THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY EICHELBERGER, RAFFERTY, ORIE, ALLOWAY, PILEGGI, FOLMER, STACK, M. WHITE, WOZNIAK AND GREENLEAF, JANUARY 26, 2011

REFERRED TO JUDICIARY, JANUARY 26, 2011  

AN ACT

Amending Titles 42 (Judiciary and Judicial Procedure) and 61

(Prisons and Parole) of the Pennsylvania Consolidated

Statutes, in other criminal provisions, further providing for

supervisory relationship to offenders; and, in Pennsylvania

Board of Probation and Parole, further providing for

supervisory relationship to offenders.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 9912 of Title 42 of the Pennsylvania

Consolidated Statutes is amended by adding a subsection to read:

§ 9912.  Supervisory relationship to offenders.

* * *

(e.1)  Forfeiture of seized items.--

(1)  To protect the public from its illicit introduction,

use or movement, all contraband which is seized from an

offender shall be subject to forfeiture, and no property

right shall exist in it, except as otherwise provided in this

section.

(2)  Contraband seized under this section shall not be

subject to replevin, but shall be deemed to be in the custody

of the county adult probation and parole department. The

county adult probation and parole department shall tag and

secure the contraband at a place designated by it for such

time as is necessary to secure its use as evidence in a

revocation or criminal proceeding. In no event shall the

county adult probation and parole department retain the

property for a period of less than 180 days after the hearing

conducted under paragraph (4).

(3)  No later than the time of the first hearing to

determine whether probable cause exists to believe that a

violation of probation or parole has been committed, also

known as the "Gagnon I" hearing, the county adult probation

and parole department shall provide notice to the offender

that it intends to seek forfeiture under this section. If the

probable cause hearing is waived, or there is a new criminal

charge arising from the incident which included the seizure

of the property, then notice under this paragraph shall be

given at least five days prior to the hearing under paragraph

(4) or the date scheduled for final disposition of the

criminal case. The notice shall inform the offender of the

right to challenge the forfeiture, the right to waive

challenges to forfeiture or to provide information that

someone other than the offender is the true owner of the

property. The county adult probation and parole department

shall also provide the same notice to all persons known by it

to possess a claim of ownership or lien against the property.

(4)  The determination of whether property is contraband

which shall be forfeited shall take place at the hearing held

to determine by a preponderance of the evidence that a

violation has occurred, also known as the "Gagnon II"

hearing. At the time of the hearing, if the county adult

probation and parole department produces evidence that the

contraband seized was unlawfully possessed or otherwise

subject to forfeiture under paragraph (1), the burden shall

be upon the offender or other claimant to show that the

contraband was lawfully acquired and possessed by the

offender, or that the unlawful use or possession by the

offender was without the claimant's knowledge or consent. No

property shall be forfeited under this section to the extent

of the interest of an owner or lienholder other than the

offender who establishes that the acts or omissions of the

offender with regard to the property were committed or

omitted without the knowledge or consent of the owner. The

determination regarding forfeiture of contraband shall be

contained in any findings or order issued in connection with

the hearing and shall be public record.

(5)  If it has been determined that property is

contraband which shall be forfeited, the contraband shall be

retained by the county adult probation and parole department

for a period of at least 180 calendar days to provide an

opportunity for any additional parties to assert a claim of

ownership or lienhold interest in the contraband. If the

county adult probation and parole department receives notice

of such a claim, the claimant or claimants shall be provided

a hearing pursuant to paragraph (4).

(6)  Whenever contraband is forfeited under this

subchapter, title to the contraband shall be transferred to

the county adult probation and parole department. After the

expiration of the necessary time period, the county adult

probation and parole department shall be entitled to any or

all of the following:

(i)  Retain the contraband for official use.

(ii)  Destroy the contraband.

(iii)  Donate the contraband to a nonprofit

organization or governmental entity.

(iv)  Sell any forfeited contraband which is not

required to be destroyed by law.

(v)  If the item is of de minimus value, as

determined by the county adult probation and parole

department, dispose of, without sale.

(7)  The county treasurer of each county shall establish

and administer a community correction forfeiture fund

consisting of all cash or proceeds obtained under this

section. The county treasurer shall disburse money from this

fund only at the discretion of the president judge of the

court of common pleas.

(8)  Cash or proceeds generated by the sale of any

forfeited contraband shall first be made available to satisfy

any restitution owed by the offender to crime victims who are

known at the time of the seizure by the Pennsylvania

Commission on Crime and Delinquency's Office of Victim

Services or by the courts of the Commonwealth where the

offender was sentenced. Any funds not used to satisfy crime

victim restitution obligations shall be transferred to

community corrections forfeiture fund pursuant to this

section.

