HB3038 103RD GENERAL ASSEMBLY

LRB103 30289 DTM 56717 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3038

Introduced 2/16/2023, by Rep. Will Guzzardi

SYNOPSIS AS INTRODUCED:

5 ILCS 810/10
720 ILCS 5/29B-7
720 ILCS 5/29B-12
725 ILCS 150/6	from Ch. 56 1/2, par. 1676

Amends the Seizure and Forfeiture Reporting Act. Requires each law enforcement entity that seizes, forfeits, or receives property under the Act to report specified information about the seizure and forfeiture of that property no later than 60 days after December 31 of the year in which the property is seized or forfeited. Provides that neither a law enforcement entity nor the Illinois State Police shall report the seizure, forfeiture, or receipt of property subject to reporting under federal law through equitable sharing agreements with the federal government. Provides that if a law enforcement entity does not seize, forfeit, or receive forfeiture funds during the reporting period, it shall file a null report. Makes changes concerning the information required in reports filed with the Illinois State Police under the Act. Provides that the Illinois State Police shall post annually on its website certain data. Provides that the Illinois State Police shall, within 120 days after the end of the calendar year, submit to the General Assembly, Attorney General, and Governor a written report summarizing activity in the State for the preceding year. Amends the Criminal Code of 2012. Provides that the Director's designee may sell or dispose of forfeited property. Amends the Drug Asset Forfeiture Procedure Act. Provides that the Director's designee may dispose of forfeited property.

A BILL FOR

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Seizure and Forfeiture Reporting Act is amended by changing Sections 10 as follows:

(5 ILCS 810/10)

Sec. 10. Reporting by law enforcement entity agency.

(a) Each law enforcement entity agency that seizes, forfeits, or receives property subject to reporting under this Act shall report the following information about each seizure and forfeiture of property seized or forfeited under State law to the Illinois State Police no later than 60 days after December 31 of the year in which the property is seized or forfeited. Neither a law enforcement entity nor the Illinois State Police shall report the seizure, forfeiture, or receipt of property that is subject to reporting under federal law through equitable sharing agreements with the federal government. If a law enforcement entity does not seize, forfeit, or receive forfeiture funds during a reporting period, it shall file a null report for the reporting period with the Illinois State Police. The Illinois State Police shall update or replace forms, establish processes, and assign to the appropriate seizing, forfeiting, and receiving entities responsibility for reporting the following information:

(1) the name of the law enforcement agency that seized the property or the name of the lead agency if a state multijurisdictional task force seizes the property;

(2) the date of the seizure;

(3) the type of property seized, including a building, vehicle, boat, cash, negotiable security, or firearm, except reporting is not required for seizures of contraband including alcohol, gambling devices, drug paraphernalia, and controlled substances;

(4) a description of the property seized and the estimated value of the property and if the property is a conveyance, the description shall include the make, model, year, and vehicle identification number or serial number; and

(5) the location where the seizure occurred, including: .

(A) the zip code of the location;

(B) a description of the type of location, such as a home, business, or roadway;

(6) a description of the direction of traffic flow if the seizure is made during a traffic stop on an interstate or State highway;

(7) a citation to the statutory authority under which the seizure or forfeiture was executed;

(8) a citation to the statutory authority of the alleged criminal offense that led to the seizure, if any;

(9) a citation to the statutory authority for which the accused person was arrested or charged, if any;

(10) the criminal case number, if any, and court in which the case was filed;

(11) the accused person's race, sex, year of birth, and residential zip code;

(12) a description of the outcome of the accused person's criminal case, which specifies whether charges were filed or dropped and whether the accused was acquitted, entered a plea agreement, or was convicted;

(13) the forfeiture case number and the court in which the case was filed;

(14) a description of whether the forfeiture was completed as a judicial or nonjudicial proceeding and, if judicial, whether it was a criminal proceeding or civil proceeding.

