Savely v. Utah Highway Patrol

This opinion is subject to revision before final
publication in the Pacific Reporter

2018 UT 44

IN THE

SUPREME COURT OF THE STATE OF UTAH

KYLE SAVELY,
Appellant,
v.
UTAH HIGHWAY PATROL and UTAH DEPARTMENT OF PUBLIC SAFETY,
Appellees.

No. 20170266
Filed August 22, 2018

Third District, Silver Summit
The Honorable Kara Pettit
No. 170500070

Attorneys:
James C. Bradshaw, Ann M. Taliaferro, Salt Lake City, for
appellant
Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Mark E.
Burns, Asst. Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,
Salt Lake City, for appellees
Adam R. Pomeroy, Lehi, for amicus curiae Libertas Institute
John W. Huber, Adam S. Elggren, Salt Lake City, for amicus
curiae United States of America

JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUDGE DAVIS joined.
Having recused herself, JUSTICE PETERSEN does not participate
herein; DISTRICT COURT JUDGE LYNN W. DAVIS sat.

JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 The Utah Highway Patrol and Utah Department of Public
Safety (collectively UHP) seized nearly $500,000 from Kyle Savely
under the Forfeiture and Disposition of Property Act (Act). Over
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the next seventy-five days, the money sat in a UHP bank account
and no forfeiture proceedings were filed in a Utah state district
court. During this time, a federal magistrate issued a seizure
warrant for the money on behalf of the Drug Enforcement Agency
(DEA). UHP sent a check for the cash amount to the DEA, but it
was never cashed. Mr. Savely wants his money back.
¶2 To that end, Mr. Savely filed a petition in state district
court, asking the court to force UHP to return his funds because
prosecuting attorneys failed to take one of the actions necessary
under Utah Code section 24-4-104(1)(a) to avert a duty on the part
of law enforcement to “return [the] seized property.” Initially
agreeing with Mr. Savely, the state district court ordered UHP to
return Mr. Savely’s seized funds. However, after UHP filed a
motion to reconsider, the state district court reversed course,
concluding that it lacked in rem jurisdiction of the seized funds
based on principles of comity, and dismissed Mr. Savely’s
petition.
¶3 Mr. Savely appealed this decision. We conclude that the
state district court had in rem jurisdiction over Mr. Savely’s funds
under the Act. Therefore, we reverse the state district court’s
dismissal of Mr. Savely’s petition.
BACKGROUND
¶4 On November 27, 2016, a UHP trooper stopped
Mr. Savely while Mr. Savely was driving on Interstate 80 through
Summit County, Utah. In response to his K-9’s alert, the trooper
detained the vehicle’s occupants and searched the vehicle. The
trooper uncovered no drugs or other contraband but found a case
containing 52 bundles of cash.
¶5 The trooper seized the cash and provided Mr. Savely
with an asset seizure notification form, providing him notice,
pursuant to section 24-4-103(1) of the Act, that the cash had been
seized for purposes of forfeiture. The cash was deposited into a
UHP bank account for seized currency.
¶6 No further action was taken in regard to the seized cash
until January 13, 2017, when a federal magistrate issued a seizure
warrant for the cash. UHP sent a check in the amount of the
seized cash to the DEA on January 24, 2017, but the check was
never cashed or deposited.

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¶7 On February 10, 2017, seventy-five days after UHP’s
seizure, Mr. Savely filed a petition in state district court seeking
the release of his property. In a hearing on February 21, 2017, the
state district court ruled in favor of Mr. Savely, concluding that
UHP was required by the Act to procure an order from a state
district court that authorized UHP to release the seized cash to the
DEA and, thus, that UHP had unlawfully transferred the funds.
Additionally, the state district court concluded that UHP had
failed to take one of the actions required by Utah Code section
24-4-104(1)(a) and therefore ordered UHP to return the funds to
Mr. Savely.
¶8 UHP immediately stopped payment on the January 24,
2017 check sent to the DEA. In response, the DEA served UHP
with a second federal seizure warrant on February 23, 2017, after
which UHP requested that the state district court reconsider its
initial ruling.
¶9 The state district court heard additional arguments in
response to UHP’s motion to reconsider and set aside the original
judgment. This time, the state district court concluded the federal
court had begun exercising in rem jurisdiction by issuing the
January 13, 2017 seizure warrant, prohibiting the state district
court’s exercise of in rem jurisdiction when Mr. Savely filed his
petition. As a result, the state district court granted the motions,
dismissing Mr. Savely’s petition for lack of jurisdiction.
¶10 Mr. Savely appeals that decision. We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶11 We review questions of jurisdiction for correctness. State
v. Finlayson, 2004 UT 10, ¶ 5, 84 P.3d 1193. Questions of statutory
interpretation are also reviewed for correctness without deference
to the lower court’s opinion. Bank of Am. v. Adamson, 2017 UT 2, ¶
7, 391 P.3d 196.
ANALYSIS
¶12 After concluding that the federal court had exercised in
rem jurisdiction over the seized property before any filing in a
state court, the state district court dismissed Mr. Savely’s petition
for lack of jurisdiction. The state district court determined that this
result was compelled by Penn General Casualty Co. v. Pennsylvania,
294 U.S. 189 (1935). When two suits are proceeding in rem or quasi

