BCCO PCT #4 PowerPoint AND ASSET FORFEITURE 3255 TCOLE Course # 3255

ADMINISTRATIVE 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 and Mentor Trainer 8/27/20153 Deputy Chief George D. Little A.S. & B.S. Criminal Justice & Sociology B.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 Award Certified Crime Prevention Specialist (C.C.P.S.) TCOLE Basic Instructor Certificate 1984 TCOLE Advanced Instructor 2012 TCOLE Master Peace Officer 1991 MP Special Operations Operator Counter-Terrorism 1988 Military Police Investigations (MPI) & Criminal Investigation Division (CID) Special Agent Graduate Drug Enforcement Administration Academy years Law Enforcement Experience 39-Years Teaching & Instructor Experience

COURSE/LESSON OVERVIEW - Forward This course will cover the forfeiture of seized property. The student will be able to demonstrate understanding of this area to the level required by the Texas 77 th in Senate Bill 563.

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

ASSET FORFEITURE

1.1 Asset Forfeiture Required Training for Law Enforcement asset forfeiture A. Occupations Code, Section (g) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on asset forfeiture under Chapter 59, Code of

Cont’d: second A. Occupations Code, Section (g) – Cont’d: Criminal Procedure, for officers licensed under this chapter. An officer shall complete a program established under this subsection not later than the second 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: m/txstatutes/OC/10/1701 /F/ #sthash.Mgj CxvZe.dpuf

B. Occupations Code, Section (d): Training in documentation of cases required by Subsection (b) shall include instruction in: writtenaccount (1)making a written account of the extent of injuries sustained by the victim of an alleged offense;

B. Occupations Code, Section (d): Training in documentation of cases required by Subsection (b) shall include instruction in: photograph videotape (2) recording by photograph or videotape 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, (See Section 10, SB 563.): ASSETFORFEITURETRAINING

B. Occupations Code, Section (d): Training in documentation of cases required by Subsection (b) shall include instruction in: victim'sstatement (3) recognizing and recording a victim's statement that may be admissible as evidence in a proceeding concerning the matter about which the statement was made.

See more at: m/txstatutes/OC/10/1701/ F/ #sthash.MgjC xvZe.dpuf

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

1.2 Philosophy of Asset Forfeiture A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) prosecutor 1. Definitions: (1) "Attorney representing the state" means the prosecutor 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) Cont’d 1. Definitions: (1) Cont’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) Cont’d contraband 1. Definitions: (1) Cont’d: procedures for the city attorney acting in a forfeiture proceeding. In a proceeding for forfeiture of contraband 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) Proceeds 2. Proceeds versus instrumentalities "Proceeds" includes income a person accused or convicted of a crime or the person's representative or assignee receives from: book (A) a movie, book, 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 tangible (B) the sale of tangible 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? defense a.“Innocent” owner defense, see art (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? ownerinterest a. Cont’d: the owner or interest holder was not a party to the offense giving rise to the forfeiture and that the contraband: stolen (A) was stolen 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: money (i) money stolen from the owner or interest holder; or property (ii) proceeds from the sale of property 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? consent (C) was used or intended to be used without the effective consent of the owner or interest holder in the commission of the offense giving rise to the forfeiture. belief (2) An attorney representing the state who has a reasonable belief that

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible for forfeiture? identity (C) (2) Cont’d: property subject to forfeiture is described by Subdivision (1) and who has a reasonable belief as to the identity of the rightful owner or interest holder of the property shall notify the owner or interest holder as provided by Article 59.04

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

A. A. Elements of Chapter 59 of the Code of Criminal Procedure (CCP) 3. What is eligible for forfeiture? liable (C)(3) An attorney representing the state is not liable 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? failure ( 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 failure as a ground for new trial in a motion for new trial or bill of review.

contraband Property that is contraband is subject to seizure and forfeiture under this chapter. Substitute “Substitute 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) Methods of seizure 4. Methods of seizure search seized by any peace officer under authority of a search warrant. warrant Seizure of property subject to forfeiture may be made without warrant 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) Time limits for filings 5. Time limits for filings 30th If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30th day after the date of the seizure.

