TCA § 40-33-204 — Forfeiture warrant

Once personal property is seized pursuant to an applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with this section by a general sessions, circuit, criminal court or popularly elected city judge. The forfeiture warrant shall authorize the institution of a forfeiture proceeding under this part. As used in this subsection (a), “popularly elected city judge” means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2. Any affidavit in support of a forfeiture warrant shall be sworn to and state the following: The legal and factual basis making the property subject to forfeiture; If the owner or co-owner of the property was not the person in possession of the property at the time of seizure and can be determined from public records of titles, registrations or other recorded documents, the affidavit shall state with particular specificity the officer's probable cause for believing that 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 as well as the legal, and factual basis for forfeiture of the interest; and If the interest of a secured party with a duly perfected security interest as reflected in the public records of titles, registrations or other recorded documents, is sought to be forfeited, the affidavit shall state with particular specificity the officer's probable cause that the secured party's interest in the property is nevertheless subject to forfeiture as well as the legal and factual basis for forfeiture of the interest. If an arrest was made at the time of the seizure, the officer making the seizure shall apply for a forfeiture warrant by filing a sworn affidavit within five (5) working days following the property seizure. The forfeiture warrant shall be based upon proof by affidavit and shall have attached to it a copy of the notice of seizure. Except as provided in subdivision (b)(4), the hearing on the application for a forfeiture warrant shall be ex parte and based upon the application, the affidavit, and any testimony as may be required in this section. If no arrest was made at the time of the seizure, the officer making the seizure shall present to the court, at the date and time specified on the notice of forfeiture warrant hearing, the application for a forfeiture warrant, the affidavit in support, the notice of seizure, and the notice of forfeiture warrant hearing. At the hearing on the forfeiture warrant application, the court shall: Review the application for a forfeiture warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a forfeiture warrant, including any testimony as may be required in this section; and Review any evidence presented by and take testimony from the person in possession at the time of the seizure regarding why no probable cause exists to issue a forfeiture warrant. The time period for seeking an ex parte forfeiture warrant under subdivision (b)(2) shall not apply to forfeiture warrant hearings under this subdivision (b)(3). Except as provided in subdivision (b)(4), if the person in possession at the time of the seizure does not appear at the hearing and has received notice of the hearing, then the court shall review the application for a forfeiture warrant ex parte as provided in subdivision (b)(2). If the owner of the property is not present at the time of the seizure, regardless of whether an arrest is made, the officer making the seizure shall present to the court, at the date and time specified on the notice of forfeiture warrant hearing, the application for a forfeiture warrant, the affidavit in support, the notice of seizure, and the notice of forfeiture warrant hearing for both the person in possession, if no arrest was made, and the owner of the property. The time period for seeking an ex parte forfeiture warrant under subdivision (b)(2) shall not apply to forfeiture warrant hearings under this subdivision (b)(4). The owner of the property must be given reasonable notice of the forfeiture warrant hearing; however, a forfeiture warrant hearing under this subdivision (b)(4) shall be held within forty-five (45) days after the date of seizure. At the hearing on the forfeiture warrant application, the court shall: Review the application for a forfeiture warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a forfeiture warrant, including any testimony as may be required in this section; Review any evidence presented by and take testimony from the person in possession at the time of the seizure, if present, regarding why no probable cause exists to issue a forfeiture warrant; and Review any evidence presented by and take testimony from the owner of the property, if present, regarding why no probable cause exists to issue a forfeiture warrant. If neither the person in possession at the time of the seizure, if no arrest was made, nor the owner of the property appear at the hearing and the person in possession and the owner have received notice of the hearing, the court shall review the application for a forfeiture warrant ex parte as provided in subdivision (b)(2). The taking of testimony shall consist solely of the judge putting the seizing officer, owner of the property, and person in possession under oath and asking questions to determine if probable cause exists for a forfeiture warrant to be issued under this section. Any examination by the judge of the seizing officer shall in no form or manner extend to whether the seizure is part of an ongoing investigation, nor shall the judge's examination extend in any form or manner to the source of any confidential information used in making a stop leading to seizure of the property. All hearings on applications for forfeiture warrants under this section shall be recorded. It is the duty of the court to maintain the recording. Certified copies of the proceeding shall be made available to any party requesting them, and the same shall be admissible as evidence. The judge shall issue the forfeiture warrant if the judge finds that the offered proof establishes probable cause to believe that: The property is subject to forfeiture; and If the property is owned by one whose interest is described in public records of titles, registrations or other recorded documents, that the owner's interest is subject to forfeiture under the applicable provision of law. In a proceeding under subdivision (b)(2), if the seizing officer asserts to the judge that the officer was unable to determine the owner of the seized property or whether the owner's interest is subject to forfeiture within the required five-day period, the judge may grant up to ten (10) additional days to seek a forfeiture warrant if the judge finds that the seizing officer has: Exercised due diligence and good faith in attempting to determine the owner of the property or whether