(Code 1933, § 26-3405, enacted by Ga. L. 1980, p. 405, § 1; Ga. L. 1982, p. 1385, §§ 4, 5, 10, 11; Ga. L. 1984, p. 22, § 16; Ga. L. 1992, p. 6, § 16; Ga. L. 2000, p. 1114, § 1; Ga. L. 2002, p. 532, § 4; Ga. L. 2015, p. 693, § 2-25/HB 233.)
Editor's notes.- Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."
Law reviews.- For articles discussing attorney fee forfeitures under federal RICO provisions, see 36 Emory L.J. 755 et seq. (1987). For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).
JUDICIAL DECISIONS
Constitutionality.
- O.C.G.A. § 16-14-7 is constitutional on its face, as the search must be pursuant to a warrant, incident to a lawful arrest, or in the presence of other exigent circumstances which would render the search or inspection "lawful." Waller v. State, 251 Ga. 124, 303 S.E.2d 437 (1983), rev'd on other grounds, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
Law enforcement officials are not given unbridled discretion to search for evidence of illegal activity under O.C.G.A. § 16-14-7, and seizure of documents under that section presented no conflicts with warrant requirements or the Fourth Amendment since the documents were instrumentalities of crime; as such, § 16-14-7 is not unconstitutional on the statute's face. Ledesma v. State, 251 Ga. 885, 311 S.E.2d 427, cert. denied, 467 U.S. 1241, 104 S. Ct. 3510, 82 L. Ed. 2d 819 (1984).
In an in personam forfeiture proceeding, pursuant to the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-7(m), a trial court erred by finding that the civil procedural rules set forth in the Georgia Civil Practice Act, O.C.G.A. § 9-11-1 et seq., were an adequate substitute for the substantive constitutional rights to which the property owners were entitled. As a result, the Supreme Court of Georgia held that § 16-14-7(m) was unconstitutional because the law deprived in personam forfeiture defendants of the safeguards of criminal procedure guaranteed by the United States and Georgia Constitutions. Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009).
Temporary injunction.
- Trial court did not err in finding that Racketeer Influenced Corrupt Organizations indictment provided reasonable cause to believe that property identified in the indictment was subject to forfeiture and in entering a temporary injunction because the existence of an indictment charging the defendant with a RICO violation is both a fact and a finding by the grand jury that there is probable cause to believe that a crime in violation of RICO has been committed by the defendant. Caldwell v. State, 253 Ga. 400, 321 S.E.2d 704 (1984).
Trial court erred in not granting defendant's motion to dissolve a temporary injunction and dismiss a receiver where Racketeer Influenced Corrupt Organizations, O.C.G.A. § 16-14-1 et seq., counts in indictments were dismissed, and prosecutor declined to present evidence of RICO violations sufficient to allow trial court to make a finding of reasonable cause to believe the property at issue was subject to forfeiture. Caldwell v. State, 253 Ga. 400, 321 S.E.2d 704 (1984).
Trial court did not err in issuing interlocutory injunctions and continuing receiverships over store property seized pursuant to O.C.G.A. § 16-14-7 based on alleged video gambling activity in violation of O.C.G.A. § 16-12-22 and racketeering activity under former paragraphs (8) and (9) of O.C.G.A. § 16-14-3. Remand was required, however, for consideration of whether the forfeitures were excessive fines in violation of U.S. Const., amend. VIII. Patel v. State, 289 Ga. 479, 713 S.E.2d 381 (2011).
Property acquired with racketeering proceeds is subject to forfeiture though inoffensive of itself. Western Bus. Sys. v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980).
Seizure of gambling equipment and proceeds.
- As expressly stated in a subsequently adopted statute, O.C.G.A. § 16-1-12, Georgia public policy prohibited a special assistant district attorney appointed in a forfeiture action under O.C.G.A. § 16-14-7(a), from being compensated on a contingency basis by a percentage of the assets recovered, as creating an impermissible conflict of interest. Amusement Sales, Inc. v. State of Ga., 316 Ga. App. 727, 730 S.E.2d 430 (2012).
Fuel equipment used in theft not forfeited when no pattern of racketeering shown.
- Because fuel equipment used in the defendant's crime of theft of diesel fuel did not constitute contraband per se, and there was no statutory authority supporting retention by the sheriff of the equipment after the defendant was discharged, the equipment was ordered returned to the defendant pursuant to O.C.G.A. § 17-5-54(a)(1), (d). The racketeering statute did not authorize forfeiture because the state did not allege or prove a pattern of racketeering activity. Norman v. Yeager, 335 Ga. App. 470, 781 S.E.2d 580 (2016).
