Forfeitures

Minnesota law permits a court to order the forfeiture of certain property associated with the commission of a “designated offense.”

The definition of “designated offense” includes most serious felonies against persons, a number of property felonies, and felony or gross misdemeanor violations of the crime of unauthorized computer access. It also includes the gross misdemeanor crime of carrying a rifle or shotgun in a public place and the crimes of promoting, soliciting, or engaging in prostitution, regardless of the penalty prescribed for the violation.

Property is subject to forfeiture if it was either (1) personal property used or intended for use to commit or facilitate the commission of a designated offense; or (2) real or personal property representing the proceeds of a designated offense. Additionally, all contraband property is subject to forfeiture as is any weapon used or possessed in furtherance of any criminal code violation, controlled substance offense, violation of chapter 624, or violation of a domestic abuse order for protection.

Property associated with a designated offense (other than weapons and contraband) may be forfeited by judicial order, following a civil in rem proceeding. The government has the burden of proving by clear and convincing evidence that the property is subject to forfeiture. The fact that a designated offense was committed may be established only by proof of a criminal conviction. The law also provides certain defenses for innocent common carriers, innocent owners, and innocent secured parties. “Innocent” in this context means that the party neither knew of, consented to, or was involved in the act or omission giving rise to the forfeiture. The existence of a security interest must be established by clear and convincing evidence.

Minnesota law provides for judicial forfeiture of property associated with controlled substance (i.e., illegal drug) offenses.

This procedure is identical to the judicial forfeiture procedure for designated offenses with the following exceptions:

the fact that a controlled substance offense was committed must be established by clear and convincing evidence; however, the government does not need the fact of a criminal conviction to satisfy this evidentiary burden;
a “conveyance device” (i.e., a motor vehicle) used to commit the controlled substance offense is forfeitable only if the retail value of the drugs is $25 or more; and
real property associated with the controlled substance offense is forfeitable not only when it represents the proceeds of the offense but also when it is used in the commission of the offense; however, forfeiture of such property in the second instance is permitted only if the retail value of the controlled substance is $1,000 or more.

Minnesota law permits a law enforcement agency to seize forfeitable property in advance of the forfeiture.

The seizure may be made under process issued by any court having jurisdiction over the property. The law also authorizes seizure without process under the following circumstances:

the seizure is incident to a lawful arrest or a lawful search;
the property has been the subject of a prior judgment in favor of the state in a criminal injunctive or forfeiture proceeding; or
the law enforcement agency has probable cause to believe that the delay required to obtain court process would result in the property’s removal or destruction and that the property is either dangerous to health or safety or was used or is intended to be used to commit a felony.

Minnesota law contains a separate, nonjudicial procedure for forfeiting certain property seized in connection with a controlled substance offense.

This administrative forfeiture law creates a presumption that the following property is subject to forfeiture:

all money, precious metals, and precious stones found in proximity to controlled substances, forfeitable drug manufacturing or distribution equipment, and forfeitable records of drug manufacture or distribution;
conveyance devices containing controlled substances with a retail value of $100 or more if possession or sale of the drugs would be a felony-level controlled substance crime; and
all firearms, ammunition, and firearms accessories found: (1) in a conveyance device used or intended for use to commit a felony drug offense; (2) on or in proximity to a person from whom a felony-level amount of drugs was seized; or (3) on the premises where drugs were seized and in proximity to the drugs, if the possession or sale of the drugs would be a felony offense.

The law enforcement agency is permitted to seize the property immediately and send a notice to all persons known to have an ownership, possessory, or security interest in the property. The notice must state that the property will be forfeited unless the property claimant files a demand within 60 days for a judicial forfeiture hearing. If the demand is filed, the judicial forfeiture procedures must be followed. If no demand for judicial forfeiture is filed, the property is forfeited.

Minnesota law contains a separate, nonjudicial procedure for forfeiting motor vehicles used to commit a “drive-by shooting” offense.

The “drive-by shooting” offense imposes felony penalties on any person who recklessly discharges a firearm at or toward a person, vehicle, or building while in or having just exited from a motor vehicle. A motor vehicle used to commit the drive-by shooting offense is subject to administrative forfeiture if the prosecutor establishes by clear and convincing evidence that the motor vehicle was used to commit the crime. The prosecutor does not need the fact of a criminal conviction to meet this burden; however, if the vehicle owner was convicted of a drive-by shooting offense, that fact creates a presumption that the vehicle was used in the violation.

As is true of other types of administrative forfeitures, this law permits the immediate seizure of the property and, unless the owner demands a judicial forfeiture proceeding, the forfeiture of the vehicle without any further hearings. However, this law differs from other administrative forfeiture laws in the following ways:

notice of a vehicle seizure must be given within seven days of the seizure;

if criminal charges are filed in connection with the drive-by shooting incident, the 60-day period during which the owner may demand a judicial forfeiture proceeding begins to run when the charges are filed instead of when the seizure notice is sent; and

the “innocent owner” defense does not apply if the owner was grossly negligent in allowing the vehicle to be used by another.

Minnesota law provides various formulas for the disposition of forfeited property.

The property may be sold if it is not otherwise required by law to be destroyed and is not harmful to the public; it may be kept for official use by the law enforcement and prosecuting agencies; or it may be forwarded to the federal Drug Enforcement Administration.

If property representing proceeds of a crime is sold, the proceeds must be applied first, to satisfy valid liens and forfeiture sale expenses, and second, to pay court-ordered restitution. If other forfeited property is sold, the proceeds also must be used first to satisfy valid liens and forfeiture sale expenses. The remaining sale proceeds from both types of property are distributed according to the following formula:

70 percent to the law enforcement agency;
20 percent to the prosecuting agency; and
10 percent to the state general fund.

Each law enforcement agency must give a written record of each forfeiture incident to the state auditor. The report must be made monthly and include the amount forfeited, the date of the forfeiture, and a brief description of the circumstances involved. The report also must include the number, make, model, and serial number of firearms seized by the agency. The state auditor must, in turn, report annually to the legislature on the nature and extent of forfeitures during the preceding year.

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