§ 22-1321 — Custody and return of stolen or embezzled property.

Oklahoma § 22-1321

• Jurisdiction: Oklahoma
• Title 22: Criminal Procedure

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A. It is the intent of the Legislature that any stolen or embezzled money or other property held in custody of a municipality, county or the state in any criminal investigation, action or proceeding be returned to the proper person or its lawful owner without unnecessary delay. B. If the property coming into the custody of a municipal, county or state peace officer is not alleged to have been stolen or embezzled, the peace officer may return the property to the owner upon satisfactory proof of ownership. The notice and hearing provisions of this section shall not be required for return of the property specified in this section if there is no dispute concerning the ownership of the property. Within fifteen (15) days of the time the owner of the property is known, the peace officer shall notify the owner of the property that the property is in the custody of the peace officer. The property shall be returned to the owner upon request, unless the owner, by law, is not permitted to possess such property. C. Except as otherwise provided for property that is pawned, when money or property alleged to have been stolen or embezzled, comes into the custody of a peace officer, the peace officer shall hold it subject to the order of the magistrate authorized by Section 1322 of this title to direct the disposal thereof. Within fifteen (15) days of the time the owner of the property is known, the peace officer shall notify the owner of the property that the property is in the custody of the peace officer. The peace officer shall make a good-faith effort to locate and notify the owner of the property. If the peace officer has made a good-faith effort to locate and notify the owner of the property and has been unable to locate or notify the owner, the peace officer shall release the property to the last person in possession of the property within fifteen (15) days after the peace officer determines that an owner cannot be located or notified, unless there is evidence that the person who last had possession of the property is not a lawful possessor of the property. Such officer may provide a copy of a nonownership affidavit to the defendant to sign if the defendant is not claiming ownership of the money or property taken from the defendant and if the defendant has relinquished the right to remain silent. The affidavit is not admissible in any proceeding to ascertain the guilt or innocence of the defendant. A copy of this affidavit shall be provided to the defendant, and a copy may be filed by the peace officer with the court clerk. Upon request, a copy of this affidavit shall be provided to any person claiming ownership of such money or property. The owner of the property or designated representative of the owner may make application to the magistrate for the return of the property. The application shall be on a form provided by the Administrative Director of the Courts and made available through the court clerk or the victim-witness coordinator. The court may charge the applicant a reasonable fee to defray the cost of filing and docketing the application. Once an application has been made and notice provided, the magistrate shall docket the application for a hearing as provided in this section. Where notice by publication is appropriate, the publication notice form shall be provided free of charge to the applicant by the Administrative Director of the Courts through the court clerk or the victim-witness coordinator with instructions on how to obtain effective publication notice. The applicant shall notify the last person in possession of the property prior to the property being seized by the state of the hearing by mailing a copy of the notice by certified mail return receipt requested at the last-known address of the person, unless the person has signed a nonownership affidavit pursuant to this section disclaiming any ownership rights to the property. If the last person in possession of the property is unable to be served notice by certified mail, notice shall be provided by first-class mail and by one publication in a newspaper of general circulation in the county where the property is held in custody. The applicant shall notify the district attorney and the court when notice has been served to the last person in possession of the property or published pursuant to this section. The hearing shall be held not less than fifteen (15) days after the notice has been served or published. Proof of service or publication shall be filed with the court clerk before the hearing. For the sole purpose of conducting a due process hearing to establish ownership of the property, "magistrate" as used in this section shall mean a judge of the district court, associate district judge, special judge or the judge of a municipal criminal court of record when established pursuant to Section 28-101 et seq. of Title 11 of the Oklahoma Statutes. D. If the magistrate determines that the property is needed as evidence, the magistrate shall determine ownership or right of possession and determine the procedure and time frame for future release. The magistrate may order the release of property needed as evidence pursuant to Section 1327 of this title, provided however, the order may require the owner to present the property at trial. The property shall be made available to the owner within twenty (20) days of the court order for release. The magistrate may authorize ten (10) days additional time for the return of the exhibit if the district attorney shows cause that additional time is needed to photograph or mark the exhibit. E. If the property is not needed as evidence, it may be released by the magistrate to the owner or designated representative of the owner upon satisfactory proof of ownership or to the person last in possession prior to seizure. The owner of the property or designated representative of the owner may make application to the magistrate for the return of the property. The owner shall provide satisfactory proof of title to the property or sign an affidavit of ownership if documents of title do not exist. If an affidavit of ownership or affidavit of right of possession is used to establish ownership