AS Title 12, Chapter 36: Disposition of Recovered or Seized Property; Preservation of Evidence

Article 1. Property Disposition. Chapter 36. Disposition of Recovered or Seized Property; Preservation of Evidence. Sec. 12.36.010. Property disposition. When property not belonging to a law enforcement agency comes into the custody of the agency, the property shall be disposed of in accordance with this chapter. Sec. 12.36.020. Return of property. (a) A law enforcement agency may (1) not return property in its custody to the owner or the agent of the owner, except as provided in AS 12.36.200 , if (A) the property is in custody in connection with a children's court proceeding, a criminal proceeding, or an official investigation of a crime; or (B) the property in custody is subject to forfeiture under the laws of the (i) state; or (ii) United States, and the United States has commenced forfeiture proceedings against the property or has requested the transfer of the property for the commencement of forfeiture proceedings; and (2) with the approval of the court, transfer the property to another state or federal law enforcement agency for forfeiture proceedings by that agency; the court having jurisdiction shall grant the approval under this paragraph if the property (A) will be retained within the jurisdiction of the court by the agency to which the property is being transferred; or (B) is (i) not needed as evidence; or (ii) needed as evidence, and the property is fungible or the property's evidentiary value can otherwise be preserved without retaining the property within the jurisdiction of the court. (b) In a criminal proceeding or a children's court proceeding involving the wrongful taking or damaging of property where photographs of the property are used as evidence in place of the property, the prosecuting attorney may release the property to the owner upon presentation of satisfactory proof of ownership. (c) If wrongfully taken or damaged property is not photographed and authenticated under AS 12.45.086 and the property is used as evidence in a criminal proceeding or a children's court proceeding, the law enforcement agency in possession of the property shall return it to the owner upon presentation of satisfactory proof of ownership within 60 days after the final disposition of the case. Sec. 12.36.030. Disposal of unclaimed property used as evidence. (a) Unless the property is a firearm, ammunition, or a firearm part subject to AS 18.65.340 , if property that is used as evidence in a criminal proceeding or a children's court proceeding, including wrongfully taken or damaged property, is not claimed by the owner within one year after the final disposition of the case, the law enforcement agency having custody of the property shall dispose of it under (b) of this section. (b) Property referenced in (a) of this section shall be disposed of by a (1) municipal law enforcement agency in the following manner: (A) for that part of the property that is subject to AS 34.45.110 — 34.45.780, in accordance with AS 34.45.110 — 34.45.780; (B) for that part of the property that is not subject to AS 34.45.110 — 34.45.780, by selling the property in the same manner as a sale upon execution; after paying the expenses for the preservation and sale of the property, the law enforcement agency shall dispose of the proceeds of the sale in the same manner as money collected upon a judgment; (2) state law enforcement agency in the following manner: (A) if the property is a firearm or ammunition, in the manner provided in AS 18.65.340 ; (B) if the property is other than a firearm or ammunition, and the property is (i) subject to AS 34.45.110 — 34.45.780, in accordance with AS 34.45.110 — 34.45.780; (ii) not subject to AS 34.45.110 — 34.45.780, by selling the property in the same manner as a sale upon execution; after paying the expenses for the preservation and sale of the property, the law enforcement agency shall dispose of the proceeds of the sale in the same manner as money collected upon a judgment. (c) This section does not apply to property that comes into the custody of a law enforcement agency of a municipality if the municipality has adopted an ordinance providing for the custody and disposition of the property and if the ordinance requires that (1) property held or collected as evidence in a children's court proceeding, a criminal proceeding, or an official investigation of a crime is to be held until at least 30 days after final disposition of the case to which the evidence pertains; and (2) the municipality make reasonable attempts to identify and locate the owner of the property that is unclaimed. Sec. 12.36.040. Disposal of property when owner unknown; exceptions. (a) When the owner of property is unknown and the property comes into the possession of a law enforcement agency as suspected evidence of a crime but is not used in a criminal proceeding or a children's court proceeding, or when the property comes into the possession of a law enforcement agency by other means, the property shall be held for one year. If the property is not claimed within one year of the date it comes into the possession of a law enforcement agency, the property shall be disposed of as provided in AS 12.36.030 (b). (b) This section does not apply to property that comes into the custody of a law enforcement agency of a municipality that has adopted an ordinance providing for the custody and disposition of property that meets the requirements specified in AS 12.36.030 (c). Sec. 12.36.045. When