Pennsylvania Act 2006-71 — CRIMES CODE (18 PA.C.S.) AND JUDICIAL CODE (42 PA.C.S.) - TERRORISM OFFENSES, CONTROLLED SUBSTANCES FORFEITURES, TERRORISM FORFEITURES, PROCEDURE WITH RESPECT TO SEIZED PROPERTY SUBJECT TO LIENS AND RIGHTS OF LIENHOLDERS AND PENALTIES

Act text

CRIMES CODE (18 PA.C.S.) AND JUDICIAL CODE (42 PA.C.S.) - TERRORISM
   OFFENSES, CONTROLLED SUBSTANCES FORFEITURES, TERRORISM FORFEITURES,
 PROCEDURE WITH RESPECT TO SEIZED PROPERTY SUBJECT TO LIENS AND RIGHTS OF
                        LIENHOLDERS AND PENALTIES
                  Act of Jul. 7, 2006, P.L. 342, No. 71               Cl. 18
                             Session of 2006
                               No. 2006-71

     HB 456

                                  AN ACT

     Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
        Judicial Procedure) of the Pennsylvania Consolidated
        Statutes, providing for the offense of terrorism; further
        providing in controlled substances forfeitures for loss of
        property rights to Commonwealth; providing for terrorism
        forfeiture; further providing for procedure with respect to
        seized property subject to liens and rights of lienholders;
        and providing for penalties.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Title 18 of the Pennsylvania Consolidated
     Statutes is amended by adding a section to read:
      § 2717.  Terrorism.
        (a)  General rule.--A person is guilty of terrorism if he
     commits a violent offense intending to do any of the following:
            (1)  Intimidate or coerce a civilian population.
            (2)  Influence the policy of a government by intimidation
        or coercion.
            (3)  Affect the conduct of a government.
        (b)  Grading and penalty.--
            (1)  If the violent offense is a misdemeanor or a felony
        of the third or second degree, an offense under this section
        shall be classified one degree higher than the classification
        of the violent offense specified in section 106 (relating to
        classes of offenses).
            (2)  If the violent offense is a felony of the first
        degree, a person convicted of an offense under this section
        shall be sentenced to a term of imprisonment fixed by the
        court at not more than 40 years and may be sentenced to pay a
        fine of not more than $100,000.
        (c)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Dangerous to human life or property."  A violent act or an
     act which is intended to or likely to cause death, serious
     bodily injury or mass destruction.
        "Mass destruction."  An act which is intended to or likely to
     destroy or cause serious damage to transportation-related
     infrastructure or facilities, energy-related infrastructure or
     facilities, public or private buildings, places of public
     accommodation or public works under circumstances evincing
     depraved indifference to human life or property.
        "Violent offense."  An offense under this part, including an
     attempt, conspiracy or solicitation to commit any such offense,
     which is punishable by imprisonment of more than one year and
     involves an act dangerous to human life or property.
        Section 2.  The heading of Chapter 68 of Title 42 is amended
     to read:
                                CHAPTER 68
                   [CONTROLLED SUBSTANCES] FORFEITURES
        Section 3.  The heading of section 6801 of Title 42 is
     amended to read:
      § 6801.  [Loss of property rights to Commonwealth] Controlled
                substances forfeiture.
        Section 4.  Title 42 is amended by adding a section to read:
      § 6801.1.  Terrorism forfeiture.
        (a)  Forfeitures generally.--The following shall be subject
     to forfeitures to the Commonwealth, and no property right shall
     exist in them:
            (1)  All assets, foreign or domestic:
                (i)  Of an individual, entity or organization engaged
            in planning or perpetrating an act in this Commonwealth
            which violates 18 Pa.C.S. § 2717 (relating to terrorism)
            and all assets, foreign or domestic, affording a person a
            source of influence over such an entity or organization.
                (ii)  Acquired or maintained by a person with the
            intent and for the purpose of supporting, planning,
            conducting or concealing an act in this Commonwealth
            which violates 18 Pa.C.S. § 2717.
                (iii)  Derived from, involved in or used or intended
                to be used to commit an act in this Commonwealth
                which violates 18 Pa.C.S. § 2717.
            (2)  All assets within this Commonwealth:
                (i)  Of an individual, entity or organization engaged
            in planning or perpetrating an act which violates 18
            Pa.C.S. § 2717.
                (ii)  Acquired or maintained with the intent and for
            the purpose of supporting, planning, conducting or
            concealing an act which violates 18 Pa.C.S. § 2717.
                (iii)  Derived from, involved in or used or intended
            to be used to commit an act which violates 18 Pa.C.S. §
            2717.
        (b)  Process and seizures.--Property subject to forfeiture
     under this section may be seized by the law enforcement
     authority upon process issued by a court of common pleas having
     jurisdiction over the property. Seizure without process may be
