Freedom from government seizure act.

24LSO-0552
2024
STATE OF WYOMING
24LSO-0552
Numbered
2.0

HOUSE BILL NO. HB0180

Freedom from government seizure act.

Sponsored by: Representative(s) Provenza, Andrew, Brown, Olsen, Singh and Western and Senator(s) Barlow, Case, Driskill and Rothfuss

A BILL

for

AN ACT relating to controlled substances; amending the procedures and requirements for the forfeiture and seizure of property under the Wyoming Controlled Substances Act; providing definitions; requiring reporting; making conforming amendments; repealing conflicting provisions; specifying applicability; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 35
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7
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1049.1 is created to read:

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7
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1049.1.

Forfeitures and seizures generally; property subject to forfeiture.

(a)

As permitted and limited by subsections (c) through (r) of this section, the following types of property are subject to forfeiture:

(i)

All controlled substances that have been manufactured, distributed, dispensed or acquired in violation of this act;

(ii)

All raw materials, products and equipment of any kind that are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of this act;

(iii)

All property that is used as a container for property described in paragraph (i) or (ii) of this subsection;

(iv)

All books, records, research products and materials, including formulas, microfilm, tapes and data, that are used, or intended for use, in violation of this act;

(v)

All conveyances including aircraft, vehicles or vessels knowingly used, or intended for use, to transport or facilitate the transportation of property described in paragraph (i) or (ii) of this subsection, provided that:

(A)

No conveyance is subject to forfeiture under this paragraph unless the conveyance was used to transport or receive property in violation of this act;

(B)

No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or corporate officer is a consenting party or privy to a violation of this act;

(C)

No conveyance is subject to forfeiture under this paragraph by reason of any act committed without the knowledge or consent of the owner;

(D)

A conveyance is not subject to forfeiture for a violation of W.S. 35
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7
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1031(c);

(E)

A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the security interest if the secured party neither had knowledge of nor consented to the act of violation.

(vi)

All drug paraphernalia as defined by W.S. 35
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7
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1002(a)(xxvii);

(vii)

All buildings knowingly used or intended for use to store, manufacture or distribute property described under paragraph (i) or (ii) of this subsection if the owner has knowledge of or gives consent to the act of the violation. A forfeiture of a building encumbered by a bona fide security interest is subject to the security interest of the secured party if that party did not have knowledge of or give consent to the act;

(viii)

Any property or other thing of pecuniary value furnished in exchange for a controlled substance in violation of this act, including any proceeds, assets or other property of any kind traceable to the exchange and any money, securities or other negotiable instruments used to facilitate a violation of this act. Property used or furnished without the consent or knowledge of the owner is not forfeitable under this section to the extent of the owner's interest.

(b)

Property subject to forfeiture under subsection (a) of this section may be seized by any law enforcement officer of the state upon process issued by any district court or district court commissioner having jurisdiction over the property. Seizure without process may be made if the board or commissioner has probable cause to believe that the property was used or is intended to be used in violation of this act.

(c)

Any person convicted of a violation of this act punishable by imprisonment for more than one (1) year shall be subject to forfeiture of property listed under subsection (a) of this section. The procedure for forfeiture shall be as provided in subsections (d) through (m) of this section.

(d)

Except for summary forfeiture under paragraph (h)(vi) and subsections (j) through (m) of this section, the court shall order forfeiture only as part of the defendant's sentence. If the state seeks to forfeit property:

(i)

The indictment or information shall contain notice to the defendant that the state seeks forfeiture and shall specifically identify the property sought to be forfeited;

(ii)

All property shall be returned to the person from whom it was seized unless there is a finding or verdict of guilt, an admission of guilt or a plea of nolo contendere to a felony under this act;

(iii)

After a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted, the court shall conduct a forfeiture hearing to determine if the property is subject to forfeiture under this section. If the court finds by a preponderance of evidence that property is subject to forfeiture, the court shall enter a preliminary order directing the forfeiture;

(iv)

The court may include in the preliminary order of forfeiture additional conditions reasonably necessary to preserve the property's value pending any appeal.

