking part in an illegal transaction, and thetransferee's interest is exempt under K.S.A. 60-4106.
(o) An acquittal or dismissal in a criminal proceeding shall notpreclude civil proceedings under this act, nor give rise to anypresumption adverse or contrary to any fact alleged by the seizingagency.
(p) On motion by the plaintiff's attorney, the court shall staydiscovery against the criminal defendant and against the seizingagency in civil proceedings during a related criminal proceedingalleging the same conduct, after making provision to prevent lossto any party resulting from the delay. Such a stay shall not beavailable pending any appeal by a defendant.
(q) Except as otherwise provided by this act, all proceedingshereunder shall be governed by the rules of civil procedurepursuant to K.S.A. 60-101 et seq., and amendments thereto.
(r) An action pursuant to this act shall be consolidated with anyother action or proceeding pursuant to this act or to such otherforeclosure or trustee sale proceedings relating to the sameproperty on motion of the plaintiff's attorney, and may beconsolidated on motion of an owner or interest holder.
(s) There shall be a rebuttable presumption, in the mannerprovided in subsection (a) of K.S.A. 60-414, and amendments thereto, that anyproperty in or upon which controlled substances are located at thetime of seizure, was being used or intended for use to facilitatean act giving rise to forfeiture.
60-4112.Judicial proceedings, generally.(a) A judicial forfeiture proceeding under this act is subjecttothe provisions of this section.
(b) The court, on application of the plaintiff's attorney, mayenter any restraining order or injunction, require the execution ofsatisfactory performance bonds, create receiverships, appointconservators, custodians, appraisers, accountants, or trustees, ortake any other action to seize, secure, maintain, or preserve theavailability of property subject to forfeiture under this act,including a writ of attachment or a warrant for such property's seizure,whether before or after the filing of a notice of pendingforfeiture or complaint.
(c) If property is seized for forfeiture or a forfeiture lien isfiled without a previous judicial determination of probable causeor order of forfeiture or a hearing under subsection (c) of K.S.A. 60-4114, thecourt, on an application filed by an owner ofor interest holder in the property within 10 days after notice ofthe property's seizure for forfeiture or lien, or actual knowledge of it,whichever is earlier, and after complying with the requirements forclaims in K.S.A. 60-4109, after five days' notice to theplaintiff's attorney, may issue an order to show cause to theseizing agency, for a hearing on the sole issue of whether probablecause for forfeiture of the property then exists. The hearingshall be held within 30 days of the order to show cause unlesscontinued for good cause on motion of either party. If the courtfinds that there is no probable cause for forfeiture of theproperty, or if the seizing agency elects not to contest the issue,the property shall be released to the custody of the applicant, ascustodian for the court, or from the lien pending the outcome of ajudicial proceeding pursuant to this act. If the court finds thatprobable cause for the forfeiture of the property exists, the courtshall not order the property released.
(d) All applications filed within the 10-day period prescribed bysubsection (c) shall be consolidated for a singlehearing relating to each applicant's interest in the propertyseized for forfeiture.
(e) A person charged with a criminal offense may apply at anytime before final judgment to the court where the forfeitureproceeding is pending for the release of property seized forforfeiture, that is necessary for the defense of the person'scriminal charge. The application shall satisfy the requirementsunder subsection (b) of K.S.A. 60-4111. The court shall hold aprobable cause hearing if the applicant establishes that:
(1) The person has not had an opportunity to participate in aprevious adversarial judicial determination of probable cause.
(2) The person has no access to other moneys adequate for thepayment of criminal counsel.
(3) The interest in property to be released is not subject toany claim other than the forfeiture.
(f) If the court finds that there is no probable cause forforfeiture of the property, the court shall order the propertyreleased pursuant to subsection (c). If theseizing agency does not contest the hearing, the court may releasea reasonable amount of property for the payment of the applicant'scriminal defense costs. Property that has been released by thecourt and that has been paid for criminal defense services actuallyrendered is exempt under this act.
(g) A defendant convicted in any criminal proceeding is precludedfrom later denying the essential allegations of the criminaloffense of which the defendant was convicted in any proceedingpursuant to this section. For the purposes of this section, aconviction results from a verdict or plea of guilty, including aplea of no contest or nolo contendere.
(h) In any proceeding under this act, if a claim is based on anyexemption provided for in this act, the burden of proving theexistence of the exemption is on the claimant, and is notnecessary for the seizing agency or plaintiff's attorney to negatethe exemption in any application or complaint.
(i) In hearings and determinations pursuant to this section, thecourt may receive and consider, in making any determination ofprobable cause or reasonable cause, all evidence admissible indetermining probable cause at a preliminary hearing or in theissuance of a search warrant, together with inferences therefrom.