(15) a description of claims filed by a property owner or other interested party, if any, such as:

(A) a verified claim in a nonjudicial forfeiture proceeding under Section 6 of the Drug Asset Forfeiture Procedure Act, Section 29 of the Criminal Code of 2012, or other statute to which these reporting requirements apply;

(B) an answer asserting a claim for the property in an action in rem under Section 9 of the Drug Asset Forfeiture Procedure Act, Section 29 or 36 of the Criminal Code of 2012, or other statute to which these reporting requirements apply;

(C) a motion for an innocent owner hearing under Section 9 of the Drug Asset Forfeiture Procedure Act, Section 36 of the Criminal Code of 2012, or other statute to which these reporting requirements apply;

(D) a petition to intervene under Section 2-408 of the Code of Civil Procedure;

(E) a petition for remission under Section 36 of the Criminal Code of 2012 or other statute to which these reporting requirements apply;

(F) a claim for judicial review that is filed under Section 124B-170 of the Criminal Code of 2012 or other statute to which these reporting requirements apply and that is filed after an order of forfeiture is entered;

(G) a substantial hardship motion filed under Section 36 of the Criminal Code of 2012; or

(H) any other claim contesting the forfeiture of property under any provision for which reporting is mandated under this Section.

(16) a description of whether the person that filed the claim or petition is an accused person, innocent owner, a creditor, or an otherwise interested party;

(17) a description of whether the petitioner filed for a full or partial waiver of court fees;

(18) a description of the outcome of any judicial forfeiture action, including the outcome of motions filed, default judgments, judgments after a contested hearing; settlements between the owner or other interested party and the State's Attorney under Section 11 of the Drug Asset Forfeiture Procedure Act, or other outcome;

(19) a description of whether the Attorney General granted a petition for remission under Section 36 of the Criminal Code of 2012 or other statute to which these reporting requirements apply;

(20) the date the final forfeiture order was entered;

(21) a description of the disposition of the property, including a statement regarding whether the property was returned to the owner, partially returned to the owner, sold, destroyed, retained by a law enforcement entity, or was otherwise disposed;

(22) the date and location of the property disposition; and

(23) the total value of forfeited property held by each entity at the end of the reporting period.

The filing requirement shall be met upon filing Illinois State Police Notice/Inventory of Seized Property (Form 4-64) as amended, supplemented, or replaced to allow for the reporting of elements required in this Section, with the State's Attorney's Office in the county where the forfeiture action is being commenced or with the Attorney General's Office if the forfeiture action is being commenced by that office, and the forwarding of said forms Form 4-64 upon approval of the State's Attorney's Office or the Attorney General's Office to the Illinois State Police Asset Forfeiture Section. With regard to seizures for which Form 4-64 is not required to be filed, the filing requirement shall be met by the filing of an annual summary report with the Illinois State Police no later than 60 days after December 31 of that year.

(b) Each seizing law enforcement entity agency, including a drug task force or Metropolitan Enforcement Group (MEG) unit, that receives proceeds from forfeitures subject to reporting under this Act shall file an annual report with the Illinois State Police no later than 60 days after December 31 of that year. If an entity did not seize, forfeit, receive, or spend forfeiture funds during the reporting period, it shall file a null report with the Illinois State Police. The format of the report shall be developed by the Illinois State Police and shall be completed by the law enforcement entity agency. The report shall include, at a minimum, the amount of funds and other property distributed to the law enforcement entity agency by the Illinois State Police, the amount of funds expended by the law enforcement entity agency, and the category of expenditure, including:

(1) crime, gang, or abuse prevention or intervention programs;

(2) compensation or services for crime victims;

(3) investigation and litigation expenses, including expenses for forensics, witness protection, informant fees, and controlled purchases of contraband, auditing, court reporting, expert witnesses, attorneys, court fees, discovery, court reporters, printing, postage, filing, outside counsel, and awards to opposing parties;

(4) salaries, overtime, and benefits, as permitted by law;

