Probation Department Policy/Procedure Manual
5.7 Release of Destruction of Evidence
| Location |
Support Services-Evidence |
| Section |
|
| Subject |
5.7 Release of Destruction of Evidence |
| Purpose |
Authorization for Release/Destruction of Evidence |
| Effective Date |
8/26/2019 |
| Previous Effective Date |
10/31/2022 |
Type of Authorization for Release/Destruction of Evidence
Property/evidence personnel may receive notification and authorization for release or destruction in any of the following ways:
• The district attorney’s office forwards a case disposition to close/suspend/reject a case or return property.
• The court sends disposition on completed cases.
• The property owner inquiries about the disposition of his/her property.
• The investigating officer authorizes release/disposal by making a note to that effect on the appropriate property form.
• A court order is received ordering release of the property.
• The property, or an accumulation of property, poses a storage problem/hazard and disposal is ordered by the agency head.
• Department policy allows for property personnel to purge old items according to the statute of limitations in the Penal Code.
Sound internal controls should always include the investigating officer’s input into the final determination to the disposition of the property/ evidence.
Appeals Period – Adjudicated Cases
Generally, evidence may not be released or disposed of prior to the adjudication of the case and the expiration of the appropriate appeals period following sentencing (30 days following sentencing on misdemeanors and 60 days on felony cases in accordance with 31 and 182 Rules of Court). It is advisable to wait an additional 30 days beyond these dates to verify that no appeal has been initiated.
Statute of Limitations – Open Cases
• Misdemeanor cases ............................................................ 1 year
Exceptions: 647.6 PC and 729 B&P: ................................ 2 years
• Felony cases: – Felony sexual offenses .............................................. 10 years
– Felonies punishable by 8 years or more ...................... 6 years
– 368 PC felonies ............................................................ 5 years
Exceptions: Theft or embezzlement – 803(c) PC felonies ....................................................... 4 years
– All other felonies .......................................................... 3 years
• Cases that involve: – Property from homicide ................................retain indefinitely
– Embezzlement of public funds .....................retain indefinitely
– Falsification of public documents ..................retain indefinitely
Exceptions: If disposal release is ordered by the investigating officer, district attorney, or the court.
Cases Involving Search Warrants
Items taken pursuant to a search warrant must have a court order prior to release or destruction per Section 1536 PC. Be aware this does not preclude the need for waiting the full appeals period, nor for those special cases which may need the evidence to be held for a longer period of time. Anytime a court order is received, the investigating officer should be notified prior to taking action.
Items Entered as Exhibits by the Court
Items held by the court as exhibits need a court order for disposition, destruction, or diversion per Section 1417 PC.
FOUND PROPERTY
Found property‖ is defined as non-evidentiary property which, after coming into the custody of a law enforcement agency, has been determined to be lost or abandoned and is not known or suspected to be connected with any criminal offense. (Refer to sections 2080 – 2080.9 CC.) Maintaining found property and found property paperwork separately from evidence is recommended. This separation helps ensure that found property is stored a minimal length of time. Refer to the individual sections of this chapter for disposition of weapons, narcotics, contraband, and valuables.
Returning to Owner
The law enforcement agency is required to notify the owner (if his/her identity is reasonably ascertainable) that it possesses the property and where it may be claimed. This notification should be made as soon as possible after receipt of the property by the agency. The agency may require payment by the owner of a reasonable charge to defray the costs of storage and care of the property. If the owner appears within 90 days after receipt of the property by the agency, proves his ownership of the property, and pays all reasonable charges, the agency will return the property. (Refer to Section 2080.2 CC.)
Returning to Finder
If the property is valued at $250 or more and the owner does not claim it, the law enforcement agency shall cause notice of the property to be published at least once in a newspaper of local general circulation. If after 7 days, the owner fails to claim the property and the person who found or saved the property pays the costs of publication, the title shall vest in the person who found the property. (Refer to Section 2080.3 CC.) The agency may also require the finder to pay the storage fees. If the found property is valued at less than $250 and no owner appears to claim the property within 90 days, the title shall vest in the person who found or saved the property without the requirement of published notification. (Exception: If the property was found by a public employee in the course of their employment, the employee will have no claim to the property and the said property will be sold at public auction, lawfully diverted to agency use, or destroyed.)
Adoption of Local Regulations
Any public agency may elect to be governed by the provisions of Section 2080 CC with respect to disposition of personal property found or saved on property subject to its jurisdiction, or may adopt reasonable regulations for the care, restitution, sale, or destruction of unclaimed property in its possession. The agency shall provide that such property will be held for a period of at least three months, that thereafter such property will be sold at public auction to the highest bidder, and that notice of the sale will be published at least five days prior to sale in a local newspaper of general circulation published in the county in which such property was found. (Refer to Section 2080.6 CC.) • With the concurrence of the city attorney or county counsel, agencies may want to consider not returning found weapons/ firearms to the finder. They may want to declare the weapons/ firearms a nuisance and destroy them. • Agencies may want to adopt local legislation to allow the disposal of perishable foods and liquor at the time of intake due to health risks.
