Cars, Guns, Money & Junk

Cars, guns, money and junk

You’ve got it. Now, what to do with it?

By Mark Whitmore AAC Chief Legal Counsel & Lindsey Bailey AAC Law Clerk

County judges and sheriffs face common issues regarding the sale or disposal of county-owned property or property seized by a county. They are also frequently faced with the task of disposing of or selling property, but the origin of the property is unknown and the proper legal method of sale or disposal is not apparent. How should county property be disposed of when it is no longer of use to the county? What are the various methods of sale that can be used and which law applies? In some instances the property involved may be automobiles or weapons, which have been confiscated or forfeited in connection with a criminal arrest. How should seized assets be distributed? The origin of the property often serves as the linchpin on the legal method of disposal or sale.

The exclusive right of a county judge to control the custody and sale of county property is uncontested. The county judge is given the power over county property and assets both constitutionally in Article 7, § 28 and Amendment 55, § 3, and statutorily in Arkansas Code Annotated (A.C.A.) § 14-14-1101 and A.C.A. § 14-16-1102. The procedure the judge is to follow in the sale of county property generally involves A.C.A. § 14-16-105 and A.C.A. § 14-16-106.

Under subsection 105, when a county judge deems that it is in the best interest of the county to sell county-owned real or personal property, the judge can enter an order of sale for the property. The county property to be sold is appraised by the assessor. If the property is valued at less than $2,000, then the property may be sold by private or public sale, sealed bids or by internet sale at the judge’s discretion, so long as the sale price is at least three-fourths of the appraisal. If the appraisal is more than $2,000, the judge may sell the property for at least three-fourths of the appraised value by sealed bids or internet sale only. Also, for property worth more than $2,000, the sale must be approved by the vote of a board comprised of the county sheriff, treasurer and circuit clerk. The judge serves as chair of the board but has no vote on the approval. The county’s fixed asset list should be updated according to each county’s procedures to reflect all sales made of items on the asset list.

If the county judge determines there is a surplus of some county-owned property, he may order the sale of the surplus by a public or internet sale to the highest bidder, without regard to the “three-fourths rule” pursuant to the general sale of county property, under A.C.A. § 14-16-106. If the judge finds that the property is junk or “of no value to the county” (here meaning of no utility, may have some monetary value) and the assessor concurs, the judge may dispose of it in any manner that he sees fit. Property disposed of under subsection 106 must be reported to the county quorum court on a monthly basis.

However, there are some instances in which some property comes under possession of the county when it has been seized and forfeited in connection with a drug-trafficking arrest. This particular type of property usually involves vehicles, weapons and money and comes into the possession of the county when county law-enforcement officers make arrests related to the manufacturing, transportation or distribution of certain types of controlled substances. Under A.C.A. § 5-64-505, the arresting law enforcement agency may seize without a warrant any property the agency has probable cause to believe was used, or intended to be used, to facilitate the manufacture or sale of certain controlled substances. Also, property in the possession of individuals arrested may be seized if the seizure is incident to the arrest or pursuant to a warrant or administrative search.

Generally, property seized under this statute must be ordered forfeited by the circuit court having jurisdiction over the property. The court can order for the property to be sold, retained by the seizing law enforcement agency or prosecuting attorney for law enforcement or prosecutorial purposes. If the property is illegal contraband or something deemed to be harmful to society, it must be destroyed. There are strict guidelines that must be followed whenever this type of property is forfeited.

It is not unusual for there to be disagreement between the various participating law enforcement agencies about the equitable division of seized assets. The prosecuting attorney’s office has discretion over all expenditures and equitable distribution among law enforcement agencies who participated in the investigation or arrest leading to the seizure of the sold property. If the court orders a sale of the property, the proceeds of the sale must be deposited into the State Special Assets Forfeiture Fund. This account is subject to audit by the Division of Legislative Audit, and there are certain procedures the prosecuting attorney must follow once the account exceeds $20,000, including a 20 percent payment to the State Crime Lab Equipment Fund.

If the seized property can serve some law enforcement or prosecutorial