BILL ANALYSIS
SB 177
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Date of Hearing: July 19, 2001
Counsel: Lucy Armendariz
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
SB 177 (Haynes) - As Amended: July 5, 2001
As Proposed to Be Amended in Committee
SUMMARY : Requires detailed notice to a property owner for
property seized without a warrant by a law enforcement agency.
Specifically, this bill :
1)Requires the seizing agency to advise the property owner and
the person from whom property was taken without a warrant of:
a) The reason for the seizure including, but not limited
to, descriptions such as pursuant to arrest, pursuant to
statute, evidence, contraband, for safekeeping with
consent, and/or for other reasons;
b) An inventory of the specific property taken;
c) The destination of the property, including contact
information for the property custodian;
d) Procedures for how and when to have the property
returned; and,
e) The right to notify the law enforcement agency of the
property owner's desire to have the property returned and
the option for notifying the law enforcement agency of the
individual's right not to have the seized property
returned.
2)Requires the Department of Justice (DOJ) to promulgate a form
in order to implement the requirements of this section to be
used by all law enforcement agencies by January 1, 2003.
3)Requires that (with the exception of contraband or property
ordered destroyed, confiscated or forfeited by a court) seized
property be returned by the seizing agency within 60 days from
the date the investigation is closed, the date the case is
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concluded by dismissal or acquittal, or the date of the
expiration of the applicable statute of limitations, whichever
is latest in occurrence.
4)Provides that these provisions be liberally construed to
ensure the prompt, efficient, and inexpensive return of
non-contraband property to an individual or entity from whom
property is seized, or its lawful owner.
5)Applies prospectively, not retroactively.
6)Provides that these provisions shall not apply to the
California Department of Corrections (CDC) or the California
Youth Authority (CYA).
EXISTING LAW :
1)Provides that where a law enforcement officer takes property
from a person arrested for a public offense, the officer must
give the defendant a receipt for the property and file a copy
of the receipt with the police department or the court clerk.
(Penal Code Section 1412.)
2)Provides that stolen property may be returned to the owner
"upon application of the owner", providing the owner pays the
cost of preserving the property. (Penal Code Section 1408.)
3)Provides for the return of property held as an exhibit in a
criminal trial upon application made within 15 days of receipt
of notice that the exhibits shall be released. The court
clerk shall dispose of all exhibits 60 days after a final
determination of the case. (Penal Code Section 1417.5.)
4)Provides that where evidence is seized pursuant to a warrant,
the officer must leave a detailed receipt with the person from
whom the property was taken or leave the receipt at the place
of seizure if no person is present. (Penal Code Section
1535.)
5)Provides that the officer must return the warrant to the
issuing court along with a written inventory of the property
taken that was compiled in public or in the presence of the
person from whom the property was taken. The seizing officer
must affirm the truth of the inventory. (Penal Code Section
1537.)
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6)Provides that in circumstances where a law enforcement agency
has seized property pursuant to a warrant or alleged probable
cause, the court can order that a copy of the inventory of the
property seized be given to the person from whom the property
was seized and the applicant for the warrant under which it
was seized. (Penal Code Section 1538.)
7)Provides that where property has been taken in a search or
seizure, a criminal defendant may move for return of the
property or suppression of the property as evidence on the
ground that seizure of the property with or without warrant
was unreasonable or violated constitutional standards. (Penal
Code Section 1538.5.) Evidence may be suppressed only if the
evidence would be suppressed under federal constitutional law.
[California Constitution, Article 28, subdivision (d).]
8)Provides that where property seized was not described in the
warrant allowing search and seizure, or there is no probable
cause to support the warrant, the magistrate must "cause [the
property] to be returned to the person from whom it was
taken." (Penal Code Section 1540.)
9)Provides that where an officer seizes property pursuant to the
drug asset forfeiture laws in the Health and Safety Code, the
officer shall provide the person from whom the property is
seized a receipt pursuant to Penal Code 1412. [Health and
Safety Code Section 11488(b).]
