I.C. 35-33-5-5(a) All items of property seized by any law enforcement agency (LEA) as a result of an arrest, search warrant, or warrantless search, shall be securely held by the LEA. General Rule: Safeguard and preserve property. The goal is to reunite the property to its rightful owner if appropriate. Otherwise, property should either be destroyed or sold at a public auction.
Determine property type 1.Stolen Property/Pretrial 2.Other property/Closed case 3.Firearms 4. Drugs/Drug Lab
Stolen Property/Pretrial Evidence that consists of property obtained unlawfully from its owner may be returned by the LEA to the owner before trial if: 1.The property has been photographed in a manner that will serve the purpose of demonstrating the nature of the property, and if these photographs are filed with or retained by the LEA in place of the property; 2.Receipt for the property is obtained from the owner upon delivery by the LEA; 3.The Prosecuting Attorney who is prosecuting a case that involves the property has not requested the LEA to decline requests for return of the property to its owner; and 4.The property may be lawfully possessed by the owner. I.C. 35-33-5-5(b) and I.C. 35-43-4-4(h)
Other property/Closed case Following final disposition of the case the following shall be done: 1.Property which may be lawfully possessed shall be returned to its rightful owner, if known. 2.If ownership is unknown, a reasonable attempt shall be made by the LEA holding the property to ascertain ownership. After 90 days from the time the rightful owner has been notified to take possession of the property or a reasonable effort has been made to ascertain ownership, the LEA holding the property shall, at a convenient time, dispose of the property at a public auction. Proceeds to the county General Fund. 3.Property, the possession of which is unlawful, shall be destroyed by the LEA holding it 60 days after final disposition. I.C. 35-33-5-5(c)
Firearms I.C. 35-47-3-2 governs disposal of firearms (b) Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of IC 35-33-5. If the rightful ownership is not known the LEA holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm. However, nothing in this chapter shall be construed as requiring the return of firearms to rightful owners who have been convicted for the misuse of firearms. In such cases, the court may provide for the return of the firearm in question or order that the firearm be at once delivered to the local sheriff’s department or the local police force that confiscated the firearm.
IC 35-47-3-2(c) The receiving LEA shall dispose of firearms under subsection (b), at the discretion of the LEA, not more than 120 days following receipt by use of any of the following procedures: 1. Public sale of the firearms to the general public (restrictions and conditions apply) 2. Sale to licensed firearms dealer (restrictions and conditions apply) 3. Sale or transfer to another LEA 4. Release to state police laboratory for purposes of research, training and comparison 5. Destruction
IC 35-47-3-3 governs disposal of firearms that are required to be registered in the National Firearms Registration and Transfer Record. Similar to IC 35-47-3-2 but with more restrictions regarding disposal. IC 35-47-3-4 provides criminal penalties for unlawful disposal of confiscated firearms. Level 6 felony A firearm that has been seized from a person who is dangerous (as defined in IC 35-47-14-1) shall be retained, returned, or disposed of in accordance with IC 35-47-14
Drugs/Drug Lab A LEA may destroy or cause to be destroyed chemicals, controlled substances, or chemically contaminated equipment (including drug paraphernalia as described in IC 35-48-4-8.5) associated with the illegal manufacture of drugs or controlled substances without a court order if all the following conditions are met: 1.The LEA collects and preserves a sufficient quantity of the chemicals, controlled substances, or chemically contaminated equipment to demonstrate that the items were associated with the illegal manufacture of drugs or controlled substances. 2.The LEA takes photographs of the illegal drug manufacturing site that accurately depict the presence and quantity of chemicals, controlled substances, and chemically contaminated equipment. 3.The LEA completes a chemical inventory report that describes the type and quantities of chemicals, controlled substances, and chemically contaminated equipment present at the illegal manufacturing site. The photographs and description of the property shall be admissible into evidence in place of the actual physical evidence. IC 35-33-5-5(e)
Miscellaneous Information 1.The LEA disposing of property in any manner provided in IC 35-33-5-5 shall maintain certified records of any disposition. Disposition by destruction of property shall be witnessed by two (2) persons who shall also attest to the destruction. 2.A LEA agency that disposes of property by auction under IC 35-33-5-5 shall permanently stamp or otherwise permanently identify the property as property sold by the LEA. IC 35-33-5-5 (g), (i)
Practice tip: Have a written policy for law enforcement agency department heads and evidence custodians
Recommended steps to dispose of property: 1.Destroy contraband 2.Return to owner, if appropriate 3.Include disposition in negotiated plea agreement 4.File motion with the court to either dispose or destroy (see sample motion in your materials)
Disposal of Evidence – other areas Animals Abandoned Property Dangerous persons Forfeitures Disposal Statutes and case law digests are provided in your material
Questions? William C. Hartley, Jr. Wabash County Prosecutor (260) 563-3982 firstname.lastname@example.org