or right of possession, the claimant may also be required to sign an agreement to indemnify and defend the custodians of the property in the event of an adverse claim to the property. The applicant shall notify the last person in possession of the property prior to such property being seized by the state of the hearing by mailing a copy of the notice by certified mail return receipt requested at the last-known address of the person, unless the person has signed a nonownership affidavit pursuant to this section disclaiming any ownership rights to the property. If the last person in possession of the property is unable to be served notice by certified mail, notice shall be provided by one publication in a newspaper of general circulation in the county where the property is held in custody. The applicant shall notify the district attorney and the court when notice has been served to the last person in possession of the property or published pursuant to this section. The hearing shall be held not less than fifteen (15) days after the notice has been served or published. An affidavit of service or publication shall be filed with the court prior to the hearing. F. The notice and hearing provisions of subsections C and E of this section shall not be required for return of the property specified in said subsections if: 1. There is no dispute concerning the ownership of the property; 2. The property is readily identifiable by the owner; and 3. The defendant has entered a plea of guilty or nolo contendere to the criminal charge, has executed a nonownership affidavit as provided by subsection C of this section or has been personally notified that the property will be returned to the owner and has failed to file an objection to such return within eleven (11) days of being notified. The owner shall provide satisfactory proof of title to the property or sign an affidavit of ownership or right of possession to be provided by the peace officer. If an affidavit of ownership or affidavit of right of possession is used to establish ownership or right of possession, the claimant may also be required to sign an agreement to indemnify and defend the custodians of the property in the event of an adverse claim to the property. The affidavit is not admissible in any proceeding to ascertain the guilt or innocence of the defendant. A copy of this affidavit shall be filed by the officer with the court clerk. The property shall then be returned to the owner or person with right of possession. G. When property alleged to have been stolen comes into the custody of a peace officer and the property is deemed to be perishable, the peace officer shall take such action as appropriate to temporarily preserve the property. However, within seventy-two (72) hours of the time the property was recovered, the receiving agency shall make application for a disposition hearing before a magistrate, and the receiving agency shall notify by first-class mail all persons known to have an interest in the property of the date, time and place of the hearing. H. In any case, the magistrate may, for good cause shown, order any evidence or exhibit to be retained pending the outcome of any appeal or action for postconviction relief. I. Any time property comes into the custody of a municipality, a county, or this state as a result of any contact with any peace officer, criminal investigation or other situation where the return of the property is prohibited by any municipal, state or federal law or when the property has disputed ownership or multiple claimants, the municipality, county or state shall advise the claimant to file an application with the appropriate district court. Upon filing an application for a hearing, the claimant shall provide notice by first-class mail to all interested persons including the government entity having custody of the property. The government entity having custody of the property may also seek a hearing regarding the disposition of the property. The hearing shall be scheduled not less than fifteen (15) days after the notice is mailed. Unless the property is being held in connection with a filed criminal charge, the proceeding shall be considered a civil matter and shall be filed in the county where the property is being held. If a criminal charge has been filed, the matter shall be heard by the judge who has been assigned to the criminal case. At the hearing the court shall make a judicial determination as to the proper and lawful release or other disposition of the property. If the property at issue is a firearm or other weapon, the court may order the property destroyed if the court determines that the owner of the firearm or weapon is mentally or emotionally unstable or disturbed or cannot legally possess the firearm or weapon. J. The application, notice and hearing provisions of subsection I of this section shall include, but are not limited to, all situations where the peace officer has reason to believe: 1. One of the persons asserting a right to the return of any firearm or other weapon is or was mentally or emotionally unstable or disturbed at the time the weapon was placed in custody or at the time of the request for the return of the weapon; 2. One of the persons asserting a right to the return of a firearm or other weapon is subject to a victim protection order that would preclude the return of any weapon as a matter of law; 3. One of the persons asserting a right to the return of any firearm or other weapon is under indictment or has been convicted of a felony; 4. One of the persons asserting a right to the return of any firearm or other weapon has a misdemeanor conviction for domestic abuse as defined by law; 5. The ownership of the property is unclear due to multiple claimants or disputes among heirs or next of kin for the property of the deceased; or 6. The return of the property could subject the municipality, the county, or this state to potential liability for its return.

Legislative History

R.L.1910, § 6127. Amended by Laws 1987, c. 174, § 3, operative July 1, 1987; Laws 1988, c. 178, § 1, eff. Nov. 1, 1988; Laws 1989, c. 348, § 18, eff. Nov. 1, 1989; Laws 1992, c. 83, § 1, eff. Sept. 1, 1992; Laws 1992, c. 280, § 1, eff. Sept. 1, 1992; Laws 1996, c. 161, § 3, eff. Nov. 1, 1996; Laws 2002, c. 443, § 1, eff. July 1, 2002; Laws 2021, c. 455, § 2, eff. Nov. 1, 2021.