Abandoned Property
There is no application of sections 2080-2080.6 CC to items that have been intentionally abandoned by their owners. (Refer to Section 2080.7 CC.)
Any currency with specific evidentiary value (e.g., contains trace evidence) should be retained.
MONEY & VALUABLES
Money
A recommended method of managing currency is to set up a special account where received money can be automatically deposited. If the funds are not claimed, a simple transfer from the ―holding‖ account to the general fund can be performed. If the funds are claimed by the owner, a check can be requested. Unclaimed money that has been kept in the property/evidence room should be deposited to the general fund as soon as possible.
Valuables
When items of value such as jewelry, precious metals, stamps, and coins are not claimed by the owner, they should be auctioned. For agencies contracting with an auction company, the auction company can appraise the value of the items. Agencies conducting their own auctions should use a professional appraiser (e.g., coin dealer, jeweler, etc.) to determine the value.
PROPERTY FOR DESTRUCTION
Property for destruction‖ is defined as items turned over voluntarily to the department in order to be destroyed.
Suggested Methods of Destruction
• Property of little or no value can be disposed of in an appropriate dumpster.
• Papers of a sensitive nature should be shredded by property/ evidence personnel.
• Alcoholic beverages should be poured down the drain before disposal of the container.
• Ammunition can be disposed of by a:
– Range master – Bomb squad – Military facility – Local range – Private disposal service
• Controlled substances and narcotics paraphernalia: Refer to the Controlled Substances & Paraphernalia section of this chapter. (*** see below)
• Hazardous materials: Refer to the Biohazardous Materials section of this chapter.
• Firearms: Refer to the Weapons section of this chapter.
• Knives can be smelted or shredded along with firearms to be destroyed.
• Fireworks should be turned over to the fire department or bomb squad for disposal.
• Computer hard drives can be destroyed by burning or smashing. Computer components can be considered hazardous waste because of the chemicals used to manufacture the circuit boards.
PROPERTY FOR SAFEKEEPING
Property for safekeeping‖ is defined as personal property that has no evidentiary value which is being held by a public agency for the purpose of temporary storage. (Refer to Section 2080.10 CC.)
Agency Responsibilities
When an agency takes property from an individual for safekeeping, the agency takes responsibility for the storage, documentation, and disposition of the property. The agency must provide a receipt to the owner with instructions on how to retrieve their property. The receipt and instruction shall either be given to the person from whom the property was taken at the time the public agency obtains the property or be immediately mailed, by first-class mail, to the person from whom the property was taken. (Refer to Appendix B for a Sample Property Receipt.) The receipt and instructions shall notify the person from whom the property was taken/owner that the property must be claimed within 60 days after the public agency obtains possession. If the owner of the property does not respond to the written notification and the property is not claimed within 60 days, the property will be considered abandoned and will be disposed of.
To retrieve the property, the owner may do the following:
• Make an appointment to pick up the property. The person claiming the property must identify him/herself with acceptable identification (e.g., driver’s license, California identification card, passport, military identification card, or booking photo). The identification information should be recorded on the appropriate property form and photocopied.
• Authorize, in writing, another person to retrieve the property.
• Notify the public agency in writing that he/she is unable to retrieve the property because he/she is in custody, and request the agency to hold the property. If a person notifies the agency that he/she is unable to retrieve the property within 60 days, or have an authorized person retrieve the property, the agency may hold the property for not longer than ten additional months. The agency can then dispose of the property according to Section 2080 CC.
***CONTROLLED SUBSTANCES & PARAPHERNALIA
All controlled substances and related instruments, paraphernalia, or objects contaminated by the controlled substances, which were unlawfully used or possessed, and which are in possession of the agency, shall be destroyed by the order of the court. (Refer to sections 11473 and 11473.5 H&S.) The actual destruction may be done by a police or sheriff’s department, the California Highway Patrol, or by the State Department of Justice. (Refer to Section 11474 H&S.) Exception: Per sections 11473 and 11473.5 H&S, law enforcement may request of the court that certain uncontaminated science equipment be relinquished to a school or school district for science classroom education in lieu of destruction. Note: Some agencies temporarily divert narcotics to their K-9 unit for training. Agencies should develop policies and procedures for this process. When the unit has completed the training, the narcotics will be returned to property and evidence and will fall under the same guidelines for destruction. Depending on the courts in the local jurisdiction, orders may or may not have been received to destroy controlled substances on a case-by-case basis as they were adjudicated. Regardless, an order, encompassing all items to be destroyed, shall be presented to the court for each destruction (see Figure 6-2). Many cases are not prosecuted and there may be other found substances as well as paraphernalia. The court order should contain the name of the agency and the property/evidence controller responsible for the destruction. It should list the controlled substances, instruments, or paraphernalia to be destroyed and the case number relating to each. Jurisdictions may differ slightly as to form and content of the order.
Narcotics Obtained by Search Warrant If certain controlled substances and/or paraphernalia were obtained in connection with a search warrant, a separate court order for each case must be obtained for disposal. (Refer to Section 1536 PC.)