Revision: Dec. 14, 2011, midnight
HB 1523-FN-LOCAL – AS INTRODUCED
2012 SESSION
09/10
HOUSE BILL 1523-FN-LOCAL
AN ACT relative to the return of personal property seized by law enforcement agencies from a person charged with a crime.
SPONSORS: Rep. Giuda, Merr 7; Rep. O'Brien, Hills 4; Rep. J. Richardson, Merr 8; Rep. Kreis, Merr 6; Rep. Tamburello, Rock 3; Sen. Forsythe, Dist 4
COMMITTEE: Criminal Justice and Public Safety
This bill establishes procedures for the return of personal property seized by law enforcement agencies after the acquittal or dismissal of proceedings against a person charged with a crime.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2146
09/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to the return of personal property seized by law enforcement agencies from a person charged with a crime.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Return of Personal Property Seized by Law Enforcement Agencies. Amend RSA 595-A:6 to read as follows:
595-A:6 Seizure, Custody and Disposition of Articles; Exceptions.
I. Except as provided in paragraph II, if an officer in the execution of a search warrant, or by some other authorized method, finds property or articles he is empowered to take, he shall seize and safely keep them under the direction of the court or justice so long as necessary to permit them to be produced or used as evidence in any trial. Upon application by a prosecutor, defendant, or civil claimants, the court, prior to trial or upon an appeal after trial, shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owners any stolen, embezzled or fraudulently obtained property, or any other property of evidential value, not constituting contraband. This section shall apply regardless of how possession of the property was obtained by the state. Photographs or other identification or analysis made of the returned property shall be admissible at trial as secondary evidence, in lieu of the originals, for all relevant purposes, including ownership. In the case of unknown, unapprehended defendants, or defendants wilfully absent from the jurisdiction, the court shall have discretion to appoint a guardian ad litem to represent the interest of such unknown or absent defendants. The judicial findings on such matters as ownership, identification, chain of possession or value made at such an evidentiary hearing for the restoration of property to the rightful owners shall thereafter be admissible at trial, to be considered with other evidence on the same issues, if any, as may be admitted before the finder of fact. All other property seized in execution of a search warrant or otherwise coming into the hands of the police shall be returned to the owner of the property, or shall be disposed of as the court or justice orders, which may include forfeiture and either sale or destruction as the public interest requires, in the discretion of the court or justice, and in accordance with due process of law. Any property, the forfeiture and disposition of which is specified in any general or special law, shall be disposed of in accordance therewith.
II.(a) Upon the acquittal of or dismissal of criminal proceedings against a person charged with a crime or upon the disposal of criminal proceedings against a person by nolle prosequi or upon a finding that no abuse has occurred in a proceeding against a person under RSA 173-B, any personal property owned by such person, including weapons, seized by a law enforcement agency or entity under this section shall be returned to the person by the law enforcement agency or entity that seized the personal property in the following manner:
(1) If the person resides in the jurisdiction of the law enforcement agency or entity, within 21 days of the date of the acquittal or dismissal or nolle prosequi or determination of no finding, the law enforcement agency or entity shall deliver the property to the person's residence.
(2) If after 3 documented delivery attempts the law enforcement agency or entity has been unable to deliver the property, it shall provide prompt written notice to the owner that the property is available for return during normal business hours and shall make the property available for return.
(3) If the person does not reside in the jurisdiction of the law enforcement agency or entity, within 10 days of the date of the acquittal or dismissal or nolle prosequi or determination of no finding, the law enforcement agency or entity shall provide written notice to the owner that the property is available for return and shall make the property available for return.
(b) This section shall not apply to illegal contraband or to personal property that a person is prohibited from possessing under state or federal law.
(c) If an agency or entity is unable to comply with this section, it may file a request with the court for an extension or exemption.
(d) Any agency or entity not complying with this paragraph shall pay a civil penalty of $100 per day to the person for each day the agency or entity is in noncompliance, not to exceed a total civil penalty of $10,000.
2 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2146
12/08/11
HB 1523-FN-LOCAL - FISCAL NOTE
AN ACT relative to the return of personal property seized by law enforcement agencies from a person charged with a crime.
FISCAL IMPACT:
The Judicial Branch, Department of Safety, and New Hampshire Association of Counties state this bill may increase state, county and local expenditures, and state revenue by an indeterminable amount in FY 2013 and each year thereafter. There is no fiscal impact on county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill adds RSA 595-A:6, II to provide for the return of personal property to an individual who has been acquitted of criminal proceedings or when criminal proceedings against a person have been dismissed or disposed of by nol prosequi and also covers personal property seized in proceeding under RSA 173-B upon a finding that no abuse occurred. Law enforcement agencies are responsible for returning the property but may seek from the court an extension of time or exemption from the obligation to return the property. As a result the court may have further hearings regarding the return of the property which could increase expenditures. In addition, RSA 595-A:6, II (d) could result in new civil actions for civil penalties, which is most similar to a violation level offense. The Branch has no information on how many civil penalty actions would be prosecuted but is able to provide that the cost of a violation level offense will be $41.92 in FY 2013, and $43.20 in FY 2014 and each year thereafter based on case weight information from the last needs assessment completed in 2005. The possibility of appeals increases the likelihood the fiscal impact on the Branch will exceed $10,000.
The Department of Safety states property and evidence seized by the state police is returned or disposed of routinely at the conclusion of a criminal proceeding or prosecution. The return of property occurs during normal business hours. The Department assumes county and local law enforcement operate in a similar manner. The Department states additional staff time may be incurred to comply with the 21 day requirement, however, the Department is not able to predict the increase in time. Failure to return the personal property within the established time period may result in a fine of $100 for each day of noncompliance with the law. The Department cannot determine how many instances of noncompliance will occur or what the duration of those instances might be to determine the fiscal impact. The Department assumes this bill will result in an indeterminable increase in state, county and local expenditures.
The New Hampshire Municipal Association states to the extent municipal law enforcement entities are out of compliance or unable to comply, costs may be significant. The Association cannot determine how many instances of noncompliance will occur or what the duration of those instances might be to determine the fiscal impact.