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Forfeiture – Return of Seized Property

Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), affirming unpublished decision
For Jones: Colleen D. Ball, Reinhart, Boerner, Van Dueren, Norris & Riesselbach.

Issue/Holding: Procedure for obtaining return of property seized under Uniform Controlled Substances Act is outlined in two seemingly overlapping statutes, §§ 961.55 & 968.20. The former, part of UCSA, mandates that “(a)ny property seized but not forfeited shall be returned to its rightful owner.” In other words, return of all property seized under this Act is mandatory where, as here, forfeiture proceedings are not attempted (or are unsuccessful). On the other hand, under § 968.20 – which more broadly applies to all seized property not just USCA cases – “contraband” isn’t subject to return. After a lengthy recitation of the history and purpose of each provision, the court holds that § 961.55’s mandatory return provision

is only triggered by an unsuccessful forfeiture action brought by the state. …   In those instances where the district attorney chooses not to initiate a forfeiture action, then a person claiming the right to possession of property seized by authorities may apply for its return under § 968.20(1).

Forfeiture wasn’t attempted in this case, so Jones was forced under § 968.20. The police seized cash, incident to arrest for OWI. An officer testified at a return proceeding that in his experience the money (a wad of 20s) was drug-related. The question is therefore whether cash is “contraband,” exempt from return under § 968.20. “Contraband” isn’t defined in § 968.20, so the court looks to § 968.13(1), which does define the term. From that exercise, the court concludes “that contraband includes, among other things, money that is related to the commission of a crime or that represents illicit proceeds from an unlawful sale.” (In other words, “contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses … those items which are used, acquired or transferred illicitly.”)

In sum, we conclude that Wis. Stat. § 968.13(1)(a) is clear on its face, and that under this statute contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses those items that are not only per se illegal, such as controlled substances or forged money, but also those items which are put to an illegal use or acquired illicitly, such as the purchase or sale of controlled substances.” In a return-proceeding under § 968.20; the state has “the burden of establishing that the property, in this case money, constitutes contraband ….

The burden is greater weight of credible evidence. (Allocation of this burden at a return-proceeding, the court suggests, removes the prosecutor’s incentive to never use the § 961.55 forfeiture procedure.) Jones did litigate a return proceeding, and the trial court erroneously placed the burden of proof on him to show that the money wasn’t contraband, rather than on the state to show that it was. But, noting that whether a party has met its burden of proof is a question of law, the supreme court holds that the error was harmless. Jones produced no evidence refuting the officer’s testimony.

¶69 In summary, we hold that property, in this case money, which has been found in a judicial proceeding to have a logical nexus to items which are illegal to possess, such as controlled substances, or have been acquired through illicit means, may constitute contraband as defined in Wis. Stat. § 968.13(1)(a). If property is found to be contraband under § 968.13(1)(a), the property need not be returned to the owner whether criminal charges are filed or not. Wis. Stat. § 968.20. We also hold that the state is required to establish, by the greater weight of the credible evidence, that the property constitutes contraband. Even though the circuit court in this case mistakenly placed the burden on the defendant to show whether the cash was or was not contraband, we conclude that based on the evidence presented at the hearing, this error was harmless. Accordingly, we affirm the decision of the court of appeals.

Note: Local authorities sometimes turn seized cash over to the feds, on the assumption it’s then shielded from a favorable state court return-order. A recent case articulates the rationale for this tactic. Commonwealth v. Rufo, 429 Mass. 380, 708 N.E.2d 947 (1999), (“in the absence of a State statute providing for judicial control over seized property, courts have held that the seizure of property by State authorities does not alone confer in rem jurisdiction on a State court”). Jones doesn’t squarely address this problem, but its language indicates that Wisconsin may take a different approach:

¶31 In other situations, the property may be subject to state and federal jurisdiction. In such a case, the first-in- time rule applies. The rule is that only one court may have jurisdiction over the res in an in rem proceeding, and therefore the first court to obtain in rem jurisdiction maintains it to the exclusion of all others, whether the court is state or federal.

Additionally, there’s the problem of whether the defendant’s testimony or documentary evidence at a forfeiture/return proceeding is admissible in a prosecution. See, e.g., US v. Scrivner, 189 F.3d 825 (9th Cir. 1999).


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