§ 35-33-5-5 — Disposition of property held as evidence; preservation of evidence of a violent offense that could be subjected to DNA testing; records

Indiana § 35-33-5-5

• Jurisdiction: Indiana
• Art. 33: PRELIMINARY PROCEEDINGS
• Ch. 5: Search and Seizure

Text

(a) All items of property seized by any law
enforcement agency as a result of an arrest, search warrant, or
warrantless search, shall be securely held by the law enforcement
agency under the order of the court trying the cause, except as provided
in this section.
(b) Evidence that consists of property obtained unlawfully from its
owner may be returned by the law enforcement agency to the owner
before trial, in accordance with IC 35-43-4-4(h).
(c) Following the final disposition of the cause at trial level or any
other final disposition the following shall be done:
(1) Property which may be lawfully possessed shall be returned
to its rightful owner, if known. If ownership is unknown, a
reasonable attempt shall be made by the law enforcement agency
holding the property to ascertain ownership of the property. After
ninety (90) days from the time:
(A) the rightful owner has been notified to take possession of
the property; or
(B) a reasonable effort has been made to ascertain ownership of
the property;
the law enforcement agency holding the property shall, at a
convenient time, dispose of this property at a public auction. The
proceeds of this property shall be paid into the county general
fund.
(2) Except as provided in subsection (e), property, the possession
of which is unlawful, shall be destroyed by the law enforcement
agency holding it sixty (60) days after final disposition of the
cause.
(3) 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.
(d) Except as provided in subsection (g), if any property described
in subsection (c) was admitted into evidence in the cause, the property
shall be disposed of in accordance with an order of the court trying the
cause.
(e) A law enforcement agency 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 law enforcement agency collects and preserves a
sufficient quantity of the chemicals, controlled substances, or
chemically contaminated equipment to demonstrate that the
chemicals, controlled substances, or chemically contaminated
equipment was associated with the illegal manufacture of drugs
or controlled substances.
(2) The law enforcement agency 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 law enforcement agency 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.
(f) For purposes of preserving the record of any conviction on
appeal, a photograph demonstrating the nature of the property, and an
adequate description of the property must be obtained before the
disposition of the property. In the event of a retrial, the photograph and
description of the property shall be admissible into evidence in place
of the actual physical evidence. All other rules of law governing the
admissibility of evidence shall apply to the photographs.
(g) All evidence for a violent offense (as defined in IC 11-12-3.7-6)
in the law enforcement agency's possession or control that could be
subjected to DNA testing and analysis shall be preserved by the law
enforcement agency for the later of the following:
(1) Twenty (20) years from the date the defendant's conviction
becomes final.
(2) The period of the defendant's incarceration.
In cases where an investigation did not result in a conviction, the
evidence shall be preserved until the expiration of the statute of
limitations for the alleged offense. If the preservation of the evidence
is impracticable, the law enforcement agency shall remove portions of
the material evidence likely to contain biological evidence related to
the offense, in a quantity sufficient to permit future DNA testing before
returning or disposing of the physical evidence. At subsequent hearings
or trials, all records, notes, identification numbers, photographs, and
other documentation relating to the preservation of biological evidence
shall be admissible into evidence.
(h) The law enforcement agency disposing of property in any
manner provided in subsection (b), (c), (e), or (g), shall maintain
certified records of any disposition under subsection (b), (c), (e), or (g).
Disposition by destruction of property shall be witnessed by two (2)
persons who shall also attest to the destruction.
(i) This section does not affect the procedure for the disposition of
firearms seized by a law enforcement agency.
(j) A law enforcement agency that disposes of property by auction
under this section shall permanently stamp or otherwise permanently
identify the property as property sold by the law enforcement agency.
(k) Upon motion of the prosecuting attorney, the court shall order
property seized under IC 34-24-1 transferred, subject to the perfected
liens or other security interests of any person in the property, to the
appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
by the United States Department of Justice.
(l) The law enforcement agency responsible for disposing of
property under subsection (g), shall do the following:
(1) Maintain a record of the preserved evidence.
(2) Schedule a disposal date for the preserved evidence.
(3) Provide notice to the last known address of the defendant and
the defendant's attorney:
(A) when the preserved evidence is removed from its secure
location; or
(B) of the date the preserved evidence has been marked for
disposal.
The defendant or the defendant's attorney must provide the most
current address of the defendant or the defendant's attorney to the law
enforcement agency responsible for disposing of property in order to
effectively receive proper notice. If the law enforcement agency
responsible for disposing of property does not have the defendant's or
the defendant's attorney's most current address on file, then the notice
requirement is deemed waived.
(m) Failure of a law enforcement agency to follow the procedures
described in this section may constitute contempt of court. However,
failure to follow the procedures described in this section shall not be
grounds for reversal of a conviction unless the defendant proves a
violation of the defendant's due process rights.
(n) Nothing in subsection (g) shall preclude a law enforcement
agency from submitting biological evidence to forensic DNA testing or
analysis, at its own initiative or at the request of a prosecuting attorney,
if such testing will not consume the remainder of the evidence. If such
testing would consume the remainder of the evidence, the prosecuting
attorney may seek a court order allowing such testing under IC 35-38-7-17.
As added by Acts 1981, P.L.298, SEC.2. Amended by
P.L.320-1983, SEC.6; P.L.294-1989, SEC.1; P.L.174-1999, SEC.2;
P.L.17-2001, SEC.11; P.L.187-2005, SEC.2; P.L.1-2006, SEC.527;
P.L.151-2006, SEC.14; P.L.1-2007, SEC.225; P.L.89-2022,
SEC.4.