2010 Tennessee Code
Title 40 - Criminal Procedure
Chapter 33 - Forfeitures
Part 2 - Forfeiture Procedures Generally
40-33-210 - Hearing.

40-33-210. Hearing.

(a)  In order to forfeit any property or any person's interest in the property pursuant to §§ 39-14-307, 47-25-1105, 53-11-451, 55-10-403(k), 55-50-504(h), 57-3-411, 57-5-409, 57-9-201, 67-4-1020 or 70-6-202, the state shall have the burden to prove by a preponderance of evidence that:

     (1)  The seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture under the sections set out in this subsection (a); and

     (2)  The owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture, or, in the case of a secured party, that the standards set out in subsection (f) are met.

(b)  (1)  Failure to carry the burden of proof shall operate as a bar to any forfeiture and the property shall be immediately returned to the claimant.

     (2)  Notwithstanding that the hearing officer found that the state carried its burden of proof and recommended forfeiture of the property, the administrative head of the applicable agency may, in the interests of justice, order that the seized property be returned to the claimant.

(c)  (1)  The interest of a co-owner or co-owners who were not in possession of the property at the time it was seized may be forfeited if the co-owners:

          (A)  Were co-conspirators to the activity making the property subject to forfeiture;

          (B)  Knew that the property was of a nature making its possession illegal; or

          (C)  Knew that it was being used in a manner making it subject to forfeiture and consented to the use.

     (2)  If the state meets its burden of proof as to one (1) co-owner of the seized property but fails to do so as to one (1) or more other co-owners, the property shall be forfeited subject to the interest of the innocent co-owners.

(d)  If it is determined that the state has carried the burden of proof with regard to all parties claiming an interest in the property, and the ruling of the administrative head of the applicable agency is adverse to the claimant or claimants, the property shall be sold or disposed of as provided in § 40-33-211.

(e)  If the interest of the owner or co-owner of seized property is forfeited pursuant to this section but the interest of the secured party is not, the administrative head of the applicable agency may, at the request of the secured party, return the seized property for disposition in accordance with the security agreement or other contract. If the property is not returned to the secured party, the forfeiture shall be subject to the secured party's interest.

(f)  A secured party's interest may be forfeited if, from evidence presented at the hearing, the administrative head of the applicable agency finds that:

     (1)  The secured party is a co-conspirator to the activity making the property subject to forfeiture; or

     (2)  The secured party, at the time the interest attached, had actual knowledge of the intended illegal use of the property. A secured party who acquired an interest in the ordinary course of business shall be presumed to have no actual knowledge of an intended illegal use and shall have no duty to inquire as to the record or reputation of a borrower.

(g)  The expenses of storage, transportation and other similar costs shall be adjudged as part of the cost of the proceeding in such manner as the administrative head of the applicable agency shall determine.

[Acts 1994, ch. 925, § 1; 1996, ch. 910, § 4; 1996, ch. 959, § 3.]