Chapter 19 Evidence Collection PDF

CHAPTER 19 – EVIDENCE COLLECTION, DESTRUCTION AND PROPERTY HANDLING REV. NOVEMBER 30, 2012 19.01 PROPER COLLECTION AND HANDLING OF EVIDENCE All evidence or property seized or recovered must be properly tagged and placed in the BCSO Property Room by the seizing offi...

CHAPTER 19 – EVIDENCE COLLECTION, DESTRUCTION AND PROPERTY HANDLING REV. NOVEMBER 30, 2012 19.01 PROPER COLLECTION AND HANDLING OF EVIDENCE All evidence or property seized or recovered must be properly tagged and placed in the BCSO Property Room by the seizing officer before the end of the officer’s shift or tour-of-duty. 19.02 TAGGING EVIDENCE A. Physical Evidence - Each piece of physical evidence obtained during the investigation of a crime is tagged as soon as possible, entered in the property log, and stored according to the procedures established by the BCSO. Remove Tagging is done with the appropriate forms provided for that purpose. B. Narcotics - Controlled substances or materials suspected of being controlled substances are sealed in the appropriate envelopes. The envelope is tagged with a physical evidence tag, logged, and placed in the Narcotics Drop Box. C. Narcotics Paraphernalia - Any narcotics paraphernalia will be separated from the controlled substances if possible and tagged with a physical evidence tag. The paraphernalia will be placed with other types of physical evidence and not placed in the Narcotics Drop Box. D. Hazardous Evidence - Dangerous materials are not tagged in the manner of ordinary physical evidence. Hazardous evidence is not stored in the Property Room. Arrangement for storage of such evidence is done by the assigned investigator. E. Evidence which requires processing or laboratory examination is tagged as in paragraph "A" of this section. Officers shall then complete a "Lab Submission Form" and route the form to the Evidence Unit. F. Only Evidence Technicians are assigned to process or examine evidence. They may also have this work done outside the BCSO. In either case, they sign for such evidence before removing it from the property room. The investigator notifies the Evidence Tech/Property Officer in writing of the status of the property and evidence recovered every 30 days. G. Evidence personnel only take possession of evidentiary items that require processing. 19.03 DESTRUCTION AND RELEASE OF EVIDENCE A. Destruction of evidence having no intrinsic value (empty cans, paper bags) is done by authorization of the assigned investigator, his supervisor, or according to the Code of Criminal Procedures. In no case does destruction occur before it is determined that the investigation involving the evidence has closed and no further action on the case will occur. B. Destruction, sale or disposal of evidence having intrinsic value (cameras, firearms, etc.) occurs only in compliance with the CCP. Effective date April 30, 2014 205 C. Release of evidence to owners happens after the owner has properly identified the property and with proper authorization by the investigator. Court orders on all recovered property requirements are governed in accordance with Chapter 47 (CCP). The motion to the court is filed by a criminal investigator. D. Property is released at the Property Room and in accordance with Property Procedures. E. Officers and citizens are not permitted beyond the safety door of the Property Room unless authorized by Property Room Personnel. F. It takes the authorization of an Investigator and any required court orders to release property stored in the Property Room. 19.04 FIREARM EVIDENCE A. Any firearm discovered during the investigation of a crime scene is not disturbed until it is properly recorded, photographed or processed, unless the firearm faces destruction, contamination or is a threat to life or property. B. No firearm that is of evidentiary value is unloaded at a crime scene except when failure to unload said weapon constitutes a threatening condition. If necessary to unload any firearm at a crime scene, such unloading is done by the investigator, Supervisor or Evidence Technician. C. When possible, an Evidence Technician processes every firearm of evidentiary value recovered at a crime scene. D. Chain of custody of firearms found at a crime scene is limited to the original officer recovering the firearm, the Criminal Investigator or his Supervisor and the Evidence Technician. 19.05 BLOOD AND OTHER EVIDENCE A. Where possible, blood evidence left by the victim or the suspect at a crime scene shall be recovered by the investigating Officer or Evidence Technician. 1. Do not package blood evidence in a plastic bag. 2. Air-dry blood clothing if possible. 