AN ACT to amend the Indiana Code concerning criminal law and procedure.
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 such
time as it is convenient, 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 35-47-13-1) shall be retained,
returned, or disposed of in accordance with IC 35-47-13.
(d) 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 or controlled substances 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 or controlled substances to
demonstrate that the chemicals or controlled substances were
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 and controlled substances.
(3) The law enforcement agency completes a chemical inventory
report that describes the type and quantities of chemicals and
controlled substances 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 it. 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) The law enforcement agency disposing of property in any
manner provided in subsection (b), (c), or (e) shall maintain certified
records of any such disposition. Disposition by destruction of property
shall be witnessed by two (2) persons who shall also attest to the
destruction.
(h) This section does not affect the procedure for the disposition of
firearms seized by a law enforcement agency.
(i) 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.
(j) 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.
employment.
(b) The law enforcement agency which accepts an application for a
handgun license shall collect a ten dollar ($10) application fee, five
dollars ($5) of which shall be refunded if the license is not issued.
Except as provided in subsection (h), the fee shall be:
(1) deposited into the law enforcement agency's firearms training
fund or other appropriate training activities fund; and
(2) used by the agency for the purpose of:
(A) training law enforcement officers in the proper use of
firearms or other law enforcement duties; or
(B) purchasing for the law enforcement officers employed by
the law enforcement agency firearms, or firearm related
equipment, or both.
The state board of accounts shall establish rules for the proper
accounting and expenditure of funds collected under this subsection.
(c) The officer to whom the application is made shall ascertain the
applicant's name, full address, length of residence in the community,
whether the applicant's residence is located within the limits of any city
or town, the applicant's occupation, place of business or employment,
criminal record, if any, and convictions (minor traffic offenses
excepted), age, race, sex, nationality, date of birth, citizenship, height,
weight, build, color of hair, color of eyes, scars and marks, whether the
applicant has previously held an Indiana license to carry a handgun
and, if so, the serial number of the license and year issued, whether the
applicant's license has ever been suspended or revoked, and if so, the
year and reason for the suspension or revocation, and the applicant's
reason for desiring a license. The officer to whom the application is
made shall conduct an investigation into the applicant's official records
and verify thereby the applicant's character and reputation, and shall in
addition verify for accuracy the information contained in the
application, and shall forward this information together with
the
officer's
recommendation for approval or disapproval and one (1) set
of legible and classifiable fingerprints of the applicant to the
superintendent.
(d) The superintendent may make whatever further investigation the
superintendent deems necessary. Whenever disapproval is
recommended, the officer to whom the application is made shall
provide the superintendent and the applicant with the officer's complete
and specific reasons, in writing, for the recommendation of
disapproval.
(e) If it appears to the superintendent that the applicant:
(1) has a proper reason for carrying a handgun;
rise to a reasonable belief that the person has a propensity
for violent or emotionally unstable conduct.
The fact that a person has been released from a mental health
facility or has a mental illness that is currently controlled by
medication does not establish that the person is dangerous.
Sec. 2. A circuit or superior court may issue a warrant to search
for and seize a firearm in possession of a person who is dangerous
if:
(1) a law enforcement officer provides the court a sworn
affidavit:
(A) stating why the law enforcement officer believes the
person is dangerous and in possession of a firearm; and
(B) describing the law enforcement officer's interactions
and conversations with:
(i) the person who is alleged to be dangerous; or
(ii) another individual, if the law enforcement officer
believes that information obtained from this individual
is credible and reliable;
that have led the law enforcement officer to believe the
person is dangerous and in possession of a firearm;
(2) the affidavit specifically describes the location of the
firearm; and
(3) the circuit or superior court determines that probable
cause exists to believe that the person is:
(A) dangerous; and
(B) in possession of a firearm.
Sec. 3. (a) If a law enforcement officer seizes a firearm from a
person whom the law enforcement officer believes to be dangerous
without obtaining a warrant, the law enforcement officer shall
submit to the circuit or superior court having jurisdiction over the
person believed to be dangerous a written statement under oath or
affirmation describing the basis for the law enforcement officer's
belief that the person is dangerous.