the owner's interest is subject to forfeiture; and Made a factual showing that because of the existence of extraordinary and unusual circumstances an exception to the five-day forfeiture warrant requirement is justified. General sessions judges may not authorize magistrates or judicial commissioners who are not licensed to practice law in this state to issue forfeiture warrants. If the person in possession of the property is not the registered owner as determined from public records of titles, registrations or other recorded documents, the judge may consider other indicia of ownership that proves that the possessor is nonetheless an owner of the property. Other indicia of ownership shall include, but is not limited to, the following: How the parties involved regarded ownership of the property in question; The intentions of the parties relative to ownership of the property; Who was responsible for originally purchasing the property; Who pays any insurance, license or fees required to possess or operate the property; Who maintains and repairs the property; Who uses or operates the property; Who has access to use of the property; and Who acts as if they have a proprietary interest in the property. If the owner or co-owner of the property was not the person in possession of the property at the time of the seizure and can be determined from public records of titles, registrations or other recorded documents, the judge shall put the seizing officer under oath and ask the following questions: What is the officer's probable cause that 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; What is the officer's probable cause that the co-owner or co-owners who are not in possession of the property at the time it was seized were co-conspirators to the activity making the property subject to forfeiture; and Any other questions necessary to determine the legal and factual basis for forfeiture. If a secured party's interest is sought to be forfeited, the judge shall put the seizing officer under oath and ask the following questions: What is the officer's probable cause that the secured party is a co-conspirator to the activity making the property subject to forfeiture; Did the secured party at the time the interest attached, have actual knowledge of the intended illegal use of the property; and Any other question deemed necessary to determine the legal and factual basis for forfeiture of the secured party's interest. Upon issuance of the forfeiture warrant, the judge shall retain the affidavit relied upon in support of the warrant and the officer shall, within seven (7) working days, send the warrant, a copy of the affidavit and the notice of seizure to the applicable agency. By signing and issuing the forfeiture warrant, the judge is affirming that the required finding of probable cause necessary to issue the warrant has been made. Upon receipt of the documents, the applicable agency shall notify any other owner, as may be determined from public records of titles, registrations or other recorded documents, or secured party that a forfeiture warrant has been issued. Upon receipt of the notice of seizure and forfeiture warrant and after interviewing any witnesses, the applicable agency shall release the property if there is no legal and factual basis for forfeiture. The seizing agency shall maintain a copy of the notice of seizure for all property seized at its main office and the notices and receipts shall be public records. If no forfeiture warrant is issued, and the property is not needed for evidence in a criminal proceeding, the seizing agency shall immediately return the property to the owner, as determined from public records of titles, registrations or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure. Upon the request of any general sessions, circuit, criminal court or popularly elected city judge, the administrative office of the courts shall provide a cassette tape recorder for the purpose of recording the hearing on the application for a forfeiture warrant. As used in this subsection (i), “popularly elected city judge” means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2. A person in possession of, a secured party of, or an owner of property for which a forfeiture warrant has been issued by a magistrate or judicial commissioner may appeal the forfeiture warrant within ten (10) days of issuance for review by the general sessions court in the county in which the seizure occurred. On appeal, the general sessions court shall conduct a hearing and review the issuance of the forfeiture warrant within ten (10) days of the appeal being filed. Notwithstanding subsection (g), if a forfeiture warrant was issued by a magistrate or judicial commissioner, the warrant, a copy of the affidavit, and the notice of seizure shall be sent to the applicable agency within: Seven (7) business days after the time period to appeal the forfeiture warrant has ended and no appeal has been filed; or Seven (7) business days after the general sessions judge has affirmed the issuance of the forfeiture warrant, if the warrant was appealed. The seizing agency shall, within five (5) business days of receipt of any forensic chemistry report regarding any alleged controlled substances or controlled substance analogues that are the basis of the seizure, send a copy of the forensic chemistry report to the applicable agency. If the forensic chemistry report shows that the alleged controlled substances that are the basis of the seizure are not controlled substances or controlled substance analogues, and those substances were the sole basis for the seizure, the applicable agency, within five (5) business days of receipt, shall submit an order dismissing the case, or the portion of the case based on the alleged controlled substances or controlled substance analogues, to the administrative law judge or the administrative head of the applicable agency. If the property is not needed for evidence in a criminal proceeding, or is not subject to other forfeiture proceedings, the seizing agency shall make the property available to the owner, as determined from public records of titles, registrations, or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure, within five (5) business days of receipt from the applicable agency of the signed order of dismissal under subdivision (k)(2). A seizing agency that fails to make the property available as required by this subdivision (k)(3) may be considered to be acting in bad faith under § 40-33-215. In any forfeiture warrant hearing, there shall be a rebuttable presumption that currency seized, for which a person has claimed ownership, is not subject to forfeiture absent evidence to the contrary. The burden to rebut the presumption is on the seizing officer.