finder of property is considered the owner. (a) When a private individual obtains property of another that is lost, mislaid, or delivered to the individual by mistake, the individual delivers that property to a law enforcement agency, and the true owner of the property remains unknown for a period of one year or does not claim the property within one year, the individual delivering the property shall be considered the owner of the property under this chapter if possession of the property by the individual is otherwise legal. If, after the one-year period, the private individual who delivered the property to the law enforcement agency cannot be found or does not want the property, the property shall be disposed of by the agency as if the owner is unknown. (b) This section does not apply to property that comes into the custody of a law enforcement agency of a municipality that has adopted an ordinance providing for the custody and disposition of property that meets the requirements specified in AS 12.36.030 (c). Sec. 12.36.050. Remission of forfeited property. (a) A claimant seeking remission of the claimant's interest in a weapon ordered forfeited under AS 12.55.015 (a)(9) shall prove to the court by a preponderance of evidence that the claimant (1) has a valid interest in the weapon, acquired in good faith; (2) did not knowingly participate in the commission of the crime in which the weapon was used; and (3) did not know or have reasonable cause to believe that the weapon was used or would be used to commit a crime. (b) Upon a showing that a claimant is entitled to relief under (a) of this section, the court may order that the weapon be released to the claimant. (c) A claim may not be filed under this section more than 120 days after the entry of the last final judgment in the case in which the weapon was ordered forfeited. Sec. 12.36.060. Disposal of forfeited deadly weapons. (a) A deadly weapon, other than a firearm or ammunition, forfeited to the state under AS 12.55.015 (a)(9), unless remitted under AS 12.36.050 , shall be disposed of by the commissioner of public safety under this section. Under this subsection, the commissioner of public safety (1) may declare a weapon surplus and transfer it to the commissioner of administration; (2) may, if the weapon is suitable for law enforcement purposes, training, or identification, retain the weapon for use by the Department of Public Safety or transfer the weapon to the municipal law enforcement agency making the arrest that led to the forfeiture; (3) shall destroy a weapon that is unsafe or unlawful. (b) The commissioner of public safety may adopt regulations necessary to carry out the provisions of this section. (c) A firearm or ammunition forfeited to the state under AS 12.55.015 (a)(9), unless remitted under AS 12.36.050 , shall be disposed of as provided in AS 18.65.340 . Sec. 12.36.070. Return of property by hearing. (a) A crime victim who is the owner of property not belonging to a law enforcement agency that is in the custody of the agency under this chapter may request that the office of victims' rights request that the agency return the property to the crime victim. The request under this subsection shall be filed by the office of victims' rights on behalf of the crime victim after the office has conducted an investigation and has concluded that the crime victim is entitled to the return of the property under the factors listed in (c) of this section. (b) Within 10 days after receipt of a request under (a) of this section and following reasonable notice to the prosecution, defense, and other interested parties, the agency shall request a hearing before the court to determine if the property shall be released to the crime victim. If the property is being held in connection with a criminal case, the hearing shall be before the court with jurisdiction of the criminal case. If no criminal case is pending regarding the property, the hearing shall be before a district or superior court where the property is located. (c) At the hearing, a party that objects to the return of the property shall state the reason on the record. After a hearing, the court may order the return of the property in the custody of a law enforcement agency to the crime victim if (1) the crime victim by a preponderance of the evidence provides satisfactory proof of ownership; and (2) the party that objects to the return of the property fails to prove by a preponderance of the evidence that the property must be retained by the agency for evidentiary purposes under the provisions of this chapter or another law. (d) If the court orders the return of the property to the crime victim, the court may impose reasonable conditions on the return. Those conditions may include an order that the crime victim retain and store the property so that the property is available for future court hearings, requiring photographs of the property to be taken, or any other condition the court considers necessary to maintain the evidentiary integrity of the property. (e) If the agency fails to act on a request under (a) of this section within the deadline set in (b) of this section, the victims' advocate may request a hearing under (b) of this section. If the victims' advocate requests a hearing under this subsection, the role of the victims' advocate in the hearing is limited to advocating for the return of the victim's property. The victims' advocate may not participate in the case as a party or an intervenor unless the court orders otherwise. (f) In