Section 1340-02-02-.05 - DUTIES OF THE SEIZING AGENCY(1) Upon the seizure of any personal property subject to forfeiture pursuant to T.C.A. § 40-33-201 the seizing officer shall provide the person found in possession of the property, if known, a receipt titled a Notice of Seizure. Such Notice of Seizure shall contain the following: (a) A general description of the property seized and, if the property is money, the amount seized;(b) The date the property was seized and the date the notice of seizure was given to or mailed to the person in possession of the seized property;(c) The vehicle identification number (VIN) if the property seized is a motor vehicle;(d) The reason the seizing officer believes the property is subject to seizure and forfeiture;(e) The procedure by which recovery of the property may be sought, including any time periods during which a claim for recovery must be submitted; and(f) The consequences that will attach if no claim for recovery is filed within the applicable time period.(2) Once personal property is seized pursuant to a provision of law that requires the issuance of a Forfeiture Warrant, no forfeiture action shall proceed unless a Forfeiture Warrant is issued in accordance with T.C.A. § 40-33-204 by a general sessions, circuit, criminal court or popularly elected city judge as defined in the Act. Such Forfeiture Warrant shall authorize the institution of a forfeiture proceeding.(3) If an arrest was made at the time of the seizure, the officer making the seizure or the officer's designee shall apply for a Forfeiture Warrant by filing an affidavit within five (5) working days following the property seizure. The Forfeiture Warrant shall be based upon proof by affidavit and shall have attached to it a copy of the Notice of Seizure. The affidavit in support of the Forfeiture Warrant shall state the following: (a) The legal and factual basis making such property subject to forfeiture; 1. If the owner of the property was not the person in possession of the property at the time of seizure, and it can be determined from public records of titles, registrations, or other recorded documents, and the seizing agency intends to forfeit the owner's interest, then the seizing agency must state the legal and factual basis for forfeiture of such owner's interest in the property.2. If the interest of a secured party with a duly perfected security interest as reflected in public records of titles, registrations, or other recorded documents is sought to be forfeited, then the seizing agency must state the legal and factual basis for forfeiture of such secured party's interest.(4) The seizing officer may ask the judge for an additional ten (10) days to seek a Forfeiture Warrant. The seizing officer may assert to the judge that such officer is unable to determine the owner of the seized property or whether the owner's interest is subject to forfeiture within the required five (5) day period.(5) If the person in possession of the property is not the registered owner as determined from public records of titles, registrations, or other recorded documents, the officer may submit certain indicia of ownership to the judge which proves that the possessor is nonetheless an owner of the property. Such indicia of ownership shall include, but is not limited to the following: (a) How the parties involved regarded ownership of the property in question;(b) The intentions of the parties relative to ownership of the property;(c) Who was responsible for originally purchasing the property;(d) Who pays any insurance, license or fees required to possess or operate the property;(e) Who maintains and repairs the property;(f) Who uses or operates the property;(g) Who has access to use the property;(h) Who acts as if they have a proprietary interest in the property.(6) Upon the seizure of any personal property subject to forfeiture pursuant to T.C.A. § 40-33-201 where the person in possession is not arrested, the seizing officer shall provide the person found in possession of the property, if known, a notice entitled "Notice of Forfeiture Warrant Hearing". This notice shall contain the following: (a) The date, time, and court in which the seizing officer will be seeking a Forfeiture Warrant against the seized property pursuant to T.C.A. § 40-33-204;(b) A statement that the person in possession is entitled to a appear in court at the stated date and time to contest the issuance of a Forfeiture Warrant against the seized property and that this hearing shall be civil in nature pursuant to T.C.A. § 40-33-204(b); and,(c) A statement that if the person in possession does not appear in court, a forfeiture warrant may be issued and the property subject to the forfeiture process set forth in title 40, chapter 33, part 2 and as stated on the Notice of Seizure.(7) If no arrest was made at the time of the seizure, the officer making the seizure shall present to the court, at the date and time specified on the Notice of Forfeiture Warrant Hearing, the application for a Forfeiture Warrant, the affidavit in support, the notice of seizure, and the notice of Forfeiture Warrant hearing. At the hearing on the Forfeiture Warrant application, the court shall: (a) Review the application for a Forfeiture Warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a Forfeiture Warrant, including any testimony as may be required in this section; and(b) Review any evidence presented by and take testimony from the person in possession at the time of the seizure regarding why no probable cause exists to issue a Forfeiture Warrant.(c) If the person in possession at the time of the seizure does not appear at the hearing and has received notice of the hearing, then the court shall review the application for a Forfeiture Warrant ex parte as under subsection (b)(2).(d) The taking of testimony shall consist solely of the judge putting the seizing officer and person in possession under oath and asking questions to determine if probable cause exists for a Forfeiture Warrant to be issued. Any examination by the judge of the seizing officer shall in no form or manner extend to whether the seizure is part of an ongoing investigation, nor shall the judge's examination extend in any form or manner to the source of any confidential information used in making a stop leading to seizure of the property.(8) All hearings on applications for Forfeiture Warrants pursuant to Paragraphs 6 and 7 shall be recorded and maintained by the court. Certified copies of the proceeding shall be made available to any party requesting them, and the same shall be admissible as evidence.(9) The seizing agency shall send a Notice of Seizure, Affidavit, Notice of Forfeiture Warrant Hearing, if applicable, and Forfeiture Warrant pursuant to T.C.A. § 40-33-204(e) to the Legal Division within seven (7) working days of the issuance of the Forfeiture Warrant. The Legal Division shall stamp the aforementioned documents with the date and time of receipt.(10) The seizing agency shall not use or release any seized property unless and until an order of forfeiture has become final by the expiration of any relevant appeal time and the department has received payment of assessed costs in accordance with Rule1340-02-02-.24.(11) The seizing agency shall cooperate with the Legal Division in that division's effort to administer the Act. In the absence of cooperation, and within the discretion of the staff attorney handling a particular claim, the department may settle a claim.Tenn. Comp. R. & Regs. 1340-02-02-.05
Original rule filed December 5, 1994; effective February 18, 1995. Repeal and new rule filed December 10, 2014; effective 3/10/2015.Authority: T.C.A. §§ 4-3-2009, 4-5-219, 40-33-201, et seq., as amended; 53-11-201, et seq. and Public Chapter No. 382 (2013).