§ 113-137. Search on arrest; seizure and confiscation of property; disposition of confiscated property. - North Carolina Statutes

§ 113‑137.  Searchon arrest; seizure and confiscation of property; disposition of confiscatedproperty.

(a)        Every inspector or protector who arrests a person for anoffense as to which he has enforcement jurisdiction is authorized to search theperson arrested and the surrounding area for weapons and for fruits,instrumentalities, and evidence of any crime for which the person arrested isor might have been arrested.

(b)        Every inspector or protector who issues a citation insteadof arresting a person, in cases in which the inspector or protector isauthorized to arrest, may seize all lawfully discovered evidence, fruits, andinstrumentalities of any crime as to which he has arrest jurisdiction andprobable cause.  When live fish are returned to public fishing bottoms orpublic waters, the inspector or protector shall state on the citation thequantity returned.

(c)        Every inspector or protector who in the lawful pursuit ofhis duties has probable cause for believing he has discovered a violation ofthe law over which he has jurisdiction may seize in connection therewith anyfish, wildlife, weapons, equipment, vessels, or other evidence, fruits, orinstrumentalities of the crime, notwithstanding the absence of any person inthe immediate area subject to arrest or the failure or inability of theinspector or protector to capture or otherwise take custody of the personguilty of the violation in question.  Where the owner of such propertysatisfies the Secretary or the Executive Director, as the case may be, of hisownership and that he had no knowledge or culpability in regard to the offenseinvolving the use of his property, such property must be returned to theowner.  If after due diligence on the part of employees of the Department orthe Wildlife Resources Commission, as the case may be, the identity orwhereabouts of the violator or of the owner of the property seized cannot bedetermined, such property may be sold by the Department or the WildlifeResources Commission in accordance with the provisions of this section.

(d)        The Marine Fisheries Commission and the Wildlife ResourcesCommission may provide by rule for summary disposition of live or perishablefish or wildlife seized by an inspector or protector.  If the property seizedconsists of live fish which may again be placed to the benefit of the public onpublic fishing bottoms or in public waters, the inspector or protector mayrequire the person in possession of the seized live fish to transport it thedistance necessary to effect placement on appropriate bottoms or waters.  Inthe event of refusal by the person in question to transport the fish, theinspector or protector must take appropriate steps to effect thetransportation.  The steps may include seizure of any conveyance or vessel ofthe person refusing to transport the fish if the conveyance or vessel was oneon which the fish were located or was used to take or transport the fish.  Whena conveyance or vessel is seized, it is to be safeguarded by the inspector orprotector seizing it pending trial and it becomes subject to the orders of thecourt.  Transportation costs borne by the Department or by the WildlifeResources Commission, as the case may be, may be collected by the agency fromthe proceeds of the sale of any other property of the defendant seized and soldin accordance with the provisions of this section.

Except as provided in subsection (g), when the seizure consists ofedible fish or wildlife which is not alive, may not live, or may not otherwisebenefit conservation objectives if again placed on open lands, on publicfishing bottoms, or in public fishing waters, the inspector or protector mustdispose of the property in a charitable or noncommercial manner in accordancewith the directions of his administrative superiors.

(e)        Except as otherwise specifically provided in this section,all property seized must be safeguarded pending trial by the inspector orprotector initiating the prosecution.  Upon a conviction the property seized inconnection with the offense in question is subject to the disposition orderedby the court.  Upon an acquittal, property seized must be returned to thedefendant or established owner, except:

(1)        Where the property was summarily disposed of in accordancewith subsection (d);

(2)        Where possession of the property by the person to whom itotherwise would be returned would constitute a crime; and

(3)        Where the property seized has been sold in accordance withsubsection (g).  In this event the net proceeds of the sale must be returned tothe defendant or established owner, as the case may be.

Where property seized summarily under subsection (d) is not availablefor return, an acquitted defendant or established owner is entitled to nocompensation where there was probable cause for the action taken.  Within 20days of the final court adjudication of a citation, the Department or theWildlife Resources Commission shall notify any acquitted defendant orestablished owner of its duly established procedures whereby reimbursement maybe sought for live fish seized summarily under subsection (d) that is notavailable for return.  Any action or proceeding to recover compensation must bebegun within 30 days after receipt of the notice of applicable procedures. After the expiration of this period of limitation, no right or action or claimfor compensation shall be asserted.

