PRINTER'S NO. 1792
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1203
Session of
2020
INTRODUCED BY A. WILLIAMS, TARTAGLIONE, KEARNEY, COSTA, MENSCH,
FARNESE, STREET, FONTANA AND BOSCOLA, JUNE 22, 2020
REFERRED TO JUDICIARY, JUNE 22, 2020
AN ACT
Amending Titles 4 (Amusements), 18 (Crimes and Offenses), 30
(Fish), 42 (Judiciary and Judicial Procedure) and 75
(Vehicles) of the Pennsylvania Consolidated Statutes, in
administration and enforcement relating to gaming, further
providing for prohibited acts and penalties; in inchoate
crimes, further providing for the offense of manufacture,
distribution, use of possession of devices for theft of
telecommunication services; in criminal homicide, further
providing for drug delivery resulting in death; in loss of
property rights relating to sexual offenses, further
providing for general rule; in forgery and fraudulent
practices, further providing for the offenses of copying and
recording devices and of trademark counterfeiting; in riot,
disorderly conduct and related offenses, further providing
for the offense of gambling devices, gambling, etc; in
wiretapping and electronic surveillance, further providing
for seizure and forfeiture of electronic, mechanical or other
devices; in minors, further providing for sentencing and
penalties for trafficking drugs to minors; in nuisances,
further providing for the offense of scattering rubbish; in
other offenses, further providing for drug trafficking
sentencing and penalties; in vehicle chop shop and illegally
obtained and altered property, further providing for loss of
property rights to Commonwealth; in enforcement relating to
Fish and Boat Code, further providing for forfeiture of fish
and devices; repealing provisions relating to forfeiture of
assets; adding provisions relating to asset forfeiture in
Judicial Code; in size, weight and load relating to Vehicle
Code, further providing for transporting foodstuffs in
vehicles used to transport waste; in liquid fuels and fuel
use tax enforcement, further providing for forfeitures,
process and procedures; and making inconsistent repeals.
The General Assembly of the Commonwealth of Pennsylvania
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hereby enacts as follows:
Section 1. Section 1518(f) of Title 4 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 1518. Prohibited acts; penalties.
* * *
(f) Property subject to seizure, confiscation, destruction
or forfeiture.--Any equipment, device or apparatus, money,
material, gaming proceeds or substituted proceeds or real or
personal property used, obtained or received or any attempt to
use, obtain or receive the device, apparatus, money, material,
proceeds or real or personal property in violation of this part
shall be subject to the provisions of 42 Pa.C.S. [§§ 5803
(relating to asset forfeiture), 5805 (relating to forfeiture
procedure), 5806 (relating to motion for return of property),
5807 (relating to restrictions on use), 5807.1 (relating to
prohibition on adoptive seizures) and 5808 (relating to
exceptions)] Ch. 58A (relating to forfeiture of assets).
Section 2. Sections 910(c.1), 2506(f), 3141, 4116(i)(1),
4119(f)(1) and (2)(i), 5513(b), 5707, 6314(f), 6501(b)(5),
7508(e) and 7707 of Title 18 are amended to read:
§ 910. Manufacture, distribution, use or possession of devices
for theft of telecommunications services.
* * *
(c.1) Forfeiture of unlawful telecommunication devices.--
Upon conviction of a defendant under this section, the court
may, in addition to any other sentence authorized by law, direct
that the defendant forfeit any unlawful telecommunication
devices in the defendant's possession or control which were
involved in the violation for which the defendant was convicted.
The forfeiture shall be conducted in accordance with 42 Pa.C.S.
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[§§ 5803 (relating to asset forfeiture), 5805 (relating to
forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions)] with 42 Pa.C.S. Ch. 58A (relating to
asset forfeiture.
* * *
§ 2506. Drug delivery resulting in death.
* * *
(f) Forfeiture.--Assets against which [a forfeiture
petition] an information or indictment seeking forfeiture has
been filed and is pending or against which the Commonwealth has
indicated an intention to file [a forfeiture petition] an
information or indictment seeking a forfeiture shall not be
subject to a fine. Nothing in this section shall prevent a fine
from being imposed on assets which have been subject to an
unsuccessful forfeiture [petition] proceeding.
§ 3141. General rule.
A person:
(1) convicted under section 3121 (relating to rape),
3122.1 (relating to statutory sexual assault), 3123 (relating
to involuntary deviate sexual intercourse), 3124.1 (relating
to sexual assault), 3125 (relating to aggravated indecent
assault) or 3126 (relating to indecent assault); or
(2) required to register with the Pennsylvania State
Police under 42 Pa.C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders) or I (relating to continued
registration of sexual offenders);
may be required to forfeit property rights in any property or
assets used to implement or facilitate commission of the crime
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or crimes of which the person has been convicted. The forfeiture
shall be conducted in accordance with 42 Pa.C.S. [§§ 5803
(relating to asset forfeiture), 5805 (relating to forfeiture
procedure), 5806 (relating to motion for return of property),
5807 (relating to restrictions on use), 5807.1 (relating to
prohibition on adoptive seizures) and 5808 (relating to
exceptions)] Ch. 58A (relating to asset forfeiture).
§ 4116. Copying; recording devices.
* * *
(i) Forfeiture.--
(1) No property right shall exist in any property used
or intended for use in the commission of a violation of this
section or in any proceeds traceable to a violation of this
section, and the same shall be deemed contraband and
forfeited in accordance with the provisions of 42 Pa.C.S. [§§
5803 (relating to asset forfeiture), 5805 (relating to
forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions)] Ch. 58A (relating to asset
forfeiture).
* * *
§ 4119. Trademark counterfeiting.
* * *
(f) Seizure, forfeiture and disposition.--
(1) Any items bearing a counterfeit mark, any property
constituting or derived from any proceeds obtained[, directly
or indirectly,] as the result of an offense under this
section and all personal property, including, but not limited
to, any items, objects, tools, machines, equipment,
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instrumentalities or vehicles of any kind, used in connection
with a violation of this section shall be seized by a law
enforcement officer.
(2) (i) All seized personal property and property
constituting or derived from any proceeds referenced in
paragraph (1) shall be forfeited in accordance with 42
Pa.C.S. [§§ 5803 (relating to asset forfeiture), 5805
(relating to forfeiture procedure), 5806 (relating to
motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions)] Ch.
58A (relating to asset forfeiture).
* * *
§ 5513. Gambling devices, gambling, etc.
* * *
(b) Confiscation of gambling devices.--Any gambling device
possessed or used in violation of the provisions of subsection
(a) shall be seized and forfeited to the Commonwealth. The
forfeiture shall be conducted in accordance with 42 Pa.C.S. [§§
5803 (relating to asset forfeiture), 5805 (relating to
forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions)] Ch. 58A (relating to asset
forfeiture).
* * *
§ 5707. Seizure and forfeiture of electronic, mechanical or
other devices.
