CHAPTER 23A-37

DISPOSITION OF SEIZED PROPERTY

23A-37-1    Property subject to chapter.

23A-37-2    Safekeeping of seized property.

23A-37-3    Transfer to another court of property required as evidence.

23A-37-4    Application for return of property to person with right to possession.

23A-37-5    Time of hearing on claim for return of seized property.

23A-37-6    Notice of hearing on disposition of seized property.

23A-37-7    Money restored to owner--Gambling money paid into county treasury.

23A-37-8    Conditions for release of seized property to owner.

23A-37-9    Destruction of contraband and illegal property--Sale of articles capable of lawful use--Controlled weapons or firearms.

23A-37-10    Sale or transfer of unclaimed property.

23A-37-11    Controlled substances exempt from chapter.

23A-37-12    Chapter supplemental--Disposition as directed by court.

23A-37-13    Controlled weapons and firearms disposal.

23A-37-13.1    Money from sale to be deposited in law enforcement officers training fund.

23A-37-14    Photographing and return of property of victim seized as evidence--Admissibility of photographs.

23A-37-15    Notice to defendant of return--Motion not to release.

23A-37-1. Property subject to chapter.

For the purposes of this chapter, "seized property" means all property seized with or without a warrant by any law enforcement officer.

Source: SL 1978, ch 178, § 462.

23A-37-2. Safekeeping of seized property.

Seized property shall be safely kept and may not be taken from its custodian as long as it is required as evidence in any trial without an order of such court.

Source: SL 1978, ch 178, § 463.

23A-37-3. Transfer to another court of property required as evidence.

Where seized property is no longer required as evidence the court may transfer such property to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court.

Source: SL 1978, ch 178, § 464.

23A-37-4. Application for return of property to person with right to possession.

Any person claiming the right to possession of such property may make application for its return in the office of the clerk of courts for the county in which it is being held.

An application for the return of real property may be made within thirty days of the seizure of such real property. Absent good cause shown that the real property contains exculpatory evidence of the defendant's innocence which is incapable of being preserved by other means, or that the prosecuting attorney makes a showing that the continued seizure of the real property is necessary to the prosecution of the case, the court may order the law enforcement personnel in possession of the property to release it to the owner.

Source: SL 1978, ch 178, § 465; SL 2020, ch 103, § 1.

23A-37-5. Time of hearing on claim for return of seized property.

All claims for the return of seized property shall be set for a hearing which shall be held not less than five nor more than thirty days after the filing of the first claim.

Source: SL 1978, ch 178, § 467.

23A-37-6. Notice of hearing on disposition of seized property.

The clerk of courts shall issue a notice of a hearing containing a reasonable description of the property and the time, place, and cause of its seizure. Such notice shall be reasonably calculated to apprise the affected person of the pendency of the hearing.

Source: SL 1978, ch 178, § 466.

23A-37-7. Money restored to owner--Gambling money paid into county treasury.

Money shall be restored to the owner unless it was used in unlawful gambling or lotteries in which case it shall be paid into the county treasury pursuant to § 16-2-28.

Source: SL 1978, ch 178, § 469; SL 1982, ch 170, §§ 1 and 3.

23A-37-8. Conditions for release of seized property to owner.

The court shall release all property to its rightful owner, if:

(1)    The owner is not prohibited by law from possessing such property;

(2)    The property is not needed as evidence in any judicial proceeding;

(3)    Satisfactory arrangements have been made to return such property to the court if subsequently needed as evidence.

Upon completion of the proceeding, the circuit court or magistrate judge shall make arrangements for the return or disposition of all property used as evidence.

Source: CCrimP 1877, §§ 539 to 541; CL 1887, §§ 7590 to 7592; RCCrimP 1903, §§ 571 to 573; RC 1919, §§ 4648 to 4650; SDC 1939 & Supp 1960, § 34.0603; SDCL § 23-16-3; SL 1978, ch 178, § 468; SL 1983, ch 189; SL 2014, ch 117, § 1.

