Today's Law As Amended


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AB-639 Controlled substances.(2011-2012)



As Amends the Law Today


SECTION 1.

 Section 11471 of the Health and Safety Code is amended to read:

11471.
 Property is deemed to be seized whenever any agency takes possession or control of it. Property  subject to forfeiture under this division may be seized by any peace officer upon process issued by any court having jurisdiction over the property. Seizure without process may be made if any of the following situations exist:
(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 division.
(c) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used or is intended to be used in violation of this division.
(e) Real property subject to forfeiture may not be seized, absent exigent circumstances, without notice to the interested parties and a hearing to determine that seizure is necessary to preserve the property pending the outcome of the proceedings. At the hearing, the prosecution shall bear the burden of establishing that probable cause exists for the forfeiture of the property and that seizure is necessary to preserve the property pending the outcome of the forfeiture proceedings. The court may issue seizure orders pursuant to this section if it finds that seizure is warranted or pendente lite orders pursuant to Section 11492 if it finds that the status quo or value of the property can be preserved without seizure.
(f) Where business records are seized in conjunction with the seizure of property subject to forfeiture, the seizing agency shall, upon request, provide copies of the records to the person, persons, or business entity from whom such the  records were seized.

SEC. 2.

 Section 11471.2 is added to the Health and Safety Code, to read:

11471.2.
 (a) Any property seized by state or local law enforcement officers who are detached to, deputized or commissioned by, or working in conjunction with, a federal agency shall remain subject to the provisions of this section.
(b) (1) Seizing agencies or prosecuting attorneys authorized to bring civil forfeiture proceedings under this chapter shall not directly or indirectly transfer seized property to any federal agency or any governmental entity not created under and subject to state law, unless the court enters an order, upon petition of the prosecuting attorney, authorizing the property to be transferred.
(2) Where a state or local agency transfers seized property to any federal agency for forfeiture, directly or indirectly, in violation of this subdivision, the state or local agency shall be liable to the state in any action brought by the Attorney General or a private attorney in an amount equal to 24 percent of the proceeds received by the state or local agency from the federal agency. Moneys awarded in the action shall be deposited in the General Fund for allocation pursuant to subparagraph (C) of paragraph (2) of subdivision (b) of Section 11489 of the Health and Safety Code. The Attorney General or private attorney may recover the cost of suit in this type of action.
(c) The court may not enter an order authorizing a transfer unless one of the following conditions exists:
(1) It reasonably appears that the activity giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify a transfer.
(2) The seized property may only be forfeited under federal law.
(3) Pursuing forfeiture under state law would unduly burden prosecuting attorneys or state law enforcement agencies.
(d) Prior to entering any order to transfer property pursuant to this section, the court shall provide the owner of the property a right to be heard with respect to that transfer.