3. Package blood evidence in a paper container or bag. B. Where possible, the Investigating Officer or Evidence Technician recovers body secretion, stains or other material of evidentiary value from the crime scene. 19.06 OFFICERS PROCESSING CRIME SCENE FOR LATENT PRINTS A. BCSO officers investigating minor criminal incidents process the scene when it is possible. B. Officers processing a crime scene of latent prints may use fingerprint kits provided by the BCSO or self-bought. Effective date April 30, 2014 206 C. Preserve latent prints obtained at a crime scene on the cards provided in the fingerprint kits. After proper completion of the card, log and turn it in at the secure box provided for that purpose. 19.07 EVIDENCE TECHNICIAN ASSISTANCE AT CRIME SCENE A. At a major crime scene, an officer who makes a request for an Evidence Technician will remain at the scene, if possible. B. If the requesting officer cannot remain at the scene until the Evidence Technician arrives, the officer will contact the technician and provide the following information. 1. Type of offense. 2. Whether photos are needed, and if so, where and of what. 3. Prints, including areas or objects of particular concern. 4. All other pertinent data that bears on the offense or that the Evidence Technician should know. 19.08 RESPONSIBILITY FOR PROPERTY RECOVERED FROM DECEASED PERSON A. The Medical Examiner has responsibility for personal property and effects recovered from a deceased person. B. Evidence Personnel do not have responsibility of property released at the scene by the Medical Examiner. C. Property released at the scene by the Medical Examiner remains in the custody of the investigating officer who tags it and leaves it in the Property Room in the same manner as any other property or evidence. 19.09 PROPERTY NOT CONSIDERED EVIDENCE A. BCSO becomes responsible for tagging and logging (in accordance with Section 19.02 in this CHAPTER) any property coming into an officer’s possession for safekeeping, or for any other reason. B. The Sheriff's Property Room Personnel becomes responsible for such property, but will not accept custody of any property unless: 1. It is properly tagged and logged; 2. All required information on each item is properly included on the form; 3. Each item is tagged and recorded individually; 4. Small, valuable items, such as jewelry, coins, watches, etc. are, in addition, individually sealed, inventoried and placed in an evidence envelope by the submitting officer. Effective date April 30, 2014 207  5. A copy of the report is attached. C. The same conditions as for evidence apply for destruction, sale or disposal of Property. (Section 19.03 of this Chapter.) 19.10 DISPOSITION OF RECOVERED STOLEN PROPERTY A. Recovery and transportation of stolen property: As a general rule, the officer or investigator who physically recovers the stolen property at the scene assumes the responsibility for transport of recovered property to the Sheriff's Office property room unless: 1. Transport of the property is impossible due to the size or volume of property; or 2. There are significant mitigating circumstances present which require an Evidence Technician to handle the property. B. Processing of recovered property: As a general rule, the officer or investigator recovering the property has the responsibility of processing for latent prints at the scene unless: 1. There are significant mitigating circumstances present which would require an evidence technician to process the property; or 2. Circumstances exist that require the property to be removed from the scene before processing. C. Recovered stolen property is not to be released to its owner at the scene, unless: The recovered property qualifies under Article 38.34 of the CCP as "shoplifted" property or property stolen from a merchant. In such cases, the property must be photographed prior to releasing at the scene. D. Chain of Custody: The recovering officer or investigator has the responsibility for starting the "chain of custody" of the property which is essential for evidentiary purposes. Therefore, the recovering officer or investigator as well as each and every officer involved in handling or recovering the property must: 1. Prepare a report concerning the recovery of the property; 2. Forward copies of the report to the Property Room and the appropriate burglary or theft investigator assigned to the case; and 3. Ensure that the property is properly tagged deposited and entered into the Property Room. E. All Chapter 47 (CCP) filings are routed to and prepared by Criminal Investigators, because: 1. In most cases, the investigators file the case with the D.A. and are therefore in a better position to know whether the property must be retained as evidence; 2. The Property Room is part of the Criminal Investigations Division and therefore, the chain of custody remains within the same division before release to the owner; and Effective date April 30, 2014 208  3. It is much easier to keep track of the status of the property. F. Control of scene: As a general rule, the officer or investigator assigned to a call retains authority for securing and controlling the scene, unless: 1. The assigned officer is a district patrol officer and he is relieved of that responsibility by a patrol supervisor; or 2. The assigned officer, regardless of rank or status, is relieved by a criminal investigator. 