I know that retention of biological evidence is governed by specific statutes. However, as for other types of evidence such as documents, etc, how long do you keep this evidence after the initial trial is ended and the defendant sentenced? Until after the direct appeals are exhausted? Forever?

Enquiring minds wish to know.

Janette Ansolabehere

Check Shane Phelps post on the disposal of physical evidence, about ten threads down the list. I think this is an ongoing concern for most of us. Judging by the calls I have taken from police departments and clerks, they also could use some help.

Of course, even when a defendant's direct appeal is final, he can pursue a writ so sometimes (big or difficult cases) it is worth keeping physical evidence until a sentence has been completed. I bet many of us would like to know if anyone has an established policy.

[This message was edited by John Stride on 12-21-04 at .]

[This message was edited by John Stride on 12-21-04 at .]

My question concerns items (other than those mentioned in art. 18.18 or 18.181) which were seized pursuant to a search warrant- but the Defendant ultimately pleaded guilty (non-capital case), so none of them were ever received by a court clerk. Rather, they are in the possession of the seizing agency (presumably in accordance with art. 18.11). Art. 2.21(e) is of no help.

We traditionally handle these items by filing a motion with the District Court (not necessarily the magistrate with whom the warrant return was filed) which states they are no longer needed as potential evidence and that they should be destroyed. This motion is considered ex parte and the defendant is never given notice or the opportunity to reclaim the property. Sometimes the motion even mentions photographs of the crime scene (something which I presume no third party has any property interest in). This stuff rarely appears to have much monetary value. Is this the proper procedure? Is there a governing statute? We don't wait five years to file such motions. I guess it is safe to assume if the destruction is pursuant to a court order everyone is protected? The taking and destruction is also justified as an exercise of the police power so far as art. I, sec. 17 of the Constitution is concerned?

Maybe I'm missing something, but this sounds an awful lot like the type of property disposition contemplated by article 18.17, CCP. In a nutshell, article 18.17 says that any property seized by a peace officer (other than chapter 59 contraband and whiskey, wine or beer) which is not evidence in a pending case, has not been ordered destroyed or returned to the owner and has remained unclaimed for 30 days must be delivered to a person designated by the pertinent municipality (if the seizure was effected by a city officer) or to the county purchasing agent (if the seizure was effected by any other officer). The designated person or purchasing agent then goes throught the statute's notice and disposition procedures. It works somewhat like escheat.

What about "found" dope? Reading 18.18, it doesn't seem to apply and 59 put me to sleep.

Has anyone done summary forfeiture and destruction under 481.153 and 481.159 of the Health and Safety Code? Any forms or pointers?

[This message was edited by John Rolater on 12-28-04 at .]