§ 7-2-105 — Disposition and appraisal of property seized or held; notice and order to show cause; judgment

Wyoming § 7-2-105

• Jurisdiction: Wyoming
• Title 07: Criminal Procedure
• Ch. 2: PEACE OFFICERS

Text

(a) When personal property not subject to be summarily
destroyed is seized or held by any peace officer pursuant to any
law of this state, or when property seized by any peace officer
is delivered to the appropriate law enforcement agency under
provisions other than W.S. 35-7-1049, or property is taken into
custody as lost, mislaid or abandoned, the head of the law
enforcement agency shall forthwith ascertain as closely as
practicable:
(i) The approximate value of the property;
(ii) The facts giving rise to the seizure or custody;
(iii) The name and position of the person making the
seizure or taking the property into custody;
(iv) The name and address of the owners of the
property or those persons who were in possession of the property
at the time of the seizure;
(v) The names and addresses of all persons known to
have an interest in the property seized.
(b) Any property seized by a peace officer shall be
delivered immediately to the appropriate law enforcement agency.
The head of the law enforcement agency shall maintain custody of
the property pending an order of disposal by the court pursuant
to this section unless the property is otherwise released
according to this section.
(c) If the property is lost, mislaid, abandoned or
unclaimed or if possession of the property is unlawful, the law
enforcement agency shall seek in circuit court or district court
an order to show cause why the property should not be sold or
forfeited and sold at public auction or transferred to the use
of the law enforcement agency. If the lawful owner of the
property can reasonably be ascertained, the property shall be
delivered to him without judicial action unless the property
constitutes evidence of a crime, the possession of the property
would be unlawful or ownership and interest are in dispute.
(d) Notice and proceedings on the order to show cause
shall be according to the Wyoming Rules of Civil Procedure,
provided notice by publication shall be once each week for two
(2) consecutive weeks. The trial of the issues shall be by the
court.
(e) On final hearing the order to show cause shall be
taken as prima facie evidence that the property is abandoned or
unclaimed and is sufficient for a judgment of forfeiture in the
absence of other proof.
(f) In disputed ownership cases the burden shall be upon
the claimants to show that they are the lawful owners or have a
legally recognizable interest in the property.
(g) When the property is encumbered, the court shall,
after deducting costs, direct the payment of the encumbrance
from the proceeds of any sale of the property or distribute the
property equitably between those persons having a legal
interest.
(h) The proceedings and judgment of forfeiture shall be in
rem and shall be primarily against the property itself.
(j) Upon the entry of a judgment of forfeiture the court
shall determine the disposition to be made of the property,
which may include the destruction or sale of the property or the
allocation of the property to some other governmental function
or use or otherwise, as the court may determine.
(k) Sale of the property shall be at public auction to the
highest bidder for cash after two (2) weeks public notice as the
court may direct.
(m) Upon the application of any claimant, the court may
fix the value of a forfeitable interest in the seized property
and permit the claimant to redeem the property upon the payment
of a sum equal to the value, which sum shall be disposed of as
would the proceeds of the sale of the property under a judgment
of forfeiture.
(n) The balance of the proceeds, if any, shall be
deposited in the general operating account of the state, county
or municipal entity that has fiscal authority over the law
enforcement agency confiscating the property.
(o) This section does not apply to property which is
subject to the Uniform Unclaimed Property Act, W.S. 34-24-101
through 34-24-140.
(p) For purposes of this section, seized property that is
not subject to W.S. 35-7-1049 may be summarily destroyed,
provided the lawful owner has been contacted and has declined to
take possession of the property, including:
(i) Evidence that is no longer needed for the
prosecution of a case, or needed for purposes of appellate
review of the case;
(ii) Evidence in misdemeanor cases in which the
district attorney has determined that no suspect has been
identified or prosecution has not been pursued for at least one
(1) year;
(iii) Evidence in felony cases in which the district
attorney has determined that no suspect has been identified or
prosecution has not been pursued for at least five (5) years;
(iv) Soiled, defective, broken or demolished personal
property, or waste.
(q) Items of found property with a value of not more than
fifty dollars ($50.00) for which the owner cannot be located, or
if the owner has not responded after contact was attempted by
the law enforcement agency, may be disposed of after the latter
of:
(i) Thirty (30) days after the agency has determined
that the owner cannot be located; or
(ii) Thirty (30) days after the agency has attempted
on at least three (3) nonconsecutive days to contact the owner
without response from the owner.
(r) Law enforcement agencies shall preserve biological
material that was seized or recovered as evidence in the
investigation or prosecution that resulted in a conviction or
adjudication as a delinquent for a crime of violence and not
consumed in previous DNA testing. The biological material shall
be preserved for five (5) years or, except as provided in this
section, for as long as any person incarcerated in connection
with the case or investigation remains in custody, whichever is
longer. Notwithstanding any provisions to the contrary in this
section, effective July 1, 2008 a law enforcement agency may
dispose of the biological material after five (5) years if the
law enforcement agency notifies any person who remains
incarcerated in connection with the investigation or prosecution
and any counsel of record for such person, or if there is no
counsel of record, the state public defender, of the intention
to dispose of the evidence and the law enforcement agency
affords the person not less than one hundred eighty (180) days
after the notification to file a motion for DNA testing or
preservation of the biological material. The law enforcement
agency shall not be required to preserve evidence that is
required to be, and has been, returned to its rightful owner, or
is of such a size, bulk or physical character as to render
retention impracticable. If practicable, the law enforcement
agency shall remove and preserve representative portions of the
biological material sufficient to permit future DNA testing
before returning or disposing of the material.
(s) Whoever willfully or maliciously destroys, alters,
conceals or tampers with evidence that is required to be
preserved under subsection (r) of this section with the intent
to impair the integrity of that evidence, to prevent that
evidence from being subjected to DNA testing or to prevent the
production or use of that evidence in an official proceeding
shall upon conviction be subject to a fine of not more than ten
thousand dollars ($10,000.00), imprisonment for not more than
five (5) years, or both.