19.11 LEGAL REQUIREMENTS REGARDING SEIZED PROPERTY A. Deputies will seize property only if the property falls under one or more of the following categories: 1. Recovered stolen property - Property discovered as stolen or the deputy has probable cause to believe it is stolen. Such property is seized without a warrant under Article 18.16 of the CCP. NOTE: Deputies need more than mere suspicion to seize suspected stolen property. The seizing officer may have to articulate tangible reasons for believing the property is stolen. 2. Abandoned property - Property of some intrinsic value found abandoned or discovered as lost. Such property is seized for safe-keeping until its owner can reclaim it. 3. Altered serial numbers - Property that has obliterated or altered serial numbers or vehicle identification numbers. Such property is treated as stolen property under Section 31.11 of the Penal Code. Article 6687-1 V.A.T.S. requires peace officers to seize vehicles and vehicle parts with obliterated or altered identification numbers. 4. Contraband – Deputies seize contraband on sight. Contraband is illegal property that is illegal for anyone to possess. Contraband can be illegal narcotics, narcotic paraphernalia, prohibited weapons, a criminal instrument as defined in § 16.01 of the Penal Code, counterfeit monies, etc. Contraband may indicate evidence of a crime. 5. Evidence – Deputies seize evidence of a crime based upon probable cause and the belief that the item is connected with the commission of a criminal offense and may provide proof of evidence in a criminal proceeding. Evidence may be anything including a weapon, recovered stolen property, contraband, a criminal instrument as defined in § 16.01 of the Penal Code, fingerprints, footprints, bloodstains, a written statement, etc. 6. Weapons – Deputies seize weapons for a variety of reasons. The weapon may be stolen, contraband such as a prohibited weapon, used in the commission of a specific crime, or because it is being unlawfully carried. All deputies need to thoroughly familiarize themselves with CHAPTER 46 of the Penal Code concerning weapons. Deputies under certain circumstances may seize and temporarily hold weapons for safekeeping to avoid potential injury in volatile situations such as family disturbances in accordance with CHAPTER 26 of the BCSO Policy and Procedure. Effective date April 30, 2014 209  7. Search warrants - Items of property specifically named in a valid search warrant. 8. Civil attachments - Items of property specifically named in a valid court order or writ in a civil or criminal matter. 9. Arrestee's property - Items of personal property belonging to an arrested subject seized and held for safekeeping. See CHAPTER 20 of the BCSO Policy and Procedure concerning Impoundment and Inventory. B. Recovered Stolen Property: 1. Article 47.01 of the CCP requires that all Peace Officers, who come into custody of property alleged to have been stolen, must hold it subject to the order of the property court or magistrate. This means that any property an officer takes into custody, allegedly stolen, is not released to anyone, including its rightful owner or possessor, without a court order authorizing the release. Court orders on all recovered property require procedures as established in accordance with Chapter 47 (CCP). Section 19.10 of this CHAPTER. 2. In most cases this requirement will not present a problem for the street officer because in most situations the stolen recovered property is taken from someone who is not the rightful owner or possessor. However, instances may occur when stolen property is recovered at the scene of the theft and the rightful owner or possessor will make demands for the immediate release of the property. In such cases, the following rules apply: a. If the property is not a vehicle or something which requires towing and impoundment at a storage facility, the on-scene deputy informs the owner that the law requires taking the property into custody and processing it as evidence. If the owner still demands immediate possession of the property, the deputy requests a supervisor or investigator to make the scene to contact