Revision: March 13, 2012, midnight
HB 225-FN – AS AMENDED BY THE SENATE
15Mar2011… 0541h
02/08/12 0576s
2011 SESSION
09/10
HOUSE BILL 225-FN
AN ACT relative to the return of personal property confiscated by law enforcement agencies from a person charged with a crime.
SPONSORS: Rep. Giuda, Merr 7; Rep. Baldasaro, Rock 3; Rep. Jennifer Coffey, Merr 6; Rep. J. Richardson, Merr 8; Rep. McDonnell, Merr 7; Rep. Avard, Hills 20; Rep. Notter, Hills 19; Rep. Panek, Straf 3; Rep. Kreis, Merr 6; Rep. Krasucki, Hills 26; Sen. Barnes, Jr., Dist 17; Sen. Bradley, Dist 3
COMMITTEE: Criminal Justice and Public Safety
This bill requires that personal property confiscated by law enforcement agencies be returned or made available to the owner within 10 days of receipt of written notice of the acquittal or dismissal of proceedings against a person charged with a crime.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
15Mar2011… 0541h
02/08/12 0576s
11-0495
09/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to the return of personal property confiscated 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. 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 nol 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, confiscated by a law enforcement agency or entity under this section shall be returned to the person or made available to the person by the law enforcement agency or entity that confiscated the personal property within 10 days of receipt of written notice that the acquittal or dismissal or nol prosequi or determination of no finding has become a final judgment, not subject to appeal. For purposes of this section, any court rule, statute, or common law allowing for an appeal to be taken after expiration of any appeal period shall not count toward such appeal period. This section shall not apply to illegal contraband or to personal property that a person, is prohibited from possessing under state or federal law. Property held for use as evidence in a case involving a co-defendant may be retained by the law enforcement agency or entity pursuant to law authorizing property owned by a third person to be held for use as evidence in a case involving a person other than the property owner. If after diligent efforts the agency or entity is unable to comply with this section, it may file a request with the court for an extension or exemption. Any agency or entity not complying with this paragraph may be subject to 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
11-0495
Amended 03/13/12
HB 225 FISCAL NOTE
AN ACT relative to the return of personal property confiscated by law enforcement agencies from a person charged with a crime.
FISCAL IMPACT:
The Department of Safety, Judicial Branch and New Hampshire Municipal Association state this bill, as amended by the Senate (Amendment #2012-0576s), may increase state, county and local expenditures by an indeterminable amount in FY 2012 and each year thereafter. There is no fiscal impact on state, county and local revenue.
METHODOLOGY:
The Department of Safety states this bill adds RSA 595-A:6, II to provide for the return or make available personal property to an innocent person within 10 days of receipt of written notice that the acquittal, dismissal, nol prosequi, or determination of no finding has become a final judgment not subject to appeal. The Department states not requiring the law enforcement agency or entity to return confiscated property to the person, and allowing for the property to be made available to the person eliminates the any fiscal impact associated with mandating the property be returned to the person. The fiscal impact of the bill results if an entity fails to return or make available the personal property and is subject to the 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 states to the extent a state, county, or local law enforcement agency or entity is subject to the $100 a day fine not to exceed $10,000, there may be an indeterminable increase in state, county and local expenditures.
The Judicial Branch states the only time it may have personal property is if it is offered as evidence in the course of a criminal case. The Branch estimated this bill will have limited fiscal impact as it relates to establishing procedures to return personal items to defendants who have been acquitted or whose case has been dismissed. The Branch states if a conflict exists with the State’s limited right of appeal in criminal cases pursuant to RSA 606:10, and the court is placed on notice by the State not to return personal property evidence because of an impending appeal, there may be further hearings regarding the return of evidence resulting in a fiscal impact. The Branch is not able to determine how often or to what extent these types of hearings might occur to determine the fiscal impact. The Branch stated this bill as introduced could result in a penalty of $100 a day, not to exceed $10,000, if property is not returned or made available for return. The Branch has no basis to estimate how many such actions might be made or the extent of such actions to determine the fiscal impact.
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.