542.301. Disposition of unclaimed seized property--forfeiture to the state, when--allegedly obscene matter, how treated--appeal authorized. - Missouri Statutes

Disposition of unclaimed seized property--forfeiture to the state,when--allegedly obscene matter, how treated--appeal authorized.

542.301. 1. Property which comes into the custody of an officer orof a court as the result of any seizure and which has not been forfeitedpursuant to any other provisions of law or returned to the claimant shallbe disposed of as follows:

(1) Stolen property, or property acquired in any other mannerdeclared an offense by chapters 569 and 570, RSMo, but not including any ofthe property referred to in subdivision (2) of this subsection, shall bedelivered by order of court upon claim having been made and established, tothe person who is entitled to possession:

(a) The claim shall be made by written motion filed with the courtwith which a motion to suppress has been, or may be, filed. The claimshall be barred if not made within one year from the date of the seizure;

(b) Upon the filing of such motion, the judge shall order notice tobe given to all persons interested in the property, including otherclaimants and the person from whose possession the property was seized, ofthe time, place and nature of the hearing to be held on the motion. Thenotice shall be given in a manner reasonably calculated to reach theattention of all interested persons. Notice may be given to unknownpersons and to persons whose address is unknown by publication in anewspaper of general circulation in the county. No property shall bedelivered to any claimant unless all interested persons have been given areasonable opportunity to appear and to be heard;

(c) After a hearing, the judge shall order the property delivered tothe person or persons entitled to possession, if any. The judge may directthat delivery of property required as evidence in a criminal proceedingshall be postponed until the need no longer exists;

(d) A law enforcement officer having custody of seized property may,at any time that seized property has ceased to be useful as evidence,request that the prosecuting attorney of the county in which property wasseized file a motion with the court of such county for the disposition ofthe seized property. If the prosecuting attorney does not file such motionwithin sixty days of the request by the law enforcement officer havingcustody of the seized property, then such officer may request that theattorney general file a written motion with the circuit court of the countyor judicial district in which the seizure occurred. Upon filing of themotion, the court shall issue an order directing the disposition of theproperty. Such disposition may, if the property is not claimed within oneyear from the date of the seizure or if no one establishes a right to it,and the seized property has ceased to be useful as evidence, include apublic sale of the property. Pursuant to a motion properly filed andgranted under this section, the proceeds of any sale, less necessaryexpenses of preservation and sale, shall be paid into the county treasuryfor the use of the county. If the property is not salable, the judge mayorder its destruction. Notwithstanding any other provision of law, if noclaim is filed within one year of the seizure and no motion pursuant tothis section is filed within six months thereafter, and the seized propertyhas ceased to be useful as evidence, the property shall be deemedabandoned, converted to cash and shall be turned over immediately to thetreasurer pursuant to section 447.543, RSMo;

(e) If the property is a living animal or is perishable, the judgemay, at any time, order it sold at public sale. The proceeds shall be heldin lieu of the property. A written description of the property sold shallbe filed with the judge making the order of sale so that the claimant mayidentify the property. If the proceeds are not claimed within the timelimited for the claim of the property, the proceeds shall be paid into thecounty treasury. If the property is not salable, the judge may order itsdestruction.

(2) Weapons, tools, devices, and substances other than motorvehicles, aircraft or watercraft, used by the owner or with the owner'sconsent as a means for committing felonies other than the offense ofpossessing burglary tools in violation of section 569.180, RSMo, andproperty, the possession of which is an offense under the laws of thisstate or which has been used by the owner, or used with the owner'sacquiescence or consent, as a raw material or as an instrument tomanufacture or produce anything the possession of which is an offense underthe laws of this state, or which any statute authorizes or directs to beseized, other than lawfully possessed weapons seized by an officer incidentto an arrest, shall be forfeited to the state of Missouri.

