Nebraska Revised Statute 25-21,302

Chapter 25 Section 21,302

25-21,302.

Property used in commission of certain crimes; forfeiture; proceeding; confiscating authority; duties; seizure of property; proceedings; petition; Attorney General; duties; answer; hearing; disposition of proceeds.

(1)(a) In addition to any other civil or criminal penalties provided by law, any property used in the commission of a violation of the Child Pornography Prevention Act or section 28-813, 28-831, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 may be forfeited through a proceeding as provided in this section.

(b) The following property shall be subject to forfeiture if used or intended for use as an instrumentality in or used in furtherance of a violation of the Child Pornography Prevention Act or section 28-813, 28-831, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107:

(i) Conveyances, including aircraft, vehicles, or vessels;

(ii) Books, records, telecommunication equipment, or computers;

(iii) Money or weapons;

(iv) Everything of value furnished, or intended to be furnished, in exchange for an act in violation and all proceeds traceable to the exchange;

(v) Negotiable instruments and securities;

(vi) Any property, real or personal, directly or indirectly acquired or received in a violation or as an inducement to violate;

(vii) Any property traceable to proceeds from a violation; and

(viii) Any real property, including any right, title, and interest in the whole of or any part of any lot or tract of land, used in furtherance of a violation of the Child Pornography Prevention Act or section 28-813, 28-831, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(c)(i) No property used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the property is a consenting party or privy to a violation of the Child Pornography Prevention Act or section 28-813, 28-831, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(ii) No property is subject to forfeiture under this section by reason of any act or omission proved by the owner thereof to have been committed or omitted without his or her actual knowledge or consent. If the confiscating authority has reason to believe that the property is leased or rented property, then the confiscating authority shall notify the owner of the property within five days after the confiscation or within five days after forming reason to believe that the property is leased or rented property.

(iii) Forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if such party neither had actual knowledge of nor consented to the act or omission.

(2) No property shall be forfeited under this section, to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without his or her actual knowledge or consent.

(3) Seizure without process may be made if the seizure is incident to an arrest or a search under a search warrant.

(4)(a) When any property is seized under this section, proceedings shall be instituted within a reasonable period of time from the date of seizure or the subject property shall be immediately returned to the party from whom seized.

(b) A petition for forfeiture shall be filed by the Attorney General or a county attorney in the name of the State of Nebraska and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought, or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the district court or the county court. A copy of the petition shall be served upon the following persons by service of process in the same manner as in civil cases:

(i) The owner of the property if the owner's address is known;

(ii) Any secured party who has registered a lien or filed a financing statement as provided by law if the identity of the secured party can be ascertained by the entity filing the petition by making a good faith effort to ascertain the identity of the secured party;

(iii) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the seizing law enforcement agency has actual knowledge; and

(iv) Any person in possession of property subject to forfeiture at the time that it was seized.

(5) If the property is a motor vehicle subject to titling under the Motor Vehicle Certificate of Title Act or a vessel subject to titling under the State Boat Act, and if there is any reasonable cause to believe that the motor vehicle or vessel has been titled, inquiry of the Department of Motor Vehicles shall be made as to what the records of the department show as to who is the record owner of the motor vehicle or vessel and who, if anyone, holds any lien or security interest that affects the motor vehicle or vessel.

(6) If the property is a motor vehicle or vessel and is not titled in the State of Nebraska, then an attempt shall be made to ascertain the name and address of the person in whose name the motor vehicle or vessel is licensed, and if the motor vehicle or vessel is licensed in a state which has in effect a certificate of title law, inquiry of the appropriate agency of that state shall be made as to what the records of the agency show as to who is the record owner of the motor vehicle or vessel and who, if anyone, holds any lien, security interest, or other instrument in the nature of a security device that affects the motor vehicle or vessel.

(7) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, inquiry shall be made as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.

(8) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, inquiry shall be made as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.

(9) If the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage, or deed of trust that affects the property, the record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest, or holder of an encumbrance, mortgage, or deed of trust that affects the property is to be named in the petition of forfeiture and is to be served with process in the same manner as in civil cases.

(10) If the owner of the property cannot be found and served with a copy of the petition of forfeiture or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, there shall be filed with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of ............," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall be completed in the same manner as is provided in the code of civil procedure for the service of process in civil actions in the district courts of this state.

(11) No proceedings instituted pursuant to this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by this section shall be introduced into evidence at the hearing.

(12)(a) An owner of property that has been seized shall file an answer within thirty days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the seizing law enforcement agency. If an answer is filed, a time for hearing on forfeiture shall be set within thirty days after filing the answer or at the succeeding term of court if court would not be in session within thirty days after filing the answer. The court may postpone the forfeiture hearing to a date past the time any criminal action is pending against the owner upon request of any party.

(b) If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The burden of proof placed upon the petitioner in regard to property forfeited under this section shall be by clear and convincing evidence.

(c) At the hearing any claimant of any right, title, or interest in the property may prove his or her lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage, or deed of trust to be bona fide and created without actual knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.

(d) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property. However, if proof at the hearing discloses that the interest of any bona fide lienholder, any secured party, any other person holding an interest in the property in the nature of a security interest, or any holder of a bona fide encumbrance, mortgage, or deed of trust is greater than or equal to the present value of the property, the court shall order the property released to him or her. If the interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited.

(13) Unless otherwise provided in this section, all personal property which is forfeited under this section shall be liquidated and, after deduction of court costs and the expense of liquidation, the proceeds shall be remitted to the county treasurer of the county in which the seizure was made. The county treasurer shall remit all such proceeds from property forfeited pursuant to this section to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

(14) All money forfeited under this section shall be remitted in the same manner as provided in subsection (13) of this section.

(15) All real estate forfeited under this section shall be sold to the highest bidder at a public auction for cash, the auction to be conducted by the county sheriff or his or her designee at such place, on such notice, and in accordance with the same procedure, as far as practicable, as is required in the case of sales of land under execution at law. The proceeds of the sale shall first be applied to the cost and expense in administering and conducting the sale, then to the satisfaction of all mortgages, deeds of trust, liens, and encumbrances of record on the property. The remaining proceeds shall be remitted in the same manner as provided in subsection (13) of this section.

(16) The forfeiture procedure set forth in this section is the sole remedy of any claimant, and no court shall have jurisdiction to interfere therewith by replevin, by injunction, by supersedeas, or by any other manner.

Cross References

  • Child Pornography Prevention Act, see section 28-1463.01.
  • Motor Vehicle Certificate of Title Act, see section 60-101.
  • State Boat Act, see section 37-1201.