Procedure for seizure
- • immunities
- • constructive seizure
- • inventory
Property may be seized for forfeiture as provided in this section.
(1) Any person who delivers property in obedience to an order or direction to deliver the property under this section shall not be liable:
(a) To any person on account of obedience to the order or direction; or
(b) For any costs incurred on account of any contamination of the delivered property. This includes, but is not limited to, any disposal costs for any property forfeited under ORS 475A.020 (Property subject to forfeiture generally), any hazardous waste or material, any contraband or any other contamination contained in property seized under this section.
(2) Property may be seized by any police officer without a court order if:
(a) The property has been the subject of an earlier judgment in favor of any forfeiting agency in an earlier civil in rem proceeding under this chapter;
(b) There is probable cause to believe that property is subject to forfeiture, provided that the property may constitutionally be seized without a warrant;
(c) The seizure is in the course of a constitutionally valid criminal investigative stop, arrest or search, and there is probable cause to believe that the property is subject to forfeiture;
(d) The property is directly or indirectly dangerous to the health or safety of any person; or
(e) An owner consents to the seizure.
(3) Except as provided in ORS 475A.045 (Status of seized property), with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the person having control or custody of the property shall deliver the same over to the police officer.
(4)(a) Property may be seized by any police officer pursuant to an order of the court. Forfeiture counsel or a seizing agency may apply for an ex parte order directing seizure of specified property.
(b) Application shall be made to any judge as defined in ORS 133.525 (Definitions for ORS 133.525 to 133.703). The application shall be supported by one or more affidavits setting forth the facts and circumstances tending to show where the objects of the seizure are to be found. The court shall issue the order upon a finding of probable cause to believe that the described property is subject to forfeiture. The order may be set out on the face of a search warrant.
(c) Except as provided in ORS 475A.045 (Status of seized property), with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the order shall direct any person having control or custody of the property to deliver the same over to the seizing agency or to the court to abide judgment.
(5) Property may be constructively seized by posting notice of seizure for forfeiture on it or by filing notice of seizure for forfeiture or notice of pending forfeiture in the public records that impart constructive notice of matters relating to such property. A notice which is filed must include a description of the property that is the subject of the seizure. Real property, including interests arising out of land sale contracts, shall be seized only upon recording notice of seizure containing a legal description of the property in the mortgage records of the county in which the real property is located.
(6) Property which has been unconstitutionally seized may be subject to forfeiture if the basis for forfeiture under this chapter is sustained by evidence which is not the fruit of the unconstitutional seizure.
(7) Promptly upon seizure, the officer who seized the property shall make an inventory of the property seized and shall deliver a receipt embodying the inventory to the person from whose possession they are taken or to the person in apparent control of the property at the time it is seized. The officer may, in addition, provide an estimate of the value of the property seized and information on the right to file a claim under ORS 475A.055 (Nonjudicial forfeiture) (2), and the deadline for filing that claim. If the property is unoccupied or there is no one present in apparent control, the officer shall leave the receipt suitably affixed to the property. If the property is physically removed from the location of seizure and it is unoccupied or there is no one present in apparent control, then the officer shall promptly file the receipt in the public records of the forfeiting agency. Every receipt prepared under this subsection shall contain, in addition to an inventory of the property seized, the following information:
(a) The identity of the seizing agency; and
(b) The address and telephone number of the office or other place where the person may obtain further information concerning the forfeiture.
(8) A police officer has probable cause to believe that cash, weapons or negotiable instruments are subject to forfeiture if the cash, weapons or negotiable instruments are found in close proximity to controlled substances or to instrumentalities of prohibited conduct. Notwithstanding ORS 475A.080 (Standards of proof in civil action for forfeiture), if the forfeiting agency establishes in a forfeiture action that cash, weapons or negotiable instruments were found in close proximity to controlled substances or to instrumentalities of prohibited conduct, the burden is on any person claiming the cash, weapons or negotiable instruments to prove by a preponderance of the evidence that the cash, weapons or negotiable instruments are not proceeds of prohibited conduct or an instrumentality of prohibited conduct.
(9) In the event that property is seized from the possession of a person who asserts a possessory lien over such property pursuant to applicable law, notwithstanding any other provision of law, any lien of the person from whom the property was seized shall remain in effect and shall be enforceable as fully as though the person had retained possession of the property. [1989 c.791 §4; 1991 c.218 §1; 1991 c.237 §1; 1991 c.934 §2; 1999 c.59 §147; 2001 c.780 §§5,5a; 2005 c.830 §31]
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.