GA Code § 17-5-54 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 5 - Searches and Seizures|Article 3 - Disposition of Property Seized|§ 17-5-54. Definitions; Disposition of Personal Property in Custody of Law Enforcement Agency

  As used in this Code section, the term:   "Civil forfeiture proceeding" shall have the same meaning as set forth in Code Section 9-16-2.   "Firearm" means any handgun, rifle, shotgun, or similar device or weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.   "Law enforcement agency" means a law enforcement agency of this state or a political subdivision of this state, including the Department of Natural Resources.   "Rightful owner" means a person claiming ownership of property which is the subject of a crime or has been abandoned.     This Code section shall not apply to:   Personal property which is the subject of any civil forfeiture proceeding;   Any property which is the subject of a disposition pursuant to Code Sections 17-5-50 through 17-5-53; and   Any abandoned motor vehicle for which the provisions of Chapter 11 of Title 40 are applicable.       Except as provided in Chapter 16 of Title 9, Code Sections 17-5-55 and 17-5-56, and subsection (b) of this Code section, when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned, a disposition of such property shall be made in accordance with the provisions of this Code section.   When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such personal property shall be returned to the rightful owner within 30 days of the conclusion of the appeal or new trial, whichever occurs last.   Any person claiming to be a rightful owner of property shall make an application to the entity holding his or her property and shall furnish satisfactory proof of ownership of such property and present personal identification. The person in charge of such property may return such property to the applicant. The person to whom property is delivered shall sign, under penalty of false swearing, a declaration of ownership, which shall be retained by the person in charge of the property. Such declaration, absent any other proof of ownership, shall be deemed satisfactory proof of ownership for the purposes of this Code section; provided, however, that with respect to motor vehicles, paragraph (3) of subsection (b) and subsection (f) of this Code section shall govern the return of motor vehicles.   If more than one person claims ownership of property, a court with jurisdiction over the property shall conduct a hearing to determine the ownership of such property.     After a period of 90 days following the final verdict and judgment, when personal property that is in the custody of a law enforcement agency was used as evidence in a criminal trial or was abandoned, it shall be subject to disposition as provided in subsection (e) of this Code section if the property is not a firearm and as provided in subsection (g) of this Code section if the property is a firearm if it is:   No longer needed in a criminal investigation or for evidentiary purposes in accordance with Code Section 17-5-55 or 17-5-56;   Not claimed pursuant to Code Section 17-5-50; and   Not claimed pursuant to subsection (c) of this Code section.     For any unclaimed personal property that is not a firearm, the sheriff, chief of police, or other executive officer of a law enforcement agency shall make application to the superior court for an order to retain, sell, or discard such property. In the application the officer shall state each item of personal property to be retained, sold, or discarded. Upon the superior court's granting an order for the law enforcement agency to retain such property, the law enforcement agency shall retain such property for official use. Upon the superior court's granting an order which authorizes that the property be discarded, the law enforcement agency shall dispose of the property as other salvage or nonserviceable equipment. Upon the superior court's granting an order for the sale of personal property, the officer shall provide for a notice to be placed once a week for four weeks in the legal organ of the county specifically describing each item and advising possible owners of items of the method of contacting the law enforcement agency; provided, however, that miscellaneous items having an estimated fair market value of $75.00 or less may be advertised or sold, or both, in lots. Such notice shall also stipulate a date, time, and place said items will be placed for public sale if not claimed. Such notice shall also stipulate whether said items or groups of items are to be sold in blocks, by lot numbers, by entire list of items, or separately. Such unclaimed personal property shall be sold at a sale which shall be conducted not less than seven nor more than 15 days after the final advertised notice has been run. The sale shall be to the highest bidder. If such personal property has not been bid on in two successive sales, the law enforcement agency may retain the property for official use or the property will be considered as salvage and disposed of as other county or municipal salvage or nonserviceable equipment. With respect to unclaimed perishable personal property or animals or other wildlife, an officer may make application to the superior court for an order authorizing the disposition of such property prior to the expiration of 90 days.   With respect to a motor vehicle which is the subject of a crime or has been abandoned but which is not the subject of any civil forfeiture proceeding, the law enforcement agency shall be required to contact the Georgia Crime Information Center to determine if such motor vehicle has been stolen and to follow generally the procedures of Code Section 40-11-2 to ascertain the registered owner of such vehicle.     With respect to unclaimed firearms, if the sheriff, chief of police, agency director, or designee of such official certifies that a firearm is unsafe because of wear, damage, age, or modification or because any federal or state law prohibits the sale or distribution of such firearm, at the discretion of such official, it shall be transferred to the Division of Forensic Sciences of the Georgia Bureau of Investigation, a municipal or county law enforcement forensic laboratory for training or experimental purposes, or be destroyed.   