(e)

If the court makes a preliminary order of forfeiture of property, the legal interests of persons other than a party to the criminal action shall be determined, subject to the following:

(i)

Following an entry of a preliminary order of forfeiture, the state shall publish notice of the order in a newspaper of general circulation in the state once a week for two (2) weeks and shall provide written notice by first class mail to the last known address of any person who, after reasonable inquiry, appears to be a potential owner or lien holder in the property. The notice shall describe the forfeited property and shall advise that parties with a potential interest in the property may contest the forfeiture by filing a petition with the court not later than sixty (60) days after the date of the second public notice or, if notice is mailed under this paragraph, not later than thirty (30) days after the written notice is mailed;

(ii)

If a third party files a timely petition asserting an interest in the property, the court shall conduct a hearing. The court may permit the parties to conduct discovery in accordance with the Wyoming Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues. After the hearing, the court shall enter a final order of forfeiture by amending the preliminary order as necessary to account for any third party rights. If no third party files a timely petition, the preliminary order shall become the final order upon expiration of the time for filing a petition;

(iii)

If a defendant appeals from a conviction or a preliminary order of forfeiture, the court may stay the preliminary order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay shall not delay the ancillary hearing or the determination of a third party's rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may amend the order of forfeiture but shall not transfer any property interest to a third party until the decision on appeal becomes final, unless the defendant consents in writing or on the record.

(f)

An interest in property belonging to a third party shall not be forfeited to the extent that the third party establishes, by a preponderance of evidence, a perfected lien in the property, a perfected priority interest in the property or that he is an innocent owner. For purposes of this subsection:

(i)

With respect to a property interest in existence at the time the violation of this act took place, "innocent owner" means a person who held an interest in the property who did not reasonably know of the conduct of the defendant related to the violation;

(ii)

With respect to a property interest acquired after the violation of this act has taken place, the term "innocent owner" means a person who, at the time that person acquired the interest in the property:

(A)

Was a bona fide purchaser or seller for value of the property or a holder of a bona fide security interest; and

(B)

Did not know and was reasonably without cause to believe the property was subject to forfeiture.

(g)

Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the commissioner subject only to the orders and decrees of the court having jurisdiction over the proceedings. When property is seized under this act, the commissioner shall place the property under seal or otherwise assure the property is maintained under conditions reasonably necessary to preserve the property's value or may sell the property and hold the proceeds thereof if the property is perishable or threatens to decline speedily in value until the forfeiture proceedings have become final as to all parties and all rights of appeal have been exhausted.

In order to preserve the property, if cash, the commissioner may deposit funds into a demand deposit account at an institution located within the state of Wyoming.

(h)

When property is forfeited under this act, the commissioner may:

(i)

Retain it for official use, in which case it shall become the property of the state of Wyoming;

(ii)

Sell the property or any portion of the property that is not required to be destroyed by law and that is not harmful to the public. The proceeds shall be used for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs;

(iii)

Require the board to take custody of the property and remove it for disposition in accordance with law;

(iv)

Transfer ownership and control of the property to any municipality or political subdivision of the state for the transferee's official use; or

(v)

Authorize any law enforcement officer to apply to the district court for an order providing for destruction of the property if it is contraband controlled substances or paraphernalia and is no longer necessary for evidentiary purposes, provided that a district court order shall not be necessary for the division of criminal investigation to destroy quantities of contraband controlled substances after the division has tested random samples.

The division of criminal investigation shall adopt rules necessary to operate a program to destroy bulk quantities of contraband controlled substances, which shall include:

(A)

The photographing and videotaping of the entire bulk amount of seized contraband controlled substances to maintain its evidentiary value and to create exhibits for use in legal proceedings;

(B)

The extraction of ten (10) random samples from the entire bulk amount of seized contraband controlled substances for laboratory analysis;

(C)

A weighing on properly calibrated scales of both the bulk amount of seized contraband controlled substances and the representative samples;

(D)

The additional retention of:

(I)

Five (5) ounces of organic material if the controlled substance is marijuana or a substance of similar organic composition;

(II)

Five (5) grams of a controlled substance in powdered or crystalline form;

(III)

Five
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tenths (0.5) of a gram of a controlled substance in liquid form;

(IV)

An amount sufficient for testing by experts shall be made available from the additionally retained sample for the purpose of defending criminal charges arising from the possession, use or sale of the controlled substance.