Any electronic, mechanical or other device possessed, used,
sent, distributed, manufactured, or assembled in violation of
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this chapter is hereby declared to be contraband and may be
seized and forfeited to the Commonwealth in accordance with 42
Pa.C.S. [§§ 5803 (relating to asset forfeiture), 5805 (relating
to forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions)] Ch. 58A (relating to asset
forfeiture).
§ 6314. Sentencing and penalties for trafficking drugs to
minors.
* * *
(f) Forfeiture.--Assets against which [a petition seeking
forfeiture] an information or indictment seeking forfeiture has
been filed and is pending or against which the Commonwealth has
indicated an intention to file [a petition] an information or
indictment seeking forfeiture shall not be subject to a fine
under this section.
* * *
§ 6501. Scattering rubbish.
* * *
(b) Penalty.--
* * *
(5) Any vehicle, equipment or conveyance, including any
private automobile and small truck, used for the
transportation or disposal of trash, garbage or debris in the
commission of a second or subsequent offense under subsection
(a)(3) may be deemed contraband and forfeited in accordance
with 42 Pa.C.S. [§§ 5803 (relating to asset forfeiture), 5805
(relating to forfeiture procedure), 5806 (relating to motion
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for return of property), 5807 (relating to restrictions on
use), 5807.1 (relating to prohibition on adoptive seizures)
and 5808 (relating to exceptions)] Ch. 58A (relating to asset
forfeiture).
* * *
§ 7508. Drug trafficking sentencing and penalties.
* * *
(e) Forfeiture.--Assets against which [a petition] an
information or indictment seeking forfeiture has been filed and
is pending or against which the Commonwealth has indicated an
intention to file [a petition] an information or indictment
seeking forfeiture shall not be subject to a fine. Nothing in
this section shall prevent a fine from being imposed on assets
which have been subject to an unsuccessful forfeiture [petition]
proceeding.
* * *
§ 7707. Loss of property rights to Commonwealth.
[(a) Forfeitures generally.--The following shall be subject
to forfeiture to the Commonwealth, and no property right shall
exist in them:
(1) Any tool, implement or instrumentality, including,
but not limited to, a vehicle or vehicle part used or
possessed in connection with any violation of this chapter.
(2) All materials, products and equipment of any kind
which are used or intended for use in violation of this
chapter.
(3) All books, records, microfilm, tapes and data which
are used or intended for use in violation of this chapter.
(4) All money, negotiable instruments, securities or
other things of value used or intended to be used to
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facilitate any violation of this chapter and all proceeds
traceable to any transactions in violation of this chapter.
(5) All real property used or intended to be used to
facilitate any violation of this chapter, including
structures or other improvements thereon and including any
right, title and interest in the whole or any lot or tract of
land and any appurtenances or improvements which are used or
intended to be used in any manner or part to commit or to
facilitate the commission of a violation of this chapter.]
(a.1) Conduct of forfeiture.--Forfeiture of property shall
be authorized for a violation of this chapter and conducted in
accordance with 42 Pa.C.S. [§§ 5803 (relating to asset
forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions).] Ch. 58A
(relating to asset forfeiture).
* * *
Section 3. Section 927(a) of Title 30 is amended to read:
§ 927. Forfeiture of fish and devices.
(a) General rule.--A person convicted of an offense under
this title shall forfeit any fish seized under section 901(a)(6)
(relating to powers and duties of waterways conservation
officers and deputies) and any device confiscated under this
title. Forfeitures shall be conducted in accordance with 42
Pa.C.S. [§§ 5803 (relating to asset forfeiture), 5805 (relating
to forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions).] Ch. 58A (relating to asset
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forfeiture).
Section 4. Chapter 58 of Title 42 is repealed:
[CHAPTER 58
FORFEITURE OF ASSETS
§ 5801. Scope of chapter.
This chapter relates to asset forfeiture.
§ 5802. Controlled substances forfeiture.
The following shall be subject to forfeiture to the
Commonwealth and no property right shall exist in them:
(1) All drug paraphernalia, controlled substances or
other drugs which have been manufactured, distributed,
dispensed or acquired in violation of the act of April 14,
1972 (P.L.233, No.64), known as The Controlled Substance,
Drug, Device and Cosmetic Act.
(2) All raw materials, products and equipment of any
kind which are used or intended for use in manufacturing,
compounding, processing, delivering, importing or exporting
any controlled substance or other drug in violation of The
Controlled Substance, Drug, Device and Cosmetic Act.
(3) All property which is used or intended for use as a
container for property described in paragraph (1) or (2).
(4) All conveyances, including aircraft, vehicles or
vessels, which are used or are intended for use to transport,
or in any manner to facilitate the transportation, sale,
receipt, possession or concealment of property described in
paragraph (1) or (2), except that:
(i) no bona fide security interest retained or
acquired under 13 Pa.C.S. (relating to commercial code)
by any merchant dealing in new or used aircraft, vehicles
or vessels, or retained or acquired by any licensed or
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regulated finance company, bank or lending institution,
or by any other business regularly engaged in the
financing or lending on the security of such aircraft,
vehicles or vessels, shall be subject to forfeiture or
impairment; and
(ii) no conveyance shall be forfeited under this
chapter for a violation of section 13(a)(31) of The
Controlled Substance, Drug, Device and Cosmetic Act.
(5) All books, records and research, including formulas,
microfilm, tapes and data, which are used or intended for use
in violation of The Controlled Substance, Drug, Device and
Cosmetic Act.
(6) (i) All of the following:
(A) Money, negotiable instruments, securities or
other things of value furnished or intended to be
furnished by any person in exchange for a controlled
substance in violation of The Controlled Substance,
Drug, Device and Cosmetic Act, and all proceeds
traceable to such an exchange.
(B) Money, negotiable instruments, securities or
other things of value used or intended to be used to
facilitate any violation of The Controlled Substance,
Drug, Device and Cosmetic Act.
(C) Real property used or intended to be used to
facilitate any violation of The Controlled Substance,
Drug, Device and Cosmetic Act other than a violation
of section 13(a)(16) or (31) of The Controlled
Substance, Drug, Device and Cosmetic Act, including
structures or other improvements thereon, and
including any right, title and interest in the whole
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or any lot or tract of land and any appurtenances or
improvements, which is used or intended to be used in
any manner or part to commit or to facilitate the
commission of a violation of The Controlled
Substance, Drug, Device and Cosmetic Act, and things
growing on, affixed to and found in the land.
(ii) The money and negotiable instruments found in
close proximity to controlled substances possessed in
violation of The Controlled Substance, Drug, Device and
Cosmetic Act shall be rebuttably presumed to be proceeds
derived from the selling of a controlled substance in
violation of The Controlled Substance, Drug, Device and
Cosmetic Act.
(iii) No valid lien or encumbrance on real property
shall be subject to forfeiture or impairment under this
paragraph. A lien which is fraudulent or intended to
avoid forfeiture under this chapter shall be invalid.