2. The officer who has custody of the property shall inform theprosecuting attorney of the fact of seizure and of the nature of theproperty. The prosecuting attorney shall thereupon file a written motionwith the court with which the motion to suppress has been, or may be, filedpraying for an order directing the forfeiture of the property. If theprosecuting attorney of a county in which property is seized fails to filea motion with the court for the disposition of the seized property withinsixty days of the request by a law enforcement officer, the officer havingcustody of the seized property may request the attorney general to file awritten motion with the circuit court of the county or judicial district inwhich the seizure occurred. Upon filing of the motion, the court shallissue an order directing the disposition of the property. The signedmotion shall be returned to the requesting agency. A motion may also befiled by any person claiming the right to possession of the propertypraying that the court declare the property not subject to forfeiture andorder it delivered to the moving party.

3. Upon the filing of a motion either by the prosecuting attorney orby a claimant, the judge shall order notice to be given to all personsinterested in the property, including the person out of whose possessionthe property was seized and any lienors, of the time, place and nature ofthe hearing to be held on the motion. The notice shall be given in amanner reasonably calculated to reach the attention of all interestedpersons. Notice may be given to unknown persons and to persons of unknownaddress by publication in a newspaper of general circulation in the county.Every interested person shall be given a reasonable opportunity to appearand to be heard as to the nature of the person's claim to the property andupon the issue of whether or not it is subject to forfeiture.

4. If the evidence is clear and convincing that the property in issueis in fact of a kind subject to forfeiture under this subsection, the judgeshall declare it forfeited and order its destruction or sale. The judgeshall direct that the destruction or sale of property needed as evidence ina criminal proceeding shall be postponed until this need no longer exists.

5. If the forfeited property can be put to a lawful use, it may beordered sold after any alterations which are necessary to adapt it to alawful use have been made. If there is a holder of a bona fide lienagainst property which has been used as a means for committing an offenseor which has been used as a raw material or as an instrument to manufactureor produce anything which is an offense to possess, who establishes thatthe use was without the lienholder's acquiescence or consent, the proceeds,less necessary expenses of preservation and sale, shall be paid to thelienholder to the amount of the lienholder's lien. The remaining amountshall be paid into the county treasury.

6. If the property is perishable the judge may order it sold at apublic sale or destroyed, as may be appropriate, prior to a hearing. Theproceeds of a sale, less necessary expenses of preservation and sale, shallbe held in lieu of the property.

7. When a warrant has been issued to search for and seize allegedlyobscene matter for forfeiture to the state, after an adversary hearing, thejudge, upon return of the warrant with the matter seized, shall give noticeof the fact to the prosecuting attorney of the county in which the matterwas seized and the dealer, exhibitor or displayer and shall conduct furtheradversary proceedings to determine whether the matter is subject toforfeiture. If the evidence is clear and convincing that the matter isobscene as defined by law and it was being held or displayed for sale,exhibition, distribution or circulation to the public, the judge shalldeclare it to be obscene and forfeited to the state and order itsdestruction or other disposition; except that, no forfeiture shall bedeclared without the dealer, distributor or displayer being given areasonable opportunity to appear in opposition and without the judge havingthoroughly examined each item. If the material to be seized is the same asor another copy of matter that has already been determined to be obscene ina criminal proceeding against the dealer, exhibitor, displayer or suchperson's agent, the determination of obscenity in the criminal proceedingshall constitute clear and convincing evidence that the matter to beforfeited pursuant to this subsection is obscene. Except when the dealer,exhibitor or displayer consents to a longer period, or by such person'sactions or pleadings willfully prevents the prompt resolution of thehearing, judgment shall be rendered within ten days of the return of thewarrant. If the matter is not found to be obscene or is not found to havebeen held or displayed for sale, exhibition or distribution to the public,or a judgment is not entered within the time provided for, the matter shallbe restored forthwith to the dealer, exhibitor or displayer.

8. If an appeal is taken by the dealer, exhibitor or displayer froman adverse judgment, the case should be assigned for hearing at theearliest practicable date and expedited in every way. Destruction ordisposition of a matter declared forfeited shall be postponed until thejudgment has become final by exhaustion of appeal, or by expiration of thetime for appeal, and until the matter is no longer needed as evidence in acriminal proceeding.

