K.S.A. § 60-4107 — KS Code / Chapter 60 / Article 41 / Section 60-4107
60-4107 - Seizure of property; notice; limitations on liability; requests for forfeiture; time limitations; federal adoption of seizure, when; limitations; settlements; waiver of rights prohibited.
Status: in_force

60-4107. Seizure of property; notice; limitations on liability; requests for forfeiture; time limitations; federal adoption of seizure, when; limitations; settlements; waiver of rights prohibited. (a) Property may be seized for forfeiture by a law enforcement officer upon process issued by the district court. The court may issue a seizure warrant on an affidavit under oath demonstrating that probable cause exists for the property's forfeiture or that the property has been the subject of a previous final judgment of forfeiture in the courts of any state or of the United States. The court may order that the property be seized on such terms and conditions as are reasonable in the discretion of the court. The order may be made on or in connection with a search warrant. All real property is to be seized constructively or pursuant to a pre-seizure adversarial judicial determination of probable cause, except that this determination may be done ex parte when the attorney for the state has demonstrated exigent circumstances to the court.

(b) Property may be seized for forfeiture by a law enforcement officer without process on probable cause to believe the property is subject to forfeiture under this act.

(c) Property may be seized constructively by:

(1) Posting notice of seizure for forfeiture or notice of pending forfeiture on the property.

(2) Giving notice pursuant to K.S.A. 60-4109, and amendments thereto.

(3) Filing or recording in the public records relating to that type of property notice of seizure for forfeiture, notice of pending forfeiture, a forfeiture lien or a lis pendens. Filings or recordings made pursuant to this act are not subject to a filing fee or other charge, except that court costs may be assessed and, if assessed, shall include the amount of the docket fee prescribed by K.S.A. 60-2001, and amendments thereto, and any additional court costs accrued in the action.

(d) The seizing agency shall make reasonable effort to provide notice of the seizure to the person from whom possession or control of the property was seized and any interest holder of record within 30 days of seizing the property. If no person is in possession or control, the seizing agency may attach the notice to the property or to the place of the property's seizure or may make a reasonable effort to deliver the notice to the owner of the property. The notice shall contain a general description of the property seized, the date and place of seizure, the name of the seizing agency and the address and telephone number of the seizing officer or other person or agency from whom information about the seizure may be obtained.

(e) A person who acts in good faith and in a reasonable manner to comply with an order of the court or a request of a law enforcement officer is not liable to any person on account of acts done in reasonable compliance with the order or request. No liability may attach from the fact that a person declines a law enforcement officer's request to deliver property.

(f) A possessory lien of a person from whom possession of the property is seized is not affected by the seizure.

(g) When property is seized for forfeiture under this act, the seizing agency shall, within 14 days after such seizure, forward to the county or district attorney in whose jurisdiction the seizure occurred, a written request for forfeiture which shall include a statement of facts and circumstances of the seizure, the estimated value of the property, the owner and lienholder of the property, the amount of any lien, and a summary of the facts relied on for forfeiture.

(h) (1) Upon receipt of a written request for forfeiture from a local law enforcement agency, the county or district attorney shall accept or decline the request within 14 days.

(2) Upon the expiration of the 14-day time limitation provided in paragraph (1) or upon notification that the county or district attorney declines such request, whichever occurs first, the seizing agency has 14 days to:

(A) Request a state law enforcement agency that enforces this act to adopt the forfeiture; or

(B) engage an attorney, approved by the county or district attorney, to represent the agency in the forfeiture proceeding, but in no event shall the county or district attorney approve an attorney with whom the county or district attorney has a financial interest, either directly or indirectly.

(3) Upon the expiration of the 14-day time limitation provided in paragraph (2), if a state law enforcement agency has not adopted the forfeiture or the seizing agency has not engaged an attorney to represent the agency, the property that was seized for forfeiture shall be returned within 30 days to the owner or interest holder or as provided for the same kind of property in K.S.A. 22-2512, and amendments thereto.

(i) (1) Upon receipt of a written request for forfeiture from a state law enforcement agency, the county or district attorney shall accept or decline the request within 14 days.

(2) Upon the expiration of the 14-day time limitation provided in paragraph (1) or upon notification that the county or district attorney declines such request, whichever occurs first, the seizing agency has 14 days to engage an assistant attorney general or other attorney approved by the attorney general to represent the agency in the forfeiture proceeding, but in no event shall the attorney general approve an attorney with whom the attorney general has a financial interest, either directly or indirectly.

(3) Upon the expiration of the 14-day time limitation provided in paragraph (2), if the seizing agency has not engaged an attorney to represent the agency, the property that was seized for forfeiture shall be returned within 30 days to the owner or interest holder or as provided for the same kind of property in K.S.A. 22-2512, and amendments thereto.

(j) Nothing in subsection (h) or (i) shall affect the time limitations for initiating or filing a forfeiture proceeding pursuant to K.S.A. 60-4109, and amendments thereto.

(k) A county or district attorney or the attorney general shall not request or receive any referral fee or personal financial benefit, either directly or indirectly, in any proceeding conducted under this act.

(l) Nothing in this act shall prevent the attorney general, an employee of the attorney general or an authorized representative of the attorney general from conducting forfeiture proceedings under this act.

(m) (1) A state or local law enforcement agency may request federal adoption of a seizure pursuant to this act or otherwise transfer or refer seized property to a federal agency only if:

(A) The seizure by the agency occurs pursuant to a joint task force with federal law enforcement authorities;

(B) the seizure by the agency occurs pursuant to a joint investigation with federal law enforcement authorities as part of an ongoing federal investigation;

(C) the agency makes such request in conjunction with a request for federal law enforcement authorities to adopt the criminal investigation relating to the seizure;

(D) the property seized by the agency is subsequently seized pursuant to a federal seizure warrant, obtained from a federal court to take custody of assets originally seized under state law;

(E) the property seized by the agency directly relates to a serious public safety concern; or

(F) the gross estimated value of the property seized by the agency is $25,000 or more.

(2) Subject to the requirements of paragraph (1), it shall not be necessary to obtain any order pursuant to K.S.A. 22-2512, and amendments thereto, to release any seized property to a federal agency if the county or district attorney approves of such transfer.

(n) Nothing in this act shall prevent a seizing agency, or the plaintiff's attorney on behalf of the seizing agency, from settling any alleged forfeiture claim against property before or during forfeiture proceedings. Such settlement shall be in writing and shall be approved, if a local agency, by the county or district attorney or, if a state agency, by the attorney general's office and a district court judge. No hearing or other proceeding shall be necessary. The records of settlements occurring prior to commencement of judicial forfeiture proceedings in the district court shall be retained by the county or district attorney for not less than five years.

(o) Settlements under this act shall not be conditioned upon any disposition of criminal charges.

(p) When property is seized for forfeiture under this act, the seizing agency shall not request, induce or otherwise coerce a person who has at any time asserted rights as an owner or interest holder of such property to waive in writing such rights in the property until forfeiture proceedings are commenced pursuant to K.S.A. 60-4109, and amendments thereto.