(7) Any firearms, including, but not limited to, rifles,
shotguns, pistols, revolvers, machine guns, zip guns or any
type of prohibited offensive weapon, as that term is defined
in 18 Pa.C.S. § 6105 (relating to persons not to possess,
use, manufacture, control, sell or transfer firearms), which
are used or intended for use to facilitate a violation of The
Controlled Substance, Drug, Device and Cosmetic Act. Firearms
as are found in close proximity to illegally possessed
controlled substances shall be rebuttably presumed to be used
or intended for use to facilitate a violation of The
Controlled Substance, Drug, Device and Cosmetic Act. All
weapons forfeited under this chapter shall be immediately
destroyed by the receiving law enforcement agency.
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§ 5803. Asset forfeiture.
(a) Applicability.--Notwithstanding any law to the contrary,
this section shall apply to forfeitures conducted under the
following:
(1) 4 Pa.C.S. § 1518 (relating to prohibited acts;
penalties).
(2) 18 Pa.C.S. § 910 (relating to manufacture,
distribution, use or possession of devices for theft of
telecommunications services).
(3) 18 Pa.C.S. § 2717 (relating to terrorism).
(3.1) 18 Pa.C.S. § 2807 (relating to forfeiture).
(4) 18 Pa.C.S. § 3141 (relating to general rule).
(5) 18 Pa.C.S. § 4116 (relating to copying; recording
devices).
(6) 18 Pa.C.S. § 4119 (relating to trademark
counterfeiting).
(7) 18 Pa.C.S. § 5513 (relating to gambling devices,
gambling, etc.).
(8) 18 Pa.C.S. § 5707 (relating to seizure and
forfeiture of electronic, mechanical or other devices).
(9) 18 Pa.C.S. § 6501 (relating to scattering rubbish).
(10) 18 Pa.C.S. § 7707 (relating to loss of property
rights to Commonwealth).
(11) 30 Pa.C.S. § 927 (relating to forfeiture of fish
and devices).
(12) Section 5802 (relating to controlled substances
forfeiture).
(13) 75 Pa.C.S. § 4909 (relating to transporting
foodstuffs in vehicles used to transport waste).
(14) 75 Pa.C.S. § 9405 (relating to forfeitures; process
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and procedures).
(b) Process and seizure of money and personal property.--
Property subject to forfeiture may be seized by a law
enforcement authority if any of the following apply:
(1) The seizure is incident to an arrest or a search
under a search warrant or inspection under an administrative
inspection warrant and there is reason to believe the
property is subject to forfeiture.
(2) The property subject to seizure has been the subject
of a prior judgment in favor of the Commonwealth in a
criminal injunction or forfeiture proceeding under this
chapter.
(3) There is probable cause to believe that the property
is dangerous to health and safety and exigencies are likely
to result in the destruction or removal of the property or in
the property otherwise being made unavailable for forfeiture.
(4) There is probable cause to believe that the property
has been used or is intended to be used in violation of the
act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, or
another offense for which forfeiture is expressly authorized
as a sanction.
(5) There is a warrant issued by a court of common pleas
with appropriate jurisdiction.
(6) There is probable cause to believe that the property
is subject to forfeiture and exigencies are likely to result
in the destruction or removal of the property.
(b.1) Process and seizure of real property.--Real property
subject to forfeiture under this chapter may be seized by the
law enforcement authority upon process issued by a court of
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common pleas having jurisdiction over the property. Except as
provided under this section, real property subject to forfeiture
shall not be seized before the entry of an order of forfeiture
and the owners or occupants of the real property shall not be
evicted from or otherwise deprived of the use and enjoyment of
real property that is the subject of a pending forfeiture
action. The following shall apply:
(1) The filing of a lis pendens or the issuance of a
temporary restraining order shall not constitute a seizure
under this subsection.
(2) Real property may be seized prior to the entry of an
order of forfeiture if:
(i) the district attorney or the Attorney General
notifies the court that it intends to seize the property
before a trial; and
(ii) the court:
(A) after causing notice to be served on the
property owner and posted on the property and
conducting a hearing in which the property owner has
a meaningful opportunity to be heard, authorizes such
seizure; or
(B) makes an ex parte determination that there
is probable cause to believe that a nexus exists
between the property and the criminal activity for
which forfeiture is authorized and that exigent
circumstances are presented that permit the district
attorney or the Attorney General to seize the
property without prior notice and an opportunity for
the property owner to be heard.
(3) For purposes of paragraph (2)(ii)(B), exigent
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circumstances are presented where the district attorney or
the Attorney General demonstrates that less restrictive
measures, such as a lis pendens, temporary restraining order
or security bond, would not suffice to protect the
Commonwealth's interest in preventing the sale, destruction
or continued unlawful use of the real property.
(4) If the court authorizes a seizure of real property
under paragraph (2)(ii)(B), it shall conduct a prompt
postseizure hearing at which the claimant shall have an
opportunity to contest the Commonwealth's continuing custody
of the property.
(c) Issuance of process.--If seizure without process occurs
under subsection (b) or (b.1), proceedings for the issuance of
process shall be instituted as soon as feasible.
(d) Custody of property.--Property taken or detained under
this section shall not be subject to replevin and is deemed to
be in the custody of the law enforcement authority subject only
to the orders and decrees of the court of common pleas having
jurisdiction over the forfeiture proceedings of the district
attorney or the Attorney General. When property is seized under
this chapter, the law enforcement authority shall place the
property in a secure area or facility and either:
(1) remove the property to a secure area or facility
designated by the law enforcement authority; or
(2) require that the district attorney or Attorney
General take custody of the property and remove the property
to an appropriate location for disposition in accordance with
law.
(e) Receipt.--When property is seized, the law enforcement
authority shall provide a receipt to the person in possession of
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the property or, in the absence of a person, leave a receipt in
the place where the property was found, if reasonably possible.
The receipt shall provide notice of the right of interest
holders to seek the return of the seized property under this
chapter. This section shall not apply if law enforcement is
otherwise required to provide a receipt for the property.
(f) Use of property held in custody.--When property is
forfeited under this chapter, the property shall be transferred
to the custody of the district attorney, if the law enforcement
authority seizing the property has local or county jurisdiction,
or the Attorney General, if the law enforcement authority
seizing the property has Statewide jurisdiction. The district
attorney or the Attorney General, where appropriate, may:
(1) retain the property for official use; or
(2) sell any forfeited property which is not required to
be destroyed by law and which is not harmful to the public,
except that the proceeds from the sale shall be used to pay
all proper expenses of the proceedings for forfeiture and
sale, including expenses of seizure, maintenance of custody,
advertising and court costs. The balance of the proceeds
shall be used and distributed in accordance with this
chapter.
(f.1) Prohibited sales.--Sale of forfeited property to an
employee of the district attorney or Attorney General, an
individual related to an employee by blood or marriage or an
employee of another law enforcement authority is prohibited.
(g) Use of cash or proceeds of property.--Cash or proceeds
of property, subject to forfeiture under section 5802 and
transferred to the custody of the district attorney under
subsection (f) shall be placed in the operating fund of the
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county in which the district attorney is elected. The
appropriate county authority shall immediately release from the
operating fund, without restriction, a like amount for the use
of the district attorney for the enforcement of or prevention of
a violation of the provisions of The Controlled Substance, Drug,
Device and Cosmetic Act. The funds shall be maintained in an
account or accounts separate from other revenues of the office.