third The attorney representing the state, not later than the third 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 Notification

B. B. Philosophy of forfeiture forfeiture 1. Should forfeiture be a form of “extra punishment?” Proportionality 2. Proportionality of property to be forfeited and to the seriousness of the offense Jeopardy 3. Jeopardy issues (See Pages 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 Contraband & Proceeds A. A. Contraband Definitions Property used in the commission of: felony 1. Any first or second-degree felony under Penal Code (PC)

A. A. Contraband Definitions Property used in the commission of: Robbery 2. Felony under Chapters. 29, 30, 31, 32, 35 or Section (Robbery, Burglary, Theft and Fraud) Securities 3. Any felony under the Securities Act

A. A. Contraband Definitions Property used in the commission of: Proceeds 4. Proceeds gained from any of the above felonies Property 5. Property acquired with proceeds of any of the above felonies or a crime of violence drug 6. Any felony under Chapter 481 Health & Safety Code (most illegal drug offenses)

A. A. Contraband Definitions Property used in the commission of: dangerous 7. Any felony under Chapter 483 Health & Safety Code (includes dangerous drugs) Currency 8. Any felony under Chapter 153 Finance Code (Currency Exchange, Transmission & Transport)

A. A. Contraband Definitions Property used in the commission of: Laundering 9. Any felony under Chapter 34 Penal Code (Money Laundering) Proceeds 10. Proceeds gained from any of the above felonies Property 11. Property acquired with proceeds of any of the above felonies or a crime of violence

B. Proceeds Definitions What are Proceeds? prevails 1. Commonly understood meaning prevails event transaction 2. Property derived from an event or transaction criminal 3. Conviction of criminal offense not necessary

1.4 Defenses to Forfeiture A. A. Defenses to Forfeiture Statutory Defenses 1.Statutory Defenses, Chapter Code of Criminal Procedures Defense a. Innocent Owner Defense (Non–Consentual)

A. A. Defenses to Forfeiture Statutory Defenses 1.Statutory Defenses, Chapter Code of Criminal Procedures before illegal b. Owner acquired the property before illegal act and owner did not know or should not reasonably have known of the illegal act before acquiring the property

A. A. Defenses to Forfeiture Statutory Defenses 1.Statutory Defenses, Chapter Code of Criminal Procedures c. Family violence defense property 1) Community property illegal 2) Act of family violence prevented stopping illegal act

A. A. Defenses to Forfeiture 1.Statutory Defenses 1.Statutory Defenses, Chapter Code of Criminal Procedures DismissalAcquittal d.Dismissal of Acquittal of Related Charges presumption 1) Raises presumption property should not be forfeited

A. A. Defenses to Forfeiture Non-Statutory Defenses 2.Non-Statutory Defenses a.Controlled Substance Analogue analogue 1) Denial that a substance is an analogue of a controlled substance, however,

A. A. Defenses to Forfeiture Non-Statutory Defenses 2.Non-Statutory Defenses a.Controlled Substance Analogue structureeffect 2) State need only show the substance is analogue by structure of effect (not both)

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 Non-Statutory Defenses 2.Non-Statutory Defenses b.Suppression of Evidence in Criminal Case Defendants 1) Defendants may try this but court should not grant

A. A. Defenses to Forfeiture Non-Statutory Defenses 2.Non-Statutory Defenses c.Fifth Amendment rights 1) During discovery and trial make defendant aware of rights Invocation 2) Invocation of right can comment on any inference it may support

A. A. Defenses to Forfeiture Non-Statutory Defenses 2.Non-Statutory Defenses d.Homestead Homestead 1) Homestead protection not resolved in Texas Property e.Community Property 1) Not a valid defense

A. A. Defenses to Forfeiture Non-Statutory Defenses 2.Non-Statutory Defenses f.Legitimate Source of Income Discovery 1) Discovery before trial essential to establish supporting evidence negotiated 2) When, where, & how check negotiated

A. A. Defenses to Forfeiture Non-Statutory Defenses 2.Non-Statutory Defenses f.Legitimate Source of Income. deposited 3) Whether deposited and where and history before and since. cash 4)When converted to cash

