218A.415 Procedure for seizure of property.
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(1)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.
(2)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.
(3)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.