2006 Ohio Revised Code - 2925.45. Motion alleging seizure was unlawful; return of property.

§ 2925.45. Motion alleging seizure was unlawful; return of property.
 

(A)  Any person who is aggrieved by an alleged unlawful seizure of property that potentially is subject to forfeiture under section 2925.42 or 2925.43 of the Revised Code may file a motion as described in division (B) of this section with whichever of the following courts is appropriate under the circumstances, within the time described in division (C) of this section: 

(1) The court of common pleas in which a criminal prosecution for a felony drug abuse offense is pending; 

(2) The juvenile court in which a delinquent child action for an act that, if committed by an adult, would be a felony drug abuse offense is pending; 

(3) The court of common pleas in which a civil action as described in division (E) of section 2925.43 of the Revised Code is pending; 

(4) The court of common pleas of the county in which the property was seized. 

(B)  The motion shall specify that the seizure of specified property was unlawful, state the reasons why the movant believes the seizure was unlawful, state that the movant is lawfully entitled to possession of the seized property, and request the court of common pleas to issue an order that mandates the law enforcement agency having custody of the seized property to return it to the movant. For purposes of this division, an unlawful seizure of property includes, but is not limited to, a seizure in violation of the Fourth Amendment to the Constitution of the United States or of Section 14 of Article I, Ohio Constitution, and a seizure pursuant to sections 2925.41 to 2925.44 of the Revised Code of property other than potentially forfeitable property as described in division (A)(1) of section 2925.42 or division (A) of section 2925.43 of the Revised Code. 

(C) (1)  If a motion as described in division (A) of this section is filed prior to the entry of an order of forfeiture under section 2925.42 or 2925.43 of the Revised Code, the court of common pleas promptly shall schedule a hearing on the motion and cause notice of the date and time of the hearing to be given to the movant and the prosecuting attorney of the county in which the property was seized. At the hearing, the movant and the prosecuting attorney may present witnesses and evidence relative to the issues of whether the property in question was unlawfully seized and whether the movant is lawfully entitled to possession of it. If, after the hearing, the court of common pleas determines that the movant has established, by a preponderance of the evidence, that the property in question was unlawfully seized and that the movant is lawfully entitled to possession of it, the court shall issue an order that requires the law enforcement agency having custody of the seized property to return it to the movant. 

(2) (a) If a motion is filed in accordance with division (C)(1) of this section and, at the time of filing or of the hearing on the motion, a criminal prosecution for a felony drug abuse offense or a delinquent child action for an act that, if committed by an adult, would be a felony drug abuse offense has been commenced by the filing of an indictment, information, or complaint, then the court of common pleas shall treat the motion as a motion to suppress evidence. 

(b) If an order to return seized property is issued pursuant to division (C)(1) of this section, the returned property shall not be admissible in evidence in any pending or subsequently commenced criminal prosecution for a felony drug abuse offense if the prosecution arose or arises out of the unlawful seizure of the property, or in any pending or subsequently commenced delinquent child action for an act that, if committed by an adult, would be a felony drug abuse offense if the action arose or arises out of the unlawful seizure of the property. 
 

HISTORY: 143 v S 258. Eff 11-20-90.
 

The effective date is set by section 15 of SB 258.