The entity having budgetary control shall not anticipate future
forfeitures or proceeds from future forfeitures in adoption and
approval of the budget for the district attorney.
(h) Distribution of property among law enforcement
authorities.--If both State and municipal law enforcement
authorities were substantially involved in effecting the
seizure, the court having jurisdiction over the forfeiture
proceedings shall equitably distribute the property between the
district attorney and the Attorney General.
(i) Authorization to utilize property.--Cash or proceeds of
property subject to forfeiture under section 5802 and
transferred to the custody of the district attorney or Attorney
General under subsection (f) shall be utilized by the district
attorney or Attorney General for the enforcement of or
prevention of a violation of the provisions of The Controlled
Substance, Drug, Device and Cosmetic Act. In appropriate cases,
the district attorney and the Attorney General may designate
proceeds from the forfeited property to be utilized by
community-based drug and crime-fighting programs and for
relocation and protection of witnesses in criminal cases. Real
property may be transferred to a nonprofit organization to
alleviate blight resulting from violations of The Controlled
Substance, Drug, Device and Cosmetic Act.
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(j) Annual audit of forfeited property.--Every county in
this Commonwealth shall provide, through the controller, board
of auditors or other appropriate auditor and the district
attorney, an annual audit of all forfeited property and proceeds
obtained under this chapter. The audit shall not be made public
but shall be submitted to the Office of Attorney General. By
September 30 of each year, the county shall report all forfeited
property and proceeds obtained under this chapter and the
disposition of the property during the preceding year to the
Attorney General. The Attorney General and each district
attorney shall maintain and create appropriate records to
account for the property forfeited in a fiscal year and the use
made of the property forfeited. Each audit shall include:
(1) Date property was seized.
(2) The type of property seized.
(3) Where property was seized.
(4) The approximate value.
(5) The alleged criminal behavior with which the
property is associated.
(6) The disposition or use of property forfeited.
(7) Whether the forfeiture was related to a criminal
case and the outcome of the criminal case.
(8) Date of forfeiture decision.
(k) Annual report and confidential information.--The
Attorney General shall annually submit a report to the
Appropriations Committee and Judiciary Committee of the Senate
and to the Appropriations Committee and Judiciary Committee of
the House of Representatives specifying the forfeited property
or proceeds of the forfeited property obtained under this
chapter during the fiscal year beginning July 1, and the
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following shall apply:
(1) The report shall include all information required
under subsection (j) subject to the limitations provided
under paragraph (2).
(2) The Attorney General shall adopt procedures and
guidelines, which shall be public, governing the release of
information by the Attorney General or the district attorney
to protect the confidentiality of forfeited property or
proceeds used in ongoing law enforcement activities.
(k.1) Reporting.--By November 30 of each year, the Office of
Attorney General shall notify the Appropriations Committee and
Judiciary Committee of the Senate and the Appropriations
Committee and Judiciary Committee of the House of
Representatives of any county which has not submitted an audit
and complied with the requirements in subsection (j).
(l) Proceeds and appropriations.--The proceeds or future
proceeds from forfeited property under this chapter shall be in
addition to any appropriation made to the Office of Attorney
General. The Attorney General shall maintain proceeds from
property forfeited to the Office of Attorney General in an
account or accounts separate from any other account maintained
by the Office of Attorney General.
§ 5804. (Reserved).
§ 5805. Forfeiture procedure.
(a) General procedure.--The proceedings for the forfeiture
or condemnation of property, the sale of which is provided for
in this chapter, shall be in rem, in which the Commonwealth
shall be the plaintiff and the property the defendant. A
forfeiture petition signed by the Attorney General, deputy
attorney general, district attorney or assistant district
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attorney shall be filed in the court of common pleas of the
judicial district where the property is seized or located,
verified by oath or affirmation of an officer. If criminal
charges have been filed and a prosecution is pending, the
petition shall be filed in the same judicial district as the
criminal charges in all instances except those involving real
property. Each petition relating to real property shall be filed
in the jurisdiction where the real property is located.
(1) Each forfeiture petition shall contain the
following:
(i) A description of the property actually seized or
constructively seized, including, but not limited to, if
known, the address of any real property, the exact dollar
amount of any United States currency, or the approximate
value of any negotiable instrument or security and the
make, model, year and license plate number of any
vehicle.
(ii) A statement of the time and place where seized.
(iii) The owner, if known.
(iv) The person or persons in possession at the time
of seizure, if known.
(v) An allegation that the property is subject to
forfeiture and an averment of material facts supporting
the forfeiture action.
(vi) A prayer for an order of forfeiture that the
property be adjudged forfeited to the Commonwealth unless
cause is shown to the contrary.
(2) The following shall apply:
(i) A claimant shall file an answer setting forth a
right of possession of the property within 30 days of
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service of the forfeiture petition. The answer shall be
in writing and filed to the docket number in the court of
common pleas and shall be signed by the claimant or the
claimant's attorney.
(ii) The following shall apply:
(A) Prior to filing an answer to a forfeiture
petition, a claimant may file a motion to stay the
forfeiture proceedings if the claimant has been
criminally charged in a case associated with the
forfeiture matter. If the motion is properly filed,
it shall be granted.
(B) The claimant shall have 30 days from the
date the stay is lifted to file an answer in
accordance with this paragraph.
(3) After the answer is filed, the parties shall be
permitted to conduct discovery.
(b) Notice to property owners.--
(1) A copy of the forfeiture petition required under
subsection (a) shall be served personally or by certified
mail on the owner, if known, and on each person in possession
at the time of the seizure, if known. The copy shall have
endorsed a notice, as follows:
To the claimant of within described property:
You are required to file an answer to this petition,
setting forth your title in, and right to possession of,
said property within 30 days from the service hereof, and
you are also notified that, if you fail to file the
answer, a decree of forfeiture and condemnation will be
entered against the property.
(2) The notice under paragraph (1) must be signed by the
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Attorney General, deputy attorney general, district attorney,
deputy district attorney or assistant district attorney and
contain accurate contact information for the signatory.
(c) Substitute notice.--
(1) If the owner of the property is unknown, there was
no person in possession of the property when seized or the
owner or each person in possession at the time of the seizure
cannot be personally served or located within the
jurisdiction of the court, notice of the petition shall be
given by the Commonwealth through an advertisement in at
least one newspaper of general circulation published in the
county where the property has been seized, once a week for
two successive weeks.
(2) Notwithstanding any other law, no other
advertisement shall be necessary.
(3) The notice shall contain a statement of the seizure
of the property with a description of the property and the
place and date of seizure and shall direct any claimants to
the property to file a claim on or before a date given in the
notice, which shall not be less than 30 days from the date of
the first publication.
(4) If no claims are filed within 30 days of
publication, the Commonwealth may move for default judgment.
