229.2Disposition & Disposal of Evidence
- Certain types of evidence (such as deadly weapons, alcohol, and biological evidence) must be disposed of in accordance with specific statutory procedures and time limits.
- Most other items collected during the course of an investigation or offered into evidence at trial can be disposed of pursuant to G.S. 15-11.1(b), using a standard court order.
- In situations where no statute directly covers disposal of the item, the best option is to obtain a court order anyway, based on the inherent authority of the judge to provide for the ‘orderly administration of justice.’
Disposition of Seized Property in General
- Before Trial
G.S. 15-11 requires sheriff’s offices and police departments to maintain a record of all articles of personal property seized, confiscated, or coming into their possession during the discharge of their duties. Under G.S. 15-11.1(a), a law enforcement officer who lawfully seizes property must keep the property under the direction of the court to assure it can be produced and used as evidence at trial. The owner or person entitled to lawful possession may apply to the district attorney for return of the property. In response to the application, or on the district attorney’s own determination, the district attorney may release the property if it is no longer useful or necessary as evidence and there is satisfactory evidence of ownership or lawful possession. If the district attorney refuses to release the property, the owner or possessor may apply to a court for return of the property under conditions set out in G.S. 15-11.1(a). Photographs or other identification or analyses made of the property may be introduced at trial if the court determines that the introduction of substitute evidence is not likely to substantially prejudice a defendant’s rights.
G.S. 15-11.1(b) sets out the procedures for how unknown, un-apprehended, or willfully absent defendants may be represented by counsel to protect their interest in seized property. The statute provides that the judicial findings concerning identification or value of the property made at the hearing that results in a return of the property to the lawful owner or possessor are admissible into evidence at trial (assuming the defendant’s confrontation rights are not violated by doing so).
- After Conviction
G.S. 15-11.1(b) provides that "after final judgment all property lawfully seized by or otherwise coming into the possession of law-enforcement authorities shall be disposed of as the court or magistrate in its discretion orders, and may be forfeited and either sold or destroyed in accordance with due process of law." See also AOC-G-152 (Order for Disposition of Physical Evidence). This provision gives the court broad authority to dispose of property at the end of a criminal proceeding in any appropriate and lawful manner, unless there is another specific statute governing the disposition of that particular type of property (see examples below). See G.S. 15-11.1(c) (“Any property, the forfeiture and disposition of which is specified in any general or special law, shall be disposed of in accordance therewith”) and G.S. 15-17 (“This Article shall not be construed to apply to the seizure and disposition of whiskey distilleries, game birds, and other property or articles which have been or may be seized, where the existing law now provides the method, manner, and extent of the disposition of such articles or of the proceeds derived from the sale thereof.”).
3. After Acquittal, or Where Property is Not Contraband
There appear to be constitutional limits on a court’s authority to order the forfeiture or destruction of a defendant’s property when the defendant has been found not guilty, or was only convicted of an offense for which the property is merely evidence (as opposed to contraband) and the defendant is otherwise lawfully entitled to possess that property. See, e.g., United States v. Brown, 754 F. Supp. 2d 311 (D.N.H. 2010) (ordering the destruction of firearms “would seem to raise serious Takings Clause issues” because guns “remain valuable tangible personal property belonging to the convicted felon” and the government may not “simply confiscate and destroy such valuable property without first affording due process and payment of just compensation”). In such circumstances, the defendant may be entitled to get the property back or designate another lawful possessor to reclaim it.
For example, if the defendant’s personal cell phone was only used as evidence in the case for purposes of proving his location at the time of the robbery, and there is no further need to keep the phone once the trial is over, the phone should be returned to the defendant or his designee. See United States v. Jones, 42 F.Supp.2d 615 (W.D.N.C. 1999) (property should be returned to defendant “if the government no longer needs the seized property as evidence, the property is not subject to forfeiture, and the defendant is entitled to lawful possession of the property.”); see also State v. Thompson, 56 N.C. App. 439 (1982) (no error where superior court denied defendant’s motion to order return of money seized from him pursuant to search warrant, but ordered that the money had to be returned if state did not file indictments charging defendant with a related crime within a set period of time).
