How Long Can Seized Property Be Kept for a Criminal Investigation?
Full Question:
Answer:
There is no definite time period. A claimant of seized property has the burden of showing that it is not contraband and is not needed as evidence in a possible retrial. Due process does not require states to give detailed instructions to owners who seek the return of lawfully seized property no longer needed in a police interrogation or criminal proceeding. West Covina v.Perkins, 525 U.S. 234, 142 L.Ed.2d 636 (1999).
The property owner has the burden of moving for the return of the property.
Please see the following WI statutes:
968.19 Custody of property seized.
Property seized under a search warrant or validly seized without a
warrant shall be safely kept by the officer, who may leave it in the
custody of the sheriff and take a receipt therefor, so long as necessary for the purpose of being produced as evidence on any trial.
968.20 Return of property seized.
**Update Notice: This section has been amended by 2009 WISCONSIN ACT 258
(1) Any person claiming the right to possession of property seized
pursuant to a search warrant or seized without a search warrant may apply
for its return to the circuit court for the county in which the property
was seized or where the search warrant was returned. The court shall order
such notice as it deems adequate to be given the district attorney and all
persons who have or may have an interest in the property and shall hold a
hearing to hear all claims to its true ownership. If the right to
possession is proved to the court's satisfaction, it shall order the
property, other than contraband or property covered under sub. (1m) or (1r)
or s. 173.12, 173.21 (4), or 968.205, returned if:
(a) The property is not needed as evidence or, if needed, satisfactory
arrangements can be made for its return for subsequent use as evidence; or
(b) All proceedings in which it might be required have been completed.
(1m)(a) In this subsection:
1. "Crime" includes an act committed by a juvenile or by an adult who is
adjudicated incompetent that would have been a crime if the act had been
committed by a competent adult.
2. "Dangerous weapon" has the meaning given in s. 939.22 (10).
(b) If the seized property is a dangerous weapon or ammunition, the
property shall not be returned to any person who committed a crime
involving the use of the dangerous weapon or the ammunition. The property
may be returned to the rightful owner under this section if the owner had
no prior knowledge of and gave no consent to the commission of the crime.
Property which may not be returned to an owner under this subsection shall
be disposed of under subs. (3) and (4).
(1r) If the seized property is a firearm seized under s. 51.20 (13)(cv),
the court that issued that order shall order the firearm returned if the
prohibition under s. 51.20 (13)(cv) 1. has been canceled under s. 51.20
(13)(cv) 2. or (16)(gm).
(2) Property not required for evidence or use in further investigation,
unless contraband or property covered under sub. (1m) or (1r) or s. 173.12
or 968.205, may be returned by the officer to the person from whom it was
seized without the requirement of a hearing.
(3)(a) First class cities shall dispose of dangerous weapons or
ammunition seized 12 months after taking possession of them if the
owner, authorized under sub. (1m), has not requested their return and if
the dangerous weapon or ammunition is not required for evidence or use in
further investigation and has not been disposed of pursuant to a court
order at the completion of a criminal action or proceeding. Disposition
procedures shall be established by ordinance or resolution and may include
provisions authorizing an attempt to return to the rightful owner any
dangerous weapons or ammunition which appear to be stolen or are reported
stolen. If enacted, any such provision shall include a presumption that
if the dangerous weapons or ammunition appear to be or are reported
stolen an attempt will be made to return the dangerous weapons or
ammunition to the authorized rightful owner. If the return of a seized
dangerous weapon other than a firearm is not requested by its rightful
owner under sub. (1) and is not returned by the officer under sub. (2),
the city shall safely dispose of the dangerous weapon or, if the
dangerous weapon is a motor vehicle, as defined in s. 340.01 (35), sell
the motor vehicle following the procedure under s. 973.075 (4) or
authorize a law enforcement agency to retain and use the motor vehicle.
If the return of a seized firearm or ammunition is not requested by its
authorized rightful owner under sub. (1) and is not returned by the
officer under sub. (2), the seized firearm or ammunition shall be shipped
to and become property of the state crime laboratories. A person
designated by the department of justice may destroy any material for
which the laboratory has no use or arrange for the exchange of material
with other public agencies. In lieu of destruction, shoulder weapons for
which the laboratories have no use shall be turned over to the department
of natural resources for sale and distribution of proceeds under s. 29.934
or for use under s. 29.938.
