At Dixon & Moseley, P.C., we have sometimes been asked by clients and other attorneys about firearms seized by police that are not forfeited as apart of a criminal proceeding. We have frequently shared the position we believe strikes the right balance between public safety and a citizen’s property.
This distillation culls out a difference between owning the property (the firearms) and possessing them. This seems to flow from the controlling criminal statute generally addressing property seized by police officers in the course of search and seizure.
Under Indiana criminal statute, “following the final disposition of the cause at trial level or any other final disposition . . . [p]roperty which may be lawfully possessed shall be returned to its rightful owner.” Ind.Code § 35-33-5-5. This is straight forward, but not when the person from whom it was seized from may no longer possess the firearms or may not at that time.
Dixon & Moseley, P.C. attorneys advocate filing a motion to release the firearms to a third party, typically a FFL upon proof of lawful transfer to that license holder. Most courts have agreed with this provision. Namely, a person’s ownership is not extinguished by legal bar to possession.
In a new published decision of the Indiana Court of Appeals issued on August 4, 2011, the Court of Appeals validated this position and expanded it somewhat. Specifically, Terrence Williams was charged with carrying a handgun without a license (to carry), and the police seized his gun for evidence.
Subsequently, the State dismissed this charge, and Mr. Williams asked that the handgun be released to his counsel. This motion to return the gun was accompanied by Mr. Williams notarized document indicating he transferred the ownership of the firearm to his counsel. Nevertheless, the trial court denied the petition to return the handgun.
On appeal, the Court of Appeals reversed. It noted that this request to return the firearm, standing alone, is clearly erroneous and cannot be sustained on any legal theory supported by the evidence. Moreover, the Court of Appeals noted the constitutional dimension, namely statutes that related to search and seizure must be strictly construed “in favor of the constitutional right of the people.”
Thus, in the absence of evidence of forfeiture, a “dangerous person”, or some other showing, the firearms may be transferred by the owner to a person who may lawfully possess them. In other words, the controlling statutory provision does not permit return of the firearms to only the person who owned the property at the moment the case was disposed.
With the right preparation, an owner of firearms confiscated who may no longer possess them, may lawfully transfer such to a third party, in accordance with any law enforcement requirements, and thereby obtain their value. This may be carefully considered and coordinated between the property room and court. Where firearms of value have been seized, this should be considered.