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in rem over the same res, “the jurisdiction of one court must of
necessity yield to that of the other.” Penn Gen., 294 U.S. at 195. In
order “[t]o avoid unseemly and disastrous conflicts in the
administration of our dual judicial system, and to protect the
judicial processes of the court first assuming jurisdiction, . . . the
court first assuming jurisdiction over the property may maintain
and exercise that jurisdiction to the exclusion of the other.” Id.
(citations omitted).
¶13 The parties disagree about whether the state district court
or the federal court first exercised in rem jurisdiction over
Mr. Savely’s money. Mr. Savely contends that the state district
court first acquired in rem jurisdiction when UHP provided him
with a notice of intent to seek forfeiture.1 Conversely, UHP and its
amicus, the United States, argue that a state court does not
exercise in rem jurisdiction under the Act until there has been a
filing in the court. 2 As a result, the United States contends that the
federal court was the first to exercise in rem jurisdiction through
its issuance of the first seizure warrant.
¶14 Therefore, this case presents two interrelated questions:
(1) When does a Utah state district court begin exercising in rem
jurisdiction over property seized under the Act? and (2) Did the

1 The amicus supporting Mr. Savely’s position, The Libertas
Institute, argues that Utah Code section 24-4-114 “strongly
implies” that state district courts are imbued with in rem
jurisdiction from the moment of seizure. Because the seizure of
Mr. Savely’s property and the provision of the notice of intent to
seek forfeiture occurred concurrently in this case, we do not
consider whether seizure itself is enough to invoke a state court’s
in rem jurisdiction.
2 The United States attempts to take an even narrower position
in its brief. Instead of arguing that any filing is sufficient to invoke
in rem jurisdiction, it argues that a state district court’s in rem
jurisdiction can only be invoked by any one of the four filings
required to be completed within seventy-five days of seizure to be
able to proceed with forfeiture proceedings. See UTAH CODE
§ 24-4-104(1)(a). Because we determine that no filing is necessary
for a state district court to be imbued with in rem jurisdiction, see
infra ¶ 36, we do not consider this argument.

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federal court’s first seizure warrant constitute a valid exercise of
in rem jurisdiction prior to the state district court’s exercise of in
rem jurisdiction? We address each of these questions in turn.
I. EXERCISING IN REM JURISDICTION UNDER THE ACT
¶15 The first dispute we must resolve is when a Utah state
district court begins exercising in rem jurisdiction over property
seized under the Act.
¶16 Mr. Savely argues that a state district court has in rem
jurisdiction over seized property as soon as a seizing agency
serves a notice of intent to seek forfeiture, even if no “filing” has
occurred in the court. He points to several provisions in the Act,
including Utah Code sections 24-4-108(1), (4) and 24-4-114, to
support this contention.
¶17 Conversely, UHP and the United States contend that in
rem jurisdiction can never be vested until there has been a filing in
the state district court. Moreover, relying on Utah Code section
24-1-103(1), they contend that the Act only recognizes in rem
jurisdiction when an action has been filed.
¶18 Consequently, we must first decide if it is possible for a
court to exercise in rem jurisdiction over property without any
filing in the court. If it is possible, we must determine if the Act
provides for in rem jurisdiction without a filing, and, if so, at what
time. Finally, we must decide whether the state district court
exercised in rem jurisdiction over Mr. Savely’s property.
A. Exercising In Rem Jurisdiction Without a Filing
¶19 “The basic requirement of jurisdiction in rem . . . is that a
court must have exclusive possession or control over the property
in order to consider the suit and grant or deny the relief sought.”
Scarabin v. DEA, 966 F.2d 989, 994 (5th Cir. 1992) (citation
omitted). When considering whether a state court has exercised in
rem jurisdiction over seized property, other courts have focused
on the state’s statutory scheme. Where “state law expressly
provides jurisdiction as an integral element of its statutory
warrant and seizure scheme,” the state district court is imbued
with in rem jurisdiction at the time provided by statute. Id. at 993–
94. Courts have recognized two different types of statutory
provisions that provide jurisdiction as an integral element of the
statutory scheme: (1) provisions that place custody and control of
seized property in the district court and (2) provisions that restrict

