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218A.415 Procedure for seizure of property.
(1)
(2)
(3)
Personal property subject to forfeiture under this chapter may be seized by any
law enforcement agency upon process issued by any judge that is empowered
to issue a warrant of arrest or search warrant and in whose jurisdiction the
property is located. Seizure of personal property without process may be made
if:
(a) The seizure is incident to an arrest or a search under a search warrant;
(b) The property subject to seizure has been the subject of a prior judgment
in favor of the state in a criminal injunction or forfeiture proceeding based
upon this chapter;
(c) The law enforcement agency has probable cause to believe that the
property is directly or indirectly dangerous to health or safety; or
(d) The law enforcement agency has probable cause to believe that the
property is subject to forfeiture pursuant to this chapter.
Property taken or detained under this section shall not be subject to replevin,
but shall be deemed to be in the custody of the law enforcement agency
subject only to the orders and decrees of the court having jurisdiction over the
forfeiture proceedings. When property is seized under this chapter, the law
enforcement agency may:
(a) Remove the property to a place designated by it; or
(b) Take custody of the property and remove it to an appropriate location for
disposition in accordance with law.
Real property subject to forfeiture may be seized only pursuant to final
judgment and order of forfeiture or upon order of the court having jurisdiction
over the property. The order may be obtained pursuant to this subsection upon
application of the Commonwealth.
(a) Upon receipt of the application, the court shall immediately enter an order
setting a date for hearing on the matter no fewer than five (5) days nor
more than ten (10) days after the filing of the application. At the hearing:
1.
The court shall take evidence on the issues of whether the property
named in the application is forfeit and seizure is necessary to
preserve the property pending final judgment.
2.
The Commonwealth shall have the initial burden of showing the
existence of probable cause for forfeiture of the property and the
necessity of seizure. On the showing by the Commonwealth, the
respondent shall have the burden of showing by a preponderance of
the evidence that the property is not subject to forfeiture.
3.
Evidence at the seizure hearing may not be suppressed on the
ground that its acquisition by search or seizure violated
constitutional protections applicable in criminal cases relating to
unreasonable searches or seizures.
4.
If the court makes a determination in favor of the Commonwealth, it
shall enter an order authorizing the seizure of the property.
5.
The court may, in its discretion, permit the owner of the property to
post security equal to the value of the property in lieu of seizure.
(b)
A temporary seizure order pursuant to this section may be entered on
application without notice or an opportunity for a hearing if the
Commonwealth demonstrates that there is probable cause to believe that
the property with respect to which the order is sought is subject to
forfeiture and the need to preserve the availability of property through
immediate seizure outweighs the hardship that an immediate seizure may
cause the owner. The temporary order shall expire ten (10) days after the
date on which it is entered or at the time of the hearing provided for in
paragraph (a) of this subsection.
Effective:July 13, 1990
History: Amended 1990 Ky. Acts ch. 445, sec. 2, effective July 13, 1990. -Created 1984 Ky. Acts ch. 101, sec. 2, effective July 13, 1984.
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