the owner. Patrol deputies do not release recovered stolen property without the permission of a patrol supervisor or investigator. b. Article 47.03 of the CCP requires when an officer seizes alleged stolen property, the officer immediately files a schedule of the same, and its value, with the magistrate or court having jurisdiction of the case, certifying that the officer seized the property and the reason therefore. Essentially, this means whenever an officer recovers stolen property the officer prepares an inventory or list of the seized property and files it with a judge. This inventory requirement is usually satisfied when the officer actually arrests a suspect in possession of stolen property because the front page of our BCSO offense reports contains an inventory list and this report is submitted to a judge when the prisoner is magistrated at the jail. However, when no one is taken into custody at the time of seizure, the copy of the offense report containing the inventory is routinely forwarded to the Criminal Investigations Division for assignment to an investigator. In such cases, it the investigator of record who will file a Chapter 47 (CCP) inventory with a judge. c. Article 38.34 of the CCP is the only exception to the general rule of seizing and holding recovered stolen property for a court order. This Article accepts property offered for sale or lease by a person engaged in the business of selling goods or services to buyers. This is typically the "shoplifting" scenario, but it can apply to burglaries of retail stores. Effective date April 30, 2014 210  Article 38.34 allows the officer to release the property at the scene to its owner after first photographing the property. d. The provisions of CHAPTER 18 of the CCP concerning the execution and return of search warrants also contains a procedure of preparing an inventory of all the property seized and filing it with a judge. While Article 47.03 concerns alleged stolen property seized, Article 18.10 concerns all property, whether stolen or, that is seized pursuant to the execution of a search warrant. The inventory of this property is usually attached to the return of warrant. e. Article 47.01 of the CCP governs procedures regarding recovered stolen property. The Investigator assigned to the case has responsibility for carrying out these procedures by filing a motion with a particular court for the return or disposal of the property. C. Disposition of Seized Weapons, Contraband, and Abandoned Property: 1. Article 18.19 of the CCP governs the disposition of seized weapons unless the weapon is classified as a prohibited weapon. Article 18.18 governs procedures for prohibited weapons and Article 47.01A applies for stolen weapons. The assigned Investigator or Evidence Technician has responsibility for disposition of weapons. 2. Usually an Evidence Technician disposes of contraband in accordance with Article 18.18. 3. An Evidence Technician disposes of abandoned property in accordance with Article 18.17. 4. The Investigator or Evidence Technician, disposing of property, coordinates all documentation for filing of motions and acquiring of a court order with BCSO legal counsel. 19.12 CRIMINAL INVESTIGATOR’S GUIDE TO THE DISPOSITION OF RECOVERED STOLEN PROPERTY A. In General: When dealing with recovered or seized property it is important to refer to the appropriate Statue governing its disposition. Below are the applicable Statues. 1. Chapter 47 (CCP) deals with all stolen property seized with or without a warrant. 2. Articles 18.09 - 18.16 of the CCP deals with all items seized pursuant to a search warrant. 3. Article 18.17 of the CCP concerns abandoned or unclaimed property. 4. Article 18.18 of the CCP concerns the disposition of gambling paraphernalia, prohibited weapons, criminal instruments, and contraband. 5. Article 18.181 of the CCP involves the disposition of explosive weapons and chemical dispensing devices. 6. Article 18.19 of the CCP disposes of seized weapons that are not prohibited. 7. Article 38.34 of the CCP concerns shoplifting and thefts from merchants. Effective date April 30, 2014 211  8. Article 6687-1 §49(d) (1-7) concerns the disposition of motor vehicles and vehicle parts with altered or obliterated serial numbers. B. In most cases, Chapter 47 (CCP) and Articles 18.09 - 18.16 apply. Additionally, Auto Theft Investigators will use Article 6687 - 1 §49. Chapter 47 (CCP) and Articles 18.09 - 18.16 basically have the same requirements. NOTE: Deputies need a magistrate or Court Order to dispose of any property. C. As to the issue of taking custody of all alleged stolen property rather than returning it to its legitimate owner at the scene of recovery, Chapter 47 (CCP) is silent. However, the case law on that point is specific. Under the facts and holdings of Jackson v. State, 717 SW 2d 713 (Tex. App.