Seizure of property unrelated to its character or content.- Forfeiture can apply to any chattel whatever, if the chattel was acquired with the proceeds of racketeering; thus, if items seized are books or movie films, the seizure is totally unrelated to their contents; the books or films would be forfeited under the statute not because of any likelihood of obscenity, but because the books or films were personal property realized through or derived from crime. Western Bus. Sys. v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980).
Seizure prior to filing complaint must be based on probable cause.
- Law enforcement officer authorized by O.C.G.A. § 16-14-7 to seize materials prior to filing of complaint, seizes them upon probable cause to believe that they were subject to forfeiture, and not upon the officer's personal judgment that objects are obscene. Western Bus. Sys. v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980).
Allegation that defendant has an association with organized crime unnecessary.
- Because the Georgia Racketeering Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., was enacted after the federal RICO Act and contains substantially the same language as the federal act, the United States District Court, N.D. Georgia, concludes that a Georgia court, if confronted with the issue, would follow federal court decisions interpreting the federal RICO Act and decide that failure to allege an association with organized crime is not fatal to a Georgia RICO claim. Stanton v. Shearson Lehman/American Express, Inc., 622 F. Supp. 293 (N.D. Ga. 1985).
Prerequisite to destruction of contraband under paragraph (k)(1).
- Destruction of contraband authorized by former Code 1933, § 26-3405 (see now O.C.G.A. § 16-14-7(k)(1)) must follow a judgment of forfeiture and an additional determination by the court that items in question were contraband, possession of which was illegal. Western Bus. Sys. v. Slaton, 492 F. Supp. 513 (N.D. Ga. 1980).
Seized property subsequently released by state.
- State began proceedings to condemn certain property, pursuant to the provisions of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., and specifically O.C.G.A. § 16-14-7, but subsequently filed a release of the state's RICO lien. There was no cognizable claim under the theory that private property was taken or damaged for public purposes without just and adequate compensation being first paid. The state did not apply any of the property to public use during the period it was in the state's possession and, even assuming arguendo that the seizure resulted in a violation of state and/or federal constitutional rights, there was no basis upon which the state itself, as opposed to the state's officers, could be held liable for monetary damages on the basis of it. Kelleher v. State, 187 Ga. App. 64, 369 S.E.2d 341 (1988).
Fifth Amendment claim denied.
- Denial of an accused's motion for a protective order under O.C.G.A. § 9-11-26(c) was affirmed as the Fifth Amendment could not be used to justify a protective order to stay all discovery in the accused's civil forfeiture proceeding under O.C.G.A. § 16-14-7 pending the conclusion of the accused's criminal Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., case; while the privilege against self-incrimination extends to answers creating a "real and appreciable" danger of establishing a link in the chain of evidence needed to prosecute, the trial court has to determine if the answers could incriminate the witness, and if the trial court determines that the answers could not incriminate the witness, the witness has to testify or be subject to the court's sanction. Chumley v. State of Ga., 282 Ga. App. 117, 637 S.E.2d 828 (2006).
Forfeiture.
- Trial court did not err by finding that customers lacked standing to participate in the state's decision-making process or negotiations concerning which property would be forfeited because pursuant to RICO, O.C.G.A. § 16-14-1 et seq, specifically O.C.G.A. § 16-14-7, it was the state, and only the state, acting through the appropriate district attorney, that had the right to institute and prosecute forfeiture proceedings, and the property was specifically forfeited to the state, not to the injured or aggrieved person or persons. Smith v. Cisco, 316 Ga. App. 871, 730 S.E.2d 583 (2012), cert. denied, No. S12C1922, 2012 Ga. LEXIS 976 (Ga. 2012).
Cited in Doxie v. Ford Motor Credit Co., 603 F. Supp. 624 (S.D. Ga. 1984).
RESEARCH REFERENCES
ALR.
- Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities, 38 A.L.R.4th 515.
Forfeiture of homestead based on criminal activity conducted on premises - state cases, 16 A.L.R.5th 855.
Propriety of civil or criminal forfeiture of computer hardware or software, 39 A.L.R.5th 87.
Validity of criminal state Racketeer Influenced and Corrupt Organizations Acts and similar acts related to gang activity and the like, 58 A.L.R.6th 385.