In safeguarding property seized pending trial, an inspector orprotector is authorized in his discretion, subject to orders of hisadministrative superiors, to make his own provisions for storage or safekeepingor to deposit the property with the sheriff of the county in which the trial isto be held for custody pending trial.  In the event the mode of safekeepingreasonably selected by the inspector or protector entails a storage or handlingcharge, such charge is to be paid as follows:

(1)        By the defendant if he is convicted but the courtnevertheless orders the return of the property to the defendant;

(2)        From the proceeds of the sale of the property if theproperty is sold under court order or in accordance with the provisions of thissection; or

(3)        By the Department or by the Wildlife Resources Commission,as the case may be, if no other provision for payment exists.

(f)         Subject to orders of his administrative superiors, aninspector or protector in his discretion may leave property which he isauthorized to seize in the possession of the defendant with the understandingthat such property will be subject to the orders of the court upon dispositionof the case.  Willful failure or inexcusable neglect of the defendant to keepsuch property subject to the orders of the court is a Class 1 misdemeanor.  Inexercising his discretion, the inspector or protector should not permitproperty to be retained by the defendant if there is any substantial risk ofits being used by the defendant in further unlawful activity.

(g)        Where a prosecution involving seized saleable fish ispending and such fish are perishable or seasonal, the inspector or protectormay apply to the court in which the trial is pending for an order permittingsale prior to trial.  As used in this subsection, seasonal fish are those whichcommand a higher price at one season than at another so that economic loss mayoccur if there is a delay in the time of sale.  When ordered by the court, suchsale prior to trial must be conducted in accordance with the order of the courtor in accordance with the provisions of this section.  The net proceeds of suchsale are to be deposited with the court and are subject to the same dispositionas would have been applicable to other types of property seized.  Where sale isnot lawful for public health reasons or otherwise not practicable or whereprosecution is not pending, disposal of the fish is in accordance withsubsection (d).

(h)        Pending trial, the defendant or the established owner of anynonperishable and nonconsumable property seized may apply to the courtdesignated to try the offense for return of the property.  The property must bereturned pending trial if:

(1)        The court is satisfied that return of the property will notfacilitate further violations of the law; and

(2)        The claimant posts a bond for return of the property attrial in an amount double the value of the property as assessed by the court.

(i)         Upon conviction of any defendant for a violation of thelaws or rules administered by the Department or the Wildlife ResourcesCommission under the authority of this Subchapter, the court in its discretionmay order the confiscation of all weapons, equipment, vessels, conveyances,fish, wildlife, and other evidence, fruits, and instrumentalities of theoffense in question, whether or not seized or made subject to the orders of thecourt pending trial.  If the confiscated property is lawfully saleable, it mustbe sold; otherwise it must be disposed of in a manner authorized in thissection.  Unless otherwise specified in the order of the court, sales are to beheld by the Department or the Wildlife Resources Commission, as the case maybe.

The Department and the Wildlife Resources Commission may administrativelyprovide for an orderly public sale procedure of property which it may sellunder this section.  The procedure may include turning the property to be soldover to some other agency for sale, provided that the provisions of subsection(j) are complied with and there is proper accounting for the net proceeds ofthe sale.  In the case of property that cannot lawfully be sold or is unlikelyto sell for a sufficient amount to offset the costs of sale, the Department andthe Wildlife Resources Commission may provide either for destruction of theproperty or legitimate utilization of the property by some public agency.

(j)         Except as provided in subsection (d), if property is seizedunder subsection (c) or it appears that a person not a defendant has aninterest in any property to be sold, destroyed, or otherwise disposed of, theDepartment and the Wildlife Resources Commission must provide for public noticeof the description of the property and the circumstances of its seizure for asufficient period prior to the time set for sale or other disposition to allowinnocent owners or lienholders to assert their claims.  The validity of claimsare to be determined by the trial court in the event there is or has been aprosecution in connection with the seizure of the property.  If there has beenno prosecution and none is pending, the validity of claims must be determinedby the Secretary or by the Executive Director, as the case may be.  When therehas been a sale under subsection (g), the provisions of this subsection applyto the net proceeds of the sale.

(k)        Except as provided in subsection (j) and in subdivision (3)of the first paragraph of subsection (e), the net proceeds of all sales madepursuant to this section must be deposited in the school fund of the county inwhich the property was seized. (1915, c. 84, s. 6; 1917, c. 290, s. 2; C.S., s. 1885; 1935, c. 118;1953, c. 1134; 1957, c. 1423, s. 2; 1961, c. 1189, s. 4; 1965, c. 957, s. 2;1973, c. 1262, ss. 18, 28; 1979, c. 830, s. 1; 1983 (Reg. Sess., 1984), c. 1083,ss. 1‑3; 1987, c. 827, s. 98; 1993, c. 539, s. 837; 1994, Ex. Sess., c.24, s. 14(c).)