Section 35-33-5-5 - Disposition of property held as evidence; preservation of evidence of a violent offense that could be subjected to DNA testing; records(a) All items of property seized by any law enforcement agency as a result of an arrest, search warrant, or warrantless search, shall be securely held by the law enforcement agency under the order of the court trying the cause, except as provided in this section.(b) Evidence that consists of property obtained unlawfully from its owner may be returned by the law enforcement agency to the owner before trial, in accordance with IC 35-43-4-4(h).(c) Following the final disposition of the cause at trial level or any other final disposition the following shall be done:(1) Property which may be lawfully possessed shall be returned to its rightful owner, if known. If ownership is unknown, a reasonable attempt shall be made by the law enforcement agency holding the property to ascertain ownership of the property. After ninety (90) days from the time:(A) the rightful owner has been notified to take possession of the property; or(B) a reasonable effort has been made to ascertain ownership of the property; the law enforcement agency holding the property shall, at a convenient time, dispose of this property at a public auction. The proceeds of this property shall be paid into the county general fund.
(2) Except as provided in subsection (e), property, the possession of which is unlawful, shall be destroyed by the law enforcement agency holding it sixty (60) days after final disposition of the cause.(3) A firearm that has been seized from a person who is dangerous (as defined in IC 35-47-14-1) shall be retained, returned, or disposed of in accordance with IC 35-47-14.(d) Except as provided in subsection (g), if any property described in subsection (c) was admitted into evidence in the cause, the property shall be disposed of in accordance with an order of the court trying the cause.(e) A law enforcement agency may destroy or cause to be destroyed chemicals, controlled substances, or chemically contaminated equipment (including drug paraphernalia as described in IC 35-48-4-8.5) associated with the illegal manufacture of drugs or controlled substances without a court order if all the following conditions are met: (1) The law enforcement agency collects and preserves a sufficient quantity of the chemicals, controlled substances, or chemically contaminated equipment to demonstrate that the chemicals, controlled substances, or chemically contaminated equipment was associated with the illegal manufacture of drugs or controlled substances.(2) The law enforcement agency takes photographs of the illegal drug manufacturing site that accurately depict the presence and quantity of chemicals, controlled substances, and chemically contaminated equipment.(3) The law enforcement agency completes a chemical inventory report that describes the type and quantities of chemicals, controlled substances, and chemically contaminated equipment present at the illegal manufacturing site. The photographs and description of the property shall be admissible into evidence in place of the actual physical evidence.
(f) For purposes of preserving the record of any conviction on appeal, a photograph demonstrating the nature of the property, and an adequate description of the property must be obtained before the disposition of the property. In the event of a retrial, the photograph and description of the property shall be admissible into evidence in place of the actual physical evidence. All other rules of law governing the admissibility of evidence shall apply to the photographs.(g) All evidence for a violent offense (as defined in IC 11-12-3.7-6) in the law enforcement agency's possession or control that could be subjected to DNA testing and analysis shall be preserved by the law enforcement agency for the later of the following: (1) Twenty (20) years from the date the defendant's conviction becomes final.(2) The period of the defendant's incarceration. In cases where an investigation did not result in a conviction, the evidence shall be preserved until the expiration of the statute of limitations for the alleged offense. If the preservation of the evidence is impracticable, the law enforcement agency shall remove portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing before returning or disposing of the physical evidence. At subsequent hearings or trials, all records, notes, identification numbers, photographs, and other documentation relating to the preservation of biological evidence shall be admissible into evidence.
(h) The law enforcement agency disposing of property in any manner provided in subsection (b), (c), (e), or (g), shall maintain certified records of any disposition under subsection (b), (c), (e), or (g). Disposition by destruction of property shall be witnessed by two (2) persons who shall also attest to the destruction.(i) This section does not affect the procedure for the disposition of firearms seized by a law enforcement agency.(j) A law enforcement agency that disposes of property by auction under this section shall permanently stamp or otherwise permanently identify the property as property sold by the law enforcement agency.(k) Upon motion of the prosecuting attorney, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted by the United States Department of Justice.(l) The law enforcement agency responsible for disposing of property under subsection (g), shall do the following: (1) Maintain a record of the preserved evidence.(2) Schedule a disposal date for the preserved evidence.(3) Provide notice to the last known address of the defendant and the defendant's attorney: (A) when the preserved evidence is removed from its secure location; or(B) of the date the preserved evidence has been marked for disposal. The defendant or the defendant's attorney must provide the most current address of the defendant or the defendant's attorney to the law enforcement agency responsible for disposing of property in order to effectively receive proper notice. If the law enforcement agency responsible for disposing of property does not have the defendant's or the defendant's attorney's most current address on file, then the notice requirement is deemed waived.
(m) Failure of a law enforcement agency to follow the procedures described in this section may constitute contempt of court. However, failure to follow the procedures described in this section shall not be grounds for reversal of a conviction unless the defendant proves a violation of the defendant's due process rights.(n) Nothing in subsection (g) shall preclude a law enforcement agency from submitting biological evidence to forensic DNA testing or analysis, at its own initiative or at the request of a prosecuting attorney, if such testing will not consume the remainder of the evidence. If such testing would consume the remainder of the evidence, the prosecuting attorney may seek a court order allowing such testing under IC 35-38-7-17.Amended by P.L. 89-2022,SEC. 4, eff. 7/1/2022.As added by Acts1981 , P.L. 298, SEC.2. Amended by P.L. 320-1983, SEC.6; P.L. 294-1989, SEC.1; P.L. 174-1999, SEC.2; P.L. 17-2001, SEC.11; P.L. 187-2005, SEC.2; P.L. 1-2006, SEC.527; P.L. 151-2006, SEC.14; P.L. 1-2007, SEC.225.