(9)  The county adult probation and parole department and

its employees shall be immune from liability for good faith

conduct under this section.

(10)  The Pennsylvania Board of Probation and Parole may

enact regulations which are necessary to implement this

subsection on a uniform basis throughout this Commonwealth.

If regulations are promulgated, a county adult probation and

parole department must comply with the regulations.

(11)  The provisions set forth in this subsection shall

apply to all contraband seized after the effective date of

this subsection.

* * *

Section 2.  Section 6153 of Title 61 is amended by adding a

subsection to read:

§ 6153.  Supervisory relationship to offenders.

* * *

(g)  Forfeiture of seized items.--

(1)  To protect the public from its illicit introduction,

use or movement, all contraband which is seized from an

offender shall be subject to forfeiture, and no property

right shall exist in it, except as otherwise provided in this

section.

(2)  Contraband seized under this section shall not be

subject to replevin, but shall be deemed to be in the custody

of the board. The board shall tag and secure the contraband

at a place designated by it for such time as is necessary to

secure its use as evidence in a revocation or criminal

proceeding. In no event shall the board retain the property

for a period of less than 180 days after the hearing

conducted under paragraph (4).

(3)  No later than the time of the first hearing to

determine whether probable cause exists to believe that a

violation of probation or parole has been committed, also

known as the "Gagnon I" hearing, the board shall provide

notice to the offender that it intends to seek forfeiture

under this section. If the probable cause hearing is waived,

or there is a new criminal charge arising from the incident

which included the seizure of the property, then notice under

this paragraph shall be given at least five days prior the

hearing under paragraph (4) or the date scheduled for final

disposition of the criminal case. The notice shall inform the

offender of the right to challenge the forfeiture, the right

to waive challenges to forfeiture or to provide information

that someone other than the offender is the true owner of the

property. The board shall also provide the same notice to all

persons known by it to possess a claim of ownership or lien

against the property.

(4)  The determination of whether property is contraband

which shall be forfeited shall take place at the hearing held

to determine by a preponderance of the evidence that a

violation has occurred, also known as the "Gagnon II"

hearing. At the time of the hearing, if the board produces

evidence that the contraband seized was unlawfully possessed

or otherwise subject to forfeiture under paragraph (1), the

burden shall be upon the offender or other claimant to show

that the contraband was lawfully acquired and possessed by

the offender, or that the unlawful use or possession by the

offender was without the claimant's knowledge or consent. No

property shall be forfeited under this section to the extent

of the interest of an owner or lienholder other than the

offender who establishes that the acts or omissions of the

offender with regard to the property were committed or

omitted without the knowledge or consent of the owner. The

hearing shall be conducted in accordance with the provisions

of 1 Pa. Code Pt.II (relating to general rules of

administrative practice and procedure) unless the board has

adopted regulations, policies or procedures to the contrary

under this section. The determination regarding forfeiture of

contraband shall be contained in any findings or order issued

in connection with the hearing and shall be public record.

(5)  If it has been determined that property is

contraband which shall be forfeited, the contraband shall be

retained by the board for a period of at least 180 calendar

days to provide an opportunity for any additional parties to

assert a claim of ownership or lienhold interest in the

contraband. If the board receives notice of such a claim, the

claimant or claimants shall be provided a hearing pursuant to

paragraph (4).

(6)  Whenever contraband is forfeited under this

subchapter, title to the contraband shall be transferred to

the board. After the expiration of the necessary time period,

the board shall be entitled to do any or all of the

following:

(i)  Retain the contraband for official use.

(ii)  Destroy the contraband.

(iii)  Donate the contraband to a nonprofit

organization or governmental entity.

(iv)  Sell any forfeited contraband which is not

required to be destroyed by law.

(v)  If the item is of de minimus value, as

determined by the board, dispose of, without sale.

(7)  The board shall establish and administer a

contraband forfeiture account consisting of all cash or

proceeds obtained under this section.

(8)  Cash or proceeds generated by the sale of any

forfeited contraband and placed in the contraband forfeiture

account shall first be made available to satisfy any

restitution owed by the offender to crime victims who are

known at the time of the seizure by the Pennsylvania

Commission on Crime and Delinquency's Office of Victim

Services or by the courts of the Commonwealth where the

offender was sentenced. Any funds not used to satisfy crime

victim restitution obligations shall be made available to the

board pursuant to this section as a budget augmentation of

the operating funds of the board.

(9)  The board and its employees shall be immune from

liability for good faith conduct under this section.

(10)  The board may enact regulations which are necessary

to implement this subsection for its agents and for use by

county adult probation and parole departments on a uniform

basis throughout this Commonwealth.

(11)  The provisions set forth in this subsection shall

apply to all contraband seized after the effective date of

this subsection.

Section 3.  This act shall take effect in 60 days.