     made if any of the following apply:
            (1)  The seizure is incident to an arrest, a search under
        a search warrant or an inspection under an administrative
        inspection warrant.
            (2)  The property subject to seizure has been the subject
        of a prior judgment in favor of the Commonwealth in a
        criminal injunction or forfeiture proceeding under this
        chapter.
            (3)  There is probable cause to believe that the property
        is dangerous to health or safety.
            (4)  There is probable cause to believe that the property
        has been or is intended to be used in the commission of an
        act which violates 18 Pa.C.S. § 2717.
        (c)  Seizure without process.--In the event seizure is made
     without process, proceedings for the issuance of process shall
     be instituted forthwith.
        (d)  Custody of property.--Property taken or detained under
     this section shall not be subject to replevin, but is deemed to
     be in the custody of the law enforcement authority, subject only
     to the orders and decrees of the court of common pleas having
     jurisdiction over the forfeiture proceedings and of the district
     attorney or the Attorney General. When property is seized under
     this section, the law enforcement authority shall place the
     property under seal and either:
            (1)  remove the property to a place determined by the law
        enforcement authority; or
            (2)  request that the district attorney or Attorney
        General take custody of the property and remove it to an
        appropriate location for disposition in accordance with law.
        (e)  Use of property held in custody.--Whenever property is
     forfeited under this section, it shall be transferred to the
     custody of the district attorney if the law enforcement
     authority seizing the property has local or county jurisdiction
     or of the Attorney General if the law enforcement authority
     seizing the property has Statewide jurisdiction. The district
     attorney or the Attorney General, where appropriate, may:
            (1)  Retain the property for official use.
            (2)  Sell any forfeited property which is not required to
        be destroyed by law and which is not harmful to the public,
        the proceeds from any such sale to be used to pay all proper
        expenses of the proceedings for forfeiture and sale,
        including expenses of seizure, maintenance of custody,
        advertising and court costs. The balance of the proceeds
        shall be dealt with under subsections (f) and (g).
        (f)  Use of cash or proceeds of property.--Cash or proceeds
     of forfeited property transferred to the custody of the district
     attorney under subsection (e) shall be placed in the operating
     fund of the county in which the district attorney is elected.
     The appropriate county authority shall immediately release from
     the operating fund, without restriction, a like amount for the
     use of the district attorney in enforcing the criminal laws of
     the Commonwealth of Pennsylvania. The entity having budgetary
     control shall not anticipate future forfeitures or proceeds
     therefrom in adoption and approval of the budget for the
     district attorney.
        (g)  Distribution of property among law enforcement
     authorities.--If both municipal and State law enforcement
     authorities were substantially involved in effecting the
     seizure, the court having jurisdiction over the forfeiture
     proceedings shall equitably distribute the property between the
     district attorney and the Attorney General.
        (h)  Authorization to utilize property.--The district
     attorney and the Attorney General shall utilize forfeited
     property or proceeds thereof for the purpose of enforcing the
     provisions of this act. In appropriate cases, the district
     attorney and the Attorney General may designate proceeds from
     forfeited property to be utilized for antiterrorism public
     safety programs and for relocation and protection of witnesses
     in criminal cases.
        (i)  Annual audit of forfeited property.--It shall be the
     responsibility of every county in this Commonwealth to provide,
     through the controller, board of auditors or other appropriate
     auditor and the district attorney, an annual audit of all
     forfeited property and proceeds obtained under this section. The
     audit shall not be made public but shall be submitted to the
     Office of Attorney General. The county shall report all
     forfeited property and proceeds obtained under this section and
     the disposition thereof to the Attorney General by September 30
     of each year.
        (j)  Annual report; confidential information regarding
     property.--The Attorney General shall annually submit a report
     to the Appropriations Committee and Judiciary Committee of the
     Senate and the Appropriations Committee and Judiciary Committee
     of the House of Representatives specifying the forfeited
     property or proceeds thereof obtained under this section. The
     report shall give an accounting of all proceeds derived from the
     sale of forfeited property and the use made of unsold forfeited
     property. The Attorney General shall adopt procedures and
     guidelines governing the release of information by the district
     attorney to protect the confidentiality of forfeited property or
     proceeds used in ongoing antiterrorist activities.