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or prohibit the transfer or turnover of seized property without the
district court’s permission.
¶20 The first type of relevant statutory provision is one that
places custody and control in the district court or otherwise
restricts disposition of the property to court order. When a state’s
statutory scheme does not provide for judicial control over seized
property, courts have determined that in rem jurisdiction is not
conferred by the seizure. See, e.g., United States v. Certain Real Prop.
566 Hendrickson Boulevard, Clawson, Oakland Cty., Mich., 986 F.2d
990, 993–94 (6th Cir. 1993) (concluding that “it is the filing of the
forfeiture complaint in the state court which brings the res within
the jurisdiction of the state courts” based on the language in that
state’s statute); Commonwealth v. Rufo, 708 N.E.2d 947, 949 (Mass.
1999) (“[I]n the absence of a State statute providing for judicial
control over seized property, courts have held that the seizure of
property by State authorities does not alone confer in rem
jurisdiction on a State court.” (citations omitted)).
¶21 Conversely, in rem jurisdiction is exercised at the time of
seizure when a state statute places control over seized property
with the state court. See, e.g., United States v. One 1987 Mercedes
Benz Roadster 560 SEC, VIN WDBBA48D3HA064462, 2 F.3d 241,
244 (7th Cir. 1993) (recognizing that a state court can have
“jurisdiction over a res as a result of continuing state forfeiture
proceedings, or when a state statutory scheme vests lawful
authority over a res in state court” (citations omitted)); Scarabin,
966 F.2d at 993–94 (recognizing that when “state law expressly
provides jurisdiction as an integral element of its statutory
warrant and seizure scheme,” “the state district court had
exclusive control over the res by virtue of issuing the search
warrant that procured the seized [property]” beginning the
moment of seizure); In re Seizure of Approximately 28 Grams of
Marijuana, 278 F. Supp. 2d 1097, 1102 (N.D. Cal. 2003) (“Where
state statutes place items seized by local law enforcement under
judicial control, courts have held that seizure by police itself
constitutes an assertion of jurisdiction over the seized items by the
state courts.” (citations omitted)); United States v. One Black 1999
Ford Crown Victoria LX, 118 F. Supp. 2d 115, 118 (D. Mass. 2000)
(recognizing a state district court’s exercise of in rem jurisdiction
where the property was seized pursuant to a state court warrant
and the state statute provided that “property seized in execution
of a search warrant shall be disposed of as the court or justice

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orders” (citation omitted)); United States v. $490,920 in U.S.
Currency, 911 F. Supp. 720, 725 (S.D.N.Y. 1996) (“New York’s
statutory scheme . . . provides that the disposition of the res is
subject only to orders of the state court. This degree of control
suggests that New York’s warrant and seizure scheme is
jurisdictional.” (citation omitted)); Rufo, 708 N.E.2d at 949
(recognizing that a statute which provides that “[p]roperty seized
pursuant to a search warrant . . . is held ‘under the direction of the
court’” is of the character that “provides a proper basis for
jurisdiction over property” based solely on the seizure).
¶22 The second type of relevant statutory provision is one
that restricts or prohibits the transfer or turnover of seized
property without the district court’s permission. “[T]urnover
order requirements are indicative of the jurisdictional nature of a
state’s warrant and seizure scheme.” $490,920 in U.S. Currency,
911 F. Supp. at 725; see also 1987 Mercedes Benz Roadster, 2 F.3d at
243 (recognizing that federal jurisdiction is inappropriate where
“there is no authority for the type of transfer between executives
of agencies that took place” even where there is no “competing
state forfeiture proceeding” because a turnover order is necessary
to properly bring jurisdiction before the federal district court
(citation omitted)); Scarabin, 966 F.2d at 994 (“Nothing in
Louisiana’s comprehensive forfeiture law indicates . . . that
unsanctioned transfers by local police operate to defeat the state
court’s control over seized property.” (citation omitted)); United
States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120, 122 (7th Cir.
1991) (“This case does not turn upon who won the forfeiture ‘foot
race’ in the courts, but rather upon the fact that there is no
authority for the type of transfer between executives of agencies
that took place here. To the contrary, such a transfer circumvents
disposition of the res by the circuit court, as required by both
Illinois statutes that authorize actions for forfeiture.”), superseded
by statute, 720 ILL. COMP. STAT. 570/505(d) (West 1991), as
recognized in United States v. Sixty-Two Thousand Six Hundred
Dollars ($62,600.00), 899 F. Supp. 378 (N.D. Ill. 1995) 3; United States

3We note that Westlaw also currently recognizes this case as
“superseded by statute,” referring to United States v. $84,940 U.S.
Currency, 86 F. App’x 978 (7th Cir. 2004), for support. We disagree.
The court in $84,940 U.S. Currency acknowledges that the