23A-37-9. Destruction of contraband and illegal property--Sale of articles capable of lawful use--Controlled weapons or firearms.

Articles of contraband or property of an illegal nature shall be destroyed, except that any articles which are capable of lawful use may in the discretion of the court be sold and the proceeds disposed of as provided in § 23A-37-10. However, the provisions of § 23A-37-13 apply to any controlled weapon or firearm.

Source: SL 1978, ch 178, § 469; SL 1979, ch 159, § 25A; SL 1985, ch 188, § 5; SL 1999, ch 128, § 1.

23A-37-10. Sale or transfer of unclaimed property.

If there is no claimant or if the right to possession of seized property cannot be determined after a reasonable period of time, the law enforcement agency collecting such property, through an order of the court, may:

(1)    Transfer ownership of the property to any governmental agency having a legitimate need for such property; or

(2)    Sell the property and deliver the proceeds of the sale to the appropriate finance officer of the city, county, or state employing such law enforcement agency.

Source: SDC 1939 & Supp 1960, § 34.0604; SDCL, § 23-16-4; SL 1978, ch 178, § 470; SL 1982, ch 170, §§ 1 and 3; SL 2000, ch 113, § 1.

23A-37-11. Controlled substances exempt from chapter.

Chapter 34-20B is specifically exempted from this chapter.

Source: SL 1978, ch 178, § 471.

23A-37-12. Chapter supplemental--Disposition as directed by court.

The provisions of this chapter shall not be exclusive, but shall be supplemental to other laws on the subject. Unless otherwise provided by law, all other property shall be disposed of in such manner as the court shall direct.

Source: SL 1978, ch 178, § 471.

23A-37-13. Controlled weapons and firearms disposal.

Any controlled weapon or firearm used in violation of chapter 22-14 shall be disposed of as follows:

(1)    If it is stolen, it shall be returned to the lawful owner upon proof of ownership;

(2)    If it is illegal, it shall be destroyed pursuant to law; or

(3)    If it is neither stolen nor illegal, it shall be delivered to the arresting agency or, at the direction of the attorney general, to the South Dakota Forensic Laboratory for scientific examination purposes, for lawful use or disposal.

In the case of a disposition pursuant to subdivision (3), the arresting agency or forensic laboratory may use, trade-in, destroy, or sell, as provided in chapter 5-24A or § 6-13-6, the controlled weapon or firearm.

Source: SL 1983, ch 188, § 2; SL 1998, ch 151, § 1; SL 1999, ch 128, § 2; SL 2006, ch 137, § 1; SL 2011, ch 2, § 131.

23A-37-13.1. Money from sale to be deposited in law enforcement officers training fund.

Any moneys derived by the South Dakota Forensic Laboratory from the sale of weapons or firearms pursuant to § 23A-37-13 shall be deposited in the law enforcement officers training fund.

Source: SL 2006, ch 137, § 2.

23A-37-14. Photographing and return of property of victim seized as evidence--Admissibility of photographs.

Any property, which is not contraband, seized or confiscated by law enforcement personnel, ostensibly for use as evidence in a criminal prosecution, shall be preserved, maintained, or stored at the expense of the county where the criminal offense occurred. If the property is not contraband and is owned by a victim of the crime being investigated, the property shall be photographed by the appropriate law enforcement personnel and returned to the victim of the crime within thirty days of completion of forensic analysis unless the prosecuting attorney deems it essential to the prosecution of the case to retain the evidence. The photographs shall accurately and correctly represent the property and are admissible evidence pursuant to article X of chapter 19-19 in any resulting criminal proceeding.

Source: SL 1985, ch 198, § 1.

23A-37-15. Notice to defendant of return--Motion not to release.

Before any property is returned to the owner pursuant to § 23A-37-14, the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant's innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.

Source: SL 1985, ch 198, § 2.