(5) operating expenses, including but not limited to, capital expenditures, including expenditures for for vehicles, firearms, equipment, computers, software, hardware, appliances, canines, furniture, advanced surveillance technology, including, but not limited to, IMSI catchers office supplies, postage, printing, membership fees paid to trade associations, and fees for professional services including auditing, court reporting, expert witnesses, and attorneys;

(6) travel, meals, entertainment, conferences, training, and continuing education seminars; and

(7) operating expenses related to seized property, including expenses for the storage, maintenance, repairs, and return of seized property;

(8) administrative expenses, including expenses for office supplies, postage, printing, utilities, and repairs and maintenance of official vehicles and other equipment; and

(9) (7) other expenditures of forfeiture proceeds.

(c) The Illinois State Police shall establish and maintain on its official website a public case tracking system and searchable database that includes annual aggregate data for each law enforcement agency that reports each seizure and forfeiture seizures of property in a machine-readable format under subsection (a) of this Section, by each law enforcement agency that receives distributions of forfeiture proceeds subject to reporting under this Act, or reports expenditures under subsection (b) of this Section. This aggregate data shall include, for each law enforcement agency:

(d) The Illinois State Police shall post annually on its website aggregate data for each law enforcement agency required to report under this Section. This annual aggregate data shall include the following information for each law enforcement agency or, if applicable, a null report:

(1) the total number of asset seizures reported by each law enforcement agency during the calendar year;

(2) the monetary value of all currency or its equivalent seized by the law enforcement agency during the calendar year;

(3) the number of conveyances seized by the law enforcement agency during the calendar year, and the aggregate estimated value;

(4) the aggregate estimated value of all other property seized by the law enforcement agency during the calendar year;

(5) the monetary value of distributions by the Illinois State Police of forfeited currency or auction proceeds from forfeited property to the law enforcement agency during the calendar year; and

(6) the total amount of the seizing law enforcement agency's expenditures of forfeiture proceeds during the calendar year, categorized as provided under subsection (b) of this Section.

The database shall not provide names, addresses, phone numbers, or other personally identifying information of owners or interest holders, persons, business entities, covert office locations, or business entities involved in the forfeiture action and shall not disclose the vehicle identification number or serial number of any conveyance.

(e) The Illinois State Police shall, 120 days after the end of each calendar year, submit to the General Assembly, Attorney General, and Governor a written report that summarizes activity in the State for the preceding year and includes the type, approximate value, and disposition of the property seized and the amount of proceeds received and expended at the State and local levels. The report shall provide a categorized accounting of all proceeds expended. It shall disaggregate, by agency, summary data on seizures, forfeitures, and expenditures of forfeiture proceeds. The Illinois State Police shall post the aggregate report on its website.

(f) The Illinois State Police may include in its aggregate report recommendations to improve statutes, rules, and policies to better ensure that seizures, forfeitures, and expenditures are conducted and reported in a manner that is fair to crime victims, innocent property owners, secured interest holders, law enforcement officials, citizens, and taxpayers.

(g) (d) The Illinois State Police shall adopt rules to administer the asset forfeiture program, including the categories of authorized expenditures consistent with the statutory guidelines for each of the included forfeiture statutes, the use of forfeited funds, other expenditure requirements, and the reporting of seizure and forfeiture information. The Illinois State Police may adopt rules necessary to implement this Act through the use of emergency rulemaking under Section 5-45 of the Illinois Administrative Procedure Act for a period not to exceed 180 days after the effective date of this Act.

(h) (e) The Illinois State Police shall have authority and oversight over all law enforcement agencies receiving forfeited funds from the Illinois State Police. This authority shall include enforcement of rules and regulations adopted by the Illinois State Police and sanctions for violations of any rules and regulations, including the withholding of distributions of forfeiture proceeds from the law enforcement agency in violation.

