CONTRABAND SEIZURE AND FORFEITURE
I. INTRODUCTION
The Ohio Legislator, by enactment of Senate Bill No. 69 - The Contraband Seizure and
Forfeiture Act, has created a civil process whereby police agencies can significantly increase
their vehicle, equipment, and cash assets. Any, personal property used or intended for use
in the attempt, conspiracy, or commission of any offense can be seized and forfeited to the
seizing agency for their use or sale. Funds obtained by the sale of such property are for law
enforcement use only.
II. DEFINITIONS (2901.01 ORC)
The vast majority of Ohio's criminal statutes are contained in Title 29 of the Ohio Revised
Code. The first chapter of Title 29 (Chapter 2901) deals with a variety of matters
applicable to the criminal law in general. Section 2901.01 contains definitions of terms
which recur frequently in the Revised Code.
A. 2901.01 (M) defines contraband
1. Property that in and of itself is unlawful for a person to acquire or possess.
2. Property that is not in and of itself unlawful for a person to acquire or possess but that
has been determined by a court of this state, inaccordance with law, to be contraband,
because of its use in an unlawful activity or manner, of its nature, or if the circumstances of
the person who acquires or possesses it.
3. Property that is specifically stated to be contraband by a section of the Revised Code or
by an ordinance, regulation or resolution.
4. Property that is forfeitable pursuant to a section of the Revised Code, or an ordinance,
regulation, or resolution, including but not limited to forfeitable firearms, dangerous
ordinance and obscene material.
5. Any controlled substance, as defined in Section 3719.01 of the Revised Code, or any
device, paraphernalia, money as defined in Section 1301.01 of the Revised Code, or other
means of exchange that has been, is being, or is intended to be used in an attempt or
conspiracy to violate, or in a violation of Chapter 2925 or 3719 of the Revised Code.
6. Any gambling device, paraphernalia, money as defined in Section 1301.01 of the Revised
Code, or other means of exchange that has been, is being, or is intended to be used in an
attempt or conspiracy to violate, or in the violation of Chapter 2915 of the Revised Code.
7. Any equipment, machine, device, apparatus, vehicle, vessel, container,
liquid or substance that has been, is being, or is intended to be used in
an attempt or conspiracy to violate, or in the violation of, any law of
this state relating to alcohol or tobacco.
8. Any personal property that has been, is being, or is intended to be used in an attempt or
conspiracy to commit, or in the commission of, any offense or in the transportation of the
fruits of any offenses.
9. Any property that is acquired through the sale or other transfer of contraband or
through the proceeds of contraband, other than by a court or a law enforcement agency
acting within the scope of its duties.
10. Any computer, computer system, computer network, or computer software that is used
in a conspiracy to commit, an attempt to commit, or in the commission of any offense, if the
owner of the computer, computer system, computer network, or computer software is
convicted of or pleads guilty to the offense in which it is used.
III. PROHIBITIONS AGAINST USES OF CONTRABAND
The statute establishes a prohibition against various uses of the contraband and property.
A. No person shall:
1. Possess
2. Conceal
3. Transport
4. Receive
5. Purchase
6. Sell
7. Lease
8. Rent
9. Otherwise transfer any contraband
B. Boats, cars or planes - A special situation exists with watercraft, motor vehicles and
planes which is addressed in paragraph (B) of 2933.42 R.C.
1. A boat, car or plane is subject to seizure and forfeiture (under 2933.43 R.C.) if it falls
under the Definition of Contraband inthe definition chapter (2901.01`
2. If the boat, car or plane does not fit the 2901.01 definition of contraband, it is still
subject to seizure and forfeiture if:
a. the boat, car or plane is used in a violation of paragraph (A) of 2933.42 R.C. (see III-A of outline); and,
b. the underlying offense involved in the violation of paragraph (A) of 2933.42 is a felony.
3. There is a rebuttable presumption created by 2933.42 (B) that if contraband is found on
or in the boat, car or plane it was intended that Section (A) of 2933.42 be violated.
IV. PROCEDURES FOR SEIZURE AND FORFEITURE (2933.43 R.C.)
This statute outlines the procedure for seizure and forfeiture of contraband property.
A. A law enforcement officer shall seize any contraband that has been, is being, or is
intended to be used in violation of 2933.42 (This does not mean he must forfeit said
property.)
SEIZURE
A. Contraband
1. has been in violation of 2333.42 (A) R.C.
2. is being in violation of 2333.42 (A) R.C.
3. is intended to be used in violation of 2933.42 (A) R.C.
B. Motor vehicles, aircraft, and water craft
1. Seizure is mandated if:
a. vehicle, aircraft or watercraft is in violation of divisions (A) or (B) of Section 2933.42 and,
b. underlying offense is a felony.
