2006 Ohio Revised Code - 2923.45. Property subject to civil forfeiture; seizure.

§ 2923.45. Property subject to civil forfeiture; seizure.
 

(A)  The following property is subject to forfeiture to the state in a civil action as described in division (E) of this section, and no person has any right, title, or interest in the following property: 

(1) Any property that constitutes, or is derived directly or indirectly from, any proceeds that a person obtained directly or indirectly from the commission of an act that, upon the filing of an indictment, complaint, or information, could be prosecuted as a violation of section 2923.42 of the Revised Code or that, upon the filing of a complaint, indictment, or information, could be the basis for finding a juvenile to be a delinquent child for committing an act that is a violation of section 2923.42 of the Revised Code; 

(2) Any property that was used or intended to be used in any manner to commit, or to facilitate the commission of, an act that, upon the filing of an indictment, complaint, or information, could be prosecuted as a violation of section 2923.42 of the Revised Code or that, upon the filing of a complaint, indictment, or information, could be the basis for finding a juvenile to be a delinquent child for committing an act that is a violation of section 2923.42 of the Revised Code. 

(B) (1)  All right, title, and interest in property described in division (A) of this section shall vest in the state upon the commission of the act giving rise to a civil forfeiture under this section. 

(2) The provisions of section 2933.43 of the Revised Code relating to the procedures for the forfeiture of contraband do not apply to a civil action to obtain a civil forfeiture under this section. 

(3) Any property taken or detained pursuant to this section is not subject to replevin and is considered to be in the custody of the head of the law enforcement agency that seized the property. 

This section does not preclude the head of a law enforcement agency that seizes property from seeking the forfeiture of that property pursuant to federal law. If the head of a law enforcement agency that seizes property does not seek the forfeiture of that property pursuant to federal law and if the property is subject to forfeiture under this section, the property is subject only to the orders of the court of common pleas of the county in which the property is located, and it shall be disposed of in accordance with section 2923.46 of the Revised Code. 

(4) Nothing in this section precludes a financial institution that has or purports to have a security interest in or lien on property described in division (A) of this section from commencing a civil action or taking other appropriate legal action in connection with the property, prior to its disposition in accordance with section 2923.46 of the Revised Code, for the purpose of obtaining possession of the property in order to foreclose or otherwise enforce the security interest or lien. A financial institution may commence a civil action or take other appropriate legal action for that purpose prior to the disposition of the property in accordance with section 2923.46 of the Revised Code, even if a civil action to obtain a civil forfeiture has been or could be commenced under this section, even if the property is or could be the subject of an order of civil forfeiture issued under this section, and even if the property has been seized or is subject to seizure pursuant to this section. 

If a financial institution commences a civil action or takes any other appropriate legal action as described in this division, if the financial institution subsequently causes the sale of the property prior to its seizure pursuant to this section and its disposition pursuant to section 2923.46 of the Revised Code, and if the person responsible for the conduct of the sale has actual knowledge of the commencement of a civil action to obtain a civil forfeiture under this section or actual knowledge of an order of civil forfeiture issued under this section, then the person responsible for the conduct of the sale shall dispose of the proceeds of the sale in the following order: 

(a) First, to the payment of the costs of the sale and to the payment of the costs incurred by law enforcement agencies and financial institutions in connection with the seizure of, storage of, maintenance of, and provision of security for the property. As used in this division, "costs" of a financial institution do not include attorney's fees incurred by that institution in connection with the property. 

(b) Second, the remaining proceeds of the sale after compliance with division (B)(4)(a) of this section, to the payment in the order of priority of the security interests and liens of valid security interests and liens pertaining to the property that, at the time of the vesting in the state under division (B)(1) of this section of the right, title, or interest of the adult or juvenile, are held by known secured parties and lienholders; 

(c) Third, the remaining proceeds of the sale after compliance with division (B)(4)(b) of this section, to the court that has or would have jurisdiction in a civil action to obtain a civil forfeiture under this section, for disposition in accordance with section 2923.46 of the Revised Code. 

(C) (1)  A law enforcement officer may seize any property that is subject to civil forfeiture under this section upon process, or a warrant as described in division (C)(2) of this section, issued by a court of common pleas that has jurisdiction over the property. Additionally, a law enforcement officer may seize the property, without process or a warrant being so issued, when any of the following applies: 

(a) The seizure is incident to an arrest, a search under a search warrant, a lawful search without a search warrant, or an inspection under an administrative inspection warrant. 

(b) The property is the subject of a prior judgment in favor of the state in a restraining order, injunction, or other preservation order proceeding under section 2923.44 of the Revised Code, or is the subject of a forfeiture order issued pursuant to that section. 

(c) The law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to the public health or safety. 

(d) The initial intrusion by the law enforcement officer afforded the officer with plain view of personal property that is subject to civil forfeiture in a civil action under this section, the initial intrusion by the law enforcement officer was lawful, the discovery of the personal property by the law enforcement officer was inadvertent, and the incriminating nature of the personal property was immediately apparent to the law enforcement officer. 

(2) For purposes of division (C)(1) of this section, the state may request a court of common pleas to issue a warrant that authorizes the seizure of property that is subject to civil forfeiture under this section, in the same manner as provided in Criminal Rule 41 and Chapter 2933. of the Revised Code for the issuance of a search warrant. For purposes of division (C)(1) of this section, any proceeding before a court of common pleas that involves a request for the issuance of process, or a warrant as described in this division, authorizing the seizure of any property that is subject to civil forfeiture under this section shall be recorded by shorthand, by stenotype, or by any other mechanical, electronic, or video recording device. The recording of and any transcript of the recording of such a proceeding shall not be a public record for purposes of section 149.43 of the Revised Code until the property has been seized pursuant to the process or warrant. This division does not require, authorize, or permit the making available for inspection, or the copying, under section 149.43 of the Revised Code of any confidential law enforcement investigatory record or trial preparation record, as defined in that section. 