(i) (f) Upon application by a law enforcement agency to the Illinois State Police, the reporting of a particular asset forfeited under this Section may be delayed if the asset in question was seized from a person who has become a confidential informant under the agency's confidential informant policy, or if the asset was seized as part of an ongoing investigation. This delayed reporting shall be granted by the Illinois State Police for a maximum period of 6 months if the confidential informant is still providing cooperation to law enforcement or the investigation is still ongoing, after which the asset shall be reported as required under this Act.

(j) (g) The Illinois State Police shall, on or before January 1, 2024 2019, establish and implement the requirements of this Act. To In order to implement the reporting and public database requirements under this Act, the Illinois State Police Asset Forfeiture Section requires a one-time upgrade of its information technology software and hardware. This one-time upgrade shall be funded by a temporary allocation of 5% of all forfeited currency and 5% of the auction proceeds from each forfeited asset, which are to be distributed after the effective date of this Act. The Illinois State Police shall transfer these funds at the time of distribution to a separate fund established by the Illinois State Police. Moneys deposited in this fund shall be accounted for and shall be used only to pay for the actual one-time cost of purchasing and installing the hardware and software required to comply with this new reporting and public database requirement. Moneys deposited in the fund shall not be subject to reappropriation, reallocation, or redistribution for any other purpose. After sufficient funds are transferred to the fund to cover the actual one-time cost of purchasing and installing the hardware and software required to comply with this new reporting and public database requirement, no additional funds shall be transferred to the fund for any purpose. At the completion of the one-time upgrade of the information technology hardware and software to comply with this new reporting and public database requirement, any remaining funds in the fund shall be returned to the participating agencies under the distribution requirements of the statutes from which the funds were transferred, and the fund shall no longer exist.

(k) (h)(1) The Illinois State Police, in consultation with and subject to the approval of the Chief Procurement Officer, may procure a single contract or multiple contracts to implement this Act.

(2) A contract or contracts under this subsection (k) (h) are not subject to the Illinois Procurement Code, except for Sections 20-60, 20-65, 20-70, and 20-160 and Article 50 of that Code, provided that the Chief Procurement Officer may, in writing with justification, waive any certification required under Article 50 of the Illinois Procurement Code. The provisions of this paragraph (2), other than this sentence, are inoperative on and after July 1, 2019.

(Source: P.A. 102-538, eff. 8-20-21.)

Section 10. The Criminal Code of 2012 is amended by changing Sections 29B-7 and 29B-12 as follows:

(720 ILCS 5/29B-7)

Sec. 29B-7. Safekeeping of seized property pending disposition.

(a) If property is seized under this Article, the seizing agency shall promptly conduct an inventory of the seized property and estimate the property's value and shall forward a copy of the inventory of seized property and the estimate of the property's value to the Director. Upon receiving notice of seizure, the Director may:

(1) place the property under seal;

(2) remove the property to a place designated by the Director;

(3) keep the property in the possession of the seizing agency;

(4) remove the property to a storage area for safekeeping or, if the property is a negotiable instrument or money and is not needed for evidentiary purposes, deposit it in an interest bearing account;

(5) place the property under constructive seizure by posting notice of pending forfeiture on it, by giving notice of pending forfeiture to its owners and interest holders, or by filing notice of pending forfeiture in any appropriate public record relating to the property; or

(6) provide for another agency or custodian, including an owner, secured party, or lienholder, to take custody of the property upon the terms and conditions set by the Director.

(b) When property is forfeited under this Article, the Director or the Director's designee shall sell all the property unless the property is required by law to be destroyed or is harmful to the public and shall distribute the proceeds of the sale, together with any moneys forfeited or seized, under Section 29B-26 of this Article.

(Source: P.A. 100-699, eff. 8-3-18; 100-1163, eff. 12-20-18.)