Firearms and Other Deadly Weapons
- Offenses Directly Involving Possession/Use of a Deadly Weapon
Under G.S. 14-269.1, upon a conviction of a violation of G.S. 14-269 (carrying concealed weapons), G.S. 14-269.7 (prohibitions on handguns for minors), or “any other offense involving the use of a deadly weapon of a type referred to in G.S. 14-269” (e.g., assault with a deadly weapon, discharging firearm into occupied dwelling, armed robbery), the judge is required to order the weapon confiscated and disposed of in one of the following ways:
- By returning the weapon to its rightful owner, but only if the owner may lawfully possess it and certain other conditions are met;
- By turning the weapon over to the sheriff of the county for destruction, but only if it does not have a unique, legible serial number, or if it is unsafe to use due to age, wear, damage, or modification;
- By turning over the weapon to a law enforcement agency in the county of trial for official use by the agency or for sale to a federally licensed firearm dealer (with proceeds to be remitted to the county schools), but only upon written request by the head of the law enforcement agency and only if the weapon has a legible, unique identification number;
- By turning the weapon over to the North Carolina State Crime Laboratory’s weapons reference library; or
- By turning the weapon over to the North Carolina Justice Academy for official use by the academy.
Before seeking a disposition which will order a firearm turned over to the North Carolina State Crime Laboratory or the North Carolina Justice Academy, prosecutors should first contact the agency and find out if they have a need or use for this particular firearm – in many cases, they will not.
For any offenses involving a conviction under these statutes, AOC-CR-218 (Side Two) (Petition and Order Disposing of Deadly Weapon Upon Conviction) should be used to obtain a court order for the disposition of a deadly weapon (local rules may modify the application of G.S. 14-269.1 in certain counties).
- Other Firearms:
In most other cases involving firearms, G.S. 15-11.1(b1) will apply. This statute provides that if the property seized is a firearm and the district attorney determines that the firearm is no longer necessary or useful as evidence at trial, then the district attorney (after giving notice to any parties with a ownership or possessory interest in the firearm, including the defendant) must apply to the court for an order of disposition of the firearm. See AOC-CR-218 (Side One) (Petition and Order Disposing of Firearm Upon Prosecutor’s Petition). The court may order the firearm disposed of in one of the following ways:
- By returning the weapon to its rightful owner, but only if the owner may lawfully possess it and certain other conditions are met;
- By ordering the firearm returned to the defendant, but only if the defendant is the rightful owner, not otherwise ineligible to possess it, and was not convicted any offense in connection with the possession or use of the firearm;
- By turning the weapon over to the sheriff of the county for destruction, but only if it does not have a unique, legible serial number or if it is unsafe for use due to age, wear, damage, or modification; or
- By turning over the weapon to a law enforcement agency in the county of trial for official use by the agency or for sale to a federally licensed firearm dealer (with proceeds to be remitted to the county schools), but only upon written request by the head of the law enforcement agency and only if the weapon has a legible, unique identification number.
G.S. 15-11.2 also provides a procedure for the disposition of a firearm found or received by a law enforcement agency that remains unclaimed and was not confiscated or seized as trial evidence (for example, a firearm found abandoned in the street). The statute directs publication of notice, disposal of the firearm by destruction, sale, or use for training purposes, and retention of the proceeds of any sale by the law enforcement agency which sold it.
- Wildlife/Hunting Offenses:
For offenses involving firearms under G.S. Chapter 113, Article 22 (Regulation of Wildlife), or of any local wildlife hunting ordinance, the procedure for disposition is found in G.S. 113-137.
- Under G.S. 113-137(e), “upon a conviction the property seized in connection with the offense in question is subject to the disposition ordered by the court.” There is no pre-printed AOC form for disposition of a weapon (or proceeds from its sale).
- Upon acquittal (or dismissal), the weapon must be returned to the defendant or established owner, unless possession of the weapon by that person would be a crime, or unless the weapon has been sold pursuant to the statute—in which case the net proceeds of the sale are returned to the person who otherwise would be entitled to return of the weapon. See G.S. 113-137(e)(1)-(3).
