TITLE 17 CRIMINAL PROCEDURE

Section 5. Searches and Seizures, 17-5-1 through 17-5-100.

ARTICLE 3 DISPOSITION OF PROPERTY SEIZED

17-5-50. Property unlawfully obtained; rights of owner; hearing; admissibility of photographs in lieu of original property; representation of unknown or absent defendants; statements made by defendant or agent at trial.

The clerk or person having charge of the property section for any police department, sheriff's office, or other law enforcement agency in this state shall enter in a suitable book a description of every article of property alleged to be stolen, embezzled, or otherwise unlawfully obtained and brought into the office or taken from the person of a prisoner and shall attach a number to each article and make a corresponding entry thereof.
1. Any person claiming ownership of such allegedly stolen, embezzled, or otherwise unlawfully obtained property may make application to the law enforcement agency for the return of such property. Upon such an application being filed, the clerk or person in charge of the property section shall serve upon the person from whom custody of the property was taken a copy of such application. Such person from whom custody of the property was taken shall have a reasonable opportunity to claim ownership of such property and to request a hearing on forms provided by the person in charge of the property section.
2. If the person from whom custody of the property was taken fails to assert a claim to such property, upon any applicant furnishing satisfactory proof of ownership of such property and presentation of proper personal identification, the person in charge of the property section may deliver 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 section. 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, in the case of motor vehicles, trailers, tractors, or motorcycles which are required to be registered with the state revenue commissioner, any such stolen vehicle shall be returned to the person evidencing ownership of such vehicle through a certificate of title, tag receipt, bill of sale, or other such evidence. The stolen vehicle shall be returned to the person evidencing ownership within two days after such person makes application for the return of such vehicle unless a hearing on the ownership of such vehicle is required under this Code section or unless law enforcement needs the stolen vehicle for further criminal investigation purposes. Prior to such delivery, such person in charge of the property section shall make and retain a complete photographic record of such property. Such delivery shall be without prejudice to the state or to the person from whom custody of the property was taken or to any other person who may have a claim against the property.
3. If the person from whom custody of the property was taken asserts a claim to such property and requests a hearing, the court which examines the charge against the person accused of stealing, embezzling, or otherwise unlawfully obtaining the property, or the court before whom the trial is had for stealing, embezzling, or otherwise unlawfully obtaining the property shall conduct the hearing to determine the ownership of such property.
4. The provisions of this subsection shall not apply to any contraband or property subject to forfeiture under any provision of law.
Photographs, video tapes, or other identification or analysis of the property involved, duly identified in writing by the law enforcement officer originally taking custody of the property as accurately representing such property, shall be admissible at trial in lieu of the original property.
In the case of unknown or unapprehended defendants or defendants willfully absent from the jurisdiction, the court shall have discretion to appoint a guardian ad litem to represent the interest of the unknown or absent defendants.
Statements made by the defendant or a person representing the defendant at a hearing provided for in subsection (b) of this Code section shall not be admissible for use against the defendant at trial.

(Orig. Code 1863, § 4637; Code 1868, § 4661; Code 1873, § 4759; Code 1882, § 4759; Penal Code 1895, § 1245; Penal Code 1910, § 1327; Code 1933, § 27-302; Ga. L. 1978, p. 2260, § 1; Ga. L. 1979, p. 761, § 1; Ga. L. 1982, p. 2336, § 1; Ga. L. 1986, p. 158, § 1; Ga. L. 2002, p. 415, § 17; Ga. L. 2005, p. 334, § 7-1/HB 501.)

JUDICIAL DECISIONS

Section not restricted to claims between defendant and alleged owner.

- Although O.C.G.A. § 17-5-50 would normally appear to be a procedure for the consideration of conflicting claims between a defendant in a criminal case and the person from whom property might have been stolen or illegally obtained, the statutory language does not restrict it solely to such use but provides a method by which the state and any civil claimants might resolve the claim between them and the defendant. Thus, there is no reason that when a defendant makes a request for the return of the defendant's property that other claimants might not then be heard through the use of this procedure. Recoba v. State, 167 Ga. App. 447, 306 S.E.2d 713 (1983) (decided prior to 1982 amendment).

One week's prior notice of hearing sufficient.

- Telephonic or personal notice to an interested party at least one week prior to a hearing to be held on the return of funds seized in connection with an arrest for violating the Controlled Substances Act, O.C.G.A. § 16-13-1 et seq., is sufficient as a matter of due process and incurs an obligation in the party to inquire further into the matter. Recoba v. State, 167 Ga. App. 447, 306 S.E.2d 713 (1983) (decided prior to 1982 amendment).

Sovereign immunity.

- State may assert the state's immunity from suit in an action brought pursuant to O.C.G.A. § 17-5-50 to recover a sum which the state has improperly released to another party. State v. Collins, 171 Ga. App. 225, 319 S.E.2d 84 (1984).

Admission into evidence of photographs.

- When the defendant charged with armed robbery asserts error in the admission of photographs allegedly depicting money taken during the robbery and either found on the defendant's person or under the seat in the police car in which the defendant was seated after the defendant's apprehension, the trial court properly permitted the entry of the photographs into evidence, since the provisions of O.C.G.A. § 17-5-50, on their face, do not establish any procedural prerequisites to the admission into evidence of photographs of any stolen, embezzled, or otherwise unlawfully obtained property that is or was in the custody of the police. McCoy v. State, 190 Ga. App. 258, 378 S.E.2d 888 (1989).

Fuel equipment used in theft of fuel was not contraband.

- 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).

Cited in Day v. State, 242 Ga. App. 899, 531 S.E.2d 781 (2000).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, §§ 973, 975, 980, 981, 1001, 1002, 1062 et seq. 68 Am. Jur. 2d, Searches and Seizures, § 189 et seq.

ALR.

- Admissibility of evidence obtained by illegal search and seizure, 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 1145; 52 A.L.R. 477; 88 A.L.R. 348; 134 A.L.R. 819; 150 A.L.R. 566; 50 A.L.R.2d 531.

Presence of liquor in vehicle at the time of search and seizure as condition of forfeiture for violating prohibition law, 71 A.L.R. 911.

Relative rights as between purchaser of chattel from one who had previously bought it with stolen money, and victim of the theft, 62 A.L.R.2d 537.

Admissibility of photographs of stolen property, 94 A.L.R.3d 357.

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