(d) Property owners not in jurisdiction.--For purposes of
this section, the owner or other person cannot be found in the
jurisdiction of the court if:
(1) a copy of the petition is mailed to the last known
address by certified mail and is returned without delivery;
(2) personal service is attempted once, but cannot be
made at the last known address; and
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(3) a copy of the petition is left at the last known
address unless the address does not exist.
(d.1) Proof of notice.--The Commonwealth shall file proof of
notice with the court. Forfeiture shall not be ordered if the
court finds that proof does not exist that the notice
requirements contained under subsections (b), (c) and (d), if
applicable, have been met.
(e) Notice automatically waived.--The notice provisions of
this section shall be automatically waived if the owner, without
good cause, fails to appear in court in response to a subpoena
and a bench warrant is issued on the underlying criminal
charges. If good cause has not been demonstrated, the
Commonwealth may move for default judgment.
(f) Release of seized property pending conclusion of
proceedings.--
(1) A claimant to property subject to forfeiture is
permitted to seek the immediate release of seized property
if:
(i) the claimant has a possessory interest in the
property;
(ii) the claimant has sufficient ties to the
community to provide assurance that the property will be
available at the time of the trial;
(iii) the continued possession by the Commonwealth
pending the final disposition of forfeiture proceedings
will cause substantial hardship to the claimant, such as
preventing the functioning of a legitimate business,
preventing the claimant from working or leaving the
claimant homeless;
(iv) the claimant's likely hardship from the
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continued possession by the Commonwealth of the seized
property outweighs the risk that the property will be
destroyed, damaged, lost, concealed or transferred if the
property is returned to the claimant during the pendency
of the forfeiture proceeding; and
(v) none of the conditions under paragraph (6)
apply.
(2) The following shall apply:
(i) The claimant under paragraph (1) may file a
motion in the court of common pleas in which the
forfeiture petition has been filed or, if no forfeiture
petition has been filed, in the court of common pleas in
the jurisdiction in which the property was seized. The
motion shall be served upon the district attorney or
Attorney General who has jurisdiction over the case.
(ii) The motion described in this subsection shall
set forth the basis on which the requirements of
paragraph (1) have been met.
(3) If the Commonwealth establishes that the claimant's
motion is meritless, the court shall deny the motion. In
response to a motion under this subsection, the Commonwealth
may, in appropriate cases, submit evidence ex parte in order
to avoid disclosing any matter that may adversely affect an
ongoing criminal investigation or pending criminal trial.
(4) The following shall apply:
(i) The court shall order that the property be
returned to the claimant pending completion of the
forfeiture proceeding if:
(A) a motion is filed under paragraph (2); and
(B) following a hearing, the claimant has
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demonstrated that the requirements of paragraph (1)
have been met.
(ii) If the motion addresses currency, monetary
instruments or electronic funds, the claimant must
establish by a preponderance of the evidence a documented
and noncriminal source of the currency, monetary
instrument or electronic fund. The requirement under this
subparagraph shall be in addition to the requirements
under subparagraph (i).
(5) If the court grants a motion under paragraph (4):
(i) the court may enter any order necessary to
ensure that the value of the property is maintained while
the forfeiture action is pending, including:
(A) permitting the inspection, photographing and
the taking of inventory of the property;
(B) fixing a bond; and
(C) requiring the claimant to obtain or maintain
insurance on the subject property;
(ii) the Commonwealth may place a lien against the
property or file a lis pendens to ensure that the
property is not transferred to another person; and
(iii) if the property in question is currency,
monetary instruments or electronic funds, the court shall
fix a bond as provided under paragraph (5.1).
(5.1) For the purposes of paragraph (5)(iii), the
following shall apply to the fixing of a bond sufficient to
secure the value of the currency, monetary instruments or
electronic funds:
(i) If the value of the currency, monetary
instruments or electronic funds is less than $2,000, the
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court may order the fixing of a bond.
(ii) If the value of the currency, monetary
instruments or electronic funds is at least $2,000, but
less than $5,000, the court may order the fixing of a
bond. If the court finds that the claimant has not
demonstrated his or her ability to ensure the
availability of the currency at the time of the
forfeiture trial, the court shall order the fixing of a
bond.
(iii) If the value of the currency, monetary
instruments or electronic funds is $5,000 or more, the
court shall order the fixing of a bond.
(6) This subsection shall not apply if the seized
property:
(i) is contraband;
(ii) is evidence which shall include, but not be
limited to, proceeds from a violation of law;
(iii) by reason of design or other characteristic,
is particularly suited for use in illegal activities; or
(iv) is likely to be used to commit additional
criminal acts if returned to the claimant.
(7) A party to a proceeding under this subsection shall
not be estopped from raising in any other proceeding any
claim or issue presented to or decided by the court under
this subsection.
(g) (Reserved).
(h) (Reserved).
(i) Trial time.--On the filing of an answer setting forth a
right of possession, the case shall be deemed at issue and a
time shall be fixed for the trial. A judicial district shall not
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require the parties to proceed through local rules of
arbitration.
(j) Burden of proof.--
(1) The burden shall be on the Commonwealth to establish
in the forfeiture petition that the property is subject to
forfeiture.
(2) If the Commonwealth satisfies the burden under
paragraph (1), the burden shall be on the claimant to show by
a preponderance of the evidence that:
(i) the claimant is the owner of the property or the
holder of a chattel mortgage or contract of conditional
sale on the property or holds some other documented
interest in the property; and
(ii) the claimant lawfully acquired the property.
(3) If the claimant satisfies the burden under paragraph
(2), the burden shall be on the Commonwealth to establish by
clear and convincing evidence that the property in question
was unlawfully used, possessed or otherwise subject to the
forfeiture.
(4) If the Commonwealth satisfies the burden under
paragraph (3) and the claimant alleges that he did not have
knowledge of the unlawful activity or consent to the unlawful
activity, the burden shall be on the Commonwealth to
establish by clear and convincing evidence:
(i) that the property was unlawfully used or
possessed by the claimant; or
(ii) if it appears that the property was unlawfully
used or possessed by a person other than the claimant,
that the person unlawfully used or possessed the property
with the claimant's knowledge and consent.
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(k) Proportionality.--
(1) If the court determines that the forfeiture petition
shall be granted, the claimant, prior to entry of an order of
forfeiture, may petition the court to determine whether the
forfeiture is constitutionally excessive.
(2) If the court finds that the forfeiture is grossly
disproportional to the offense, the court shall reduce or
eliminate the forfeiture as necessary to avoid a
constitutional violation.
(l) Disclaimed property.--A defendant in a criminal case who
disclaims ownership of property during the criminal case may not
claim ownership during a subsequent forfeiture proceeding.
(m) Procedure following acquittal.--The following shall
apply:
(1) If the owner of the property is acquitted of all
crimes which authorize forfeiture, there shall be a
rebuttable presumption that the property was lawfully used or
possessed by the claimant.
(2) If the owner of the property is acquitted of all
crimes which authorize forfeiture, the owner shall be
entitled to a hearing under section 5806 (relating to motion
for return of property).
(3) If the forfeiture petition relating to the property
at issue has already been litigated, this section shall not
apply.