        (k)  Proceeds and appropriations.--The proceeds or future
     proceeds from property forfeited under this section shall be in
     addition to any appropriation made to the Office of Attorney
     General.
        Section 5.  Section 6802(a)(5), (f), (j) and (k) of Title 42
     are amended to read:
      § 6802.  Procedure with respect to seized property subject to
                liens and rights of lienholders.
        (a)  General procedure.--The proceedings for the forfeiture
     or condemnation of property, the sale of which is provided for
     in this chapter, shall be in rem, in which the Commonwealth
     shall be the plaintiff and the property the defendant. A
     petition shall be filed in the court of common pleas of the
     judicial district where the property is located, verified by
     oath or affirmation of an officer or citizen, containing the
     following:
            * * *
            (5)  An allegation that the property is subject to
        forfeiture pursuant to [section 6801(a) (relating to loss of
        property rights to Commonwealth)] section 6801(a) (relating
        to controlled substances forfeiture) or 6801.1(a) (relating
        to terrorism forfeiture) and an averment of material facts
        upon which the forfeiture action is based.
            * * *
        (f)  Preservation of the property subject for forfeiture.--
     Upon application of the Commonwealth, the court may enter a
     restraining order or injunction, require the execution of a
     satisfactory performance bond or take any other action to
     preserve the availability of property described in section
     6801(a) or 6801.1(a) for forfeiture under this section either:
            (1)  upon the filing of an information or an indictment
        charging [a violation of the act of April 14, 1972 (P.L.233,
        No.64), known as The Controlled Substance, Drug, Device and
        Cosmetic Act,] an offense in this Commonwealth for which
        criminal forfeiture may be ordered under this chapter and
        alleging that the property with respect to which the order is
        sought would be subject to forfeiture; or
            (2)  prior to the filing of such an indictment or
        information, if, after notice to persons appearing to have an
        interest in the property and an opportunity for a hearing,
        the court determines that:
                (i)  there is a substantial probability that the
            Commonwealth will prevail on the issue of forfeiture and
            that failure to enter the order will result in the
            property being destroyed, removed from the jurisdiction
            of the court or otherwise made unavailable for
            forfeiture; and
                (ii)  the need to preserve the availability of the
            property through the entry of the requested order
            outweighs the hardship on any party against whom the
            order is to be entered.
        However, an order entered pursuant to this paragraph shall be
        effective for not more than 90 days unless extended by the
        court for good cause shown or unless an indictment or
        information described in paragraph (1) has been filed.
        * * *
        (j)  Owner's burden of proof.--At the time of the hearing, if
     the Commonwealth produces evidence that the property in question
     was unlawfully used, possessed or otherwise subject to
     forfeiture under section 6801(a) or 6801.1(a), the burden shall
     be upon the claimant to show:
            (1)  That the claimant is the owner of the property or
        the holder of a chattel mortgage or contract of conditional
        sale thereon.
            (2)  That the claimant lawfully acquired the property.
            (3)  That it was not unlawfully used or possessed by him.
        In the event that it shall appear that the property was
        unlawfully used or possessed by a person other than the
        claimant, then the claimant shall show that the unlawful use
        or possession was without his knowledge or consent. Such
        absence of knowledge or consent must be reasonable under the
        circumstances presented.
        (k)  Court-ordered release of property.--If a person claiming
     the ownership of or right of possession to or claiming to be the
     holder of a chattel mortgage or contract of conditional sale
     upon the property, the disposition of which is provided for in
     this section, prior to the sale presents a petition to the court
     alleging over the property lawful ownership, right of
     possession, a lien or reservation of title and if, upon public
     hearing, due notice of which having been given to the Attorney
     General or the district attorney, the claimant shall prove by
     competent evidence to the satisfaction of the court that the
     property was lawfully acquired, possessed and used by him or, it
     appearing that the property was unlawfully used by a person
     other than the claimant, that the unlawful use was without the
     claimant's knowledge or consent, then the court may order the
     property returned or delivered to the claimant. Such absence of
     knowledge or consent must be reasonable under the circumstances
     presented. Otherwise, it shall be retained for official use or
     sold in accordance with section 6801(e) or 6801.1(f).
        Section 6.  This act shall take effect in 60 days.

     APPROVED--The 7th day of July, A. D. 2006.

     EDWARD G. RENDELL