Notwithstanding any other provision of law, a custodial agency must preserve any physical evidence in its possession that is “reasonably likely to contain any biological evidence collected in the course of a criminal investigation or prosecution.” G.S. 15A-268(a1). “Biological evidence” includes blood, semen, hair, saliva, skin tissue, fingerprints, and other identifiable human biological material, and it includes not only samples stored in test tubes, slides or swabs, but also biological material that is present on other physical items such as clothing, bedding, cups, cigarettes, etc. See G.S. 15A-268(a). The court must designate an exhibit as biological evidence at trial in order for the particular requirements of G.S. 15A-268 to apply to the exhibit. Pursuant to G.S. 15A-268, when a defendant is convicted of certain types of offenses, the state is required to retain and preserve that biological evidence for the following periods:
- For a conviction resulting in a sentence of death -- until execution, per G.S. 15A-268(a6)(1);
- For a conviction resulting in a sentence of life without parole -- until the death of the convicted person, per G.S. 15A-268(a6)(2);
- For a conviction of any homicide, sex offense, assault, kidnapping, burglary, robbery, arson or burning, for which a Class B1-E felony punishment is imposed –- the evidence must be preserved during the period of incarceration and mandatory supervised release, including sex offender registration pursuant to Article 27A of Chapter 14 of the General Statutes, except in cases when the person convicted entered and was convicted on a plea of guilty, in which case the evidence must be preserved for the earlier of three years from the date of conviction or until the defendant’s release, per G.S. 15A-268(a6)(3); and
- Biological evidence collected as part of a criminal investigation of any homicide or rape, in which no charges are filed, must be preserved for the period of time that the crime remains unsolved, per G.S. 15A-268(a6)(4).
What about a blood sample in a DWI case?
No, the collecting agency does not have to follow the more rigorous retention and disposal procedures for blood samples taken in a routine DWI case, because G.S. 15A-268(a6)(5) specifies that if the biological evidence is not related to one of the four categories of offenses listed above, the agency "may dispose of the evidence in accordance with the rules of the agency," just as it would for any other evidence that is no longer needed in the case. Additionally, G.S. 20-139.1(h) specifically authorizes the destruction of blood or urine samples in DWI cases by the analyzing agency 12 months after the case is either filed or concluded (including any appeal), whichever is later, without further notice to any party, unless a motion to preserve evidence has been filed.
The statute governing preservation of biological evidence specifies that “[u]pon conclusion of the clerk's role as custodian, as provided in the applicable rules of practice” (which means Rule 14), the clerk “shall return such evidence to the collecting agency . . . in a manner that ensures the chain of custody is maintained and documented.” G.S. 15A-268(a4). This provision effectively means that biological evidence is governed by Rule 14, with the exception that evidence designated by the court as biological must be returned to the collecting agency (i.e., the SBI), not to the offering party (i.e., the prosecutor).
If the collecting agency fails to remove biological evidence from the clerk’s custody after the clerk’s notice under Rule 14, the clerk should petition the court to order disposition of the evidence pursuant to the procedure prescribed in G.S. 15A-268(b). AOC forms available to use with this procedure include: AOC-G-153 (Notice of Intent to Dispose of Biological Evidence and Request for Preservation) and AOC-G-154 (Petition and Order for Disposition of Biological Evidence).
A law enforcement agency may also utilize G.S. 15A-268(b) to dispose of evidence before the expiration of the preservation periods described above. This procedure requires the involvement of the district attorney, the defendant, and the defendant’s attorney. This situation may arise, for example, when property such as a seized vehicle contained biological evidence, but the vehicle has been fully processed and now the state wants to return it to the victim or another innocent third party.
After the criminal charge relating to seized alcoholic beverages has been resolved, the judge may order disposition of the alcohol in any of the following ways, depending on the outcome of the case:
If the owner is found guilty, the judge may order the alcohol to be sold or destroyed. G.S. 18B-503(c)(1).
- Not Guilty
If the owner is found not guilty, or if charges are dismissed or resolved in the owner’s favor, the judge must order the alcohol returned except if possession by the owner would be unlawful. In that case, the judge is to order the alcohol sold or destroyed. G.S. 18B-503(c)(2), (3).
If the ownership is unresolved after disposition of the criminal charges, the judge may order the alcohol held, or order the alcohol sold and the proceeds held, until ownership is determined. G.S. 18B-503(c)(4).
Form AOC-CR-920 (Disposition Order, Seized Alcoholic Beverages Only) contains a court order for the disposition of an alcoholic beverage under G.S. 18B-503. Form AOC-CR-921M (Forfeiture Order—Property Other Than Alcoholic Beverage, ABC Violation) contains a court order for the disposition of containers, money, and other items used in an ABC violation). Finally, for any alcohol offered into evidence at trial, the clerk should follow Rule 14 for its disposition, unless an order is entered as described above while the alcohol remains in the clerk’s custody.
