77-11a-205. Transfer or release of seized property to another governmental entity — Requirements.
(1)
Except as provided in Subsections (3)(a) through (c), upon the seizure of property by a peace officer, the property is subject to the exclusive jurisdiction of a district court of this state.
Terms Used In Utah Code 77-11a-205
Agency: includes a law enforcement agency or a multijurisdictional task force. See Utah Code 77-11a-101
Claimant: means :
(a)
an owner of property;
(b)
an interest holder; or
(c)
an individual or entity who asserts a claim to any property for which an agency seeks to forfeit. See Utah Code 77-11a-101
Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
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.
Federal prosecutor: A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government.
Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Legislative body: means :
(a)
(i)
the Legislature, county commission, county council, city commission, city council, or town council that has fiscal oversight and budgetary approval authority over an agency; or
(ii)
the agency's governing political subdivision; or
(b)
the lead governmental entity of a multijurisdictional task force, as designated in a memorandum of understanding executed by the agencies participating in the task force. See Utah Code 77-11a-101
Peace officer: means an employee:
(a)
of an agency;
(b)
whose duties consist primarily of the prevention and detection of violations of laws of this state or a political subdivision of this state; and
Proceeds: includes any property of any kind without reduction for expenses incurred in the acquisition, maintenance, or production of that property, or any other purpose regarding property under Subsection (17)(a)(i). See Utah Code 77-11a-101
Property: means all property, whether real or personal, tangible or intangible. See Utah Code 77-11a-101
Prosecuting attorney: means :
(a)
the attorney general and an assistant attorney general;
(b)
a district attorney or deputy district attorney;
(c)
a county attorney or assistant county attorney; and
(d)
an attorney authorized to commence an action on behalf of the state. See Utah Code 77-11a-101
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(2)
Except as provided in Subsection (3), a peace officer, agency, or prosecuting attorney may not directly or indirectly transfer or release seized property to a federal agency or to a governmental entity not created or subject to the laws of this state.
(3)
An agency or prosecuting attorney may transfer or release seized property to a federal agency or to a governmental entity not created or subject to the laws of this state if:
(a)
(i)
the property is cash or another readily negotiable instrument; and
(ii)
the property is evidence in, or subject to, a federal criminal indictment, a federal criminal information, or a federal criminal complaint that is filed before the property is seized;
(b)
(i)
the property is not cash or another readily negotiable instrument; and
(ii)
the property is evidence in, or subject to, a federal criminal indictment, a federal criminal information, or a federal criminal complaint that is filed before the day on which the agency with custody of the property is required to return the property if no criminal or civil action is filed by the prosecuting attorney or a federal prosecutor in accordance with Section 77-11b-203;
(c)
(i)
the property was used in the commission of an offense in another state; and
(ii)
an agency of that state requests the transfer of the property before the day on which the agency with custody of the property is required to return the property if no criminal or civil action is filed by the prosecuting attorney or a federal prosecutor in accordance with Section 77-11b-203; or
(d)
a district court authorizes, in accordance with Subsection (5), the transfer or release of the property to an agency of another state or a federal agency upon a petition by a prosecuting attorney or a federal prosecutor.
(4)
(a)
A prosecuting attorney, or a federal prosecutor, may file a petition in the district court for the transfer or release of seized property.
(b)
If a prosecuting attorney, or a federal prosecutor, files a petition under Subsection (4)(a), the petition shall include:
(i)
a detailed description of the property seized;
(ii)
the location where the property was seized;
(iii)
the date the property was seized;
(iv)
the case number assigned by the agency; and
(v)
a declaration that:
(A)
states the basis for relinquishing jurisdiction to a federal agency or an agency of another state;
(B)
contains the names and addresses of any known claimant; and
(C)
is signed by the prosecuting attorney or federal prosecutor.
(5)
A district court may not authorize the transfer or release of seized property under Subsection (3)(d), unless the district court finds, by a preponderance of the evidence:
(a)
the property is evidence in, or subject to, a federal criminal indictment, a federal criminal information, or a federal criminal complaint after the property is seized;
(b)
the property may only be forfeited under federal law;
(c)
forfeiting the property under state law would unreasonably burden the prosecuting attorney or agency; or
(d)
the property was subject to a federal criminal investigation before the property was seized.
(6)
(a)
Before a district court may order the transfer of seized property in accordance with this section, the court, the prosecuting attorney, or the federal prosecutor shall mail a notice to:
(i)
each address contained in the declaration under Subsection (4)(b)(v) to give a claimant the right to be heard with regard to the transfer; and
(ii)
(A)
if a federal prosecutor files the petition under Subsection (4), the prosecuting attorney that is representing the agency with custody of the property; or
(B)
if a prosecuting attorney files the petition under Subsection (4), the federal prosecutor who will receive the property upon the transfer or release of the property.
(b)
If a claimant, or the party under Subsection (6)(a)(i), does not object to the petition to transfer the property within 10 days after the day on which the notice is mailed, the district court shall issue the district court’s order in accordance with this section.
(c)
If the declaration does not include an address for a claimant, the district court shall delay the district court’s order under this section for 20 days to allow time for the claimant to appear and make an objection.
(d)
(i)
If a claimant, or a party under Subsection (6)(a)(i), contests a petition to transfer the property to a federal agency or to another governmental entity not created or subject to the laws of this state, the district court shall promptly set the matter for hearing.
(ii)
In making a determination under Subsection (5), the district court shall consider evidence regarding hardship, complexity, judicial and law enforcement resources, protections afforded under state and federal law, pending state or federal investigations, and any other relevant matter.
(7)
If an agency receives property, money, or other things of value under a federal law that authorizes the sharing or transfer of all or a portion of forfeited property, or the proceeds from the sale of forfeited property, the agency:
(a)
shall use the property, money, or other things of value in compliance with federal laws and regulations relating to equitable sharing;
(b)
may use the property, money, or other things of value for a law enforcement purpose described in Subsection 77-11b-403(10); and
(c)
may not use the property, money, or other thing of value for a law enforcement purpose prohibited in Subsection 77-11b-403(11).
(8)
An agency awarded an equitable share of property forfeited by the federal government may use the award money only after approval of the use by the agency’s legislative body.
(9)
If a district court exercises exclusive jurisdiction over seized property, the district court’s exclusive jurisdiction is terminated if the property is released by the agency with custody of the property to a claimant under:
