BCCO PCT #4 PowerPointBCCO PCT #4 PowerPoint

AND

ASSET FORFEITURETCOLE Course # 3255 3255

ADMINISTRATIVEADMINISTRATIVE

• Please complete the BCCO PCT #4 Registration form and turn it in now.

• Make sure you sign TCOLE Report of Training (PID#, Full Name and DOB).

• All cell phones off please – pay attention to course materials and show common respect & courtesy.

Your Instructor – Course Facilitator Your Instructor – Course Facilitator and Mentor Trainerand Mentor Trainer

04/21/23 3

Deputy Chief George D. Little

A.S. & B.S. Criminal Justice & SociologyB.S.CJ Wayland Baptist University, San Antonio

M.S. Criminology & Counter-Terrorism University of the State of New York(P)

2012 T.C.O.L.E. Professional Achievement AwardCertified Crime Prevention Specialist (C.C.P.S.)

TCOLE Basic Instructor Certificate 1984TCOLE Advanced Instructor 2012TCOLE Master Peace Officer 1991

MP Special Operations Operator Counter-Terrorism 1988Military Police Investigations (MPI) & Criminal Investigation Division

(CID) Special AgentGraduate Drug Enforcement Administration Academy 1977

43- years Law Enforcement Experience 43- years Law Enforcement Experience 39-Years Teaching & Instructor Experience39-Years Teaching & Instructor Experience

COURSE/LESSON COURSE/LESSON OVERVIEW - ForwardOVERVIEW - Forward

This course will cover the This course will cover the forfeiture of seized property. forfeiture of seized property.

The student will be able to The student will be able to demonstrate understanding demonstrate understanding

of this area to the level of this area to the level required by the Texas 77required by the Texas 77thth in in

Senate Bill 563.Senate Bill 563.

Learning ObjectivesLearning ObjectivesLearning Objective 1.1: Learning Objective 1.1: Participant will be able to identify the requirements for officers as to asset forfeiture training as established by the legislature in Chapter 1701 Occupations Code.

Learning Objective 1.2: Learning Objective 1.2: Participant will be able to identify the philosophy behind forfeiture and the extent to which it is appropriate.

Learning Objective 1.3: Learning Objective 1.3: Participant will be able to identify definitions of contraband and proceeds.

Learning Objective 1.4: Learning Objective 1.4: Participant will be able to identify defenses to forfeiture.

Learning Objective 1.5: Learning Objective 1.5: Participant will be able to identify issues regarding pre-seizure planning.

Learning Objective 1.6: Learning Objective 1.6: Participant will be able to identify search and methods of seizure

Learning Objective 1.7: Learning Objective 1.7: Participant will be able to identify post seizure procedures.

Learning Objective 1.8: Learning Objective 1.8: Participant will be able to identify forfeiture proceedings under 59.04

Learning Objective 1.9: Learning Objective 1.9: Participant will be able to identify other considerations in forfeiture cases

ASSET FORFEITURE ASSET FORFEITURE

1.1 Asset Forfeiture 1.1 Asset Forfeiture Required Training for Law Required Training for Law

EnforcementEnforcement

A. Occupations Code, Section 1701.253 (g) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on asset asset forfeitureforfeiture under Chapter 59, Code of

A. Occupations Code, Section 1701.253 (g) – Cont’d:Cont’d: Criminal Procedure, for officers licensed under this chapter. An officer shall complete a program established under this subsection not later than the secondsecond anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier.

See more at: See more at:

http://codes.lp.findlaw.com/txstatutes/OC/10/1701/F/1701.253#sthash.MgjCxvZe.dpuf

B. Occupations Code, Section 1701.402 (d): Training in documentation of cases required by Subsection (b) shall include instruction in:

(1)making a writtenwritten accountaccount of the extent of injuries sustained by the victim of an alleged offense;

B. Occupations Code, Section 1701.402 (d): Training in documentation of cases required by Subsection (b) shall include instruction in:

(2) recording by photographphotograph or videotapevideotape the area in which an alleged offense occurred and the victim's injuries; and

C. All officers are required to complete this training by September 1, 2002. (See Section 10, SB 563.):

ASSETASSETFORFEITUREFORFEITURETRAININGTRAINING

B. Occupations Code, Section 1701.402 (d): Training in documentation of cases required by Subsection (b) shall include instruction in:

(3) recognizing and recording a victim'svictim's statementstatement that may be admissible as evidence in a proceeding concerning the matter about which the statement was made.

See more at:

http://codes.lp.findlaw.com/txstatutes/OC/10/1701/F/1701.253#sthash.MgjCxvZe.dpuf

C. All officers are required to complete this training by September 1, 2002. (See Section 10, SB 563.)

VICTIMVICTIMSTATEMENTSSTATEMENTSRECORDINGRECORDINGEVIDENCEEVIDENCE

1.2 Philosophy of Asset 1.2 Philosophy of Asset Forfeiture Forfeiture

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

1. Definitions: (1) "Attorney representing the state" means the prosecutorprosecutor with felony jurisdiction in the county in which a forfeiture proceeding is held under this chapter or, in a proceeding for

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

1. Definitions: (1) Cont’dCont’d: forfeiture of contraband as defined under Subdivision (2)(B)(v) of this article, the city attorney of a municipality if the property is seized in that municipality by a peace officer employed by that municipality and the governing body of the municipality has approved

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

1. Definitions: (1) Cont’dCont’d: procedures for the city attorney acting in a forfeiture proceeding. In a proceeding for forfeiture of contrabandcontraband as defined under Subdivision (2)(B)(vi) of this article, the term includes the attorney general. (See Participant Handout for Text of subdivision as amended by Acts 2013, 83rd Leg., R.S., Ch. 427 (S.B.529), Sec. 2 )

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

2. ProceedsProceeds versus instrumentalities

"Proceeds" includes income a person accused or convicted of a crime or the person's representative or assignee receives from:

(A) a movie, bookbook, magazine article, tape recording, phonographic record, radio or television presentation

telephone service, electronic media format, including an Internet website, or live entertainment in which the crime was reenacted; or

(B) the sale of tangibletangible property the value of which is increased by the notoriety gained from the conviction of an offense by the person accused or convicted of the crime.

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

a. “Innocent” owner defensedefense, see art. 59.02 (h) CCP: (h)(1) An owner or interest holder's interest in property may not be forfeited under this chapter if at the forfeiture hearing the owner or interest holder proves by a preponderance of the evidence that

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

a. Cont’d: the ownerowner or interestinterest holder was not a party to the offense giving rise to the forfeiture and that the contraband:

(A) was stolenstolen from the owner or interest holder before being used in the commission of the offense giving

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

(A) rise to the forfeiture;

(B) was purchased with:

(i) moneymoney stolen from the owner or interest holder; or

(ii) proceeds from the sale of propertyproperty stolen from the owner or interest holder; or

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

(C) was used or intended to be used without the effective consentconsent of the owner or interest holder in the commission of the offense giving rise to the forfeiture.

(2) An attorney representing the state who has a reasonable beliefbelief that

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

(C) (2) Cont’d: property subject to forfeiture is described by Subdivision (1) and who has a reasonable belief as to the identityidentity of the rightful owner or interest holder of the property shall notify the owner or interest holder as provided by Article 59.04

Required NotificationRequired Notification

If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30th30th day after the date of the seizure. Art Art 59.04 Code of Criminal Procedures59.04 Code of Criminal Procedures

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

(C)(3) An attorney representing the state is not liableliable in an action for damages resulting from an act or omission in the performance of the duties imposed by Subdivision (2).

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

3. What is eligible for forfeiture?

( C ) (4) The exclusive remedy for failure by the attorney representing the state to provide the notice required under Subdivision (2) is submission of that failurefailure as a ground for new trial in a motion for new trial or bill of review.

Property that is contrabandcontraband is subject to seizure and forfeiture under this chapter.

“SubstituteSubstitute property" means property that is not contraband; and that is owned by a person who is or was the owner of, or has or had an interest in, contraband with an aggregate value of $200,000 or more. (See Page 21 in your handout)

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

4. Methods of seizureMethods of seizure

seized by any peace officer under authority of a searchsearch warrant.

Seizure of property subject to forfeiture may be made without warrantwarrant if: the owner, operator, or agent in charge of the property knowingly consents.

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP)

5. Time limits for filingsTime limits for filings

If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30th30th day after the date of the seizure.

The attorney representing the state, not later than the thirdthird day after the date proceedings are commenced, shall file a lis pendens notice describing the property with the county clerk of each county in which the property is located.

Required NotificationRequired Notification

B. B. Philosophy of forfeiture

1. Should forfeitureforfeiture be a form of “extra punishment?”

2. ProportionalityProportionality of property to be forfeited and to the seriousness of the offense

3. JeopardyJeopardy issues (See Pages 30 - 40 of your handout)

• B.2 Proportionality • 40 percent to a special fund in the

department to be used solely for law enforcement purposes;

• 30 percent to a special fund in the county treasury for the benefit of the office of the attorney representing the state, to be used by the attorney solely for the official purposes of the attorney's office; and

• 30 percent to the general revenue fund.

B. B. Philosophy of forfeiture

3. Jeopardy issues

House that belongs to someone else

Heirlooms

What are some other Jeopardy issues?

1.3 Definitions of 1.3 Definitions of Contraband & ProceedsContraband & Proceeds

A.A. Contraband Definitions

Property used in the commission of:

1. Any first or second-degree felonyfelony under Penal Code (PC)

A.A. Contraband DefinitionsProperty used in the commission of:

2. Felony under Chapters. 29, 30, 31, 32, 35 or Section 38.04 (RobberyRobbery, Burglary, Theft and Fraud)

3. Any felony under the SecuritiesSecurities Act

A.A. Contraband DefinitionsProperty used in the commission of:

4. ProceedsProceeds gained from any of the above felonies

5. PropertyProperty acquired with proceeds of any of the above felonies or a crime of violence

6. Any felony under Chapter 481 Health & Safety Code (most illegal drugdrug offenses)

A.A. Contraband DefinitionsProperty used in the commission of:

7. Any felony under Chapter 483 Health & Safety Code (includes dangerous dangerous drugs)

8. Any felony under Chapter 153 Finance Code (Currency Currency Exchange, Transmission & Transport)

A.A. Contraband DefinitionsProperty used in the commission of:

9. Any felony under Chapter 34 Penal Code (Money LaunderingLaundering)

10. ProceedsProceeds gained from any of the above felonies

11. PropertyProperty acquired with proceeds of any of the above felonies or a crime of violence

B.B. Proceeds DefinitionsProceeds Definitions

What are Proceeds?

1. Commonly understood meaning prevailsprevails

2. Property derived from an eventevent or transactiontransaction

3. Conviction of criminalcriminal offense not necessary

1.4 Defenses to 1.4 Defenses to ForfeitureForfeiture

A.A. Defenses to Forfeiture 1. Statutory DefensesStatutory Defenses, Chapter 59.02 Code of Criminal Procedures

a. Innocent Owner DefenseDefense (Non–Consentual)

A.A. Defenses to Forfeiture 1. Statutory DefensesStatutory Defenses, Chapter 59.02 Code of Criminal Procedures

b. Owner acquired the property beforebefore illegal act and owner did not know or should not reasonably have known of the illegalillegal act before acquiring the property

A.A. Defenses to Forfeiture 1. Statutory DefensesStatutory Defenses, Chapter 59.02 Code of Criminal Procedures

c. Family violence defense

1) Community propertyproperty

2) Act of family violence prevented stopping illegalillegal act

A.A. Defenses to Forfeiture 1.1.Statutory DefensesStatutory Defenses, Chapter 59.02 Code of Criminal Procedures

d. DismissalDismissal of AcquittalAcquittal of Related Charges

1) Raises presumptionpresumption property should not be forfeited

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

a. Controlled Substance Analogue

1) Denial that a substance is an analogueanalogue of a controlled

substance, however,

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

a. Controlled Substance Analogue

2) State need only show the substance is analogue by structurestructure of effecteffect (not both)

