A. Property subject to forfeiture under this chapter may be seized for forfeiture by a peace officer:
Terms Used In Arizona Laws 13-4305
- Arrest: Taking physical custody of a person by lawful authority.
- Conduct: means an act or omission and its accompanying culpable mental state. See Arizona Laws 3-1703
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Government: means the state, any political subdivision of the state or any department, agency, board, commission, institution or governmental instrumentality of or within the state or political subdivision. See Arizona Laws 3-1703
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Lien: A claim against real or personal property in satisfaction of a debt.
- Peace officer: means any person vested by law with a duty to maintain public order and make arrests and includes a constable. See Arizona Laws 3-1703
- Person: means a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property. See Arizona Laws 3-1703
- Physical injury: means the impairment of physical condition. See Arizona Laws 3-1703
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Process: means a citation, writ or summons issued in the course of judicial proceedings. See Arizona Laws 1-215
- Property: means anything of value, tangible or intangible. See Arizona Laws 3-1703
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Seizure for forfeiture: means seizure of property by a peace officer coupled with an assertion by the seizing agency or by an attorney for the state that the property is subject to forfeiture. See Arizona Laws 6-237
1. On process issued pursuant to the Arizona rules of civil procedure or this title, including a seizure warrant.
2. By making a seizure for forfeiture on property seized on process issued pursuant to law, including sections 13-3911, 13-3912, 13-3913, 13-3914 and 13-3915.
3. By making a seizure for forfeiture without court process if any of the following is true:
(a) The seizure for forfeiture is of property seized incident to an arrest or search.
(b) The property subject to seizure for forfeiture has been the subject of a prior judgment in favor of this state or any other state or the federal government in a forfeiture proceeding.
(c) The peace officer has probable cause to believe that the property is subject to forfeiture.
B. Property subject to forfeiture under this chapter may be seized for forfeiture by placing the property under constructive seizure. Constructive seizure may be made by posting notice of seizure for forfeiture on the property or by filing notice of seizure for forfeiture or notice of pending forfeiture in any appropriate public record relating to the property.
C. The court shall determine probable cause for seizure before real property may be seized for forfeiture, unless the seizure is pursuant to a constructive seizure or the filing of a racketeering lien or lis pendens. The court may make its determination ex parte if the state demonstrates that notice and an opportunity to appear would create a risk of harm to the public safety or welfare, including the risk of physical injury or the likelihood of property damage or financial loss.
D. The court shall determine probable cause for seizure before property may be seized for forfeiture as a substitute asset pursuant to section 13-2314, subsection D, E or G, or pursuant to section 13-4313, subsection A, unless the seizure is pursuant to a constructive seizure or the filing of a racketeering lien or lis pendens. The court may issue a seizure warrant for such property if it determines that there is probable cause to believe that the property is subject to forfeiture and is not available for seizure for forfeiture for any reason described in section 13-4313, subsection A. The determinations shall be made ex parte unless real property is to be seized and subsection C of this section requires notice and an opportunity to appear.
E. In establishing clear and convincing evidence and in determining probable cause for seizure and for forfeiture, a rebuttable presumption exists that the property of any person is subject to forfeiture if the state establishes all of the following by the standard of proof applicable to that proceeding:
1. Conduct giving rise to forfeiture occurred.
2. The person acquired the property during the period of the conduct giving rise to forfeiture or within a reasonable time after that period.
3. There is no likely source for the property other than the conduct giving rise to forfeiture.
F. In establishing clear and convincing evidence and in determining probable cause for seizure and for forfeiture, the fact that money or any negotiable instrument was found in proximity to contraband or to instrumentalities of an offense gives rise to an inference that the money or instrument was the proceeds of contraband or was used or intended to be used to facilitate commission of the offense.