Controlled substances and associated property such as money used in committing the offense, equipment for making drugs, etc., are all subject to forfeiture pursuant to G.S. 90-112. For a more detailed discussion of the forfeiture procedure, see the related entry on Forfeiture of Property: Drug Offenses. For the disposition of controlled substances offered into evidence, the clerk should follow Rule 14 for disposition, unless an order of disposition is entered while the controlled substance remains in the clerk’s custody. A disposition/destruction order is almost always entered by the trial court in controlled substance offenses.
Other Statutes Relevant to Custody or Disposition of Property
- Property Seized by Search Warrant
G.S. 15A-258 provides that property must be held in the custody of the person who applied for the search warrant, the officer who executed it, the officer’s agency, or any other law enforcement agency or person to evaluate or analyze it, on condition that on order of the court the property may be retained by the court or delivered to another court.
- Property Seized by Marine Fisheries or Wildlife Officers
Under G.S. 113-137, a marine fisheries or wildlife officer must safeguard seized property pending trial. However, various subsections allow for disposition before trial of live or perishable fish or wildlife (subsection (d)), or perishable or seasonal fish (subsection (g)). Subsection (d) allows a defendant or other owner of the property to apply to the court for return of seized property pending trial. Subsection (e) provides for disposition of property if the defendant is acquitted and subsection (i) if the defendant is convicted.
Authority to Dispose of Evidence When No Specific Statute Governs?
It is sometimes unclear whether a law enforcement agency or other entity can destroy old evidence without a court order when there is no specific statutory method to guide disposal, no identifiable owner or possessor, no need to preserve it any longer for any legal proceeding, etc. It is always preferable to obtain a court order to assure that destruction has a court’s authorization, if possible, but G.S. 15-11.1(b) and the other statutes above may not always give the court clear and explicit authority to dispose of every item connected to a criminal case.
Even without a particular statute, the court should still be willing to act on its inherent authority to fashion an appropriate disposition after the court considers the final judgment in the criminal case, hears from all interested parties, and orders a disposition that comports with due process and is supported by appropriate findings of fact. See generally Beard v. NC State Bar, 320 N.C. 126 (1987) (court has inherent power “to do all things that are reasonably necessary for the proper administration of justice”); Shute v. Fisher, 270 N.C. 247 (1967) (“when there is no statutory provision or well recognized rule applicable, the presiding judge is empowered to exercise his discretion in the interest of efficiency, practicality, and justice”); see also Michael Crowell, "Inherent Authority," N.C. Superior Court Judges' Benchbook, Jan. 2015 (explaining source, purpose, and scope of court's inherent authority). Nevertheless, in some cases the court may be unwilling to sign an order for disposal on the grounds that it has no specific, statutory authority do so. Under those circumstances, destruction without a court order appears to be unavoidable as the only practical solution.
Finally, may the state seek such a destruction/disposition order ex parte? Again, in situations where there is no statutory method to guide disposal, no identifiable (or likely identifiable) owner or possessor, and no need to preserve it for any legal proceeding, an ex parte proceeding should be permissible.
Using seized money to pay costs or fees?
Another question that comes up periodically in practice is whether money seized from a defendant can be put towards the defendant’s financial obligations, particularly restitution? There are no North Carolina cases directly addressing this issue, but several out-of-state cases have approved of the practice. See, e.g., United States v. Mills, 991 F.2d 609 (9th Cir. 1993) (money seized from the defendant that could not be traced directly to his crime was properly ordered applied towards restitution: "a valid restitution order…gives the government a sufficient cognizable claim of ownership to defeat a defendant's… motion for return of property, if that property is needed to satisfy the terms of the restitution order"); Lavin v. United States, 299 F.3d 123 (2d Cir. 2002) (similar to Mills, citing it, and collecting cases); Jackson v. State, 2000 WL 422361 (Alaska Ct. App. April 19, 2000) (unpublished) (cash seized from the defendant's home pursuant to a search warrant but not subject to forfeiture was properly ordered applied to his fine because "property seized pursuant to a warrant falls under the control of the court" and because "the court had the authority to enforce the payment of the fine").