Otherwise, an unclaimed firearm:   Possessed by a municipal corporation shall be disposed of as provided for in Code Section 36-37-6; provided, however, that municipal corporations shall not have the right to reject any bids or to cancel any proposed sale of such firearms, and all sales shall be to persons who are licensed as firearms collectors, dealers, importers, or manufacturers under the provisions of 18 U.S.C. Section 921, et seq., and who are authorized to receive such firearms under the terms of such license; or   Possessed by the state or a political subdivision other than a municipal corporation, shall be disposed of by sale at public auction to persons who are licensed as firearms collectors, dealers, importers, or manufacturers under the provisions of 18 U.S.C. Section 921, et seq., and who are authorized to receive such firearms under the terms of such license. Auctions required by this subparagraph may occur online on a rolling basis or at live events, but in no event shall such auctions occur less frequently than once every 12 months during any time in which the political subdivision or state custodial agency has an inventory of five or more saleable firearms.     If no bids from eligible recipients are received within six months from when bidding opened on a firearm offered for sale pursuant to paragraph (2) of this subsection, the firearm shall be transferred to the Division of Forensic Sciences of the Georgia Bureau of Investigation, a municipal or county law enforcement forensic laboratory for training or experimental purposes, or be destroyed.     Records shall be maintained showing the manner in which each personal property item came into possession of the law enforcement agency, a description of the property, all efforts to locate the owner, any case or docket number, the date of publication of any newspaper notices, and the date on which the property was retained by the law enforcement agency, sold, or discarded. All agencies subject to the provisions of this Code section shall keep records of the firearms acquired and disposed of as provided by this Code section as well as records of the proceeds of the sales thereof and the disbursement of such proceeds in accordance with records retention schedules adopted in accordance with Article 5 of Chapter 18 of Title 50, the "Georgia Records Act."   The proceeds from the sale of personal property by the sheriff or other county law enforcement agency pursuant to this Code section shall be paid into the general fund of the county treasury. The proceeds from the sale of personal property by a municipal law enforcement agency pursuant to this Code section shall be paid into the general fund of the municipal treasury. The proceeds from the sale of personal property by a state agency pursuant to this Code section shall be paid into the general fund of the state.   Neither the state nor any political subdivision of the state nor any of its officers, agents, or employees shall be liable to any person, including the purchaser of a firearm, for personal injuries or damage to property arising from the sale of a firearm under subsection (g) of this Code section unless the state or political subdivision acted with gross negligence or willful or wanton misconduct.     (Code 1981, §17-5-54, enacted by Ga. L. 1991, p. 944, § 1; Ga. L. 1995, p. 909, § 1; Ga. L. 2004, p. 575, § 1; Ga. L. 2012, p. 1285, § 5/SB 350; Ga. L. 2015, p. 693, § 3-17/HB 233.)   Editor's notes.   - Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."   Law reviews.   - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).   JUDICIAL DECISIONS   Property subject to forfeiture proceeding.    - Term "personal property" as used in O.C.G.A. § 17-5-54 is broad enough to include cash. Boone v. Sheriff of Lowndes County, 232 Ga. App. 601, 502 S.E.2d 535 (1998).    When the claimant asserted a right to property which was the subject of a forfeiture proceeding under O.C.G.A. § 16-13-49, the state's filing of a dismissal did not terminate the proceeding, and the sheriff was not authorized to apply for an order disposing of the property pursuant to O.C.G.A. § 17-5-54. Boone v. Sheriff of Lowndes County, 232 Ga. App. 601, 502 S.E.2d 535 (1998).   Motion for return of seized materials.    - In a civil rights action by the plaintiff, an owner of a bookstore, involving the seizure of allegedly obscene materials, the plaintiff's motion under O.C.G.A. § 17-5-54 for return of the materials did not constitute a pending state proceeding for purposes of abstention under Younger v. Harris, 401 U.S. 37 (1972); the criminal action against the plaintiff was complete, constitutionally, and, the plaintiff had no burden to press for a hearing, and, even if the motion was a pending action, abstention was not available because the plaintiff's constitutional concerns would not be addressed in the proceeding; thus, return of the seized materials was required. Lee v. City of Rome, 866 F. Supp. 545 (N.D. Ga. 1994).   Fuel equipment used in theft of fuel was not contraband and not otherwise subject to forfeiture.    - Because fuel equipment attached to the defendant's truck, and which had been used in the defendant's crime of theft of diesel fuel, did not constitute contraband per se, and there was no statutory authority supporting retention by the sheriff of the equipment after the defendant was discharged under O.C.G.A. § 42-8-62(a); thus, the equipment was ordered returned to the defendant pursuant to O.C.G.A. § 17-5-54. Norman v. Yeager, 335 Ga. App. 470, 781 S.E.2d 580 (2016).   Inconsistent claims of ownership.    - Inconsistent claims of ownership are resolved against the defendant when the issue is disposition of personal property in accordance with O.C.G.A. § 17-5-54. Baez v. State, 231 Ga. App. 375, 500 S.E.2d 339 (1998).   Defendant entitled to personal items.    - If defendant had personal items in the bag marked exhibit 1 at trial, and the items were not contraband or subject to forfeiture, defendant was entitled to return of the items. Baez v. State, 231 Ga. App. 375, 500 S.E.2d 339 (1998).   Destruction of cell phone did not violate due process rights.    - Court of appeals erred in affirming an order dismissing an indictment against the defendant on the ground that the state destroyed the defendant's cell phone in violation of O.C.G.A. § 17-5-54 because the defendant failed to show a violation of due process since there were no circumstances from which it could be concluded that the exculpatory value of the cell phone was obvious or evident to police or any other state actor before the phone was destroyed; the cell phone was initially seized because police believed that the phone was potentially inculpatory for possible use by the state at trial, and since the scenario did not permit the conclusion that it was apparent to police or anyone else involved in the seizure, custody, or disposition of the cell phone that the phone could possibly aid the defendant in the defense of any criminal charges, the evidence was not constitutionally material. State v. Miller, 287 Ga. 748, 699 S.E.2d 316 (2010).   OPINIONS OF THE ATTORNEY GENERAL    Stolen property from a pawn shop may be disposed of pursuant to the provisions of O.C.G.A. § 17-5-54. 1996 Op. Att'y Gen. No. 96-24.