10)Requires that where an officer seizes property under drug
asset forfeiture laws, the officer must provide the owner with
a notice of seizure and information about the right to file a
claim for redemption of seized property. [Health and Safety
Code Sections 11488.4(c) - (j), and 11488.5.]
11)Provides that where a peace officer does not either hold
property for evidence or initiate forfeiture provisions within
15 days of seizure, the property must be released to the
person from whom it was seized, or to the registered owner in
the case of a vehicle, boat or airplane. (Health and Safety
Code Section 11488.2.)
12)Provides that agencies that seize property under the drug
asset forfeiture rules shall have a manual that includes
guidelines for notice to interest holders in property and the
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expeditious release of property. (Health and Safety Code
Section 11469.)
13)Provides that the profits of "criminal profiteering" can be
forfeited to the state. Criminal profiteering is essentially
organized, ongoing criminal activity. The criminal
profiteering law provides procedures for notice to owners and
procedures for making a claim for redemption of the seized
property. (Penal Code Sections 186.2 - 186.8.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill seeks
to establish uniform guidelines and time limitations for the
prompt return of property, seized by law enforcement entities
to its rightful owner."
2)The United States Supreme Court Has Held that Due Process Does
Not Require Law Enforcement to Give Information about
Available Remedies to Owners of Seized Property : In the case
of West Covina v. Perkins (1999) 525 U.S. 234, the Supreme
Court held that due process does not require law enforcement
to give property owners information about the laws providing
for relief when property is seized. "Once the property owner
is informed that his property has been seized, he can turn to
[state statutes and case law] to learn about the remedial
procedures available to him." (Id, at 241.)
3)Related or Similar Property Seizure Procedures Require Notice
of Remedies to Property Owners : Existing law relating to the
seizure of property requires notice to property owners of
remedies available to redeem property. Drug forfeiture laws
require that seizure receipts include forms for claiming
redemption of property and information on how to proceed in
seeking redemption. A Vehicle Code forfeiture notice must
include a form for contesting forfeiture. Criminal
profiteering forfeiture statutes provide that notice of
seizure to property owners must include information about how
one would seek redemption. This bill requires that law
enforcement provide specified information to facilitate the
return of property.
4)Support : The California Attorneys for Criminal Justice
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states, "SB 177 neatly balances two competing interests by
creating a framework for citizens to petition for the return
of their property without interfering with law enforcement
needs. Frequently, when law enforcement seizes property
claimed as evidence or contraband, the owner experiences
needless frustration while seeking its return. By setting
forth uniform guidelines and time limits, SB 177 should
alleviate the frustration felt by thousands of Californian's
each year.
5)Recent Legislation Intending to Increase Protection for Owners
of Seized Property have met With Vetoes : In recent years, the
Legislature has passed bills which would have increased
protections and rights for people who have had their property
seized by law enforcement. The Governor has vetoed the bills,
largely finding them burdensome to law enforcement:
a) In 2000, SB 2106 (Lewis) imposed liability on law
enforcement agencies for damages caused to property in the
possession of a law enforcement officer if that property
was seized for purposes of forfeiture.
b) In 2000, SB 1866 (Vasconcellos) made various changes in
drug asset forfeiture law, including requiring that a law
enforcement agency obtain a court order prior to
transferring seized assets to a federal agency for
forfeiture.
c) In 1999, AB 662 (Wesson) applied civil discovery
procedures to criminal profiteering asset forfeiture
proceedings, allowed a court to stay an asset forfeiture
proceeding in a criminal profiteering case until a criminal
proceeding was completed, and required district attorneys
to locate parties who may hold security and ownership
interests in the property subject to forfeiture.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Opposition
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None relevant to present version of this bill
Analysis Prepared by : Lucy Armendariz / PUB. S. / (916)
319-3744