(4) As used in this subsection, the term "acquittal"
shall not include plea agreements, acceptance of Accelerated
Rehabilitative Disposition or any other form of preliminary
disposition.
§ 5806. Motion for return of property.
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(a) Motion.--The following shall apply:
(1) A person aggrieved by a search and seizure may move
for the return of the property seized by filing a motion in
the court of common pleas in the judicial district where the
property is located.
(2) The filer under paragraph (1) must serve the
Commonwealth.
(3) Upon proof of service, the court shall schedule a
prompt hearing on the motion and shall notify the
Commonwealth. A hearing on the motion shall, to the extent
practicable and consistent with the interests of justice, be
held within 30 days of the filing of the motion.
(4) The assigned judge may require the filing of an
answer.
(5) If a forfeiture petition was filed by the
Commonwealth before the filing of a motion for return of
property, the motion shall be assigned to the same judge for
disposition, as practicable.
(b) Contents of motion.--A motion under this section shall:
(1) Be signed by the petitioner under penalty of
perjury.
(2) Describe the nature and extent of the petitioner's
right, title or interest in the property, the time and
circumstances of the petitioner's acquisition of the right,
title or interest in the property and any additional facts
supporting the petitioner's claim. The information shall
include:
(i) A description of the property seized.
(ii) A statement of the time and place where seized,
if known.
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(iii) The owner, if known.
(iv) The person in possession, if known.
(3) Identify the relief sought, which may include:
(i) Return of the petitioner's property.
(ii) Reimbursement for the petitioner's legal
interest in the property.
(iii) Severance of the petitioner's property from
the forfeited property.
(iv) Any relief the court deems appropriate and
just.
§ 5806.1. (Reserved).
§ 5806.2. (Reserved).
§ 5807. Restrictions on use.
Property, money or other things of value received by a State
law enforcement authority under any of the following laws may
not be used for contributions to political campaigns, expenses
related to judicial trainings or the purchase of alcoholic
beverages:
(1) A Federal law which authorizes the sharing or
transfer of all or a portion of forfeited property or the
proceeds of the sale of forfeited property to a State law
enforcement authority.
(2) A State law which authorizes forfeiture.
§ 5807.1. Prohibition on adoptive seizures.
State law enforcement authorities shall not refer seized
property to a Federal agency seeking the adoption by the Federal
agency of the seized property. Nothing under this chapter shall
prohibit the Federal Government or any of its agencies from
seeking Federal forfeiture of the same property under any
Federal forfeiture law.
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§ 5807.2. Federal reporting requirements.
The audit required under section 5803(j) (relating to asset
forfeiture) shall include a copy of each equitable sharing
agreement and certification form filed with the United States
Department of Justice within the last 12 months.
§ 5808. Exceptions.
(a) Contraband.--Nothing in this chapter shall be construed
to apply to the forfeiture of the following:
(1) Items bearing a counterfeit mark under 18 Pa.C.S. §
4119 (relating to trademark counterfeiting).
(2) Liquor, alcohol or malt or brewed beverages
illegally manufactured or possessed under section 601 of the
act of April 12, 1951 (P.L.90, No.21), known as the Liquor
Code.
(3) Unlawfully stamped cigarettes under section 307 of
the act of December 30, 2003 (P.L.441, No.64), known as the
Tobacco Product Manufacturer Directory Act.
(4) Unstamped cigarettes under section 1285 of the act
of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
of 1971.
(b) Abandoned and unclaimed property.--This chapter shall
not apply to abandoned or unclaimed property under Article
XIII.1 of the act of April 9, 1929 (P.L.343, No.176), known as
The Fiscal Code.]
Section 5. Title 42 is amended by adding a chapter to read:
CHAPTER 58A
ASSET FORFEITURE
Sec.
58A01. Scope of criminal asset forfeiture.
58A02. Criminal asset forfeiture in general.
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58A03. Process for criminal asset forfeiture.
58A04. Process for third-party interest holders.
58A05. Interaction with the Federal Government.
§ 58A01. Scope of criminal asset forfeiture.
(a) Certain forfeitures exempted.--Forfeitures of property
shall be conducted in accordance with this chapter, except for
forfeitures authorized by:
(1) Section 3 of the act of July 8, 1978 (P.L.752,
No.140), known as the Public Employee Pension Forfeiture Act.
(2) Section 6 of the act of April 6, 1980 (P.L.102,
No.39), entitled "An act restricting the acquisition by
certain aliens of an interest in agricultural lands."
(3) 18 Pa.C.S. § 3021 (relating to asset forfeiture).
(4) 18 Pa.C.S. § 5511 (relating to cruelty to animals).
(5) 18 Pa.C.S. § 6321 (relating to transmission of
sexually explicit images by minor).
(6) 27 Pa.C.S. § 6208 (relating to penalties).
(7) 37 Pa.C.S. § 511 (relating to criminal penalties).
(8) 42 Pa.C.S. § 6801.1 (relating to terrorism
forfeiture).
(b) Contraband per se exempted.--Nothing in this chapter
shall be construed to apply to the forfeiture of contraband per
se, the possession of which is inherently unlawful. Such
forfeiture includes, but is not limited to, forfeiture of the
following:
(1) items bearing a counterfeit mark under 18 Pa.C.S. §
4119 (relating to trademark counterfeiting).
(2) liquor, alcohol or malt or brewed beverages
illegally manufactured or possessed under section 601 of the
act of April 12, 1951 (P.L.90, No.21), known as the Liquor
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Code.
(3) unlawfully stamped cigarettes under section 307 of
the act of December 30, 2003 (P.L.441, No.64), known as the
Tobacco Product Manufacturer Directory Act.
(4) unstamped cigarettes under section 1285 of the act
of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
of 1971.
(c) Conflicting law superseded.--The procedures in this
chapter shall supersede any conflicting provisions of other
State laws.
(d) Preemption.--This chapter preempts any local ordinance
or regulation insofar as it is inconsistent with this chapter,
irrespective of the effective date of the ordinance or
regulation.
§ 58A02. Criminal asset forfeiture in general.
(a) Criminal in form.--Unless otherwise provided,
forfeitures under this chapter are criminal.
(b) Forfeiture disfavored.--Forfeitures are not favored
under State law and any ambiguity in this chapter shall be
strictly construed against the Commonwealth.
(c) Forfeitures generally.--
(1) After a person is convicted of an offense for which
forfeiture is expressly authorized as a penalty, the
following shall be subject to forfeiture to the Commonwealth
and no property right shall exist in them:
(i) The convicted person's property constituting or
derived from any proceeds obtained directly from the
commission of the offense.
(ii) The convicted person's property that:
(A) Was used or intended to be used to commit or
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facilitate the commission of the offense.
(B) Bears a significant relationship to the
offense.
(2) No additional penalties, including, but not limited
to, personal money judgments, shall be authorized under this
chapter except as provided by section 58A03(k) (relating to
process for criminal asset forfeiture). Any restitution made
to a victim using property forfeited under this chapter shall
serve to satisfy in part or in whole any restitution order
against the convicted person.