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v. $79,123.49 in U.S. Cash & Currency, 830 F.2d 94, 98 (7th Cir.
1987) (concluding that the seizure by federal authorities was
invalid because they failed to obtain a turnover order from the
state district court), superseded by statute, Wis. Stat. § 961.555(1)
(1993); In re 28 Grams of Marijuana, 278 F. Supp. 2d at 1107 (“When
federal authorities seek to gain control over a res already in the
control of a state court, the proper procedure is to seek [a]
turnover order from that court.” (citation omitted)). If it violates
the requirements in a state’s statutory scheme, a federal agency’s
failure to get a proper turnover order violates the state court’s in
rem jurisdiction even where the property was not seized pursuant
to a state warrant and the transfer occurs before any filing occurs
in the state court. See 1979 Chevrolet C-20 Van, 924 F.2d at 121–22.
¶23 Courts have reached the conclusion that in rem
jurisdiction has been exercised even where the state statutory
scheme vests control in the district court without requiring the
district court to issue a seizure warrant or have any filing
submitted to the court. See id. at 122–23 (discussing the prohibition
on transfer without a turnover order where the statutory scheme
allowed seizure of property “upon process issued by any court
having jurisdiction over the property, or without process if the
seizure is in accordance with the Illinois Code of Criminal
Procedure” (citation omitted) (internal quotation marks omitted)).
This conclusion is not unique to forfeiture schemes—admiralty
law, for example, also recognizes the exercise of in rem jurisdiction
without any filing in or action by the court. “A court obtains in
rem jurisdiction over a vessel when a maritime lien attaches to the
vessel.” Industria Nacional Del Papel, CA. v. M/V Albert F, 730 F.2d
622, 625 (11th Cir. 1984) (citation omitted). A maritime lien
attaches when a “vessel is loaded[] or . . . when it is ready to be
loaded.” Id. (citation omitted). The court does not have to take any
action, and nothing has to be filed with the court, for the court to
obtain in rem jurisdiction over a vessel. See id.

Wisconsin statute was amended “in direct response to the . . .
decision in . . . 1979 Chevrolet C-20 Van.” 86 F. App’x at 982.
However, the statute at issue in 1979 Chevrolet C-20 Van was from
Illinois, not Wisconsin. 924 F.2d at 122. Therefore, we do not
believe that $84,940 U.S. Currency actually recognized 1979
Chevrolet C-20 Van as superseded by statute.

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¶24 Accordingly, we conclude that it is possible for a state
district court to begin exercising in rem jurisdiction over the res
without issuing a warrant and before any filing has been made in
the court. In rem jurisdiction is exercised from the moment the
statutory scheme places custody and control over the res in the
state court or otherwise restricts transfer without a turnover
order. We must therefore determine when in rem jurisdiction is
exercised under the Act—whether it be at the time of seizure, at
the time of notice of intent to seek forfeiture, or at the time of a
filing in the court.
B. Exercising In Rem Jurisdiction Under the Act
¶25 When interpreting a statute, “our primary objective is to
ascertain the intent of the legislature.” Scott v. Scott, 2017 UT 66,
¶ 22, ---P.3d--- (citation omitted). “Because [t]he best evidence of
the legislature’s intent is the plain language of the statute itself,
we look first to the plain language of the statute.” Penunuri v.
Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (alteration
in original) (citation omitted) (internal quotation marks omitted).
“Where statutory language is plain and unambiguous, this Court
will not look beyond the same to divine legislative intent.” Garrard
v. Gateway Fin. Servs., Inc., 2009 UT 22, ¶ 11, 207 P.3d 1227 (citation
omitted). However, “if doubt or uncertainty exists as to the
meaning or application of an act’s provisions, [we] . . . analyze the
act in its entirety and harmonize its provisions in accordance with
the legislative intent and purpose.” Mariemont Corp. v. White City
Water Improvement Dist., 958 P.2d 222, 225 (Utah 1998) (citation
omitted) (internal quotation marks omitted). Additionally, each
section “must be read in the context of the entire Act.” Business
Aviation of S.D., Inc. v. Medivest, Inc., 882 P.2d 662, 665 (Utah 1994)
(citation omitted).
¶26 The parties disagree about whether the Act itself provides
for the exercise of in rem jurisdiction without a filing and when in
rem jurisdiction occurs under the Act. The Act itself is not a model
of clarity when it comes to the jurisdiction of state district courts.
Seized property is considered to be “in the agency’s custody,”
UTAH CODE § 24-2-103(3), while property held for forfeiture “is
considered to be in the custody of the district court,” id.
§ 24-4-108(4). The Act never explicitly states when seized property