21 USCS § 802 (32)21 USCS § 802 (32)

(A) except as provided in subparagraph (C), the term controlled substance analogue means “a substance--

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

(A) except as provided in subparagraph (C), the term controlled substance analogue means “a substance—(Cont’d)

(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or

(A) - (Cont’d)

(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

b. Suppression of Evidence in Criminal Case

1) DefendantsDefendants may try this but court should not grant

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

c. Fifth Amendment

1) During discovery and trial make defendant aware of

rightsrights

2) InvocationInvocation of right can comment on any inference it may support 

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

d. Homestead1) HomesteadHomestead protection not resolved in Texas

 e. Community PropertyProperty

1) Not a valid defense

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

f. Legitimate Source of Income

1) DiscoveryDiscovery before trial essential to establish supporting evidence

2) When, where, & how check negotiatednegotiated

A.A. Defenses to Forfeiture 2. Non-Statutory Defenses Non-Statutory Defenses

f. Legitimate Source of Income.

3) Whether depositeddeposited and where and history before and since.

4) When converted to cashcash

1.5 Issue Regarding Pre-1.5 Issue Regarding Pre-Seizure PlanningSeizure Planning

A.A. Ownership Problem

1. Community vs. SeparateSeparate Property

B.B. BusinessesBusinesses

1. LeasesLeases of real property

2. LiensLiens against inventory

C.C. EquityEquity over mortgage

D.D. RisksRisks/Liabilities

E.E. CostCosts

F.F. Rented and owner’s consentconsent to criminal activity

G. Bank Accounts

1. Identify account numbersnumbers and signatoriessignatories

2. Monitor the account to determine best time to seizeseize

3. Know whether it is collateralcollateral for a loan

1.6 Search & Methods of 1.6 Search & Methods of SeizureSeizure

A.A. Without Warrant

1. Owner, operator or agent knowingly consentsconsents

2. Incident to search consentedconsented to

A.A. Without Warrant

3. Property subject to prior judgment of forfeitureforfeiture

4. Incident to lawful arrestarrest, search, or lawful search incident to arrestarrest

B.B. Probable Cause for Seizure

1. Reasonable beliefbelief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statue

C.C. Exceptions to Warrant Requirement

1. PlainPlain viewview

2. EmergencyEmergency searches (exigencies)

3. Area within immediate controlcontrol at time of arrest

4. SafetySafety sweep of adjacent rooms

D.D. With Warrant

1. Rules apply from Chapter 18 Code of Criminal Procedures

2. ContrabandContraband warrant must also show in affidavit the specific felonyfelony offense committed and the described property complies with the definition of contraband from 59.01

1.7 Post Seizure 1.7 Post Seizure Procedures Procedures

A.A. Peace Officer who seizes has custodycustody

B.B. Must provide attorney representing state a sworn statement containing:

1. ScheduleSchedule of property seized

2. Acknowledgment that officer seized propertyproperty

3. And list of reasonsreasons supporting seizure

C.C. Not later than 72 hours after seizure must:

1. Place property under sealseal;

2. Remove propertyproperty to a place ordered by court; or

3. Require law enforcement agency to take custodycustody of the propertyproperty and move it to a proper location.

D.D. Currency

1. May be deposited in interest interest bearing account

2. In jurisdictionjurisdiction of state attorney

E.E. Waivers

1. InterestInterest

a. Article 59.04 (possession)

e) If a financing statement is required by law to be filed to perfect a security interest affecting the property, and if there is reasonable cause to believe that a financing statement has been filed, the attorney representing the state who commences

E.E. Waivers

1. InterestInterest

a. Article 59.04 (possession)

e) Cont’d: proceedings shall ask the appropriate official designated by Chapter 9, Business & Commerce Code, to identify the record owner of the property and the person who is an interest holder.