(vi)

After testing and the retention of samples specified in paragraph (v) of this subsection, order the destruction of the bulk amount of the seized contraband controlled substance in excess of the representative sample and the additional retained samples of the seized contraband controlled substance;

(vii)

Authorize any law enforcement officer, after the representative samples and the additional retained samples of the contraband controlled substance are no longer necessary for evidentiary purposes, to apply to the district court with jurisdiction for an order providing for the destruction of the remaining contraband controlled substance.

(j)

Any controlled substance listed in Schedules I through V that is possessed, transferred, sold or offered for sale in violation of this act is contraband and shall be seized and summarily forfeited to the state. Any controlled substance listed in Schedules I through V that is seized or comes into possession of the state and the owner is unknown, is contraband and shall be summarily forfeited to the state.

(k)

Species of plants from which controlled substances in Schedules I and II may be derived that have been planted or cultivated in violation of this act, or of which the owners or cultivators are unknown, or that are wild growths, may be seized and summarily forfeited to the state.

(m)

Upon demand by the commissioner or the commissioner's authorized agent, the failure of a person in occupancy or in control of land or a premises upon which the species of plants described in subsection (k) of this section is growing or being stored to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

(n)

Any law enforcement agency of this state may accept, receive, dispose of and expend the property or proceeds from any property forfeited to the federal government or any state and allocated to the agency by the United States attorney general pursuant to 21 U.S.C. § 881(e) or any law of another state. The property or proceeds shall be in addition to funds appropriated to the law enforcement agency by the state legislature or any unit of local government.

The property or proceeds may be credited to any lawfully created fund or account designated to receive proceeds of forfeitures.

(o)

Any law enforcement agency of this state that receives property or proceeds pursuant to subsection (n) of this section shall report to the attorney general on forms to be prescribed by the attorney general:

(i)

The receipt of property or proceeds within thirty (30) days from the receipt; and

(ii)

The disposition or expenditure of any property or proceeds within ninety (90) days from the disposition or expenditure.

(p)

Not later than August 1 of each year, the attorney general shall submit an annual report to the joint appropriations committee and the joint judiciary interim committee concerning recipients and the amount of property and proceeds accepted, received, disposed of or expended during the prior calendar year under this section by law enforcement agencies, other than property subject to destruction or summary forfeiture under paragraph (h)(vi) and subsections (j) through (m) of this section.

(q)

No law enforcement agency of this state shall accept property or proceeds pursuant to subsection (n) of this section if the tender of the property or proceeds is conditioned upon the state law enforcement agency's adoption of federal law enforcement practices and procedure.

(r)

No law enforcement officer shall request, require or in any manner induce any person to execute a document purporting to waive, for purpose of forfeiture under this section, the person's interest in or rights to property seized.

Except as otherwise provided in this subsection, any document obtained by a law enforcement officer purporting to waive a person's interest in or right to property seized under this section is null and void. Nothing in this subsection prohibits the commissioner, after a hearing and a finding of probable cause as required by subsection (c) of this section, from requesting a person to waive the person's interest in or rights to property.

Section 2.

W.S. 1
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120(b) and 7
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105(a)(intro) and (p)(intro) are amended to read:

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120.

Exclusions from waiver of immunity.

(b)

Notwithstanding the waiver of immunity for tort liability provided by W.S. 1
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105 through 1
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112 or the waiver of immunity in actions based on contract provided by W.S. 1
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104, a governmental entity and its public employees while acting within the scope of duties are immune from a civil action in tort, contract or otherwise alleging, in whole or in part, the improper seizure of property pursuant to W.S.
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1049
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1049.1
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105.

Disposition and appraisal of property seized or held; notice and order to show cause; judgment.

(a)

When personal property not subject to be summarily destroyed is seized or held by any peace officer pursuant to any law of this state, or when property seized by any peace officer is delivered to the appropriate law enforcement agency under provisions other than W.S.
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1049
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1049.1
, or property is taken into custody as lost, mislaid or abandoned, the head of the law enforcement agency shall forthwith ascertain as closely as practicable:

(p)

For purposes of this section, seized property that is not subject to W.S.
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1049
35
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1049.1
may be summarily destroyed, provided the lawful owner has been contacted and has declined to take possession of the property, including:

Section 3.

W.S. 35
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1049 is repealed.

Section 4.

This act shall apply to all seizures of property under the Wyoming Controlled Substances Act on and after July 1, 2024.

Section 5
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This act is effective July 1, 2024
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(END)

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HB0180