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becomes property held for forfeiture. And it appears that these
terms may be used inconsistently throughout the Act. 4 To make
matters more complicated, the Act also has a stand-alone
jurisdictional section that notes that “[a] state district court has
jurisdiction over any action filed in accordance with this title
regarding” certain interests. Id. § 24-1-103(1).
¶27 We do not note this as a criticism of the legislature. As we
have previously recognized, “[l]awmaking is complex and
cumbersome.” Orlando Millenia, LC v. United Title Servs. of Utah,
Inc., 2015 UT 55, ¶ 56, 355 P.3d 965. We merely recognize that the
Act contains provisions that each of the parties validly seizes
upon to support their competing interpretations.
¶28 While the lack of clarity regarding jurisdiction in the Act
increases “the difficulty of the interpretive task,” this “is no
justification for standing down.” Id. ¶ 57. We do not “get to
declare ties.” Id. Instead, it is incumbent upon us to “resolve
questions of statutory interpretation—even hard ones—that come
before us.” Id. We therefore “proceed to do our best to resolve the
interpretive questions raised by the parties—while
acknowledging, of course, the prerogative of the legislature to
step back into this dialogue (by amending the [Act]) if it deems it
appropriate to do so.” Id.
¶29 We acknowledge that when a state district court begins
exercising in rem jurisdiction under the Act is ambiguous. UHP
and the United States argue, not unreasonably, that the general
jurisdiction provision of the Act shows that even if the legislature
could choose to imbue the state district court with in rem
jurisdiction before a filing in the court, it did not choose to do so.
The general jurisdiction provision provides that
[a] state district court has jurisdiction over any
action filed in accordance with this title regarding:

4 At one point, the Act notes that “property subject to
forfeiture” is in the custody of an agency. UTAH CODE
§ 24-4-104(3)(c). It appears that “property subject to forfeiture”
might be an intermediary category between “seized property”
and “property held for forfeiture.”

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(a) all interests in property if the property is within
this state at the time the action is filed; and
(b) a claimant’s interests in the property, if the
claimant is subject to the personal jurisdiction of the
district court.
UTAH CODE § 24-1-103(1). Focusing in on the “any action filed”
language, UHP and the United States argue that this provision
recognizes that there must be an action filed with the state district
court before the court exercises in rem jurisdiction.
¶30 While we recognize that this section supports an
interpretation that requires filing an action before in rem
jurisdiction is exercised, other sections of the Act support the
conclusion that the state district courts begin exercising in rem
jurisdiction, at the very latest, when property is held for forfeiture.
We conclude that the strength of these other sections, and the Act
as a whole, requires us to resolve the ambiguity in favor of a state
district court exercising in rem jurisdiction over property held for
forfeiture.
¶31 The Act contains both types of provisions that make
jurisdiction an integral part of the seizure and forfeiture scheme:
provisions that place the custody and control over property held
for forfeiture in the district court and provisions that restrict the
transfer of the property without a turnover order by that court.
See, e.g., UTAH CODE § 24-4-108(1) (“After the seizing agency gives
notice that the property is to be held for forfeiture, a person or
entity may not alienate, convey, sequester, or attach that property
until the court issues a final order of dismissal or an order of
forfeiture regarding the property.” (emphasis added)); id.
§ 24-4-108(4) (“Property held for forfeiture is considered to be in
the custody of the district court and subject only to: (a) the orders
and decrees of the court having jurisdiction over the property or
the forfeiture proceedings; and (b) the acts of the agency that
possesses the property or the prosecuting attorney pursuant to
this chapter.” (emphasis added)) 5; id. § 24-4-114(1) (prohibiting

5 UHP and the United States argue that provisions in the Act
that allow a seizing agency or prosecuting attorney to take actions
with the property without a court order defeat finding that Utah
Code section 24-4-108(4) recognizes in rem jurisdiction. See, e.g.,

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the direct or indirect transfer of property held for forfeiture “to
any federal agency or any governmental entity not created under
and subject to state law” without a court order authorizing the
transfer and limiting when a court may enter such an order).
Importantly, these provisions can come into effect without first
requiring any filing in the court. See id. § 24-4-108(1) (“[A] person
or entity may not alienate, convey, sequester, or attach” property
between when a “seizing agency gives notice that the property is
to be held for forfeiture” and when “the court issues a final order
. . . regarding the property.”); id. § 24-4-103 (requiring a seizing
agency to serve a notice of intent to seek forfeiture within thirty
days of seizing the property while not allowing the agency to
“present a written request for forfeiture to the prosecuting
attorney” until after that notice has been served).
¶32 Moreover, there are provisions of the Act that implicitly
acknowledge a state court’s jurisdiction over property held for
forfeiture even where no action has been filed. See id. § 24-4-108(4)
(recognizing that a court could have “jurisdiction over the
property or the forfeiture proceedings” (emphasis added)); id.
§ 24-4-108(7) (allowing a claimant to file a hardship petition “in
the court in which forfeiture proceedings have commenced; or . . .
in any district court having jurisdiction over the property, if
forfeiture proceedings have not yet commenced” (emphases
added)); id. § 24-4-114 (requiring a court order to transfer property
held for forfeiture even when no filing has been made with the
court and recognizing a court-ordered transfer of property would
be “relinquishing jurisdiction” (emphasis added)).
¶33 Additionally, this case presents one of the rare
circumstances in which we find it appropriate to turn to

