Revision: Dec. 11, 2023, 1:20 p.m.
SB 356-FN - AS INTRODUCED
2024 SESSION
24-2818
09/05
SENATE BILL 356-FN
AN ACT relative to the return of property collected in the course of a police investigation.
SPONSORS: Sen. Murphy, Dist 16; Sen. Innis, Dist 7; Sen. Pearl, Dist 17; Sen. Gannon, Dist 23; Rep. Osborne, Rock. 2; Rep. C. McGuire, Merr. 27; Rep. D. McGuire, Merr. 14; Rep. Notter, Hills. 12
COMMITTEE: Judiciary
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ANALYSIS
This bill provides for the automatic return of seized property following certain dispositions of criminal cases, subject to certain exceptions.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2818
09/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to the return of property collected in the course of a police investigation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Search Warrants; Seizure, Custody and Disposition of Articles; Exceptions. Amend RSA 595-A:6 to read as follows:
595-A:6 Seizure, Custody and Disposition of Articles; Exceptions.
I. 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 willfully 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 and except as provided in paragraph II. Any property, the forfeiture and disposition of which is specified in any general or special law, shall be disposed of in accordance therewith.
II. In any criminal case where all charges result in a verdict of not guilty, or where all charges are dismissed by the court or state prior to verdict, the police agency having custody of the property shall return all property not constituting contraband to its rightful owner within 5 days of notification of the verdict or dismissal, unless the state files a motion prior to the 5th day showing cause why the property should not be released.
(a) For purposes of this section, "property" includes, but is not limited to, any firearm seized.
(b) The police shall not return any firearm to any person who is otherwise prohibited by law from possession of the firearm.
(c) If the state objects to the return of the property, the court shall allow the property's owner an opportunity to respond, and shall order the return of the property unless it finds that the interests of justice otherwise require, such as need for a continuing investigation. If the court upholds the state's objection to the return of the property, the court shall set a reasonable time limitation whereby the state must either petition the court to further extend the time to return the property or return the property.
2 Effective Date. This act shall take effect January 1, 2025.
24-2818
12/4/23
SB 356-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to the return of property collected in the course of a police investigation.
FISCAL IMPACT: [ X ] State [ ] County [ X ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None
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Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund
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Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None
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• Does this bill provide sufficient funding to cover estimated expenditures? [X] N/A • Does this bill authorize new positions to implement this bill? [X] No | ||||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
METHODOLOGY:
This bill ??provides for the automatic return of seized property following certain dispositions of criminal cases, subject to certain exceptions.
The New Hampshire Municipal Association indicates this bill would require that in any criminal case where all charges result in a verdict of not guilty, or where all charges are dismissed prior to verdict, the police agency having custody of the property shall return all property not constituting contraband to its rightful owner within 5 days of notification of the verdict or dismissal, unless the State files a motion prior to the 5th day showing cause why the property should not be released. However, the police shall not return any firearm to any person who is otherwise prohibited by law from possession of the firearm. Typically, after the disposition of a case, municipal police departments are not automatically notified of the disposition. The disposition must be communicated to the department by the prosecutor charged with trying the case. In the case of an municipal prosecutor working directly with the department or when a police officer is serving as the prosecutor, departments should be notified by the next day. However, there is no current obligation for the County Attorney’s Office to notify the department within any specific amount of time. Notifications from the County Attorney’s Office to municipal police departments can take a significant amount of time. Once the department receives notification, it must alert the ‘evidence officer’ of the case disposition and the evidence officer must act to dispose of the seized items. If a simple return is not possible, it may require a filing with the court authorizing the department to release all seized items (if such filing is not made at the time of case disposition by the prosecutor). Depending on the department, that can occur the same day (if the court is open) or it may take several weeks or months. It is general practice that only some officers are authorized ‘evidence officers’ in order to preserve the chain of custody and eliminate unfettered access to the evidence storage area.
The Association states this bill would eliminate the need for a further filing with the court, eliminating an administrative burden. The exception for ‘contraband’ would likely cover ‘drugs and paraphernalia’ along with other prohibited items. The exemption for firearms not legally allowed to be possessed by their owner is legally necessary, but departments may not be able to comply with the timeframe. Departments must seek a background check on the legal owner to determine whether or not the owner is currently allowed to possess firearms. That process may take up to 24 hours. In order to meet the timeline, departments would need a process to notify evidence officers the same day as the department is notified of a case disposition and ensure that evidence officers are available for duty at least every other day. This may necessitate training of additional officers as evidence officers or payment of overtime to evidence officers to ensure they are available to comply with the timeframe. The Association notes these additional costs are indeterminable, but would likely outweigh any savings associated with decreased need to seek court orders to dispose of seized evidence.
The Judicial Branch states it is not possible to estimate how this change in law would impact the amount of litigation in the courts.
AGENCIES CONTACTED:
New Hampshire Municipal Association and Judicial Branch