this section, “crime victim” has the meaning given to “victim” in AS 12.55.185 . Sec. 12.36.090. Definitions. In AS 12.36.010 — 12.36.090, (1) “final disposition of a case” means the time when all appeals have been exhausted or the time when all appeals that could have been taken has expired; (2) “law enforcement agency” means a public agency that performs as one of its principal functions an activity relating to crime prevention, control, or reduction or relating to the enforcement of the criminal law; “law enforcement agency” does not include a court. Article 2. Preservation of Evidence. Sec. 12.36.200. Preservation of evidence. (a) Notwithstanding AS 12.36.010 — 12.36.090, the Department of Law, the Department of Public Safety, the Alaska Court System, or a municipal law enforcement agency shall preserve (1) all evidence that is obtained in relation to an investigation or prosecution of a crime under AS 11.41.100 — 11.41.130, 11.41.410, or 11.41.434 for the period of time that the crime remains unsolved or 50 years, whichever ends first; (2) biological evidence in an amount and manner that is sufficient to develop a DNA profile from any material contained in or included on the evidence that was obtained in relation to the prosecution of a person convicted of, or adjudicated a delinquent for, a crime under AS 11.41.100 — 11.41.130, a person convicted of a crime after being indicted under AS 11.41.410 or 11.41.434 while the person remains a prisoner in the custody of the Department of Corrections or subject to registration as a sex offender, or a person adjudicated a delinquent for a crime after the filing of a petition alleging a violation of AS 11.41.410 or 11.41.434 while the person remains committed to a juvenile facility or subject to registration as a sex offender. (b) Under (a) of this section, an agency is not required to preserve physical evidence of a crime that is of a size, bulk, quantity, or physical character that renders preservation impracticable. When preservation of evidence of a crime is impracticable, the agency shall, before returning or disposing of the evidence, remove and preserve portions of the material likely to contain relevant evidence related to the crime in a quantity sufficient to permit future DNA testing. In making decisions under this section, an agency shall follow written policies on evidence retention. (c) Upon written request of a person convicted of a crime and a prisoner, adjudicated delinquent for a crime and committed, or subject to registration as a sex offender, an agency shall prepare or provide an inventory of biological evidence that has been preserved under (a)(2) of this section in connection with the person's criminal case. (d) An agency required to preserve biological evidence under (a) of this section may destroy biological evidence before the expiration of the time period in (a)(2) of this section if (1) the agency is not required to maintain the evidence under another provision of state or federal law; (2) the agency sends, by certified mail with proof of delivery, notice of its intent to destroy evidence to (A) each person who remains a prisoner or committed or subject to registration as a sex offender for the crime for which the evidence was preserved under (a)(2) of this section; (B) the attorneys of record, if known, for each person listed in (A) of this paragraph; (C) the Public Defender Agency; (D) the district attorney responsible for prosecuting the crime; and (3) no person who is notified under (2) of this subsection, within 120 days after receiving the notice, (A) files a motion for testing of the evidence; or (B) submits a written request for continued preservation of the evidence. (e) Upon receipt of a request for continued preservation of biological evidence under (d)(3)(B) of this section, an agency may petition the court for permission to destroy the evidence. The court may grant the petition if the court finds that the request is without merit or that the evidence has no significant value for biological material. (f) When an agency is required to produce biological evidence required to be preserved under this section and the agency is unable to locate the evidence, the chief evidence custodian of that agency shall submit an affidavit, executed under penalty of perjury, describing the evidence that could not be located and detailing the efforts taken to locate the evidence. (g) If a court finds that evidence was destroyed in violation of the provisions of this section, the court may order remedies the court determines to be appropriate. (h) A person may not bring a civil action for damages against the state or a political subdivision of the state, their officers, agents, or employees, or a law enforcement agency, its officers, or employees for any unintentional failure to comply with the provisions of this section. (i) In this section, (1) “agency” means the Department of Law, the Department of Public Safety, the Alaska Court System, or a municipal law enforcement agency; (2) “biological evidence” means (A) the contents of a sexual assault forensic examination kit; (B) semen, blood, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable human bodily material collected as part of a criminal investigation; (C) a slide, swab, or test tube containing material described in (B) of this paragraph; and (D) swabs or cuttings from items that contain material described in (B) of this section; (3) “DNA” means deoxyribonucleic acid; (4) “prisoner” has the meaning given in AS 33.30.901 .