UTAH CODE § 24-4-104(1) (requiring the return of seized property
if none of the required actions were taken within seventy-five
days); id. § 24-4-107(8) (providing for return of seized property to
innocent owners); id. § 24-4-108(2) (permitting the release of
property held for forfeiture “if retention of actual custody is
unnecessary”). We disagree. Section 24-4-108(4)(b) recognizes that
these actions are permissible because the agency or prosecuting
attorney is acting in accordance with the Act, and this is not
incompatible with the district court’s exercise of in rem
jurisdiction.

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legislative history to help resolve an ambiguity. Cf. Gutierrez v.
Medley, 972 P.2d 913, 915 (Utah 1998) (“If there is ambiguity in the
act’s plain language, we then seek guidance from the legislative
history and relevant policy considerations.” (citation omitted)
(internal quotation marks omitted)). And the legislative history
here overwhelmingly shows that one of the main goals of the Act
is to provide additional protections to property owners when the
state holds their property for forfeiture.
¶34 The Act originated in 2000 as Initiative B, a citizen’s
initiative that intended to protect property owners from forfeiture
abuse and “make[] the government accountable and create[]
uniform procedures to treat people fairly and equally.” Utah
Voter Information Pamphlet, General Election November 7, 2000
[hereinafter Utah Voter Guide] at 49, “Arguments For.” Among
the questions asked on the ballot was whether the forfeiture law
be amended to “create uniform procedures to protect property
owners where forfeiture is sought by the government.” Utah
Voter Guide at 47. In 2007, the legislature amended the Act,
adding a subsection to the transfer provisions stating that “[w]hen
property is seized pursuant to the order of a state district court or
state statute, the state has priority jurisdiction.” 2007 Utah Laws
762–63. Substantive changes were made in 2013 that loosened the
restrictions on transfers. See 2013 Utah Laws 1986–87.
Amendments in 2014 quickly reversed those changes to ensure
that transfer orders remain mandatory when state courts assume
priority jurisdiction over property seized for forfeiture,
maintaining the intention of the original initiative to protect
property owners from forfeiture abuse. See Hearing on S.B. 256
Before the S. Judiciary Comm., 60th Leg., Gen. Sess. (Mar. 3, 2014);
2014 Utah Laws 487–88.
¶35 Importantly, the transfer provision expressly prohibits a
district court from “authoriz[ing] the transfer of property to the
federal government if the transfer would circumvent the
protections of the Utah Constitution or of this chapter that would
otherwise be available to the property owner.” UTAH CODE
§ 24-4-114(1)(d). This provision, along with the grant of in rem
jurisdiction to the state district court over property held for
forfeiture, ensures that the authority to seize and hold property
for forfeiture under the Act is limited by the protections provided
in the Act. This comports with the legislative intent and purpose
of the Act.

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¶36 Therefore, we resolve the ambiguity in the Act by
determining that it imbues in rem jurisdiction over property held
for forfeiture in the district court, even when forfeiture
proceedings have not been filed in the court.
C. In Rem Jurisdiction Over Mr. Savely’s Property
¶37 Because we conclude that a district court begins
exercising in rem jurisdiction under the Act, at the very latest,
when property is held for forfeiture, we must next determine if
Mr. Savely’s property was property held for forfeiture.
¶38 The Act does not expressly state when property becomes
held for forfeiture, and therefore presents another question we
must answer. However, based on the operation of several
provisions in the Act, we conclude that one way for property to
become property held for forfeiture is for a seizing agency to serve
a claimant with a notice of intent to seek forfeiture.
¶39 An agency that wishes to seek forfeiture of seized
property must “serve a notice of intent to seek forfeiture upon any
claimants known to the agency” within thirty days of the seizure.
Id. § 24-4-103(1)(a). This notice of intent to seek forfeiture must
provide the claimant with specific information about the seizure
and his or her rights under the Act. Id. § 24-4-103(1)(b).
¶40 The notice of intent to seek forfeiture triggers several
rights and obligations under the Act. After the notice of intent to
seek forfeiture has been served, but no later than sixty days after
the seizure, the seizing agency must “present a written request for
forfeiture to the prosecuting attorney.” Id. § 24-4-103(2)(a).
Additionally, the notice of intent to seek forfeiture initiates
restrictions on the property, subject to a court order: “a person or
entity may not alienate, convey, sequester, or attach that property
until the court issues a final order of dismissal or an order of
forfeiture regarding the property.” Id. § 24-4-108(1).
¶41 Claimants to the property also have the ability to file a
motion for hardship release “[a]fter the seizing agency gives
notice that the property is to be held for forfeiture.” Id.
§ 24-4-108(7). This hardship release entitles a claimant “to the
immediate release of property held for forfeiture.” Id. § 24-4-108(6)
(emphasis added).
¶42 Based on these provisions of the Act, we conclude that a
notice of intent to seek forfeiture indicates that the property