(j) The fact that money, negotiable instruments, precious metals,communication devices, and weapons were found in close proximity tocontraband or an instrumentality of conduct giving rise toforfeiture shall give rise to the rebuttable presumption, in themanner provided in subsection (a) of K.S.A. 60-414, and amendments thereto,thatsuch item was the proceeds of conduct giving rise to forfeiture orwas used or intended to be used to facilitate the conduct.
(k) There shall be a rebuttable presumption, in the mannerprovided in subsection (a) K.S.A. 60-414, and amendments thereto, that anyproperty of a person is subject to forfeiture under this act if theseizing agency establishes, by the standard of proof applicable tothat proceeding, all of the following:
(1) The person has engaged in conduct giving rise toforfeiture;
(2) the property was acquired by the person during thatperiod of the conduct giving rise to forfeiture or within areasonable time after the period; and
(3) there was no likely source for the property other thanthe conduct giving rise to forfeiture.
(l) A finding that property is the proceeds of conduct givingrise to forfeiture does not require proof the property is theproceeds of any particular exchange or transaction.
(m) A person who acquires any property subject to forfeiture isa constructive trustee of the property, and such property's fruits, for thebenefit of the seizing agency, to the extent that such agency's interest isnot exempt from forfeiture. If property subject to forfeiture hasbeen commingled with other property, the court shall order theforfeiture of the mingled property and of any fruits of the mingledproperty, to the extent of the property subject to forfeiture,unless an owner or interest holder proves that specified propertydoes not contain property subject to forfeiture, or that such owner's orinterest holder'sinterest in specified property is exempt from forfeiture.
(n) All property declared forfeited under this act vests in thelaw enforcement agency seeking forfeiture on the date of commissionof the conduct giving rise to forfeiture together with the proceedsof the property after that time. Any such property or proceedssubsequently transferred to any person remain subject to forfeitureand thereafter shall be ordered forfeited unless the transfereeacquired the property in good faith, for value, and was notknowingly taking part in an illegal transaction, and thetransferee's interest is exempt under K.S.A. 60-4106.
(o) An acquittal or dismissal in a criminal proceeding shall notpreclude civil proceedings under this act, nor give rise to anypresumption adverse or contrary to any fact alleged by the seizingagency.
(p) On motion by the plaintiff's attorney, the court shall staydiscovery against the criminal defendant and against the seizingagency in civil proceedings during a related criminal proceedingalleging the same conduct, after making provision to prevent lossto any party resulting from the delay. Such a stay shall not beavailable pending any appeal by a defendant.
(q) Except as otherwise provided by this act, all proceedingshereunder shall be governed by the rules of civil procedurepursuant to K.S.A. 60-101 et seq., and amendments thereto.
(r) An action pursuant to this act shall be consolidated with anyother action or proceeding pursuant to this act or to such otherforeclosure or trustee sale proceedings relating to the sameproperty on motion of the plaintiff's attorney, and may beconsolidated on motion of an owner or interest holder.
(s) There shall be a rebuttable presumption, in the mannerprovided in subsection (a) of K.S.A. 60-414, and amendments thereto, that anyproperty in or upon which controlled substances are located at thetime of seizure, was being used or intended for use to facilitatean act giving rise to forfeiture.
60-4112.Judicial proceedings, generally.(a) A judicial forfeiture proceeding under this act is subjecttothe provisions of this section.
(b) The court, on application of the plaintiff's attorney, mayenter any restraining order or injunction, require the execution ofsatisfactory performance bonds, create receiverships, appointconservators, custodians, appraisers, accountants, or trustees, ortake any other action to seize, secure, maintain, or preserve theavailability of property subject to forfeiture under this act,including a writ of attachment or a warrant for such property's seizure,whether before or after the filing of a notice of pendingforfeiture or complaint.
(c) If property is seized for forfeiture or a forfeiture lien isfiled without a previous judicial determination of probable causeor order of forfeiture or a hearing under subsection (c) of K.S.A. 60-4114, thecourt, on an application filed by an owner ofor interest holder in the property within 10 days after notice ofthe property's seizure for forfeiture or lien, or actual knowledge of it,whichever is earlier, and after complying with the requirements forclaims in K.S.A. 60-4109, after five days' notice to theplaintiff's attorney, may issue an order to show cause to theseizing agency, for a hearing on the sole issue of whether probablecause for forfeiture of the property then exists. The hearingshall be held within 30 days of the order to show cause unlesscontinued for good cause on motion of either party. If the courtfinds that there is no probable cause for forfeiture of theproperty, or if the seizing agency elects not to contest the issue,the property shall be released to the custody of the applicant, ascustodian for the court, or from the lien pending the outcome of ajudicial proceeding pursuant to this act. If the court finds thatprobable cause for the forfeiture of the property exists, the courtshall not order the property released.
(d) All applications filed within the 10-day period prescribed bysubsection (c) shall be consolidated for a singlehearing relating to each applicant's interest in the propertyseized for forfeiture.