(3) If property is seized pursuant to division (C)(1) of this section and if a civil action to obtain a civil forfeiture under this section, a criminal action that could result in a criminal forfeiture under section 2923.44 of the Revised Code, or a delinquent child proceeding that could result in a criminal forfeiture under that section is not pending at the time of the seizure or previously did not occur in connection with the property, then the prosecuting attorney of the county in which the seizure occurred promptly shall commence a civil action to obtain a civil forfeiture under this section in connection with the property, unless an indictment, complaint, or information alleging the commission of a violation of section 2923.42 of the Revised Code or a complaint, or indictment, or information alleging that a juvenile is a delinquent child because of the commission of an act that is a violation of section 2923.42 of the Revised Code is filed prior to the commencement of the civil action. Nothing in division (C)(3) of this section precludes the filing of an indictment, complaint, or information alleging the commission of a violation of section 2923.42 of the Revised Code or the filing of a complaint, indictment, or information alleging that a juvenile is a delinquent child because of the commission of an act that is a violation of section 2923.42 of the Revised Code, after the commencement of a civil action to obtain a civil forfeiture under this section. 

(D) (1)  The filing of an indictment, complaint, or information alleging the commission of a violation of section 2923.42 of the Revised Code that also is the basis of a civil action for a civil forfeiture under this section, or the filing of a complaint, indictment, or information alleging that a juvenile is a delinquent child because of the commission of an act that is a violation of section 2923.42 of the Revised Code, and that also is the basis of a civil action for a civil forfeiture under this section, upon the motion of the prosecuting attorney of the county in which the indictment, complaint, or information or the complaint, indictment, or information in the delinquent child proceeding is filed, shall stay the civil action. 

(2) A civil action to obtain a civil forfeiture under this section may be commenced as described in division (E) of this section whether or not the adult or juvenile who committed a violation of section 2923.42 of the Revised Code or an act that is a violation of section 2923.42 of the Revised Code has been charged by an indictment, complaint, or information with the commission of a violation of that section, has pleaded guilty to or been found guilty of a violation of that section, has been determined to be a delinquent child for the commission of a violation of that section, has been found not guilty of committing a violation of that section, or has not been determined to be a delinquent child for the alleged commission of a violation of that section. 

(E) (1)  The prosecuting attorney of the county in which property described in division (A) of this section is located may commence a civil action to obtain a civil forfeiture under this section by filing in the court of common pleas of that county a complaint that requests the issuance of an order of civil forfeiture of the property to the state. Notices of the action shall be served and published in accordance with division (E)(2) of this section. 

(2) Prior to or simultaneously with the commencement of the civil action as described in division (E)(1) of this section, the prosecuting attorney shall conduct or cause to be conducted a search of the appropriate public records that relate to the property subject to civil forfeiture, and shall make or cause to be made reasonably diligent inquiries, for the purpose of identifying persons who have any right, title, or interest in the property. The prosecuting attorney then shall cause a notice of the commencement of the civil action, together with a copy of the complaint filed in it, to be given to each person who is known, because of the conduct of the search, the making of the inquiries, or otherwise, to have any right, title, or interest in the property, by certified mail, return receipt requested, or by personal service. Additionally, the prosecuting attorney shall cause a similar notice to be published once a week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located. 

(3) The procedures specified in divisions (F)(3) to (5) of section 2923.44 of the Revised Code apply to persons claiming any right, title, or interest in property subject to civil forfeiture under this section. The references in those divisions to the adult offender whose conviction or guilty plea, or the delinquent child whose adjudication, is the basis of an order of criminal forfeiture shall be construed for purposes of this section to mean the adult or juvenile who committed the act that could be the basis of an order of civil forfeiture under this section, and the references in those divisions to an issued order of criminal forfeiture shall be inapplicable. 

(4) A hearing shall be held in the civil action described in division (E)(1) of this section at least thirty days after the final publication of notice as required by division (E)(2) of this section and after the date of completion of the service of notice by personal service or certified mail, return receipt requested, as required by that division. Following the hearing, the court shall issue the requested order of civil forfeiture if the court determines that the prosecuting attorney has proven by clear and convincing evidence that the property in question is property as described in division (A)(1) or (2) of this section and if the court has disposed of all petitions filed under division (E)(3) of this section or no petitions have been so filed and the time for filing them has expired. An order of civil forfeiture so issued shall state that all right, title, and interest in the property in question of the adult or juvenile who committed the act that is the basis of the order is forfeited to the state and shall make due provision for the right, title, or interest in that property of any other person in accordance with any determinations made by the court under division (E)(3) of this section and in accordance with divisions (F)(5)(b) and (G)(2) of section 2923.44 of the Revised Code. 

(5) Subject to division (G)(2) of section 2923.44 of the Revised Code, if a court of common pleas enters an order of civil forfeiture in accordance with division (E) of this section, the state shall have clear title to the property that is the subject of the order and may warrant good title to any subsequent purchaser or other transferee. 
 

HISTORY: 147 v H 2 (Eff 1-1-99); 148 v S 179, § 3. Eff 1-1-2002.
 

The effective date is set by section 5 of SB 179.