2. If underlying offense involved is a misdemeanor
a. no seizure if under Divisions (A) of (B) of Section 2933.42
b. seizure if contraband by virtue of definition section 2901.01 (M)
c. Seizures of titled or registered property
NOTE: 2901.01 (M) defines contraband
3. Notice
a. seizing officer (or his employing law enforcement officer) shall notify owner
b. must be within 72 hours of seizure
c. reasonable, good faith efforts to notify the owner fulfill notice requirements, even though owner is never contacted.
1) certified letter sent to owners last known address
2) orally by any means, including telephone
3) document date, times and in what matter effort was made
V. VEHICLE SEIZURE/FORFEITURE
A. If seized vehicle falls under section 2901.01 (M) it may be forfeited
B. Seizure/arresting officer at time of arrest should
1. Determine if person in control of vehicle is the registered owner or not. If not the registered owner, some of the following are some questions that should be asked.
a. Why do you have this vehicle?
b. What reason did you tell the owner as to why you were using his/her vehicle.
c. How often do you use this vehicle?
d. Who makes the payments?
e. Do you have keys (own set) to this vehicle?
C. A summary of the interview and a brief summary as to why this vehicle is contraband
should then be sent to the arresting agency's forfeiture officer.
D. Upon receiving summary from arresting officer, the forfeiture officer shall
1. Check ownership on vehicle
2. Check for lien on vehicle
a. Lien should be no more than 1/2 the book value of the vehicle
3. Visually check out condition of vehicle
4. Determine value of vehicle by using "Blue Book" prices
5. Notify owner if vehicle is to be forfeited.
a. If owner was not arrested, attempt to interview owner as to why suspect arrested was driving vehicle (tape interview).
6. Obtain certified copy of title from county or state, where vehicle was registered.
7. Petition for forfeiture filed in Court of Common Pleas with jurisdiction over criminal offense.
8. Filed by either
a. Prosecuting Attorney
b. Director of Law
c. Attorney General
VI. COURT HEARINGS
All post seizure compliances with notice requirements, time extensions, etc., must be documented.
NOTES:
Police unit should have a notary due to volume of affidavits
Certified copies of titles, registrations, etc. should be part of case file.
Replevin: is a petition to recover seized property - not applicable to contraband.
A. Property which is titled/registered or owner is known
1. Notice of forfeiture proceedings must be given
a. Certified mail with return receipt
b. Publication in newspaper of general circulation
c. At least four (4) weeks before hearing
d. In county in which seizure occurred
B. Contraband because of its relationship to underlying criminal offense
1. No forfeiture hearing held unless facts and circumstances result in :
a. Plea of guilty
b. Conviction
c. Adjudication of an administrative violation
2. If forfeiture hearing
a. Hold no later than thirty (30) days after:
1) plea
2) conviction
3) adjudication
b. Owner may request release of property not needed as evidence but the Court may
require a bond.
3. When property is to be returned to the owner
a. If no conviction
b. If no charges are filed within thirty (30) days
c. All other contraband
4. Hearing on forfeiture petition held within forty-five (45) days after seizure.
NOTES: Notice requirements must be met explicitly in form, content and time elements.
Notice must contain:
1. Description of property
2. Date and place of seizure
3. Identify seizing agency
4. Date and exact time and location of hearing
5. State "Any person with a valid interest in the seized property may contest the forfeiture"
Assure all involved agencies are aware of proceedings and how progressing.
Document all notice procedures.
Have officer present at hearings to assure dates set for future hearings comply with statute
and allow time for required notices.
VII. NO FORFEITURE OR CONTRABAND USED IN A CRIME IS AVAILABLE
UNTIL AFTER SUCCESSFUL PROSECUTION - MUST BE WITHIN 30 DAYS
A. This conflicts with four (4) week notice requirement. Advise and document notice to owner four (4) weeks prior to trial forfeiture will be sought, then serve date notice at end of trial.
1. Forfeiture Hearing
a. Court follows rules of civil procedure
b. Court ordered forfeiture when:
1) Petitioner shows by preponderance that the person(s) from which the property was seized violated 2933.42 (A)
2) Note that "persons" are not necessarily "owners"
a. All title rights vest in political unit employing the seizing officer.
3) Rights vest effective from the date of seizure
2. When ownership is preserved by owner
a. Owner must establish by a preponderance that:
1) he neither knew,
2) nor should have known,
3) after reasonable inquiry,
4) that property was used,
5) or likely to be used
6) in a crime or violation.