1.5 Issue Regarding Pre- Seizure Planning A. A. Ownership Problem Separate 1. Community vs. Separate Property

B. Businesses Leases 1. Leases of real property Liens 2. Liens against inventory C. Equity C. Equity over mortgage

D. Risks D. Risks/Liabilities E. Cost E. Costs F. consent F. Rented and owner’s consent to criminal activity

G. Bank Accounts numbers signatories 1. Identify account numbers and signatories seize 2. Monitor the account to determine best time to seize collateral 3. Know whether it is collateral for a loan

1.6 Search & Methods of Seizure A. A. Without Warrant consents 1.Owner, operator or agent knowingly consents consented 2.Incident to search consented to

A. A. Without Warrant forfeiture 3.Property subject to prior judgment of forfeiture arrest arrest 4.Incident to lawful arrest, search, or lawful search incident to arrest

B. B. Probable Cause for Seizure belief 1.Reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statue

C. C. Exceptions to Warrant Requirement Plainview 1.Plain view Emergency 2.Emergency searches (exigencies) control 3.Area within immediate control at time of arrest Safety 4.Safety sweep of adjacent rooms

D. D. With Warrant 1.Rules apply from Chapter 18 Code of Criminal Procedures Contraband felony 2.Contraband warrant must also show in affidavit the specific felony offense committed and the described property complies with the definition of contraband from 59.01

1.7 Post Seizure Procedures A. custody A. Peace Officer who seizes has custody

B. B. Must provide attorney representing state a sworn statement containing: Schedule 1.Schedule of property seized property 2.Acknowledgment that officer seized property reasons 3.And list of reasons supporting seizure

C. C. Not later than 72 hours after seizure must: seal 1.Place property under seal; property 2.Remove property to a place ordered by court; or custodyproperty 3.Require law enforcement agency to take custody of the property and move it to a proper location.

D. D. Currency interest 1.May be deposited in interest bearing account jurisdiction 2.In jurisdiction of state attorney

E. E. Waivers Interest 1.Interest a.Article (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 Interest 1.Interest a.Article (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 Process 2.Service of Process 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: owner (1) the owner of the property; and interest (2) any interest holder in the property.

E. E. Waivers Lawsuit 3.Evidence of Lawsuit Standing 4.Standing ability of a party to demonstrate to the court sufficient connection to and harm from the law

E. E. Waivers Oppression 5.Official Oppression § § OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: arrest seizure (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or

Cont’d § Cont’d: that he knows is unlawful; right (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or sexual (3) intentionally subjects another to sexual harassment.

1.8 Forfeiture Proceedings Under Forfeiture Proceeding Civil 1.Civil Proceeding

59.04 Forfeiture Proceeding DistrictAttorney 30 2.District Attorney must begin proceedings within 30 days of your date of seizure

59.04 Forfeiture Proceeding civil 3.Service of civil citation upon parties

1.9 Considerations in Forfeiture Cases A. A. Things to consider in forfeiture cases Civil 1.Civil Discovery

1.9 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. - 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 offers (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.

DISPOSITION forfeited All forfeited 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. Trial F. agreement F. Local agreement G. Federal G. Federal adoption

H. Drug H. Drug trafficking largest

I.$57 I. Estimated that $57 billion generated annually J.$34 J. Estimated $34 billion laundered through financial institutions

SOURCES All Course Sources and/or Resources are listed in your Participant Handout

Questions?

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FINAL TEST Test ReviewTest Review Final Test – ExamFinal Test – Exam Grade PapersGrade Papers

has successfully completed all the requirements of the 2-hour Asset Forfeiture Course Texas Commission on Law Enforcement (TOCLE) Course # 3255 at the Bexar County Constable Office, PCT #4 Training Division on this 6 th day of April 2014 ______________________ Robert M. Blount Constable, PCT #4 ______________________ George D. Little, C.C.P.S., Deputy Chief INTEL – Homeland Security & Training The instructor staff of the Bexar County Constable’s Office PCT #4 Training Division Concurs, confirms and hereby certifies that: Deputy Constable John Q. OFFICER

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