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constitutes property held for forfeiture. In this case, Mr. Savely
was provided a notice of intent to seek forfeiture at the time his
property was seized. Therefore, the state district court was vested
with in rem jurisdiction over Mr. Savely’s property beginning on
November 27, 2016.
II. FEDERAL SEIZURE WARRANT DID NOT DIVEST THE
STATE DISTRICT COURT OF IN REM JURISDICTION
¶43 The parties also disagree about what effect, if any, the
federal seizure warrants had on both the state district court’s and
federal court’s in rem jurisdiction. This disagreement exists on
several different levels. First, the parties disagree about whether
UHP transferring a check for the amount of the seized funds
could constitute a transfer of the res for the purposes of in rem
jurisdiction. Second, even if a check can imbue a federal court
with in rem jurisdiction over underlying cash, the parties further
disagree on whether an uncashed check actually places the seized
funds within the federal court’s control, and thus its in rem
jurisdiction. 6
¶44 Circuit courts appear to be split on the first issue. Compare
Scarabin v. DEA, 966 F.2d 989, 992–93 (5th Cir. 1992) (concluding
that the DEA “never possessed or controlled” seized cash when
the state law enforcement agency used the cash to purchase a
cashier’s check and turned the check over to the DEA), and United
States v. Thomas, 319 F.3d 640, 644–45 (holding “that the DEA did
not abandon the res when it converted the currency to a cashier’s
check”), with United States v. $46,588.00 in U.S. Currency & $20.00
in Canadian Currency, 103 F.3d 902, 905 (9th Cir. 1996)
(determining that “the cashier’s check was an appropriate,
fungible surrogate for the seized currency” so “[t]he res remained
identifiable and within the court’s jurisdiction”). And we have
been unable to locate a case where the Tenth Circuit has weighed
in. However, we find it unnecessary to reach either of the parties’

6 In its briefing, the United States recognizes that “[f]ederal
authorities did not ultimately retain custody of the seized funds
under either the first or the second seizure warrant.” But it still
contends that the fact that “federal authorities have refrained
from taking custody of the seized funds does not discount the
federal court’s earlier exercise of in rem jurisdiction.”

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disputes on this issue. Instead, we conclude that even if an
uncashed check could vest a federal court with in rem jurisdiction,
the check issued in response to the federal seizure warrant in this
case did not have such effect.
¶45 As we concluded above, the state district court began
exercising its in rem jurisdiction over Mr. Savely’s property on
November 27, 2016. See supra ¶ 42. The first federal seizure
warrant was not issued until January 13, 2017, and the
corresponding check (which was never cashed) was not
transferred to the DEA until January 24, 2017. On February 23,
2017, right after UHP issued a stop payment on the check, the
federal court issued a second seizure warrant, but UHP never
issued a second check in response.
¶46 The state district court did not take an action attempting
to recognize its lack of in rem jurisdiction until March 31, 2017,
when it concluded that it must dismiss the case for lack of
jurisdiction. However, as noted above, this conclusion was
incorrect. Additionally, the actions taken by the federal court and
the United States are insufficient to divest the state district court’s
in rem jurisdiction or to vest such jurisdiction in the federal court.
¶47 Even if the uncashed January 13, 2017 check would
generally be sufficient to confer in rem jurisdiction on the federal
court, such was not the case here. A federal seizure, even under a
seizure warrant, is invalid when it is issued after a state court is
already exercising in rem jurisdiction over the property. United
States v. $79,123.49 in U.S. Cash & Currency, 830 F.2d 94, 98 (7th
Cir. 1987). “Possession obtained through an invalid seizure
neither strips the first court of jurisdiction nor vests it in the
second. To hold otherwise would substitute a rule of force for the
principle of mutual respect embodied in the prior exclusive
jurisdiction doctrine.” Id. (citation omitted); see also United States v.
One 1979 Chevrolet C-20 Van, 924 F.2d 120, 123 (7th Cir. 1991)
(“The fact that the federal authorities muscled in on the van and
began an administrative forfeiture proceeding before the state
court action was filed did not confer jurisdiction on the federal
court.”); United States v. One 1985 Cadillac Seville, 866 F.2d 1142,
1146 (9th Cir. 1989) (“Although we are familiar with the maxim,
‘possession is nine-tenths of the law,’ we prefer to apply the
remaining one-tenth and decline to ‘substitute a rule of force for
the principle of mutual respect embodied in the prior exclusive
jurisdiction doctrine.’” (citation omitted)); In re Seizure of