E.E. Waivers

2. Service of ProcessProcess

a. Rule 119 Rules of Civil Procedure: be served on the following persons in the same manner as provided for the service of process by citation in civil cases:

(1) the ownerowner of the property; and

(2) any interestinterest holder in the property.

E.E. Waivers

3. Evidence of LawsuitLawsuit

4. StandingStanding ability of a party to demonstrate to the court sufficient connection to and harm from the law

E.E. Waivers

5.Official OppressionOppression 39.03

§ 39.03§ 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrestarrest, detention, search, seizureseizure, dispossession, assessment, or

§ 39.03. Cont’dCont’d: that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any rightright, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexualsexual harassment.

1.8 Forfeiture 1.8 Forfeiture Proceedings Under 59.04Proceedings Under 59.0459.04 Forfeiture Proceeding

1. CivilCivil Proceeding

59.04 Forfeiture Proceeding

2. DistrictDistrict AttorneyAttorney must begin proceedings within 3030 days of your date of seizure

59.04 Forfeiture Proceeding

3. Service of civilcivil citation upon parties

1.9 Considerations in 1.9 Considerations in Forfeiture Cases Forfeiture Cases

A.A. Things to consider in forfeiture cases

1. CivilCivil Discovery

1.9 B - Interrogatories1.9 B - Interrogatories

interrogatories are part of the pre-trial discovery process, either party to a lawsuit may send a set of written questions to the other party. These questions (interrogatories) must be answered in writing under oath or under penalty of perjury within a specified time (such as 30 days).

1.9 C. - Depositions1.9 C. - Depositions

testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney's office.

1.9 D. Settlement offers1.9 D. Settlement offers(Negotiations)(Negotiations)

In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law. Structured settlements provide for a periodic payment.

DISPOSITIONDISPOSITIONAll forfeitedforfeited property shall be administered by the attorney representing the state, acting as the agent of the state, in accordance with accepted accounting practices and with the provisions of any local agreement entered into between the attorney representing the state and law enforcement agencies.

E.E. TrialTrial

F.F. Local agreementagreement

G.G. FederalFederal adoption

H.H. DrugDrug trafficking largest

I.I. Estimated that $57 $57 billion generated annually

J.J. Estimated $34 $34 billion laundered through financial institutions

SOURCESSOURCES

All Course Sources and/or

Resources are listed in

your Participant Handout

Questions?

• Please complete a course and instructor evaluation form.

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COURSE & INSTRUCTOR COURSE & INSTRUCTOR EVALUATION FormEVALUATION Form

FINAL TEST FINAL TEST • Test ReviewTest Review

• Final Test – ExamFinal Test – Exam

• Grade PapersGrade Papers

has successfully completed all the requirements of the 2-hour Asset has successfully completed all the requirements of the 2-hour Asset Forfeiture CourseForfeiture Course

Texas Commission on Law Enforcement (TOCLE) Course # 3255 at the Texas Commission on Law Enforcement (TOCLE) Course # 3255 at the Bexar County Bexar County

Constable Office, PCT #4 Training Division on this 6Constable Office, PCT #4 Training Division on this 6 thth day of April 2014 day of April 2014

______________________Robert M. BlountRobert M. BlountConstable, PCT #4Constable, PCT #4

______________________George D. Little, C.C.P.S., Deputy ChiefGeorge D. Little, C.C.P.S., Deputy ChiefINTEL – Homeland Security & TrainingINTEL – Homeland Security & Training

The instructor staff of the Bexar County Constable’s Office PCT #4 The instructor staff of the Bexar County Constable’s Office PCT #4 Training Division Training Division

Concurs, confirms and hereby certifies that: Concurs, confirms and hereby certifies that:

Deputy Constable John Q. OFFICER Deputy Constable John Q. OFFICER

STAY SAFE STAY SAFE Stay VILIGANTStay VILIGANTStay InformedStay Informed