(720 ILCS 5/29B-12)

Sec. 29B-12. Non-judicial forfeiture. If non-real property that exceeds $20,000 in value excluding the value of any conveyance, or if real property is seized under the provisions of this Article, the State's Attorney shall institute judicial in rem forfeiture proceedings as described in Section 29B-13 of this Article within 28 days from receipt of notice of seizure from the seizing agency under Section 29B-8 of this Article. However, if non-real property that does not exceed $20,000 in value excluding the value of any conveyance is seized, the following procedure shall be used:

(1) If, after review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, then, within 28 days after the receipt of notice of seizure from the seizing agency, the State's Attorney shall cause notice of pending forfeiture to be given to the owner of the property and all known interest holders of the property in accordance with Section 29B-10 of this Article.

(2) The notice of pending forfeiture shall include a description of the property, the estimated value of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.

(3)(A) Any person claiming an interest in property that is the subject of notice under paragraph (1) of this Section, must, in order to preserve any rights or claims to the property, within 45 days after the effective date of notice as described in Section 29B-10 of this Article, file a verified claim with the State's Attorney expressing his or her interest in the property. The claim shall set forth:

(i) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant;

(ii) the address at which the claimant will accept mail;

(iii) the nature and extent of the claimant's interest in the property;

(iv) the date, identity of the transferor, and circumstances of the claimant's acquisition of the interest in the property;

(v) the names and addresses of all other persons known to have an interest in the property;

(vi) the specific provision of law relied on in asserting the property is not subject to forfeiture;

(vii) all essential facts supporting each assertion; and

(viii) the relief sought.

(B) If a claimant files the claim, then the State's Attorney shall institute judicial in rem forfeiture proceedings with the clerk of the court as described in Section 29B-13 of this Article within 28 days after receipt of the claim.

(4) If no claim is filed within the 28-day period as described in paragraph (3) of this Section, the State's Attorney shall declare the property forfeited and shall promptly notify the owner and all known interest holders of the property and the Director of the Illinois State Police or the Director's designee of the declaration of forfeiture and the Director shall dispose of the property in accordance with law.

(Source: P.A. 102-538, eff. 8-20-21.)

Section 15. The Drug Asset Forfeiture Procedure Act is amended by changing Section 6 as follows:

(725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)

Sec. 6. Non-judicial forfeiture. If non-real property that exceeds $150,000 in value excluding the value of any conveyance, or if real property is seized under the provisions of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act, the State's Attorney shall institute judicial in rem forfeiture proceedings as described in Section 9 of this Act within 28 days from receipt of notice of seizure from the seizing agency under Section 5 of this Act. However, if non-real property that does not exceed $150,000 in value excluding the value of any conveyance is seized, the following procedure shall be used:

(A) If, after review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, then, within 28 days of the receipt of notice of seizure from the seizing agency, the State's Attorney shall cause notice of pending forfeiture to be given to the owner of the property and all known interest holders of the property in accordance with Section 4 of this Act.

(B) The notice of pending forfeiture must include a description of the property, the estimated value of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.

(C)(1) Any person claiming an interest in property which is the subject of notice under subsection (A) of this Section may, within 45 days after the effective date of notice as described in Section 4 of this Act, file a verified claim with the State's Attorney expressing his or her interest in the property. The claim must set forth:

(i) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant;

(ii) the address at which the claimant will accept mail;

(iii) the nature and extent of the claimant's interest in the property;

(iv) the date, identity of the transferor, and circumstances of the claimant's acquisition of the interest in the property;

(v) the names and addresses of all other persons known to have an interest in the property;

(vi) the specific provision of law relied on in asserting the property is not subject to forfeiture;

(vii) all essential facts supporting each assertion; and

(viii) the relief sought.

(2) If a claimant files the claim then the State's Attorney shall institute judicial in rem forfeiture proceedings within 28 days after receipt of the claim.

(D) If no claim is filed within the 45-day period as described in subsection (C) of this Section, the State's Attorney shall declare the property forfeited and shall promptly notify the owner and all known interest holders of the property and the Director of the Illinois State Police of the declaration of forfeiture and the Director or the Director's designee shall dispose of the property in accordance with law.

(Source: P.A. 102-538, eff. 8-20-21.)