Civil asset forfeiture reform bill approved by Tennessee Legislature

BY Rex Barton
MTAS Police Management
Consultant

With no dissenting votes, both chambers of the legislature approved a significant change to the civil asset forfeiture laws. The bill, SB1987/HB2021, is currently awaiting the governor’s signature.

Changing civil asset forfeiture laws has been a controversial issue in the legislature for the past several years. Some legislators have tried to completely eliminate civil asset forfeiture, while law enforcement officials see the process as a way to recover the ill-gotten gains of criminals.

Those seeking to eliminate or reel in the existing process have lamented over the innocent owner losing a vehicle used by a child to commit a crime, or funds being seized with no direct nexus to drug crimes, other than carrying the scent of drugs. The prolonged wait for an administrative hearing often resulted in the owner being without a vehicle for months, sometimes having to buy a new car to drive to work and not being able to keep up the payments on the seized vehicle.

SB1987/HB2021 provides an opportunity for the owner of any seized property, usually a vehicle, who was not present at the time of the seizure to contest the seizure during a forfeiture warrant hearing before an administrative law judge.

Under the current law, if an arrest is made, the owner has no right to be present at the forfeiture warrant hearing.
Assuming SB1987/HB2021 becomes law, the seizing officer will be required, within five business days of the date of seizure, to mail to the owner, by “return receipt requested” mail, at the owners last known address, a notice entitled “Notice of Forfeiture Warrant Hearing.” The legislation requires the owner to be given reasonable notice of the forfeiture warrant hearing, but also provides that the hearing must take place within 45 days of the seizure.

The legislation also provides that if an alleged controlled substance is the basis for a seizure, and a crime lab analysis shows the substance was not actually a controlled substance, the seizing agency is required to send a copy of the lab report to the Tennessee Department of Safety and Homeland Security (hereinafter “Department”) within five business days of receiving the report. If the alleged control substance was the sole basis for the seizure, the department must submit an order of dismissal to the administrative law judge set to hear the case, within five days of receiving the lab report from the seizing agency. The seizing agency has to return the property to the owner within five days of receiving the signed dismissal order. All of this is to prevent an owner from being deprived of his property for an extended period of time after it is determined there is no longer a basis for the forfeiture of the property.

The legislation also creates a “rebuttable presumption” that currency, when someone claims ownership, is not subject to forfeiture unless there is evidence to the contrary. Seizing officers will have to provide evidence that the cash has a direct connection to illegal activity. An “alert” by a drug dog, when the cash could have been in proximity to other cash tainted by drugs in an ATM, will likely not provide enough evidence for forfeiture without other supporting evidence.

Finally, the legislation requires attorneys’ fees to be awarded to the owner of property that was seized but ordered to be returned by an administrative law judge. Attorney’s fees are capped at the lesser of 25 percent of the value of the property or cash, or $3,000. The maximum attorney’s fees is $3,000. However, per the legislation, if the administrative judge forfeits the property to the seizing agency, and the owner prevails on an appeal, the judge hearing the appeal is required to award attorney’s fees incurred during the administrative proceeding and, “any reasonable attorney’s fees incurred during the appeal.” The section on attorney’s fees for appeals will not become effective until Jan. 1, 2019. All other sections will take effect Oct. 1, 2018.

SB1987/HB2021 as passed by the legislature can be seen as a compromise between those who want to abolish civil asset forfeiture and those who see it as a positive tool for law enforcement. These changes should help eliminate the excesses that have caused the process to come under such scrutiny in the first place.