(3) Nothing in this section shall be construed to
prevent property from being forfeited by the terms of a plea
agreement approved by a court or of any other agreement of
the parties to a criminal proceeding. Forfeiture by agreement
shall be subject to the requirements of section 58A04
(relating to process for third-party interest holders).
(d) Claims for damage, loss or impermissible sale of
property.--After a finding under this chapter that seized
property is not subject to forfeiture, the property owner may
bring a claim against the law enforcement authority that had
custody of the property and lost, damaged or impermissibly sold
it.
(e) Use of property held in custody.--
(1) Whenever property is forfeited under this chapter
and after all ancillary proceedings under section 58A04 are
concluded, the property shall be transferred to the custody
of the district attorney, if the law enforcement authority
seizing the property has local or county jurisdiction, or the
Attorney General, if the law enforcement authority seizing
the property has Statewide jurisdiction.
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(2) The district attorney or the Attorney General, as
applicable, shall sell any forfeited property that is not
required to be destroyed by law and is not harmful to the
public.
(3) Sale of forfeited property to an employee of the
district attorney or Attorney General, a person related to an
employee by blood or marriage or another law enforcement
authority is prohibited.
(4) The proceeds from sale shall be used to pay all
reasonable expenses related to the maintenance of custody and
sale of such property. The balance of the proceeds shall be
subject to subsection (f).
(f) Use of cash or proceeds or property.--Cash or proceeds
of forfeited property transferred under subsection (e) shall be
distributed in the following order:
(1) To satisfy any restitution orders for victims of the
underlying offense.
(2) To pay any liabilities owed by the Commonwealth to
defendants or claimants who substantially prevail under
subsection (l).
(3) Either:
(i) if, in the custody of the Attorney General, to
the Department of Revenue for deposit into the General
Fund; or
(ii) if, in the custody of the district attorney, to
the operating fund of the county in which the district
attorney is elected.
(g) Distribution of property among law enforcement
authorities.--If both municipal and State law enforcement
authorities were substantially involved in effecting the
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seizure, the court having jurisdiction over the forfeiture
proceedings shall equitably distribute the property between the
district attorney and the Attorney General who shall dispose of
the property in accordance with subsections (e) and (f).
(h) Annual audit of forfeited property.--A county of this
Commonwealth shall provide, through the controller, board of
auditors or other appropriate auditor and the district attorney,
an annual audit of all forfeited property and proceeds obtained
under this section and the disposition thereof, as well as of
all fees awarded under subsection (l). The audit shall be
submitted to the Office of Attorney General by September 30 of
each year.
(i) Annual report.--The Attorney General shall annually
submit a report to the Appropriations Committee and Judiciary
Committee of the Senate and the Appropriations Committee and
Judiciary Committee of the House of Representatives describing
the forfeited property or proceeds thereof obtained under this
section, as well as the fees awarded under subsection (l). The
report shall include an accounting of all proceeds derived from
the sale of forfeited property.
(j) Public access.--All accounting and audit records
generated under subsections (h) and (i) shall be subject to the
act of February 14, 2008 (P.L.6, No.3), known as the Right-to-
Know Law.
(k) Taxpayer standing.--A taxpayer of this Commonwealth has
standing to challenge in court any action contrary to subsection
(e), (f), (g), (h), (i) or (j).
(l) Fee shifting.--In any forfeiture proceeding under this
chapter in which the defendant or claimant substantially
prevails, the Commonwealth shall be liable for:
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(1) Reasonable attorney fees and other litigation costs
reasonably incurred by the defendant or claimant.
(2) Postjudgment interest.
(3) In cases involving currency or other negotiable
instruments:
(i) Interest actually paid to the Commonwealth, from
the date of seizure or arrest of the property, that
results from the investment of the property in an
interest-bearing account or instrument.
(ii) An imputed amount of interest that the
currency, instruments or proceeds would have earned at
the rate applicable to the 30-day Treasury Bill, for any
period during which no interest was paid, not including
any period when the property reasonably was in use as
evidence in an official proceeding or in conducting
scientific tests for the purpose of collecting evidence,
commencing 15 days after the property was seized by a
State law enforcement authority or was turned over to a
State law enforcement authority by a Federal law
enforcement authority.
§ 58A03. Process for criminal asset forfeiture.
(a) Seizure.--
(1) Property subject to forfeiture under this chapter
may be seized by a law enforcement authority upon process
issued by any court of common pleas having jurisdiction.
(2) Seizure without process may be made if:
(i) the seizure is incident to an arrest or a search
under a search warrant or inspection under an
administrative inspection warrant and there is probable
cause to believe that the property is subject to
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forfeiture under section 58A02(c)(1) (relating to
criminal asset forfeiture in general);
(ii) the property subject to seizure has been the
subject of a prior judgment in favor of the Commonwealth
in a criminal injunction or forfeiture proceeding under
this chapter; or
(iii) there is probable cause to believe that the
property is subject to forfeiture under section 58A02(c)
(1) and process or delay is likely to result in the
destruction or removal of the property or in its
otherwise being made unavailable for forfeiture.
(b) Seizure of real property.--Absent exigent circumstances,
no real property subject to forfeiture shall be seized unless
the Commonwealth first provides property owners and occupants
with notice and an opportunity for a hearing. The hearing shall
be conducted in accordance with subsections (d) and (e).
(c) Receipt for seized property.--When property is seized,
the law enforcement authority shall provide an itemized receipt
to the person in possession of the property or, in the absence
of any person, leave a receipt in the place where the property
was found, if reasonably possible. The receipt shall provide
notice of the right of interest holders to move for the return
of seized property under subsections (d) and (e).
(d) Pretrial motion for return of seized property.--When
property has been seized for forfeiture and the defendant or
another putative interest holder in the property files a
pretrial motion for its return, the property shall promptly be
returned unless the Commonwealth proves that there is probable
cause that the property is subject to forfeiture.
(e) Hardship release of property subject to forfeiture.--
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When the defendant or another putative interest holder in the
property files a motion for the hardship release of property,
the court shall order the release of seized property from the
seizing law enforcement authority pending the final
determination of forfeiture, if the putative interest holder
establishes by a preponderance of the evidence that:
(1) The putative interest holder has a possessory
interest in the property.
(2) Continued possession by the law enforcement
authority pending the final disposition of the forfeiture
proceedings will cause substantial hardship to the interest
holder, such as:
(i) preventing the functioning of a legitimate
business;
(ii) preventing an individual from working;
(iii) preventing a minor child or student from
attending school;
(iv) preventing or hindering an individual from
receiving necessary medical care;
(v) hindering the care of an elderly or disabled
dependent child or adult;
(vi) leaving an individual homeless; or
(vii) any other condition that the court determines
causes a substantial hardship;
(3) The hardship from the continued possession by the
law enforcement authority of the seized property outweighs
the risk that the property will be unlawfully used, destroyed
or removed from the jurisdiction of the court or otherwise
made unavailable for forfeiture if it is returned to the
owner during the pendency of the proceeding.