(e) A person charged with a criminal offense may apply at anytime before final judgment to the court where the forfeitureproceeding is pending for the release of property seized forforfeiture, that is necessary for the defense of the person'scriminal charge. The application shall satisfy the requirementsunder subsection (b) of K.S.A. 60-4111. The court shall hold aprobable cause hearing if the applicant establishes that:
(1) The person has not had an opportunity to participate in aprevious adversarial judicial determination of probable cause.
(2) The person has no access to other moneys adequate for thepayment of criminal counsel.
(3) The interest in property to be released is not subject toany claim other than the forfeiture.
(f) If the court finds that there is no probable cause forforfeiture of the property, the court shall order the propertyreleased pursuant to subsection (c). If theseizing agency does not contest the hearing, the court may releasea reasonable amount of property for the payment of the applicant'scriminal defense costs. Property that has been released by thecourt and that has been paid for criminal defense services actuallyrendered is exempt under this act.
(g) A defendant convicted in any criminal proceeding is precludedfrom later denying the essential allegations of the criminaloffense of which the defendant was convicted in any proceedingpursuant to this section. For the purposes of this section, aconviction results from a verdict or plea of guilty, including aplea of no contest or nolo contendere.
(h) In any proceeding under this act, if a claim is based on anyexemption provided for in this act, the burden of proving theexistence of the exemption is on the claimant, and is notnecessary for the seizing agency or plaintiff's attorney to negatethe exemption in any application or complaint.
(i) In hearings and determinations pursuant to this section, thecourt may receive and consider, in making any determination ofprobable cause or reasonable cause, all evidence admissible indetermining probable cause at a preliminary hearing or in theissuance of a search warrant, together with inferences therefrom.
(j) The fact that money, negotiable instruments, precious metals,communication devices, and weapons were found in close proximity tocontraband or an instrumentality of conduct giving rise toforfeiture shall give rise to the rebuttable presumption, in themanner provided in subsection (a) of K.S.A. 60-414, and amendments thereto,thatsuch item was the proceeds of conduct giving rise to forfeiture orwas used or intended to be used to facilitate the conduct.
(k) There shall be a rebuttable presumption, in the mannerprovided in subsection (a) K.S.A. 60-414, and amendments thereto, that anyproperty of a person is subject to forfeiture under this act if theseizing agency establishes, by the standard of proof applicable tothat proceeding, all of the following:
(1) The person has engaged in conduct giving rise toforfeiture;
(2) the property was acquired by the person during thatperiod of the conduct giving rise to forfeiture or within areasonable time after the period; and
(3) there was no likely source for the property other thanthe conduct giving rise to forfeiture.
(l) A finding that property is the proceeds of conduct givingrise to forfeiture does not require proof the property is theproceeds of any particular exchange or transaction.
(m) A person who acquires any property subject to forfeiture isa constructive trustee of the property, and such property's fruits, for thebenefit of the seizing agency, to the extent that such agency's interest isnot exempt from forfeiture. If property subject to forfeiture hasbeen commingled with other property, the court shall order theforfeiture of the mingled property and of any fruits of the mingledproperty, to the extent of the property subject to forfeiture,unless an owner or interest holder proves that specified propertydoes not contain property subject to forfeiture, or that such owner's orinterest holder'sinterest in specified property is exempt from forfeiture.
(n) All property declared forfeited under this act vests in thelaw enforcement agency seeking forfeiture on the date of commissionof the conduct giving rise to forfeiture together with the proceedsof the property after that time. Any such property or proceedssubsequently transferred to any person remain subject to forfeitureand thereafter shall be ordered forfeited unless the transfereeacquired the property in good faith, for value, and was notknowingly taking part in an illegal transaction, and thetransferee's interest is exempt under K.S.A. 60-4106.
(o) An acquittal or dismissal in a criminal proceeding shall notpreclude civil proceedings under this act, nor give rise to anypresumption adverse or contrary to any fact alleged by the seizingagency.
(p) On motion by the plaintiff's attorney, the court shall staydiscovery against the criminal defendant and against the seizingagency in civil proceedings during a related criminal proceedingalleging the same conduct, after making provision to prevent lossto any party resulting from the delay. Such a stay shall not beavailable pending any appeal by a defendant.
(q) Except as otherwise provided by this act, all proceedingshereunder shall be governed by the rules of civil procedurepursuant to K.S.A. 60-101 et seq., and amendments thereto.
(r) An action pursuant to this act shall be consolidated with anyother action or proceeding pursuant to this act or to such otherforeclosure or trustee sale proceedings relating to the sameproperty on motion of the plaintiff's attorney, and may beconsolidated on motion of an owner or interest holder.
(s) There shall be a rebuttable presumption, in the mannerprovided in subsection (a) of K.S.A. 60-414, and amendments thereto, that anyproperty in or upon which controlled substances are located at thetime of seizure, was being used or intended for use to facilitatean act giving rise to forfeiture.