VIII. SALE OF FORFEITED PROPERTY
A. Head of agency having custody of property may recommend sale
1. Sale is by public auction.
2. No appraisal is necessary.
3. For cash to highest bidder.
NOTES:
A critical proof element is showing an owner did not make a reasonable inquiry as to the
use of property, prior to allowing another to have it who used it for a criminal purpose.
IX. INTERIM CUSTODY OF PROPERTY PROCESSING
The statute mandates that all property seized by a law enforcement agency that is
contraband be held for forfeiture, and that the prosecutor petition for the forfeiture of all
seized property.
The paperwork, record keeping, storage of property and investigative requirements
generated by the volume of property we seize compels numerous duties be completed in a
limited time.
To assure we meet our responsibilities, system of assigning seizures for processing
must include the following:
A. Property Control
1. Separate storage facility for "contraband" property.
2. Property slips must be clearly marked "contraband".
3. Release of property only by an officer or sergeant assigned to seizure unit.
4. Periodic inspections to assure property is being kept safety as required by statute.
5. Monies from sale of property to be kept separate from general disposed sale. 6. Determine amount of bond for vehicle.
a. should be "blue book" value
b. should be cash bond
7. Review property seized for proper marking, storage, etc.
8. If property is released, obtain from owner
a. Proof of vehicle ownership
b. Proof of ownership or legal possession of contents of vehicle
c. Affidavit of owner disavowing knowledge of criminal use of vehicle or contents
d. Document release was to true owner
9. Determine if liens on property are valid
10. Determine who has interest in property
X. CURRENCY SEIZURES FOR FORFEITURE PURPOSES
A. Authority to Seize
O.R.C. 1301.01 defines money as any domestic or foreign currency.
O.R.C. 2901.01 M-5 defines money used, intended to be used, or having been used in an
attempt, conspiracy, or commission of offenses in Chapter 2925 (Drug Abuse) or Chapter
3719 (Drug Laws) as being contraband.
O.R.C. 2901.01 M-6 defines money used in gambling activities as above as contraband.
O.R.C. 2901.01 M-9 defines as contraband any property acquired through the sale or other
transfer of contraband - thus bank accounts, being personal property, are subject to
seizure.
O.R.C. 2933.42 (A) prohibits any use, etc., of contraband.
O.R.C. 2933.42 (A) mandates law enforcement officers seize any contraband used in
violation of 2933.42.
Fourth Amendment privileges apply to seizures under these statutes. An illegal seizure
which violates a constitutional right nullifies a forfeiture proceeding.
B. Probable Cause to Seize
1. The government's right to seize currency or other forfeitable property occurs at the
time it is used in violation of O.R.C. 2933.42 or 2933.43.
2. Seizures made with a search warrant will be considered by the courts more favorably
than those not utilizing a search warrant.
3. The test for establishing a nexus between currency and illegal activity is one of
"substantial connection". The "substantial connection" may be proven by direct or
circumstantial evidence, or a combination of the two.
4. Amount of cash to be forfeited.
a. The minimum amount to be forfeited shall be determined by an agreement with the
arresting agency and the prosecutor's office.
5. Forfeiture proceeding for cash seizure
a. Arresting/seizing officer places money in property room, mark property slip for seizure.
b. Fill out seizure form and sent to Forfeiture Unit along with summary of charges.
c. Forfeiture officer will notify owner of pending forfeiture action.
d. Forfeiture Unit officer will fill out forfeiture package, and forward to prosecutor's
office.
XI. FORFEITURE CASE FILE
Forfeiture package should contain the following.
A. Vehicle
1. Certified copy of title
a. obtained from county or state where license issued
2. Summary from arresting officer(s) on how property was used in illegal activities
3. Copies of owner and/or defendants past criminal record
4. Copy of vehicle impound form
5. "Notice of Property Seized" form
6. "Petition for Forfeiture" form
7. Interview of owners, if not person arrested
8. Pictures of vehicle
9. Any additional information which may assist in defeating an innocent owners claim
10. Copy of crime lab report if drugs are involved
B. Cash
1. Property slip from property room
2. Summary from arresting officers (must show substantial connection).
3. Copies of owner and/or defendants past criminal record
4. "Notice of Property Seizure" form
5. "Petition for Forfeiture" form
6. Any additional information which may assist in defeating an innocent claim
7. Copy of crime lab report if drugs are involved
C. Property
1. Certified copies of all titles, deeds, liens, etc.
2. Summary from arresting officer
3. Interview of owner (if not defendant)
4. Copies of owner and/or defendants past record
5. Pictures of property
6. Copy of property slip
7. "Notice of Property Seizure" form
8. "Petition for Forfeiture" form
9. Any additional information which may assist in defeating an innocent owner claim. Or aid in showing criminal activity in use of property
10. Copy of crime lab report