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Approximately 28 Grams of Marijuana, 278 F. Supp. 2d 1097, 1107
(N.D. Cal. 2003) (“Federal courts cannot bypass state laws giving
seized property into the exclusive control of state courts by
‘trumping’ the state court’s jurisdiction—such is precisely the
unseemly conflict between judicial systems that Penn General
sought to avoid.”).
¶48 If federal authorities wish “to gain control over a res
already in the control of a state court, the proper procedure is to
seek [a] turnover order from that court.” In re 28 Grams of
Marijuana, 278 F. Supp. 2d at 1107 (citation omitted); see also
$79,123.49, 830 F.2d at 98 (The United States’ potential inability to
receive a final judgment of forfeiture in state court “would not
preclude federal authorities from applying to [the state court] for
an orderly turnover that would permit them to protect the federal
government’s interests. Surely, it did not justify them in seizing
the money without so much as informing the state court of the
federal claim.”). 7

7 UHP and the United States cite to Kennard v. Leavitt, 246 F.
Supp. 2d 1177 (D. Utah 2002), to argue that the transfer provision
in the Act does not apply to transfers made in response to a
federal seizure warrant. Further, UHP argues that the legislature
adopted the Kennard interpretation of the transfer provision when
it amended the transfer provision two years later and only made
minor word changes. We disagree with both of these contentions.
First, the prior construction canon, which presumes that the
legislature has adopted a judicial construction of the statute when
it “amends a portion of a statute but leaves other portions
unamended, or re-enacts them without change,” Christensen v.
Indus. Comm’n of Utah, 642 P.2d 755, 756 (Utah 1982), only applies
to statutes that “have already received authoritative construction
by the jurisdiction’s court of last resort, or even uniform
construction by inferior courts or a responsible administrative
agency.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 322 (2012). UHP provides no
argument or authority that supports presuming that the
legislature has adopted a single construction by a federal district
court (which would be, at most, a persuasive authority in any
Utah court). Second, Utah Code section 24-4-114(1) recognizes

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¶49 The United States argues that the state district court
would have lost in rem jurisdiction after none of the required
filings were made within seventy-five days, making the second
federal seizure warrant valid. This is not the case. “[A] failure on
the part of the state court to protest the federal proceeding, or by
the state to prosecute, [does not] allow[] the [federal] court to
assume jurisdiction.” 1985 Cadillac Seville, 866 F.2d at 1145; see also
1979 Chevrolet C-20 Van, 924 F.2d at 123 (“The fact that the state
court voluntarily had dismissed the state forfeiture action . . . does
not mean that the state did lose jurisdiction.”). Instead, “some
affirmative act of abandonment is required.” 1985 Cadillac Seville,
866 F.2d at 1145. The state district court did not lose its in rem
jurisdiction simply because UHP is not allowed to take further
action to effectuate the forfeiture of the property. Indeed, the state
district court retains in rem jurisdiction to force UHP to return the
property to Mr. Savely.
¶50 Therefore, we conclude that the federal seizure warrants
had no effect on the state district court’s in rem jurisdiction.
CONCLUSION
¶51 A state district court has in rem jurisdiction over any
property held for forfeiture under the Act. And property becomes
property held for forfeiture, at the very least, when a seizing
agency serves a notice of intent to seek forfeiture under the Act.
Because Mr. Savely was provided with a notice of intent to seek
forfeiture long before any federal seizure warrant was issued, we
conclude that the state district court was the first to properly
exercise in rem jurisdiction to the exclusion of any other court.
Therefore, we reverse the state district court’s conclusion that it
lacked in rem jurisdiction and remand for further proceedings
consistent with this opinion.

that a transfer pursuant to a state court order would be
“relinquishing jurisdiction to a federal agency.” UTAH CODE
§ 24-4-114(1)(c) (emphasis added). As noted above, a federal
seizure warrant cannot divest a state district court of in rem
jurisdiction. See supra ¶ 47. Therefore, a transfer pursuant to a
federal seizure warrant can only divest the state district court of in
rem jurisdiction if the transfer is also accompanied by a state court
order that permits it.

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