act-2006-0-71•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
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-2006-0-712006 Pa. Act 71Law
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
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