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(f) Initiation of forfeiture.--
(1) The proceedings for forfeiture of property shall be
tried in the same proceeding as the criminal case concerning
the determination of the defendant's guilt or innocence for
the underlying offense, unless the defendant moves to
bifurcate the trial of the forfeiture from the trial of the
underlying criminal case.
(2) An information or an indictment charging the
defendant with an offense shall include notice to the
defendant that the Commonwealth will seek forfeiture as part
of any sentence. The notice shall include:
(i) An itemized list of the specific property
subject to forfeiture, including, but not limited to, the
address of any real property, the exact dollar amount of
any money, negotiable instrument or security and the
make, model, year and license plate number of any
vehicle.
(ii) A statement of the time and place of the
offense.
(iii) A description of the particular use of the
property in the commission of the offense or derivation
therefrom.
(g) Forfeiture phase of criminal proceeding.--After a person
is convicted on any count in an indictment or information for
which forfeiture is sought, the Commonwealth must establish at a
forfeiture hearing by clear and convincing evidence that the
property is forfeitable under section 58A02(c)(1) before the
court enters a preliminary order of forfeiture.
(h) Extent of forfeitable interest.--If the court determines
it is in the interests of judicial economy, the court or jury
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may determine the extent of the convicted person's forfeitable
interest in the property before a preliminary order of
forfeiture is entered. The determination shall be subject to
amendments under section 58A04 (relating to process for third-
party interest holders).
(i) Right to trial by jury.--
(1) At the forfeiture hearing, the defendant shall have
the right to trial by jury of the forfeiture.
(2) The defendant may waive this right while preserving
the right to trial by jury of the offense charged or other
sentencing issues.
(3) Alternatively, the defendant may preserve this right
while waiving the right to trial by jury of the offense
charged or other sentencing issues.
(j) Excessive fines.--
(1) In order to enter a preliminary order of forfeiture
under section 58A02(c)(1)(ii), the court must make a
determination that the forfeiture is not grossly
disproportional to the gravity of the underlying offense.
(2) The Commonwealth shall have the burden of
establishing proportionality by clear and convincing
evidence.
(3) The value of property forfeited shall be determined
by considering, among other factors:
(i) Its market value.
(ii) Its subjective value to the defendant and the
defendant's family members.
(4) The gravity of the offense shall be determined by
considering, among other factors:
(i) The penalty imposed as compared to the maximum
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penalty available for the offense upon which the
forfeiture is based.
(ii) Whether the offense was isolated or part of a
pattern of criminal conduct.
(iii) The specific harm resulting from the offense
upon which the forfeiture is based.
(k) Forfeiture of substitute property.--
(1) After entering a preliminary order of forfeiture,
the court may order the forfeiture of substitute property up
to the value of the property subject to the order, if the
Commonwealth establishes by clear and convincing evidence
that:
(i) The convicted person intentionally transferred,
sold or deposited the property to avoid the court's
jurisdiction.
(ii) The substitute property is owned solely by the
convicted person.
(2) No codefendant shall be subject to joint and several
liability for forfeiture judgments owed by other defendants
under this subsection.
§ 58A04. Process for third-party interest holders.
(a) Notice to third parties.--After the court enters a
preliminary order of forfeiture, the Commonwealth shall send
notice to any person who reasonably appears to be a potential
claimant with standing to contest the forfeiture in an ancillary
proceeding under subsection (i). Potential claimants include,
but are not limited to:
(1) Partial or joint owners of the property subject to
the preliminary order of forfeiture.
(2) Holders of a bona fide security interest in the
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property subject to the preliminary order of forfeiture.
(3) Bona fide purchasers for value of the property
subject to the preliminary order of forfeiture.
(4) Obligees of court-ordered child support from the
convicted person.
(5) Claimants of employment-related compensation from
the convicted person.
(b) Contents of notice.--Notice shall include:
(1) A description of the specific property subject to
the preliminary order of forfeiture including, but not
limited to, the address of any real property, the exact
dollar amount of any money, negotiable instrument or
securities and the make, model, year and license plate number
of any vehicle.
(2) A statement that either:
(i) a petition contesting forfeiture must be filed
within 60 days of the date of receipt of certified mail
or personal service; or
(ii) in the case the service fails, a petition
contesting forfeiture must be filed within 60 days of the
date of final publication of substitute notice;
(3) A statement describing the required contents of a
petition contesting forfeiture as set forth in subsection
(h).
(4) The name and contact information for the
Commonwealth attorney to be served with the petition.
(5) The signature of the Attorney General, Deputy
Attorney General, district attorney, deputy district attorney
or assistant district attorney.
(c) Means of serving notice.--Notice shall be served
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personally or by certified mail on the potential claimant.
(d) Substitute notice.--If a potential claimant cannot be
personally served or located within the jurisdiction of the
court, notice of the petition shall be provided by the
Commonwealth through an advertisement reasonably calculated to
provide notice to the potential claimant:
(1) in a newspaper of general circulation published in
the county where the property was seized, once a week for two
successive weeks; and
(2) on the publicly accessible Internet website of the
prosecuting attorney for a period of two weeks.
(e) Potential claimants not in jurisdiction.--For purposes
of this section, it shall be deemed that a potential claimant
cannot be located in the jurisdiction of the court if:
(1) A copy of the petition is mailed to the potential
claimant's last known address by certified mail and is
returned without delivery.
(2) Personal service is attempted once, but cannot be
made at the last known address.
(3) A copy of the petition is left at the last known
address.
(f) Proof of notice.--The Commonwealth shall file proof of
notice with the court. No forfeiture order shall be final until
the court finds that such proof satisfies the notice
requirements under subsections (a), (b), (c), (d) and (e).
(g) Petitioning for hearing.--A person, other than the
defendant, asserting a legal interest in property subject to a
preliminary order of forfeiture under section 5803(g) (relating
to process for criminal asset forfeiture) may, within 60 days of
the date of receipt of certified mail or personal service or, in
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the case such service fails, the date of final publication of
substitute notice, petition the court for a hearing to
adjudicate the validity of the person's alleged interest in the
property.
(h) Contents of third-party claimant petition.--The petition
shall:
(1) Be signed by the petitioner under penalty of
perjury.
(2) Describe the nature and extent of the petitioner's
right, title or interest in the property, the time and
circumstances of the petitioner's acquisition of the right,
title or interest in the property and any additional facts
supporting the petitioner's claim.
(3) Identify the relief sought, which may include, but
need not be limited to:
(i) return of the petitioner's property;
(ii) reimbursement for the petitioner's legal
interest in the forfeited property;
(iii) severance of the petitioner's property from
the forfeited property;
(iv) retention of the property by the petitioner
subject to a lien in favor of the State to the extent of
the forfeitable interest; or
(v) any relief the court deems appropriate and just.
(i) Ancillary proceeding in general.--
(1) If a third-party claimant timely files a petition
asserting a legal interest in property to be forfeited, the
court shall conduct an ancillary proceeding, no later than
four months after entry of the preliminary order of
forfeiture. The hearing shall be a civil proceeding and the
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