(b) Except as provided in par. (a) or sub. (1m) or (4), a city, village,
town or county or other custodian of a seized dangerous weapon or
ammunition, if the dangerous weapon or ammunition is not required for
evidence or use in further investigation and has not been disposed of
pursuant to a court order at the completion of a criminal action or
proceeding, shall make reasonable efforts to notify all persons who have or
may have an authorized rightful interest in the dangerous weapon or
ammunition of the application requirements under sub. (1). If, within 30
days after the notice, an application under sub. (1) is not made and the
seized dangerous weapon or ammunition is not returned by the officer under
sub. (2), the city, village, town or county or other custodian may retain
the dangerous weapon or ammunition and authorize its use by a law
enforcement agency, except that a dangerous weapon used in the commission
of a homicide or a handgun, as defined in s. 175.35 (1)(b), may not be
retained. If a dangerous weapon other than a firearm is not so retained,
the city, village, town or county or other custodian shall safely dispose
of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as
defined in s. 340.01 (35), sell the motor vehicle following the procedure
under s. 973.075 (4). If a firearm or ammunition is not so retained, the
city, village, town or county or other custodian shall ship it to the state
crime laboratories and it is then the property of the laboratories. A
person designated by the department of justice may destroy any material for
which the laboratories have no use or arrange for the exchange of material
with other public agencies. In lieu of destruction, shoulder weapons for
which the laboratory has no use shall be turned over to the department of
natural resources for sale and distribution of proceeds under s. 29.934 or
for use under s. 29.938.
(4) Any property seized, other than property covered under s. 968.205,
that poses a danger to life or other property in storage, transportation or
use and that is not required for evidence or further investigation shall be
safely disposed of upon command of the person in whose custody they are
committed. The city, village, town or county shall by ordinance or
resolution establish disposal procedures. Procedures may include provisions
authorizing an attempt to return to the rightful owner substances which
have a commercial value in normal business usage and do not pose an
immediate threat to life or property. If enacted, any such provision shall
include a presumption that if the substance appears to be or is reported
stolen an attempt will be made to return the substance to the rightful
owner.
961.55 Forfeitures.
(1) The following are subject to forfeiture:
(a) All controlled substances or controlled substance analogs which have
been manufactured, delivered, distributed, dispensed or acquired in
violation of this chapter.
(b) All raw materials, products and equipment of any kind which are used,
or intended for use, in manufacturing, compounding, processing, delivering,
distributing, importing or exporting any controlled substance or controlled
substance analog in violation of this chapter.
(c) All property which is used, or intended for use, as a container for
property described in pars. (a) and (b).
(d) All vehicles which are used, or intended for use, to transport, or in
any manner to facilitate the transportation, for the purpose of sale or
receipt of property described in pars. (a) and (b) or for the purpose of
transporting any property or weapon used or to be used or received in the
commission of any felony under this chapter, but:
1. No vehicle used by any person as a common carrier in the transaction
of business as a common carrier is subject to forfeiture under this
section unless it appears that the owner or other person in charge of the
vehicle is a consenting party or privy to a violation of this chapter;
2. No vehicle is subject to forfeiture under this section by reason of
any act or omission established by the owner thereof to have been committed
or omitted without the owner's knowledge or consent. This subdivision does
not apply to any vehicle owned by a person who is under 16 years of age on
the date that the vehicle is used, or is intended for use, in the manner
described under par. (d)(intro.), unless the court determines that the
owner is an innocent bona fide owner;
3. A vehicle is not subject to forfeiture for a violation of s. 961.41
(3g)(b) to (g); and
4. If forfeiture of a vehicle encumbered by a bona fide perfected
security interest occurs, the holder of the security interest shall be paid
from the proceeds of the forfeiture if the security interest was perfected
prior to the date of the commission of the felony which forms the basis for
the forfeiture and he or she neither had knowledge of nor consented to the
act or omission.
(e) All books, records, and research products and materials, including
formulas, microfilm, tapes and data, which are used, or intended for use,
in violation of this chapter.
(f) All property, real or personal, including money, directly or
indirectly derived from or realized through the commission of any crime
under this chapter.
(g) Any drug paraphernalia, as defined in s. 961.571, used in violation
of this chapter.