(b) The court shall review the written statement described in
subsection (a). If the court finds that probable cause exists to
believe that the person is dangerous, the court shall order the law
enforcement agency having custody of the firearm to retain the
firearm. If the court finds that there is no probable cause to believe
that the person is dangerous, the court shall order the law
enforcement agency having custody of the firearm to return the
firearm to the person.
(c) This section does not authorize a law enforcement officer to
perform a warrantless search or seizure if a warrant would
otherwise be required.
Sec. 4. (a) Unless a court orders the return of the firearm under
section 3(b) of this chapter, the law enforcement agency that seized
the firearm shall retain custody of the firearm.
(b) If a court issued a warrant to seize a firearm under this
chapter, the law enforcement officer who served the warrant shall,
not later than forty-eight (48) hours after the warrant was served,
file a return with the court, stating:
(1) that the warrant was served;
(2) the time and date on which the warrant was served;
(3) the name and address of the person named in the warrant;
and
(4) the quantity and identity of any firearms seized by the law
enforcement officer.
Sec. 5. (a) Not later than fourteen (14) days after a return is filed
under section 4 of this chapter, or a written statement is filed under
section 3 of this chapter, the court shall conduct a hearing to
determine whether the seized firearm should be:
(1) returned to the person from whom the firearm was seized;
or
(2) retained by the law enforcement agency having custody of
the firearm.
(b) The court shall set the hearing date as soon as possible after
the return is filed under section 4 of this chapter. The court shall
inform the:
(1) prosecuting attorney; and
(2) person from whom the firearm was seized;
of the date, time, and location of the hearing. The court may
conduct the hearing at a facility or other suitable place not likely
to have a harmful effect upon the person's health or well-being.
Sec. 6. (a) At a hearing conducted under section 5 of this
chapter, the state has the burden of proving all material facts by
clear and convincing evidence.
(b) If the court determines that the state has proved by clear
and convincing evidence that the person is dangerous, the court
may order that the law enforcement agency having custody of the
seized firearm retain the firearm. In addition, if the person has
received a license to carry a handgun, the court shall suspend the
person's license to carry a handgun. If the court determines that
the state has failed to prove that the person is dangerous, the court
shall order the law enforcement agency having custody of the
firearm to return it to the person from whom it was seized.
(c) If a court orders a law enforcement agency to retain a
firearm, the law enforcement agency shall retain the firearm until
the court orders the firearm returned or otherwise disposed of.
Sec. 7. If the court determines that:
(1) a person is dangerous; and
(2) a firearm seized from the person is owned by another
person;
the court may order the law enforcement agency having custody of
the firearm to return the firearm to the owner.
Sec. 8. (a) At least one hundred eighty (180) days after the date
a court orders a law enforcement agency to retain an individual's
firearm under section 6 of this chapter, the individual may petition
the court for return of the firearm.
(b) Upon receipt of the petition described in subsection (a), the
court shall:
(1) enter an order setting a hearing date; and
(2) inform the prosecuting attorney of the date, time, and
location of the hearing.
(c) The prosecuting attorney represents the state at the hearing.
(d) In a hearing under this section, the individual:
(1) may be represented by an attorney; and
(2) must prove by a preponderance of the evidence that the
individual is not dangerous.
(e) If upon the completion of the hearing and consideration of
the record the court finds that the individual is not dangerous, the
court shall order the law enforcement agency having custody of the
firearm to return the firearm to the individual.
(f) If the court denies an individual's petition under this section,
the individual may not file a subsequent petition until at least one
hundred eighty (180) days after the date on which the court denied
the petition.
Sec. 9. If at least five (5) years have passed since the court
conducted the first hearing to retain a firearm under this chapter,
after giving notice to the parties and conducting a hearing, the
court may order the law enforcement agency having custody of the
firearm to destroy or otherwise permanently dispose of the
firearm.