Sec 13-4305. Seizure of property

A. Property subject to forfeiture under this chapter may be seized for forfeiture by a peace officer:

1. On process issued pursuant to the rules of civil procedure or the provisions of this title including a seizure warrant.

2. By making a seizure for forfeiture on property seized on process issued pursuant to law, including sections 13-3911 through 13-3915.

3. By making a seizure for forfeiture without court process if any of the following is true:

(a) The seizure for forfeiture is of property seized incident to an arrest or search.

(b) The property subject to seizure for forfeiture has been the subject of a prior judgment in favor of this state or any other state or the federal government in a forfeiture proceeding.

(c) The peace officer has probable cause to believe that the property is subject to forfeiture.

B. Property subject to forfeiture under this chapter may be seized for forfeiture by placing the property under constructive seizure. Constructive seizure may be made by posting notice of seizure for forfeiture on the property or by filing notice of seizure for forfeiture or notice of pending forfeiture in any appropriate public record relating to the property.

C. The court shall determine probable cause for seizure before real property may be seized for forfeiture, unless the seizure is pursuant to a constructive seizure or the filing of a racketeering lien or lis pendens. The court may make its determination ex parte if the state demonstrates that notice and an opportunity to appear would create a risk of harm to the public safety or welfare, including the risk of physical injury or the likelihood of property damage or financial loss.

D. The court shall determine probable cause for seizure before property may be seized for forfeiture as a substitute asset pursuant to section 13-2314, subsection D, E or G, or pursuant to section 13-4313, subsection A, unless the seizure is pursuant to a constructive seizure or the filing of a racketeering lien or lis pendens. The court may issue a seizure warrant for such property if it determines that there is probable cause to believe that the property is subject to forfeiture and is not available for seizure for forfeiture for any reason described in section 13-4313, subsection A. The determinations shall be made ex parte unless real property is to be seized and subsection C of this section requires notice and an opportunity to appear.

E. In establishing a preponderance of the evidence and in determining probable cause for seizure and for forfeiture, a rebuttable presumption exists that the property of any person is subject to forfeiture if the state establishes all of the following by the standard of proof applicable to that proceeding:

1. Conduct giving rise to forfeiture occurred.

2. The person acquired the property during the period of the conduct giving rise to forfeiture or within a reasonable time after that period.

3. There is no likely source for the property other than the conduct giving rise to forfeiture.

F. In establishing a preponderance of the evidence and in determining probable cause for seizure and for forfeiture, the fact that money or any negotiable instrument was found in proximity to contraband or to instrumentalities of an offense gives rise to an inference that the money or instrument was the proceeds of contraband or was used or intended to be used to facilitate commission of the offense.