9. A determination of obscenity, pursuant to this subsection, shallnot be admissible in any criminal proceeding against any person orcorporation for sale or possession of obscene matter; except that dealer,distributor or displayer from which the obscene matter was seized forforfeiture to the state.

10. When allegedly obscene matter or pornographic material for minorshas been seized under a search warrant issued pursuant to subsection 2 ofsection 542.281 and the matter is no longer needed as evidence in acriminal proceeding the prosecuting attorney of the county in which thematter was seized may file a written motion with the circuit court of thecounty or judicial district in which the seizure occurred praying for anorder directing the forfeiture of the matter. Upon filing of the motion,the court shall set a date for a hearing. Written notice of date, time,place and nature of the hearing shall be personally served upon the owner,dealer, exhibitor, displayer or such person's agent. Such notice shall beserved no less than five days before the hearing.

11. If the evidence is clear and convincing that the matter isobscene as defined by law, and that the obscene material was being held ordisplayed for sale, exhibition, distribution or circulation to the publicor that the matter is pornographic for minors and that the pornographicmaterial was being held or displayed for sale, exhibition, distribution orcirculation to minors, the judge shall declare it to be obscene orpornographic for minors and forfeited to the state and order itsdestruction or other disposition. A determination that the matter isobscene in a criminal proceeding as well as a determination that suchobscene material was held or displayed for sale, exhibition, distributionor circulation to the public or a determination that the matter ispornographic for minors in a criminal proceeding as well as a determinationthat such pornographic material was held or displayed for sale, exhibition,distribution or circulation to minors shall be clear and convincingevidence that such material should be forfeited to the state; except that,no forfeiture shall be declared without the dealer, distributor ordisplayer being given a reasonable opportunity to appear in opposition andwithout a judge having thoroughly examined each item. A dealer,distributor or displayer shall have had reasonable opportunity to appear inopposition if the matter the prosecutor seeks to destroy is the same matterthat formed the basis of a criminal proceeding against the dealer,distributor or displayer where the dealer, distributor or displayer hasbeen charged and found guilty of holding or displaying for sale,exhibiting, distributing or circulating obscene material to the public orpornographic material for minors to minors. If the matter is not found tobe obscene, or if obscene material is not found to have been held ordisplayed for sale, exhibition, distribution or circulation to the public,or if the matter is not found to be pornographic for minors or ifpornographic material is not found to have been held or displayed for sale,exhibition, distribution or circulation to minors, the matter shall berestored forthwith to the dealer, exhibitor or displayer.

12. If an appeal is taken by the dealer, exhibitor or displayer froman adverse judgment, the case shall be assigned for hearing at the earliestpracticable date and expedited in every way. Destruction or disposition ofmatter declared forfeited shall be postponed until the judgment has becomefinal by exhaustion of appeal, or by expiration of the time for appeal, anduntil the matter is no longer needed as evidence in a criminal proceeding.

13. A determination of obscenity shall not be admissible in anycriminal proceeding against any person or corporation for sale orpossession of obscene matter.

14. An appeal by any party shall be allowed from the judgment of thecourt as in other civil actions.

15. All other property still in the custody of an officer or of acourt as the result of any seizure and which has not been forfeitedpursuant to this section or any other provision of law after three yearsfollowing the seizure and which has ceased to be useful as evidence shallbe deemed abandoned, converted to cash and shall be turned over immediatelyto the treasurer pursuant to section 447.543, RSMo.

16. In fiscal year 2003, the commissioner of administration shallestimate the amount of any additional state revenue received pursuant tothis section and section 447.532, RSMo, shall transfer an equivalent amountof general revenue to the schools of the future fund created in section163.005, RSMo.

(L. 1974 S.B. 366 § 9, A.L. 1980 H.B. 1528 Revision, A.L. 1987 H.B. 113, et al., A.L. 1998 H.B. 931, A.L. 2002 S.B. 1248)

Effective 6-19-02

(2002) Currency is not a tool or device as used in subsection 2 of section. State v. One Hundred Fifty-Two Thousand, Seven Hundred Sixty and 00/100 Dollars ($152,760.00) in United States Currency, 87 S.W.3d 374 (Mo.App.S.D.).