-San Antonio, 1986) and Collins v State, 686 SW 2d 272 (Tex. App. –Houston [17th Dist.], 1985) it is apparent that the officer must take custody of the stolen items and hold them pursuant to Article 47.01. This situation can create a problem with the citizen who demands the return of their property. In those cases, remind the citizen that the recovered property may be needed as evidence and assure the citizen that the BCSO will return the items as soon as possible. The only exception to taking the alleged stolen property into custody is under Article 38.34 which provides for the photographing of stolen property when the property was for sale or lease and was taken from a merchant. D. Disposal of the property and which Magistrate or Court has jurisdiction depends on how the property was seized and whether a criminal action is pending regarding the seized property. Below are some simple rules to follow in these cases: 1. A Magistrate or Judge issuing a warrant can dispose of property not held as evidence when the property was seized pursuant to the execution of a search warrant. Remember, the phrase “seized pursuant to the execution of a search warrant” means all things seized during the search even if it wasn't listed on the warrant. (Articles 18.09-18.13.) 2. A Magistrate or Judge who magistrates the arrested suspect has the authority to dispose of property not held as evidence or seizure that took place without a warrant and did not occur during the execution of a search warrant. (See Article 47.01a and 18.16.) 3. The trial courts disposes of seized property held as evidence in a criminal court. (See Articles 47.02 and 47.04.) 4. Any Magistrate or Judge can dispose of property when no arrest took place pursuant to seizure of property or property not retained as evidence. E. It is rare to retain stolen property as evidence for trial. Usually, disposal of the property can take place prior to any resolution of the criminal case. Also note that in order for a trial Court to have exclusive domain of the property, the property must be evidence or the subject matter of the criminal action. A trial Court may dispose of the property prior to the resolution of the case. (See Article 47.02.) F. The requirement of the schedule or inventory provided for by Articles 47.03, 18.10 and 6687-1 §49 is easily met. Simply put, an inventory or schedule is a list of all of the property seized. When seizing property pursuant to the execution of a search warrant, Article 18.10 requires an inventory of the seized property along with the return of the warrant. This inventory may be listed on the warrant's return or attached on a separate sheet of paper. Furthermore, a copy of the offense report has an inventory list Effective date April 30, 2014 212 provided on it. When an officer magistrates an arrested person before a Magistrate or Judge the officer will turn in a copy of his offense report. As stated earlier, the front page of the pre-printed offense report is an inventory form. This offense report inventory form satisfies the requirements of Articles 18.10, 47.03 and 6687-1 §49. G. Ensure the inventory includes all seized property. Ask the following questions to determine what to do with seized property: 1. Was the property seized with or without a warrant? 2. Was an inventory or schedule of the property filed, if so, with which Magistrate or Court? 3. What is the nature of the seized property? Is it alleged stolen? Is it a weapon or prohibited weapon? Is it auto parts? Is it contraband? Is it to be used as evidence? 4. What is the status of the criminal case? Pending, dismissed, rejected, acquitted or convicted? 5. Can we forfeit, sell or destroy the property? The above questions are important and should be resolved prior to taking any type of action with the property. 19.13. RECOVERED STOLEN VEHICLES Due to the extremely large volume of recovered stolen vehicles and the expense of towing and storage, the following procedures are used in deposing and/or releasing such vehicles: 1. If there is any controversy or dispute as to the rightful ownership or possessor of the vehicle, the investigator is to strictly follow the procedures outlined for the disposition of said stolen property in Chapter 47 (CCP) and Article 6687-1 § 49. Specifically, the vehicle will not be authorized for release without a signed order from a court or magistrate. 2. However, in most cases there will not be any controversy or dispute as to rightful ownership or possession. In such cases, the vehicles may be authorized for release by an Investigator without first receiving a court order. Effective date April 30, 2014 213