(2) Property subject to forfeiture under this chapter may be seized by
any officer or employee designated in s. 961.51 (1) or (2) or a law
enforcement officer upon process issued by any court of record having
jurisdiction over the property. Seizure without process may be made if:
(a) The seizure is incident to an arrest or a search under a search
warrant or an inspection under an administrative inspection warrant;
(b) The property subject to seizure has been the subject of a prior
judgment in favor of the state in a criminal injunction or forfeiture
proceeding based upon this chapter;
(c) The officer or employee or a law enforcement officer has probable
cause to believe that the property is directly or indirectly dangerous to
health or safety; or
(d) The officer or employee or a law enforcement officer has probable
cause to believe that the property was used or is intended to be used in
violation of this chapter, that the property was derived from or realized
through a crime under this chapter or that the property is a vehicle which
was used as described in sub. (1)(d).
(3) In the event of seizure under sub. (2), proceedings under sub. (4)
shall be instituted promptly. All dispositions and forfeitures under this
section and ss. 961.555 and 961.56 shall be made with due provision for
the rights of innocent persons under sub. (1)(d) 1., 2. and 4. Any
property seized but not forfeited shall be returned to its rightful
owner. Any person claiming the right to possession of property seized may
apply for its return to the circuit court for the county in which the
property was seized. The court shall order such notice as it deems
adequate to be given the district attorney and all persons who have or
may have an interest in the property and shall hold a hearing to hear all
claims to its true ownership. If the right to possession is proved to the
court's satisfaction, it shall order the property returned if:
(a) The property is not needed as evidence or, if needed, satisfactory
arrangements can be made for its return for subsequent use as evidence; or
(b) All proceedings in which it might be required have been completed.
(4) Property taken or detained under this section shall not be subject to
replevin, but is deemed to be in the custody of the sheriff of the county
in which the seizure was made subject only to the orders and decrees of the
court having jurisdiction over the forfeiture proceedings. When property is
seized under this chapter, the person seizing the property may:
(a) Place the property under seal;
(b) Remove the property to a place designated by it; or
(c) Require the sheriff of the county in which the seizure was made to
take custody of the property and remove it to an appropriate location for
disposition in accordance with law.
(5) When property is forfeited under this chapter, the agency whose
officer or employee seized the property shall do one of the following:
(a) Retain it for official use.
(b) Sell that which is not required to be destroyed by law and which is
not harmful to the public. The agency may use 50 percent of the amount
received for payment of forfeiture expenses. The remainder shall be
deposited in the school fund as proceeds of the forfeiture. In this
paragraph, "forfeiture expenses" include all proper expenses of the
proceedings for forfeiture and sale, including expenses of seizure,
maintenance of custody, advertising, and court costs and the costs of
investigation and prosecution reasonably incurred.
(c) Require the sheriff of the county in which the property was seized to
take custody of the property and remove it for disposition in accordance
with law.
(d) Forward it to the bureau for disposition.
(e) If the property forfeited is money, retain the sum of all of the
following for payment of forfeiture expenses, as defined in par. (b), and
deposit the remainder in the school fund:
1. If the amount of money does not exceed $2,000, 70 percent of that
amount.
2. Fifty percent of any amount seized in excess of $2,000.
(6) Controlled substances included in schedule I and controlled substance
analogs of controlled substances included in schedule I that are possessed,
transferred, sold, offered for sale or attempted to be possessed in
violation of this chapter are contraband and shall be seized and summarily
forfeited to the state. Controlled substances included in schedule I and
controlled substance analogs of controlled substances included in schedule
I that are seized or come into the possession of the state, the owners of
which are unknown, are contraband and shall be summarily forfeited to the
state.
(6m) Flunitrazepam or ketamine that is possessed, transferred, sold,
offered for sale or attempted to be possessed in violation of this
chapter is contraband and shall be seized and summarily forfeited to the
state. Flunitrazepam or ketamine that is seized or comes into the
possession of the state, the owner of which is unknown, is contraband and
shall be summarily forfeited to the state.
(7) Species of plants from which controlled substances in schedules I and
II may be derived which have been planted or cultivated in violation of
this chapter, or of which the owners or cultivators are unknown, or which
are wild growths, may be seized and summarily forfeited to the state.
(8) The failure, upon demand by any officer or employee designated in s.
961.51 (1) or (2), of the person in occupancy or in control of land or
premises upon which the species of plants are growing or being stored, to
produce an appropriate federal registration, or proof that the person is
the holder thereof, constitutes authority for the seizure and forfeiture of
the plants.
